UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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SELECT  CASES 

ON    THE 

LAW   OF   EVIDENCE 


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SELECT  CASES 


ON   THE 


LAW  OF  EVIDENCE 


COMPILED  AND  EDITED  BY 

JOHN  HENRY  WIGMORE 

PROFESSOR   OF   THE   LAW    OF    EVIDENCE    IN 
NORTHWESTERN    UNIVERSITY    LAW    SCHOOL 


SECOND  EDITION 


b;osto>j 
little,  brown,  and  company 

1913 


Copyright,  1906,  WIS, 
By  John  H.  Wigmoee. 


All  rights  reserved 


^ 


PREFACE 

TO  THE  SECOND   EDITION 

In  this  second  edition  a  number  of  radical  changes  have  been 
made. 

(1)  The  preliminary  statements  of  fact,  as  found  in  the  original 
reports,  have  been  included. 

(2)  The  arguments  of  counsel,  whenever  published  in  the  original 
reports,  have  been  included,  in  salient  extracts. 

(3)  Some  history  of  each  principal  rule,  as  well  as  some  modern 
critical  comment  on  it,  has  been  given  a  place,  by  short  extracts 
printed  in  smaller  type. 

(4)  The  total  number  of  cases  and  extracts  has  been  increased  by 
more  than  one  fifth ;  the  total  number  of  pages  has  been  increased 
by  more  than  one  half. 

(5)  Perhaps  one  half  of  the  former  cases  have  been  replaced  by 
different  cases. 

(6)  The  distribution  of  the  cases,  in  time  and  locality,  has  been 
changed.  About  one  fourth  are  English,  and  three  fourths  are 
American.  Of  the  American  cases,  two  fifths  are  dated  since  1895, 
one  quarter  since  1904,  and  one  tenth  since  1908.  The  attempt 
has  been  to  represent  all  the  masters  of  judicial  opinion-writing,  of 
whom  so  many  have  in  recent  years  arisen  to  give  distinction  to  our 
Supreme  Courts. 

(7)  Statutes  are  represented  in  thirty-eight  passages.  Illustra- 
tive dialogues  from  trials  are  represented  in  fifty-eight  passages. 

(8)  In  the  Appendices  are  placed  two  sets  of  practical  exer- 
cises. Experience  has  shown  that,  after  a  scientific  study  of  the 
individual  rules,  the  student  still  needs  (and  can  profitably  seek  in  a 
law-school  course)  two  sorts  of  practical  exercise.  (1)  He  needs  to 
study  and  discuss  problems  which  range  indefinitely  over  the  whole 
mass  of  the  rules  and  conceal  within  themselves  multiple  possibil- 
ities. Thus  only  can  he  meet  the  rules  under  the  guise  in  which 
they  really  present  themselves  at  a  trial.  (2)  He  needs  to  do  some- 
thing himself,  by  way  of  making  or  opposing  an  offer  of  evidence,  as 


VI  PREFACE 

he  would  be  doing  it  at  an  actual  trial.  Thus  only  can  he  test 
whether  he  has  grasped  the  rule  as  something  to  be  used,  not  merely 
to  be  learned. 

The  use  of  this  volume,  as  planned  by  the  compiler  for  his  own 
classes,  is  to  furnish  materials  for  the  study  and  teaching  of  the  Rules 
of  Evidence  strictly  so  called,  i.e.,  the  rules  of  law  for  Admissibility, 
as  determined  by  the  Court.  This  is  the  orthodox  subject  of  the 
traditional  law-school  course  in  Evidence. 

But  there  is  another  and  equally  important  part  of  the  advocate's 
task  of  proving  a  case  of  facts,  viz.,  the  process  of  reasoning  upon 
the  evidence  to  persuade  the  jury,  —  the  process  of  Proof.  The 
weight  of  the  evidence  —  each  separate  piece  of  it,  groups  of  such 
pieces,  and  the  whole  mass  — -  must  be  analyzed  and  reasoned  upon, 
so  as  to  make  the  jury  believe  or  disbelieve  the  facts  alleged  and 
disputed.  This  is  something  quite  different  from  the  artificial 
rules  of  Admissibility,  as  applied  by  the  Judge.  It  is,  in  truth, 
the  culminating  process  of  the  whole  trial.  It  involves  the  main 
art  of  reasoning  to  the  truth  about  human  affairs  in  litigation. 

Yet  it  has  never  been  systematically  studied  in  law  schools.  It 
ought  to  be.  There  is  plenty  of  science  in  it;  and  there  are  abun- 
dant materials  for  study.  It  involves  logic,  psychology,  and  the 
general  science  of  human  nature.  To  ignore  this  great  part  of  the 
advocate's  work  is  unnatural.  Should  we  not  do  something  to 
cultivate  this  part  of  the  field? 

A  collection  of  materials,  texts,  illustrations,  and  problems,  has 
been  made  for  this  purpose  in  a  separate  volume,  entitled  "The 
Principles  of  Judicial  Proof,  as  contained  in  Logic,  Psychology,  and 
General  Experience,  and  illustrated  in  Judicial  Trials." 

That  volume,  it  is  believed,  can  best  be  used  first,  before  the 
present  one,  —  in  either  a  separate  or  an  introductory  course.  Its 
materials  are  the  natural  ones  for  a  student  to  begin  on.  They  rep- 
resent what  the  layman  always  conceives  as  the  chief  thing  in  a 
trial,  viz.,  the  reasoning  to  the  jury  on  the  persuasive  effect  of  the 
admitted  evidence.  They  serve  to  train  the  student  to  analyze  and 
correct  his  loose  lay  notions  of  proof,  to  dissect  the  logic  of  circum- 
stances, to  estimate  the  credit  of  witnesses,  and  to  weigh  the  total 
effect  of  a  mass  of  mixed  evidence.  Moreover,  by  first  working 
upon  that  volume,  and  thus  becoming  acquainted  with  the  various 
sorts  of  evidence,  he  gains  this  additional  advantage,  viz.,  that 
when  he  then  proceeds  to  study  the  artificial  rules  of  Admissibility, 
the  materials  to  which  those  rules  apply  are  already  familiar  to  him. 


PREFACE  VU 

He  is  thus  spared  that  oppressive  sense  of  strangeness  and  futihty 
which  usually  attends  him  in  his  first  (and  even  later)  wrestlings  with 
those  rules;  and  he  can  make  rapid  progress  with  them.  Thus, 
as  a  help  to  the  more  efficient  study  of  the  rules  of  Admissibility, 
the  prior  study  of  the  Principles  of  Judicial  Proof  is  much  to  be 
desired. 

That  volume,  and  the  present  one,  are  constructed  independ- 
ently, and  either  can  be  used  without  the  other.  But  the 
Compiler  is  convinced  that  a  future  generation  will  see  the  present 
rules  of  Admissibility  much  simplified  and  their  importance  reduced; 
while  the  field  for  the  systematic  study  of  the  principles  of  Proof 
will  be  recognized  and  its  field  enlarged,  —  as  it  ought  to  be.  In 
that  view,  he  has  tried  to  help  forward  the  arrival  of  the  coming 
science. 

J.  H.  W. 

Northwestern  University  Law  School, 
Chicago,  March  4,  1913. 


CONTENTS 

INTRODUCTION 

PAGE 

1.  History 1 

2.  Definitions 8 

BOOK    I 

RULES    OF  ADMISSIBILITY    OF    EVIDENCE 

PART  I.    RULES   OF  AUXILIARY  PROBATIVE  POLICY 

TITLE  I.    ELIMINATIVE  RULES 

SUB-TITLE  I.    RULES    EXCLUDING   AUTOPTIC    PROFERENCE 
(REAL   EVIDENCE) 

3.  James  Ings'  Trial  (England,  1820) 14 

4.  David  Paul  Brown,  "The  Forum" 15 

5.  State  V.  Moore  (Kansas,  1909) 16 

6.  L.  C.J.  Mansfield,  "Rules  for  Views" 18 

7.  Springer  v.  Chicago  (Illinois,  1891) 19 

SUB-TITLE  IL     RULES  EXCLUDING  CIRCUMSTANTIAL  EVIDENCE 
Topic  I.    Moral  Character  as  Evidence 

Sub-topic  A.    Accused's  Character  as  Evidence  of  an  Act 

9.   Thomas  Brewster's  Trial  (England,  1663) 23 

10.  William  Turner's  Trial  (England,  1817) 23 

11.  Cancemi  v.  People  (New  York,  1858) 24 

12.  State  V.  Surry  (Washington,  1900) 26 

13.  Regina  v.  Rowton  (England,  1865)  .      .      .  • 27 

14.  State  V.  Lapage  (New  Hampshire,  1876) 29 

15.  William  Trickett,  "Character-Evidence  in  Criminal  Cases"       ...  30 

Sub-topic  B.    Character  as  Evidence  of  an  Act  in  Other  Cases 

16.  Ruan  v.  Perry  (New  York,  1805) 31 

17.  Gough  V.  St.  John  (New  York,  1837) 33 

18.  Wright  V.  McKee  (Vermont,  1864) 33 

19.  Tenney  v.  Tuttle  (Massachusetts,  1861) 34 

20.  Fonda  v.  St.  Paul  C.  R.  Co.  (Minnesota,  1898) 35 

21.  Hein  ».  Holdridge  (Minnesota,  1900) 37 

22.  McClure  v.  State  Banking  Co.  (Georgia,  1909) 40 

23.  The  Queen  v.  Ryan  (England,  1846) 41 

24.  Franklin  v.  State  (Alabama,  1856) 42 

25.  Williams  v.  Fambro  (Georgia,  1860) 44 

26.  State  v.  Kennade  (Missouri,  1894) 46 

27.  People  v.  Lamar  (California,  1906) 47 


X  CONTENTS 

PAGE 
Sub-topic  C.    Character  as  an  Issue  in  Civil  Cases 

28.  Buford  v.  M'Luny  (South  Carolina,  1818) 48 

29.  William  Trickett,  "Character-Evidence  in  Civil  Cases"        ....  50 

30.  Cleghorn  v.  N.  Y.  C.  &  H.  R.  R.  Co.  (New  York,  1874)       ....  51 

Topic  2.    Conduct  as  Evidence  of  a  Human  Quality  or  Condition 
Sub-topic  A.    Conduct  as  Evidence  of  Accused's  Moral  Character 

31.  Robert  Hawkins'  Trial  (England,  1669) 52 

32.  John  Campbell,  "Lives  of  the  Chief  Justices  of  England"    ....  53 

33.  Alexander  Davison's  Trial  (England,  1808) 54 

34.  People  v.  White  (New  York,  1835) 54 

35.  People  v.  Stout  (New  York,  1858) 56 

36.  State  v.  Lapage  (New  Hampshire,  1876) 56 

37.  People  v.  Shay  (New  York,  1895) 57 

38.  William  Trickett,  "Character-Evidence  in  Criminal  Cases"       ...  58 

39.  The  Baroness  de  Valley's  Assassination  (France,  1896) 58 

40.  The  Lebaudy  Case  (France,  1896) 60 

41.  Hall  V.  Commonwealth  (Kentucky,  1899) 62 

Sub-topic  B.    Conduct  as  E\aDENCE  of  Accused's  Intent, 
Knowledge,  Motive 

42.  Hathaway's  Trial  (England,  1702) 64 

43.  Vaughan's  Trial  (England,  1696) 65 

44.  Regina  v.  Dossett  (England,  1846) 65 

45.  Bottomley  v.  United  States  (Federal  Supreme  Court,  1840) ....  66 

46.  State  v.  Lapage  (New  Hampshire,  1876) 69 

47.  Commonwealth  v.  Robinson  (Massachusetts,  1888) 74 

48.  People  v.  Marrin  (New  York,  1912) 79 

Sub-topic  C.    Conduct  as  Evidence  of  Character  in  Other  Cases 

49.  Morris  v.  East  Haven  (Connecticut,  1874) 85 

50.  Fonda  v.  St.  Paul  C.  R.  Co.  (Minnesota,  1898) 87 

51.  McQuiggan  v.  Ladd  (Vermoilt,  1906) 87 

52.  State  v.  Greene  (North  Carolina,  1910) 90 

53.  Noyes  v.  Boston  &  M.  R.  Co.  (Massachusetts,  1912) 92 

54.  Clarke  v.  Periam  (England,  1741) 96 

55.  Miller  v.  Curtis  (Massachusetts,  1893)        98 

56.  Cunningham  v.  Austin  &  N.  W.  R.  Co.  (Texas,  1895) 100 

57.  Fonda  v.  St.  Paul,  C.  R.  Co.  (Minnesota,  1898) 103 

58.  Pittsburgh  R.  Co.  v.  Thomas  (U.  S.  1909) 104 

Sub-topic  D.     Conduct  as  Evidence  of  Knowledge,  Intent,  Plan, 
Habit,  etc.,  in  Civil  Cases 

59.  Delphi  v.  Lowery  (Indiana,  1881) 106 

60.  Morrow  v.  St.  Paul  City  R.  Co.  (Minnesota,  1898) 108 

61.  Spenceley  ».  DeWillott  (England,  1806) Ill 

62.  Howe  V.  Thayer  (Massachusetts,  1835) 112 

63.  Aiken  I'.  Kennison  (Vermont,  1886) 114 

64.  Bock  V.  Wall  (Massachusetts,  1911) 116 


CONTENTS  XI 

Topic  3.    Specific  Events  or  Acts  as  Evidence  of  a  Condition  or  Cause,  etc., 

in  External  Inanimate  Nature 

PAGE 

65.  Collins  v.  Dorchester  (Massachusetts,  1850) 117 

66.  Darling  v.  Westmoreland  (New  Hampshu-e,  1872) 118 

67.  Morse  v.  Minneapolis  &  St.  L.  R.  Co.  (Minnesota,  1883)      ....  121 

68.  Matter  of  Thompson  (New  York,  1891) 123 

69.  Bemis  v.  Temple  (Massachusetts,  1894) 126 

70.  Central  Vermont  R.  Co.  v.  Soper  (Federal,  1894) 129 

71.  Fishman  v.  Consumers'  Brewing  Co.  (New  Jersey,  1909)    ....  131 

72.  Alcott  V.  Public  Service  Corp.  (New  Jersey,  1909) 133 

SUB-TITLE  III.     RULES    EXCLUDING    TESTIMONIAL   EVIDENCE 
Topic  I.     Rules  Defining  Qualifications  of  Witnesses 

75.  Simon  Greenleaf,  "Evidence" 137 

76.  Sir  Edward  Coke,  "Commentary  upon  Littleton" 137 

77.  Statutes 137 

Sub-topic  A.    Mental  and  Moral  Incapacity 

78.  Simon  Greenleaf,  "Evidence" 142 

79.  Regina  v.  Hill  (England,  1851) 142 

80.  Worthington  v.  Mercer  (Alabama,  1892) 144 

81.  Statutes 144 

82.  Rex  V.  Brasier  (England,  1779) 144 

83.  Hughes  v.  Detroit  G.  H.  &  M.  R.  Co.  (Michigan,  1887)       ....  145 

84.  Wlieeler  v.  United  States  (Federal,  1895) 145 

85.  Brown  v.  Crashaw  (England,  1614) 145 

86.  Chief  Baron  Gilbert,  "Evidence" 146 

87.  Simon  Greenleaf,  "Evidence" 146 

88.  Sims  V.  Sims  (New  York,  1878) 147 

89.  Statutes 149 

90.  Vance  v.  State  (Arkansas,  1902) 149 

Sub-topic  B.    Emotional  Incapacity 

(1)  Interest  in  Litigation 

91.  Sir  Edward  Coke,  "Commentary  upon  Littleton" 15Q 

92.  Simon  Greenleaf,  "Evidence" 150 

93.  Statutes 151 

94.  Louis'  Adm'r  v.  Easton  (Alabama,  1874)        151 

95.  St.  John  V.  Lofland  (North  Dakota,  1895) 154 

96.  Ross  V.  Demoss  (Illinois,  1867) 157 

97.  Anon.,  "The  Attorney  as  a  Witness" 158 

(2)  Marital  Relationship 

98.  Sir  Edward  Coke,  "Commentary  upon  Littleton" 159 

99.  Chief  Baron  Gilbert,  "  Evidence " 159 

100.  Cornell  v.  Vanartsdalen  (Pennsylvania,  1846) 159 

101.  William  &  Mary  College  v.  Powell  (Virginia,  1855) 161 

102.  Common  Law  Practice  Commissioners'  Report  of  1853       ....  164 

103.  Statutes 165 


Xll  CONTENTS 

PAGE 

Sub-topic  C.    Experiential  Incapacity 

104.  Vander  Donckt  v.  Thellusson  (England,  1849) 166 

105.  Jones  v.  Tucker  (New  Hampshire,  1860) 168 

106.  Evans  v.  People  (Michigan,  1858) 170 

107.  Siebert  v.  People  (Illinois,  1892) .'     .  173 

Sub-topic  D.    Perception  (Observation,  Knowledge) 
(1)  In  General 

108.  John  Ayliffe,  "Parergon" 174 

109.  Bushell's  Case  (England,  1670) 175 

110.  Thomas  Star kie,  "Evidence" 175 

111.  Evans  V.  People  (Michigan,  1863)        175 

112.  Walter  Buslmell's  Trial  (England,  1656) 175 

113.  R,  r.  Dewhiirst  (England,  1820) 176 

114.  Parnell  Commission's  Proceedings  (England,  1888) 176 

115.  State  V.  Flanders  (New  Hampshire,  1859) 177 

116.  Perry  v.  Burton  (Illinois,  1884) 179 

117.  Killen  v.  Lide's  Adm'r.  (Alabama,  1880) 180 

118.  Pittsburgh,  V.  &C.R.  Co.  V.  Vance  (Pennsylvania,  1886).      ...  182 

119.  State  V.  Lytle  (North  Carolina,  1895) 184 

120.  Grayson  v.  Lynch  (Federal,  1895)        185 

(2)  Handwriting 

121.  Lord  Ferrers  v.  Shirley  (England,  1731) 186 

122.  Eagleton  v.  Kingston  (England,  1803) 187 

123.  Rowt's  Adm'x  v.  Kile's  Adm'r  (Virginia,  1829) 188 

124.  State  v.  Allen  (North  Carolina,  1820) 188 

125.  State  v.  Goldstein  (New  Jersey,  1905) 189 

Sub-topic  E.    Memory  (Recollection) 

126.  Scroop's  Trial  (England,  1660) 190 

127.  Knox's  &  Lane's  Trial  (England,  1679) 190 

128.  Sir  J.  Freind's  Trial  (England,  1696) 191 

129.  Duchess  of  Kingston's  Trial  (England,  1776) 191 

130.  Anon.  (England,  1754) 191 

131.  Davis  V.  Field  (Vermont,  1884) 191 

(1)  Present  Recollection  Revived 

132.  Henry  v.  Lee  (England,  1810) 192 

133.  Lawes  v.  Reed  (England,  1835) 192 

134.  Huff  V.  Bennett  (New  York,  1852) 193 

(2)  Past  Recollection  Recorded 

135.  Talbot  v.  Cusack  (Ireland,  1864) 194 

136.  Doe  dem.  Church  &  Phillips  v.  Perkins  (England,  1790)     ....  194 

137.  Burrough  v.  Martin  (England,  1809) 196 

138.  Burton  v.  Plummer  (England,  1834) 196 

139.  Acklen's  Ex'r  v.  Hickman  (Alabama,  1879) 198 


CONTENTS  Xlll 

PAGE 

140.  Norwalk  v.  Ireland  (Connecticut,  1896) 200 

141.  Volusia  County  Bank  v.  Bigelow  (Florida,  1903) 203 

142.  Murray  &  Peppers  v.  Dickens  (Alabama,  1906) 204 

143.  Curtis  v.  Bradley  (Connecticut,  1894) 207 

Sub-topic  F.    Narration 
(1)  Form  of  Narration 

145.  James  Ram,  "Facts" 211 

146.  Nicholls  v.  Dowding  (England,  1815) 212 

147.  Blevins  v.  Pope  (Alabama,  1845) 212 

148.  Heisler  v.  State  (Georgia,  1856) 213 

149.  Travelers'  Ins.  Co.  v.  Sheppard  (Georgia,  1890) 215 

150.  Lott».  King  (Texas,  1891) 216 

151.  Thomas  Hardy's  Trial  (England,  1794)    .........  220 

152.  Statutes 221 

153.  Allen  z).  Rand  (Connecticut,  1824) 222 

154.  People  v.  Moore  (New  York,  1836) 224 

155.  Cowley  v.  People  (New  York,  1881) 226 

156.  De  Forge  v.  N.  Y.  N.  H.  &  H.  R.  Co.  (Massachusetts,  1901)  ...  228 

(2)  Opinion 

160.  History 231 

(a)   The  Opinion  Rule,  in  General 

161.  New  England  Glass  Co.  ».  Lovell  (Massachusetts,  1851)     ....  232 

162.  Commonwealth  v.  Sturtivant  (Massachusetts,  1875) 234 

163.  Hardy  v.  Merrill  (New  Hampshire,  1875) 239 

164.  Fiske  v.  Gowing  (New  Hampshire,  1881) 246 

165.  Marcott  v.  Marquette,  H.  &  O.  R.  Co.  (Michigan,  1882)    ....  247 

166.  Graham  v.  Pennsylvania  Co.  (Pennsylvania,  1890) 249 

167.  Schaefer  &  Co.  y.  Ely  (Connecticut,  1911) 252 

168.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 254 

(b)  Opinion  to  Character 

170.  Layer's  Trial  (England,  1722) 255 

171.  Macclesfield's  Trial  (England,  1725) 255 

172.  Alexander  Davison's  Trial  (England,  1808) 255 

173.  Regina  v.  Rowton  (England,  1865) 256 

174.  John  H.  Wigmore,  "Note  on  R.  v.  Rowton" 259 

175.  Sir  J.  F.  Stephen,  "Note  on  R.  2).  Rowton" 260 

176.  Hamilton  v.  People  (Michigan,  1874) 260 

177.  Wm.  Trickett,  "Character-Evidence  in  Criminal  Cases"    ....  263 

(c)  Opinion  to  Handwriting 

179.  Algernon  Sidney's  Trial  (England,  1683) 264 

180.  Hales'  and  Kinnersley's  Trial  (England,  1729) 264 

181.  History 265 

182.  Doe  dem.  Perry  v.  Newton  (England,  1836) 267 


XIV  CONTENTS 

PAGE 

183.  Doe  dem.  Mudd  v.  Suckermore  (England,  1836) 269 

184.  Morrison  v.  Porter  (Minnesota,  1886) 275 

185.  University  of  Illinois  v.  Spalding  (New  Hampshire,  1900)  ....  277 

186.  Statutes 281 

187.  Hoag  V.  Wright  (New  York,  1903) 282 

(d)  Hypothetical  Questions 

189.  Lord  Melville's  Trial  (England,  1806) 282 

190.  M'Naghten's  Case  (England,  1843) 284 

191.  Dickenson  v.  Fitchburg  (Massachusetts,  1859) 284 

192.  Bellefontaine  &  Ind.  R.  Co.  v.  Bailey  (Ohio,  1860) 285 

193.  People  v.  McElvaine  (New  York,  1890) 286 

194.  People  V.  Faber  (New  York,  1910) 289 

Topic  2.     Rules  Limiting  Impeachment  of  Witnesses 
Sub-topic  A.    General  Character  Traits 

196.  Lord  Chancellor  Macclesfield's  Trial  (England,  1725) 292 

197.  Rex  V.  Watson  (England,  1817) 292 

198.  State  v.  Randolph  (Connecticut,  1856) 293 

199.  Calhoon  v.  Com.  (Kentucky,  1901) 294 

200.  State  v.  Beckner  (Missouri,  1905) 295 

201.  Alleman  v.  Stepp  (Iowa,  1879) 299 

Sub-topic  B.    Specific  Co>rDUCT 

202.  Rookwood's  Trial  (England,  1696) 301 

203.  Layer's  Trial  (England,  1722) 301 

204.  Watson's  Trial  (England,  1817) 302 

205.  People  r.  Jackson  (New  York,  1857) 303 

206.  Lord  Castlemaine's  Trial  (England,  1680) 305 

207.  Statutes 306 

208.  Koch  V.  State  (Wisconsin,  1906) 306 

209.  Oxier  v.  United  States  (Indian  Territory,  1896) 309 

210.  R.  V.  Castro,  alias  Tichborne  (England,  1873) 309 

211.  Buel  V.  State  (Wisconsin,  1899) 310 

212.  People  v.  Crandall  (California,  1899) 312 

213.  States.  Greenburg  (Kansas,  1898) 315 

214.  Sir  J.  F.  Stephen,  "History  of  the  Criminal  Law,"  "  Digest  of  the  Law 

of  Evidence" 317 

Sub-topic  C.    Contradiction  and  Self-Contradiction 

216.  Whitebread's  Trial  (England,  1679) 318 

217.  Earl  of  Castlemaine's  Trial  (England,  1680) 319 

218.  Attorney-General  v.  Hitchcock  (England,  1847) 319 

219.  Chicago  City  R.  Co.  v.  Allen  (Illinois,  1897) 323 

220.  Hoag  V.  Wright  (New  York,  1903) 325 

221.  Lambert  v.  Hamlin  (New  Hampshu-e,  1905) 328 


CONTENTS  XV 

PAGE 

222.  Simms  v.  Forbes  (Mississippi,  1905) 330 

223.  The  Queen's  Case  (England,  1820) 331 

224.  Downer  v.  Dana  (Vermont,  1847) 332 

225.  Unis  v.  Charlton's  Admr.  (Virginia,  1855) 335 

226.  Adams  v.  Herald  Pub.  Co.  (Connecticut,  1909) 336 

Sub-topic  D.    Who  may  be  Impeached 

228.  History 338 

229.  Stephen  Colledge's  Trial  (England,  1681) 338 

230.  Duller,  J.,  "Trials  at  Nisi  Prius" 339 

231.  Ewer  v.  Ambrose  (England,  1825) 339 

232.  Selover  v.  Bryant  (Minnesota,  1893)    .      .      .      .' 341 

233.  Statutes 345 

234.  State  v.  Slack  (Vermont,  1897) 345 

235.  Sturgis  v.  State  (Oklahoma,  1909) .347 

236.  Johnston  v.  Marriage  (Kansas,  1906) 352 

237.  Koester  v.  Rochester  Candy  Works  (New  York,  1909)       ....  353 

238.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 355 

Topic  3.     Rules  Limiting  Corroboration  of  Witnesses 

240.  Bate  v.  Hill  (England,  1823) 356 

241.  Tedens  v.  Schumers  (Illinois,  1884) 357 

242.  Gertz  v.  Fitchburg  R.  Co.  (Massachusetts,  1884) 359 

243.  Knox's  and  Lane's  Trial  (England,  1679) 360 

244.  Chief  Baron  Gilbert,  "Evidence" 361 

245.  Stolp  V.  Blah-  (Illinois,  1873) 361 

246.  State  v.  Parish  (North  Carolina,  1878) 363 

247.  Hewitt  v.  Corey  (Massachusetts,  1890) 365 

Topic  4.    Rules  Excluding  Party's  Admissions  and  Confessions 

Sub-topic  A.    In  General 

250.  Theory 367 

251.  State  v.  Wilhs  (Connecticut,  1898) 367 

252.  Heane  v.  Rogers  (England,  1829) 367 

253.  Corser  v.  Paul  (New  Hampshire,  1860) 370 

254.  Kitchen  v.  Robbins  (Georgia,  1860) 370 

Sub-topic  B.    Third  Person's  Admissions 

255.  The  King  v.  Inhabitants  of  Hardwick  (England,  1809) 372 

256.  Gibblehouse  v.  Stpng  (Pennsylvania,  1832) 375 

257.  Franklin  Bank  v.  Penn.  D.  &  M.  Steam  Nav.  Co.  (Maryland,  1839)  .  380 

258.  Ashmore  v.  Pennsylvania  S.  T.  &  T.  Co.  (New  Jersey,  1875)    ...  382 

259.  Rudd  v.  Robinson  (New  York,  1891) 384 

260.  Starr  Burying  Ground  i\  North  Lane  Cemetery  Ass'n  (Connecticut, 

1904) 384 

261.  State  v.  Walker  (Iowa,  1904) 387 

262.  Piedmont  Savings  Bank  v.  Levy  (North  Carolina,  1905)     ....  391 


XVI  CONTENTS 


Sub-topic  C.    Implied  Admissions 

(a)  Sundry  Conduct  page 

265.  Foxley's  Case  (England,  1607) 391 

266.  Armory  i-.  Delamirie  (England,  1722) 391 

267.  Craig  dem.  Annesley  v.  Anglesea  (England,  1743) 391 

268.  Roe  dem.  Haldane  &  Urry  v.  Harvey  (England,  1769) 394 

269.  Morse  v.  Minneapolis  &  St.  L.  R.  Co.  (Minnesota,  1883)     ....  397 

270.  Brock  i\  State  (Alabama,  1898) 398 

271.  Stevens  ».  Boston  Elevated  Ry.  Co.  (Massachusetts,  1904) .      ...  402 

272.  Rhea  v.  Territory  (Oklahoma,  1909) 405 

(jb)  Assent  by  Silence 

274.  Home  Tooke's  Trial  (England,  1794) 405 

275.  Fairlie  v.  Denton  (England,  1828) 405 

276.  Mattocks  v.  Lyman  (Vermont,  1844)         406 

277.  Commonwealth  v.  Kenney  (Massachusetts,  1847) 408 

278.  Parulo  v.  Phila.  &  Reading  R.  Co.  (Federal,  1906) 410 

279.  Wiedemann  v.  Walpole  (England,  1891) *  ....  413 

280.  Rudd  V.  Robinson  (New  York,  1891) 416 

281.  Chesapeake  &  O.  R.  Co.  v.  Deepwater  R.  Co.  (West  Virginia,  1905)  .  419 

Sub-topic  D.    Admissions  in  Litigation 

282.  Hartford  Bridge  Co.  v.  Granger  (Connecticut,  1822) 419 

283.  Truby  v.  Seybert  (Pennsylvania,  1849) 421 

284.  Dennie  v.  Williams  (Massachusetts,  1883) 424 

285.  Boots  V.  Canine  (Indiana,  1883) 426 

286.  Person  v.  Bowe  (Minnesota,  1900) 430 

Sub-topic  E.    Confessions 

288.  History 431 

289.  Warickshall's  Case  (England,  1783) 434 

290.  Bram  v.  United  States  (Federal  Supreme  Court,  1897) 436 

291.  Commonwealth  v.  Cressinger  (Pennsylvania,  1899) 443 

292.  Commonwealth  v.  Storti  (Massachusetts,  1901) 446 

293.  Ammons  v.  State  (Mississippi,  1902) 447 

294.  State  v.  Finch  (Kansas,  1905) 449 

295.  State  v.  Campbell  (Kansas,  1906) 451 

TITLE  II.    PREFEREXTIAZ,  RULES 

296.  Introductory 453 

297.  James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence"     .  453 

SUB-TITLE  I.     RULE    OF    PREFERENCE    FOR   DOCUMENTARY 
ORIGINALS 

298.  History 455 

299.  Francis  Francia's  Trial  (England,  1717) 456 

300.  John  Tutchin's  Trial  (England,  1704) 456 


CONTENTS  XVU 

PAGE 
Topic  I.     The   Rule  Itself 

302.  Dr.  Leyfield's  Case  (England,  1011) 457 

303.  Read  v.  Brookman  (England,  1789) 458 

304.  The  Queen  v.  Kenilworth  (England,  1S45) 458 

305.  Bagley  v.  McMickle  (California,  1858) 460 

306.  Prussing  v.  Jackson  (Illinois,  1904) 464 

307.  Attorney-General  v.  Le  Merchant  (England,  1772) 467 

308.  Lawrence  v.  Clark  (England,  1845) 468 

309.  Dwyer  v.  Collins  (England,  1852) 468 

310.  United  States  v.  Doebler  (Federal,  1832) 471 

311.  Eure  r.  Pittman  (North  Carolina,  1824) 472 

312.  Bowden  v.  Achor  (Georgia,  1S94) 475 

313.  Shea  t'.  Sewerage  &  W.  Board  (Louisiana,  1909) 476 

314.  Chief  Baron  Gilbert,  "Evidence" 478 

315.  Rex  V.  Gordon  (England,  1781) 478 

316.  Hennell  v.  Lyon  (England,  1817) 479 

317.  Clement  v.  Graham  (Vermont,  1905) 480 

318.  Lynch  v.  Gierke  (England,  1696) 483 

319.  Peay  v.  Picket  (South  Carolina,  1825) 483 

320.  Commonwealth  v.  Emery  (Massachusetts,  1854) 486 

321.  Statutes 487 

322.  Scott  V.  Bassett  (Illinois,  1898) 487 

323.  Carpenter  v.  Dressier  (Arkansas,  1905) 490 

Topic  2.     Limits  to  the  Application  of  the  Rule 

325.  Philipson  v.  Chase  (England,  1809) 492 

326.  Rex  V.  Watson  (England,  1817) 493 

327.  Anheuser-Busch  Brewing  Ass'n.  v.  Hutmacher  (Illinois,  1889) .      .      .  494 

328.  Peaks  v.  Cobb  (Massachusetts,  1906) 496 

329.  International  Harvester  Co.  v.  Elfstrom  (Minnesota,  1907)       .      .      .  497 

330.  Cole  V.  Gibson  (England,  1750) 499 

331.  Lamb  v.  Moberly  (Kentucky,  1826) 500 

332.  Tilton  v.  Beecher  (New  York,  1875) 500 

333.  Massey  v.  Bank  (Illinois,  1885) 501 

334.  Minnesota  Debenture  Co.  v.  Johnson  (Minnesota,  1906)     ....  503 

335.  Slatterie  v.  Pooley  (England,  1840) 505 

336.  Lawless  v.  Queale  (Ireland,  1845) 506 

337.  Minnesota  Debenture  Co.  v.  Johnson  (Minnesota,  1906)     ....  507 

338.  The  Queen's  Case  (England,  1820) 507 

339.  Henry  Brougham,  "Speech  on  the  Courts  of  Common  Law"  .      .      .  508 

340.  Statutes 508 

341.  The  Charles  Morgan  (Federal  Supreme  Court,  1884) 509 

Topic  3.     Rules  Preferring  One  Sort  of  Secondary  Evidence  to  Another  , 

343.  Doe  dem.  Gilbert  v.  Ross  (England,  1840) 511 

344.  Harvey  v.  Thorpe  (Alabama,  1856) 512 

345.  State  v.  Lynde  (Maine,  1885) 513 

346.  State  v.  Knowles  (Maine,  1904) 514 

347.  Statutes 516 


XVlll  CONTENTS 

PAGE 

348.  Chief  Baron  Gilbert,  "Evidence" 516 

349.  Cameron  v.  Peck  (Connecticut,  1871) 516 

SUB-TITLE  II.     RULES   OF  PREFERENCE  AS   BETWEEN  DIFFERENT 
KINDS   OF  WITNESSES 

Topic  I.     Rule  Preferring  the  Attesting  Witness 

351.  History 519 

352.  Statutes 521 

353.  Bootle  v.  Blundell  (England,  1815) 521 

354.  Holmes  v.  Holloman  (Missouri,  1849) 524 

355.  McVicker  v.  Conkle  (Georgia,  1895) 526 

356.  Gillis  v.  Gillis  (Georgia,  1895) 529 

357.  More  v.  More  (Illinois,  1904) 531 

358.  Statutes 534 

Topic  2.     Rules  of  Preference  for  Sundry  Kinds  of  Witnesses 

359.  United  States  v.  Gibert  (Federal,  1834) 534 

360.  Regina  v.  Christopher  (England,  18.50) 536 

361.  Brice  ».  Miller  (South  Carolina,  1891) 539 


TITLE   HI.    ANALYTIC  RULES   (HEARS AT  RULE) 

SUB-TITLE  I.     THE  HEARSAY  RULE  ITSELF 
Topic  I.     Theory  and  History  of  the  Hearsay  Rule 

364.  Introductory 542 

365.  History 547 

Topic  2.     Modes  of  Satisfying  the  Rule  of  Cross-Ezamination 

368.  Cazenove  v.  Vaughan  (England,  1813) 550 

369.  Statutes 552 

370.  Evans  v.  Rothschild  (Kansas,  1895) 555 

371.  Walkerton  v.  Erdman  (Canada,  1894) 557 

372.  Ansonia  v.  Cooper  (Connecticut,  1895) 561 

Topic  3.     Modes  of  Satisfying  the  Rule  of  Confrontation 

373.  Introductory 562 

374.  Statutes 563 

375.  Greenlee  v.  INIosnat  (Iowa,  1907) 564 

376.  Hughes  v.  Chicago,  St.  P.  M.  &  Omaha  R.  Co.  (Wisconsin,  1904)       .  568 

377.  State  v.  HefFernan  (South  Dakota,  1909) .  571 

SUB-TITLE   II.     EXCEPTIONS   TO   THE  HEARSAY  RULE 

380.  Introductory 578 

Topic  I.     Dying  Declarations 

381.  Wright  dem.  Clymer  v.  Littler  (England,  1761) 579 

382.  Stobart  v.  Dryden  (England,  1836) 581 


CONTENTS  XIX 

PAGE 

8S3.   J.  G.  Phillimore,  "History  and  Principles  of  the  Law  of  Evidence"    .  583 

384.  Montgomery  D.  State  (Indiana,  1S81) 584 

Topic  2.     Statements  of  Facts  against  Interest 

385.  Middleton  v.  Melton  (England,  1829) 587 

386.  Smith  v.  Moore  (North  Carolina,  1906) 590 

386a.  Donnelly  v.  United  States  (Federal  Supreme  Court,  1913)    ...  593 

Topic  3.     Statements  about  Family  History 

387.  Vowles  v.  Young  (England,  1806) 596 

388.  Johnson  v.  Lawson  (England,  1824) 598 

389.  Hartman's  Estate  (CaUfornia,  1910) 600 

Topic  4.     Regtilar  Entries 

391.  History 603 

Sub-topic  A.    Party's  Books  of  Account 

392.  Eastman  v.  Moulton  (New  Hampshh-e,  1825) 605 

393.  Statutes 607 

394.  Conklin  v.  Stamler  (New  York,  1857) 608 

395.  House  v.  Beak  (Illinois,  1892) 610 

396.  Lewis  v.  England  (Wyoming,  1905) 613 

Sub-topic  B.    Third  Person's  Entries 

397.  Price  v.  Earl  of  Torrington  (England,  1703) 616 

398.  Kennedy  v.  Doyle  (Massachusetts,  1865) 616 

399.  Delaney  v.  Framingham  Gas  F.  &  P.  Co.  (Massachusetts,  1909)    .      .  618 

400.  Louisville  &  N.  R.  Co.  r.  Daniel  (Kentucky,  1906) 620 

401.  Coolidge  v.  Taylor  (Vermont,  1911) 624 

Topic  5.     Statements  by  Deceased  Persons  in  General 

402.  Sugden  v.  St.  Leonards  (England,  1876) 626 

403.  Statutes 626 

404.  Nagle  v.  Boston  &  N.  S.  R.  Co.  (Massachusetts,  1905) 626 

Topic  6.    Reputation 

407.  Badger  v.  Badger  (New  York,  1882) 627 

408.  Bland  v.  Beasley  (North  Carolina,  1906) 630 

409.  Bucklint).  State  (Ohio,  1851) 633 

410.  Atlantic  &  Birmingham  R.  Co.  v.  Reynolds  (Georgia,  1903)     .      .      .  634 

Topic  7.     Official  Statements 

412.  Introductory 636 

413.  Rex  I).  Aickles  (England,  1785) 637 

414.  Gaines  v.  Relf  (Federal,  1851) 637 

Sub-topic  A.    Registers  and  Records 

415.  Merrick  v.  Wakley  (England,  1838) 637 

416.  Kennedy  v.  Doyle  (Massachusetts,  1865) 639 

417.  Delaney  r.  Framingham  Gas  F.  &  P.  Co.  (Massachusetts,  1909)   .      .  640 


XX  CONTENTS 

PAGE 

418.  History 640 

419.  Statutes 642 

420.  Eady  v.  Shivey  (Georgia,  1870) 642 

421.  Wilcox  I'.  Bergman  (Minnesota,  1905) 644 

422.  Chesapeake  &  Ohio  R.  Co.  v.  Deepwater  R.  Co.  (West  Virginia,  1905)  647 

Sub-topic  B.    Reports  and  Returns 

423.  EUicott  V.  Pearl  (Federal  Supreme  Court,  1836) 648 

424.  U.  S.  Life  Insurance  Co.  v.  Vocke  (IlHnois,  1889) 649 

425.  Jones  r.  Guano  Co.  (Georgia,  1894) 653 

Sub-topic  C.    Certificates 

427.  Omichund  v.  Barker  (England,  1744) 655 

428.  Townsley  v.  Sumrall  (Federal  Supreme  Court,  1829) 655 

429.  Statutes 657 

430.  Kidd's  Admr.  v.  Alexander's  Admr.  (Virginia,  1823) 657 

431.  Statutes 658 

432.  John  H.  Wigmore,  "Treatise  on  Evidence" 658 

433.  Chief  Baron  Gilbert,  "Evidence" 659 

434.  Justice  Buller,  "Trials  at  Nisi  Prius" 660 

435.  Appleton  v.  Braybrook  (England,  1816) 660 

436.  Chiu-ch  V.  Hubbart  (Federal  Suprejne  Court,  1804) 660 

437.  United  States  v.  Percheman  (Federal  Supreme  Court,  1833)     ,      .      .  664 

438.  Ferguson  v.  Clifford  (New  Hampshire,  1858) 666 

439.  Statutes 666 

440.  Chief  Baron  Gilbert,  "Evidence" 668 

441.  Statutes 668 

442.  Willock  v.  Wilson  (Massachusetts,  1901) 669 

Topic  8.     Statements  of  a  Mental  or  Physical  Condition 

445.  Aveson  v.  Kinnaird  (England,  1805) 669 

446.  Bacon  t).  Charlton  (Massachusetts,  1851). 669 

447.  Roosa  v.  Loan  Co.  (Massachusetts,  1882) 670 

448.  Roche  v.  Railroad  Co.  (New  York,  1887) 671 

449.  Williams  v.  Great  Northern  R.  Co.  (Minnesota,  1897) 674 

450.  Doe  dem.  Shallcross  r.  Palmer  (England,  1851) 675 

451.  Commonwealth  ('.  Trefethen  (Massachusetts,  1892) 676 

452.  Waterman  v.  Whitney  (New  York,  1854) 680 

453.  Sugden  v.  St.  Leonards  (England,  1876) 683 

454.  Mooney  ».  Olsen  (Kansas,  1879) 687 

455.  Hobson  v.  Moorman  (Tennessee,  1905) 690 

Topic  9.     Spontaneous  Exclamations 

457.  Thompson  v.  Trevanion  (England,  1693) 694 

458.  United  States  v.  King  (Federal,  1888) 694 

459.  Travelers'  Insurance  Co.  v.  Sheppard  (Georgia,  1890)       ....  694 

460.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Haislup  (Indiana,  1907)    ...  696 

SUB-TITLE   III.     HEARSAY  RULE   NOT  APPLICABLE  (RES    GESTAE) 

462.  Introductory 697 

463.  James  Bradley  Thayer,  "Preliminary  Treatise  on  Evidence"  .      .      .  697 


CONTENTS  XXI 

PAGE 

464.  Cherry  v.  Slade  (North  Carolina,  1823) 697 

465.  Fabrigas  v.  Mostyn  (England,  1773) 698 

466.  Tilton  i\  Beecher  (New  York,  1875) 698 

467.  Parnell  Commission's  Proceedings  (England,  1888) 699 

468.  Webb  c.   Richardson  (Vermont,  1869) 700 

469.  State  r.  Fox  (New  Jersey,  1856) 702 

470.  State  Bank  v.  Hutchinson  (Kansas,  1900) 703 

471.  Piedmont  Savings  Bank  v.  Levy  (North  CaroHna,  1905)     ....  704 

TITLE   ir.    PROPHYLACTIC  RULES 

472.  Introductory 708 

SUB-TITLE   I.     OATH 

473.  History 708 

474.  Joseph  Chitty,  "The  Practice  of  the  Law"          . 709 

475.  Clinton  v.  State  (Ohio,  1877) 709 

476.  Lady  Lisle's  Trial  (England,  1685) 709 

477.  Omichund  v.  Barker  (England,  1744) 711 

478.  Miller  v.  Salomons  (England,  1852) 713 

479.  People  v.  INIatteson  (New  York,  1824) 713 

480.  Braddon's  Trial  (England,  1684) 713 

481.  Charles  Dickens' "Bleak  House" 714 

482.  Hughes  v.  D.  G.  H.  &  M.  R.  Co.  (Michigan,  1887) 714 

483.  Statutes 718 

484.  Hronek  v.  People  (Illinois,  1890) :      ...  719 

SUB-TITLE   II.     SEQUESTRATION   OF  WITNESSES 

486.  The  History  of  Susanna 722 

487.  Kerne's  Trial  (England,  1679) 722 

488.  Golden  v.  State  (Arkansas,  1858) 723 

489.  Louisville  &  Nashville  R.  Co.  v.  York  (Alabama,  1902)       ....  723 

490.  Statutes 723 

491.  Laughlin  v.  State  (Ohio,  1849)        724 

SUB-TITLE   III.     DISCOVERY   BEFORE   TRIAL 

492.  History 726 

Topic  I.     Testimony 
Sub-topic  A.    Criminal  Cases 

493.  Stephen  Colledge's  Trial  (England,  1681) 727 

494.  Sir.  James  Stephen,  "History  of  the  Criminal  Law" 730 

495.  Statutes 730 

496.  State  v.  Myers  (Missoiu-i,  1906) 731 

Sub-topic  B.    Civil  Cases 

497.  Sir  James  Wigram,  "Disco vel-y" 734 

498.  Common  Law  Practice  Commissioners'  Report  (England,  1853)    .      .  734 

499.  Statutes 735 

500.  Ex  parte  Schoepf  (Ohio,  1906) 736 

500o.  Meier  v.  Paulus  (Wisconsin,  1887) 741 


XXll  CONTENTS 

PAGE 
Topic  2.     Documents 

501.  Wm.  Tidd,  "Practice" 741 

502.  Bolton  v.  Liverpool  (f:ngland,  1833) 741 

503.  Henry  Brougham,  "Speech  on  the  Courts  of  Common  Law"  .      .      .  743 

504.  Common  Law  Practice  Commissioners'  Report  (England,  1831)    .      .  744 

505.  Statutes 746 

506.  Swedish-American  Telephone  Co.  v.  Fidelity  &  C.  Co.  (Illinois,  1904)  746 

507.  Reynolds  v.  Burgess  Sulphite  Fibre  Co.  (New  Hampshire,  1902)   .      .  748 

TITLE    r.    SYNTHETIC    RULES 

509.  Introductory 753 

SUB-TITLE   I.     NUMBER   OF   WITNESSES   REQUIRED 

510.  History 753 

511.  Indianapolis  Street  R.  Co.  ?;.  Johnson  (Indiana,  1904) 758 

512.  Summary 759 

SUB-TITLE   II.     KINDS     OF   WITNESSES   REQUIRED 

513.  Introductory 761 

514.  Rex  V.  Simmonds  (England,  1823) 761 

515.  State  v.  Barrett  (Oregon,  1898) 761 

516.  Sir  Matthew  Hale,  "Pleas  of  the  Crown" 763 

517.  Commonwealth  v.  Webster  (Massachusetts,  1850) 763 

518.  Buel  V.  State  (Wisconsin,  1899) 764 

SUB-TITLE   III.     VERBAL   COMPLETENESS 

520.  Algernon  Sidney's  Trial  (England,  1683) 768 

521.  Thomas  Starkie,  "Evidence" 768 

522.  Tilton  v.  Beecher  (New  York,  1875) 768 

523.  Commonwealth  v.  Keyes  (Massachusetts,  1858) 768 

Topic  I.     Compulsory  Completeness 

525.  Summons  v.  State  (Ohio,  1856) 769 

526.  State  v.  Lu  Sing  (Montana,  1906) 772 

527.  Read  v.  Hide  (England,  1613) 774 

528.  Vance  v.  Reardon  (South  Carolina,  1820) 774 

529.  Perry  v.  Burton  (Illinois,  1884) 776 

530.  Tilton  v.  Beecher  (New  York,  1875) 777 

531.  Parnell  Commission's  Proceedings  (England,  1888) 778 

Topic  2.     Optional  Completeness 

532.  The  Queen's  Case  (England,  1820) 779 

533.  Prince  v.  Samo  (England,  1838) 779 

534.  People  v.  Schlessel  (New  York,  1909) 780 

535.  Dewey  v.  Hotclikiss  (New  York,  1864) 780 

536.  Atherton  v.  Defreeze  (Michigan,  1902) 782 

537.  Lombard  v.  Chaplin  (Maine,  1903) 783 

SUB-TITLE  IV.     AUTHENTICATION   OF  DOCUMENTS 

538.  Home  Tooke's  Trial  (England,  1794) 786 

539.  Wilson  v.  Betts  (New  York,  1847) 787 


CONTENTS  XXlll 

PAGE 

540.  Stamper  v.  Griffin  (Georgia,  1856) o      .      .  787 

541.  Siegfried  v.  Levan  (Pennsylvania,  1820) 787 

542.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 787 

Topic  I.     Authentication  by  Age 

544.  Middleton  v.  Mass  (South  CaroHna,  1819) 788 

545.  McGuire  v.  Blount  (United  States,  1905) 790 

Topic  2.     Authentication  by  Contents 

546.  International  Harvester  Co.  v.  Campbell  (Texas,  1906)       ....  791 

547.  Bariiam  v.  Bank  of  Delight  (Arkansas,  1910) 793 

548.  Cobb  V.  Glenn  B.  &  L.  Co.  (West  Virginia,  1905) 793 

549.  Barrett  v.  Magner  (Minnesota,  1908)        796 

Topic  3.     Authentication  by  Official  Custody 

550.  Adamthwaite  v.  Synge  (England,  1S16) 799 

Topic  4.    Authentication  by  Official  Seal 

552.  J.  C.  JeaflFreson,  "A  Book  about  Lawyers" 799 

553.  Chief  Baron  Gilbert,  "Evidence" 801 

554.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 801 

555.  Church  v.  Hubbart  (Federal  Supreme  Court,  1804) 802 

556.  Griswold  v.  Pitcairn  (Connecticut,  1816) 802 

557.  Waldron  v.  Turpin  (Louisiana,  1840) 804 

558.  Statutes 805 

559.  Commonwealth  v.  Phillips  (Massachusetts,  1831) 806 

560.  Statutes 806 

561.  Garden  City  Sand  Co.  v.  Miller  (Illinois,  1895) 806 

562.  Willock  v.  Wilson  (Massachusetts,  1901) 808 

563.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 811 

PART  II.    RULES   OF  EXTRINSIC  POLICY 

565.  Introductory 813 

TITLE    I.    RULES    OF   ABSOLUTE    EXCLUSION 

566.  Stevison  v.  Earnest  (IlHnois,  1875) 813 

567.  Williams  v.  State  (Georgia,  1897) 813 

TITLE    II.    RULES    OF    CONDITIONAL    EXCLUSION    (PRIVILEGE) 

568.  History      .  - 818 

569.  Introductory 822 

SUB-TITLE   I.     VIATORIAL   PRIVILEGE 

570.  Braddon's  Trial  (England,  1684) 823 

571.  West  D.  State  (Wisconsin,  1853) 824 

572.  People  v.  Davis  (New  York,  1836) 826 

573.  Statutes ' 827 

574.  Dixon  v.  People  (Illinois,  1897) 828 

575.  In  re  Shaw  (Federal,  1909) 832 


XXIV  CONTENTS 

PAGE 
SUB-TITLE   II.     PRIVILEGED    TOPICS 

576.  Doe  v.  Date  (England,  1842) 835 

577.  Great  Western  Turnpike  Co.  v.  Loomis  (New  York,  1865)  ....  836 

Topic  I.     F»rivilege  for  Party-Opponent  in  Civil  Cases 

578.  History 837 

579.  Statutes 838 

580.  Reynolds  v.  Burgess  Sulphite  Fibre  Co.  (New  Hampshire,  1902)    .      .  838 

581.  Wanek  v.  Winona  (Minnesota,  1899)         838 

Topic  2.     Privilege  for  Anti-Marital  Facts 

583.  Sir  Edward  Coke,  "Commentary  upon  Littleton" 840 

584.  Lady  Ivy's  Trial  (England,  1684) 840 

585.  Rex  V.  All  Saints  (England,  1817) 841 

586.  State  v.  Briggs  (Rhode  Island,  1869) 843 

587.  Caldwell  v.  Stuart  (South  Carolina,  1832) 844 

588.  State  v.  Woodrow  (West  Virginia,  1905) 844 

589.  Rhea  v.  Territory  (Oklahoma,  1909) 848 

590.  Statutes 852 

591.  Common  Law  Practice  Commissioners'  Report  (England,  1853)       .  852 

Topic  3.     Privilege  for  Self-Criminating  Facts 

593.  History 852 

594.  Statutes 857 

595.  Counselman  v.  Hitchcock  (Federal  Supreme  Court,  1892)    ....  857 

Sub-topic  A.    Scope  of  the  PRmLEGE 

596.  Paxton  v.  Douglas  (England,  1809) 857 

597.  Aaron  Burr's  Trial  (Federal,  1807) 858 

598.  Ward  v.  State  (Missouri,  1829) 859 

599.  State  v.  Flynn  (New  Hampshire,  1858) 861 

600.  United  States  v.  Cross  (District  of  Columbia,  1892) 863 

601.  Downs  V.  Swann  (Maryland,  1909) 864 

602.  Holt  V.  United  States  (Federal  Supreme  Court,  1910) 865 

603.  Ex  parte  Kneedler  (Missouri,  1912) 865 

604.  Hale  v.  Henkel  (Federal  Supreme  Coiu-t,  1906) 868 

605.  John  H.  Wigmore,  "Note  on  Hale  «.  Henkel" 873 

Sub-topic  B.    Claim  of  the  Privilege 

607.  Bembridge's  Trial  (England,  1783) 875 

608.  Mayo  v.  Mayo  (Massachusetts,  1876) ' .      .      ,      .  875 

609.  Cloyes  v.  Thayer  (New  York,  1842) 875 

610.  State  v.  Kent  alias  Pancoast  (North  Dakota,  1896) 876 

611.  Regina  r.  Garbett  (England,  1847) 877 

612.  State  v.  Thaden  (Minnesota,  1890) 879 

613.  People  v.  Tyler  (California,  1869) 881 

614.  Commonwealth  v.  Webster  (Massachusetts,  1850) 88E 

615.  Brock  v.  State  (Alabama,  1898) 888 

616.  Commonwealth  v.  Richmond  (Massachusetts,  1911) 883 

617.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar" 886 


contents  xxv 

Sub-topic  C.    Waiver  of  the  Privilege  page 

618.  East  India  Co.  v.  Atkins  (England,  1719) 887 

619.  Regina  v.  Garbett  (England,  1847) 887 

620.  Fitzpatrick  v.  United  States  (Federal  Supreme  Court,  1899)     ...  887 


Sub-topic  D.    Removal  of  the  Privilege  by  Grant  of  Immunity 

621.  Counselman  i'.  Hitchcock  (Federal  Supreme  Court,  1892) 

622.  Brown  v.  Walker  (Federal  Supreme  Court,  1896)      .      . 

623.  Hale  v.  Henkel  (Federal  Supreme  Court,  1906)        .      . 

624.  State  v.  Murphy  (Wisconsin,  1906) 

625.  Heike  v.  United  States  (Federal  Supreme  Court,  1912) 


889 
892 
896 
896 
902 


Sub-topic  E.    Policy  of  the  Privilege 


627.  Marquis  of  Nayve's  Trial  (France,  1895) 902 

628.  Sir  J.  F.  Stephen,  "History  of  the  Criminal  Law" 906 

629.  Committee  on  Trial  Procedure,  Institute  of  Criminal  Law  and  Crim- 

inology       907 

630.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar" 908 

631.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 909 

SUB-TITLE  III.     PRIVILEGED   RELATIONS 

633.   Introductory        912 

Topic  I.     Attorney  and  Client 

635.  Greenough  v.  Gaskell  (England,  1833) 913 

636.  Anderson  v.  Bank  (England,  1876) 913 

637.  Statutes 913 

638.  Craig  dem.  Annesley  v.  Anglesea  (England,  1743) 914 

639.  Hatton  v.  Robinson  (Massachusetts,  1833) 918 

640.  Barnes  v.  Harris  (Massachusetts,  1851) 920 

641.  Mitchell's  Case  (New  York,  1861) 921 

642.  Skinner  v.  Great  Northern  R.  Co.  (England,  1874)   .      .      .      .      .      .  925 

643.  Ex  parte  Schoepf  (Ohio,  1906) 928 

644.  Sheehan  v.  Allen  (Kansas,  1903) 928 

645.  Champion  v.  McCarthy  (Illinois,  1907) 930 

646.  In  re  Cunnion's  Will  (New  York,  1911) 932 

Topic  2.     Husband  and  Wife 

648.  Introductory 936 

649.  Mercer  v.  State  (Florida,  1898) 9g7 

650.  Sexton  v.  Sexton  (Iowa,  1905) 939 

Topic  3.     Jurors 

652.  Earl  of  Shaftesbury's  Trial  (England,  1681) 944 

653.  Phillips  v.  Marblehead  (Massachusetts,  1889) 945 

654.  State  v.  Campbell  (Kansas,  1906) 945 


XXVI  CONTENTS 

PAGE 
Topic  4.     Official  Secrets 

655.  Thomas  Hardy's  Trial  (England,  1794) 950 

656.  Michael  v.  Matson  (Kansas,  1909) 951 

657.  Aaron  Burr's  Trial  (Federal,  1807) 951 

658.  Mississippi  v.  Johnson  (Federal  Supreme  Court,  1866) 954 

659.  Beatson  v.  Skene  (England,  1860) 955 

660.  Hennessy  v.  Wright  (England,  1888) 956 

Topic  5.     Physician  and  Patient 

662.  Duchess  of  Kingston's  Trial  (England,  1776) 957 

663.  Commissioners  on  Revision  of  the  Statutes  (New  York,  1836)        .      .  957 

664.  Gartside  v.  Connecticut  M.  L.  Ins.  Co.  (Missouri,  1882)      ....  957 

665.  McRae  v.  Erickson  (California,  1905) 960 

BOOK    II 

HOW  AND  WHEN  EVIDENCE  IS  TO  BE  PRESENTED 

(PROCEDURE  OF  ADMISSIBILITY) 

TITLE  I.     THEORY   OF  ADMISSIBILITY 

Topic  I.     Multiple  Admissibility 

667.  People  v.  Doyle  (Michigan,  1870) 963 

668.  Goodhand  v.  Benton  (Maryland,  1834) 963 

669.  Pegg  V.  Warford  (Maryland,  1855) 966 

670.  BaU  V.  United  States  (Federal,  1906) 970 

Topic  2.     Curative  Admissibility 

671.  MowTy  v.  Smith  (Massachusetts,  1864) 971 

672.  Phelps  v.  Hunt  (Connecticut,  1875) 972 

673.  Sisler  v.  Shaffer  (West  Virginia,  1897) 973 

674.  State  v.  Slack  (Vermont,  1897) 973 

Topic  3.     Conditional  Admissibility 

675.  Rogers  v.  Brent  (Illinois,  1849) 973 

676.  Campau  v.  Dewey  (Michigan,  1861) 975 

677.  Parnell  Commission's  Proceedings  (England,  1888) 976 

678.  Ellis  V.  Thayer  (Massachusetts,  1903) 976 

679.  Putnam  v.  Harris  (Massachusetts,  1906) 978 

TITLE  II.  MODE   OF  INTRODUCING  EVIDENCE 

Topic  I.     The  Oflfer 

682.  Goodhand  v.  Benton  (Maryland,  1834) 979 

683.  Farleigh  v.  Kelley  (Montana,  1903) 979 

684.  Indianapolis  &  Martinsville  R.  T.  Co.  v.  Hall  (Indiana,  1905) ...  980 

685.  Marshall  v.  MarshaU  (Kansas,  1905) 981 

Topic  2.     The  Objection 

687.  Cady  v.  Norton  (Massachusetts,  1833) 983 

688.  Marshr.  Hand  (Maryland,  1871) 983 

689.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 984 


CONTENTS  XX\'ll 

PAGE 

690.  Albers  Commission  Co.  v.  Sessel  (Illinois,  1901) 985 

691.  Rush  V.  French  (Arizona,  1874) 987 

692.  Rindskoff  v.  Malone  (Iowa,  1859) 988 

693.  Tooley  v.  Bacon  (New  York,  1877) 990 

694.  Wolverton  v.  Commonwealth  (Pennsylvania,  1821) 991 

695.  Spencer  v.  Potter's  Estate  (Vermont,  1911) 994 

Topic  3.     The  Ruling  , 

697.  Hamblett  v.  Hamblett  (New  Hampshire,  1833) 996 

698.  State  v.  Moran  (Iowa,  1906) 998 

699.  Gulliford  v.  McQuillen  (Kansas,  1907) 999 

700.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 1000 

701.  Norris  v.  Clinkscales  (South  Carolina,  1896) 1000 

702.  De  Camp  v.  Archibald  (Ohio,  1893) 1003 

703.  Ex  parte  Jennings  (Ohio,  1899) 1007 

704.  Ex  parte  Schoepf  (Ohio,  1906) 1008 

705.  Dowagiac  Mfg.  Co.  v.  Lochren  (Federal,  1906) 1008 

Topic  4.     The  Exception 

707.  Wright  v.  Sharp  (England,  1709) 1009 

708.  Hunnicutt  v.  Peyton  (Federal  Supreme  Court,  1880) 1010 

709.  Rush  V.  French  (Arizona,  1874) 1010 

710.  Griffin  v.  Henderson  (Georgia,  1903) 1011 

Topic  5.     New  Trial  for  Erroneous  Ruling 

711.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 1013 

712.  State  v.  Crawford  (Minnesota,  1905) 1014 

TITLE  III.     ORDER   OF  INTRODUCIXG   EVIDEKCE 

Topic  I.     In  General 

714.  Lord  Lovat's  Trial  (England,  1746) 1019 

715.  Hathaway  v.  Hemingway  (Connecticut,  1850) 1019 

716.  Rucker  v.  Eddings  (Missouri,  1841) 1019 

717.  Mueller  v.  Rebhan  (Illinois,  1879)        1020 

718.  Ankersmit  v.  Tuck  (New  York,  1889) 1021 

Topic  2.     Putting  in  One's  Own  Case  on  Cross-Examination 

719.  Moody  v.  Rowell  (Massachusetts,  1835) 1023 

720.  Philadelphia  &  Trenton  R.  Co.  v.  Stimpson  (Federal  Supreme  Court, 

1840) 1024 

721.  Stafford  v.  Fargo  (Illinois,  1864) 1024 

722.  New  York  Iron  Mine  v.  Negaunee  Bank  (Michigan,  1878)       .      .      .  1025 

723.  Rush  V.  French  (Arizona,  1874) 1027 

724.  Ayers  v.  Wabash  R.  Co.  (Missouri,  1905) 1028 

TITLE    ir.    JURISDICTION;    RILES    OF  EVIDENCE    IN 
THE    FEDERAL    COURTS 

727.  Introductory,  John  H.  Wigmore,  "A  Treatise  on  Evidence  "       .      .  1032 

728.  Wilson  v.  New  England  Navig.  Co.  (United  States,  1912)   ....  1033 


XXVUl  CONTENTS 

BOOK    III 

TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED 

(Law  and  Fact;  Judge  and  Jury)  page 

730.  James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence"     .      .  1038 

731.  Bushell's  Trial  (England,  1670) 1038 

732.  Commonwealth  v.  Porter  (Massachusetts,  1846) 1039 

733.  State  v.  Gannon  (Connecticut,  1902) 1044 

734.  Gates'  Trial  (England,  1685) 1045 

735.  State  i'.  Moses  (North  Carolina,  1830) 1046 

736.  James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence"     .      .  1049 

737.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar" 1049 

738.  Bartlett  v.  Smith  (England,  1843) 1050 

739.  Hutchison  v.  Bowker  (England,  1839) 1052 

740.  Hooper  v.  Moore  (North  Carolina,  1857) 1054 

741.  State  v.  Monich  (New  Jersey,  1906) 1056 

742.  Bridges  v.  North  London  R.  Co.  (England,  1874) 1058 

743.  James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence"     .      .  1062 

BOOK    IV 
BY  WHOM   EVIDENCE   IS  TO   BE   PRESENTED 

(Burdens  of  Proof;  Presumptions) 

745.  Introductory 1064 

TITLE  I.    MEASURE   OF  JURY'S  PERSUASION 

746.  Commonwealth  v.  Webster  (Massachusetts,  1850) 1072 

747.  Ellis  V.  Buzzell  (Maine,  1872) 1072 

748.  Buel  v.  State  (Wisconsin,  1899) 1075 

749.  William   Trickett,    "Preponderance   of   Evidence,    and    Reasonable 

Doubt" 1076 

TITLE  II.    PARTY'S  RISK   OF  yOy -PERSUASION  OF  THE  JURY 

751.  Kendall  v.  BrowTison  (New  Hampshire,  1866) 1081 

752.  Lisbon  v.  Lyman  (New  Hampshire,  1870) 1084 

753.  Gulf,  Colo.  &  S.  F.  R.  Co.  v.  Shieder  (Texas,  1895) 1089 

754.  State  v.  Quigley  (Rhode  Island,  1904) 1092 

755.  Ginn  v.  Dolan  (Ohio,  1909) 1095 

TITLE  III.     PARTY'S  DUTY   OF  SATISFYING   THE  JUDGE 

Topic  I.     Sufficiency  of  a  Mass  of  Evidence 

757.  Rex  V.  Almon  (England,  1771) 1099 

758.  Regina  v.  O'Doherty  (Ireland,  1848) 1099 

759.  Gray  v.  Jackson  (New  Hampshire,  1871)         1099 

760.  Bridges  v.  North  London  R.  Co.  (England,  1874) 1104 

761.  Hehir  t).  Rhode  Island  Co.  (Rhode  Island,  1904) 1104 

762.  State  ?;.  Forbes  (New  Hampshire,  1909) 1106 

763.  Joliet,  Aurora  &  N.  R.  Co.  v.  Velie  (llUnois,  1892) 1108 


CONTENTS  XXIX 

PAGE 
Topic  2.     Specific  Presumptions 

765.  CogdeU  tr.  R.  Co.  (North  Carolina,  1903) 1111 

766.  State  t).  Hodge  (New  Hampshire,  1869) 1112 

767.  Ross  ?J.  Cotton  Mills  (North  CaroHna,  1905) 1116 

768.  Continental  Ins.  Co.  v.  Chicago  &  N.  W.  R.  Co.  (Minnesota,  1906)    .  1118 

769.  Foss  t<.  McRae  (Maine,  1909) 1121 

770.  Carver  v.  Carver  (Indiana,  1884) 1123 

BOOK  V 

OF  WHAT  FACTS  NO  EVIDENCE  NEED  BE 
PRESENTED 

TITLE  I.   JUDICIAL   ADMISSIONS 

773.  Chief  Baron  Gilbert,  "Evidence" 1124 

774.  Paige  v.  WiUet  (New  York,  1868) 1124 

775.  New  York,  L.  E.  &  W.  R.  Co.'s  Petition  (New  York,  1885)     .     .      .  1124 

776.  Prestwood  v.  Watson  (Alabama,  1896) 1124 

777.  State  v.  Marx  (Connecticut,  1905) 1127 

778.  Statutes 1127 

779.  Carver  t>.  Carver  (Indiana,  1884) 1128 

TITLE  II.    JUDICIAL  NOTICE 

782.  Introductory        • 1133 

783.  James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence"     .      .1133 

784.  Lumley  v.  Gye  (England,  1853) 1134 

785.  Fox  V.  State  (Georgia,  1851) 1134 

786.  Kilpatrick  v.  Commonwealth  (Pennsylvania,  1858) 1135 

787.  State  ».  Main  (Connecticut,  1897) 1137 

788.  Winn  v.  Coggins  (Florida,  1907) 1139 

789.  Rea  D.  State  (Oklahoma,  1909) 1140 

790.  Perovich  v.  Perry  (Federal,  1909) 1141 

791.  People  D.  Schmitz  (California,  1908) 1142 

792.  Letters  on  the  Case  of  People  v.  Schmitz 1144 


BOOK  VI 
THE  SO-CALLED  PAROL  EVIDENCE  RULES 

795.  Introductory 1150 

TITLE  I.    ENACTION  OF  A  LEGAL  ACT 

796.  History 1153 

SUB-TITLE  I.     ACT  VOID   FOR  INCOMPLETENESS 

798.  Thoroughgood's  Case  (England,  1601) 1154 

799.  Pym  v.  Campbell  (England,  1856) 1154 


XXX  CONTENTS 

PAGE 

800.  Burke  V.  Dulaney  (Federal  Supreme  Court,  1894) 1156 

801.  Stanley  t).  White  (Illinois,  1896) 1158 

802.  Smith  z).  Dotterweich  (New  York,  1911) 1161 

SUB-TITLE   II.     ACT   VOID   FOR   LACK   OF   INTENT 

804.  Thomas  Erskine  Holland,  "Jurisprudence" 1162 

805.  Foster  ».  Mackinnon  (England,  1869) 1163 

806.  McNamara  v.  Boston  Elevated  R.  Co.  (Massachusetts,  1908).      .      .1166 

807.  Gray  J).  James  (North  Carolina,  1909) 1169 

808.  Essex  z).  Day  (Connecticut,  1885) 1171 

809.  Medley  ».  German  Alliance  Ins.  Co.  (West  Virginia,  1904) .      .      .      .1176 

810.  Baxendale  v.  Bennett  (England,  1878) 1183 

811.  Hubbard  v.  Greeley  (Maine,  1892) 1186 

812.  A.  M.  Kidd,  "Delivery  in  Escrow" 1189 

813.  Louis  M.  Greeley,  "Unauthorized  Delivery  of  Escrow"      ....    1190 

814.  Guardhouse  v.  Blackburn  (England,  1866) 1191 

815.  Beamish  V.  Beamish  (Ireland,  1894) 1194 

SUB-TITLE   III.     ACT   VOIDABLE 

816.  State  «.  Cass  (New  Jersey,  1889) 1196 

817.  Fairbanks  D.  Snow  (Massachusetts,  1887) 1198 

TITJjE    II.    INTEGRATION    OF   LEGAL    ACTS 

820.  History      .      .* 1200 

SUB-TITLE   I.     ORDINARY   TRANSACTIONS 
Topic  I.     In  General 

821.  Lilly,  "Practical  Register" 1203 

822.  Knight  v.  Barber  (England,  1846) 1203 

823.  Van  Syckel  v.  Dah-ymple  (New  Jersey,  1880) 1203 

824.  Brosty  v.  Thompson  (Connecticut,  1906) 1203 

Topic  2.     Sundry  Applications  of  the  Rule 

826.  Ramsdell  v.  Clark  (Montana,  1897) *    .      .  1205 

827.  Baum  v.  Lynn  (Mississippi,  1895) 1208 

828.  Lese  v.  Lamprecht  (New  York,  1909) 1211 

829.  Heitman  v.  Commercial  Bank  of  Savannah  (Georgia,  1909)     .      .      .  1214 

830.  Adams  v.  Gillig  (New  York,  1910) 1225 

SUB-TITLE   II.     JUDICIAL  RECORDS 
Topic  I.     In  General 

832.  Sir  F.  Pollock  and  Frederic  W.  Maitland,  "History  of  English  Law"  1229 

833.  Sir  Edward  Coke,  "Commentaries  upon  Littleton" 1229 

834.  Sayles  v.  Briggs  (Massachusetts,  1S42) 1230 

835.  Hughes  v.  Pritchard  (North  Carolina,  1910) 1232 

836.  Cote  v.  New  England  Navig.  Co.  (Massachusetts,  1912)     ....  1233 


CONTENTS  XXXI 

PAGE 
Topic  2.     Jury's  Verdict 

837.  Vaise  v.  Delaval  (England,  1785) 1236 

838.  Owen  v,  Warbiirton  (Enfrknd,  1807) 1236 

839.  Robbins  v.  Windover  (Vermont,  1802) 1236 

840.  Wright  v.  Telegraph  Co.  (Iowa,  1866) 1238 

841.  Capen  v.  Stoughton  (Massachusetts,  1860)     ........  1241 

842.  Koch  V.  State  (Wisconsin,  1906) 1243 

SUB-TITLE  III.     CORPORATION   RECORDS 

845.  United  States  Bank  v.  Dandridge  (Federal  Supreme  Court,  1827) .      .  1247 

846.  Chesapeake  &  Ohio  R.  Co.  v.  Deepwater,  R.  Co.  (W.  Va.  1905)    .      .  1252 

TITLE    III.    FORMALITIES    OF   LEGAL    ACTS 

847.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 1260 

TITLE    ir.    INTERPRETATION    OF   LEGAL   ACTS 

848.  Introductory 1261 

SUB-TITLE   I.     STANDARD    OF   INTERPRETATION 

850.  History 1266 

851.  Attorney-General  v.  Shore  (England,  1843) 1267 

852.  Re  Jodrell  (England,  1890) 1269 

853.  Tilton  v.  American  Bible  Society  (New  Hampshire,  1880)    ....  1273 

854.  Myers  v.  Sari  (England,  1860) 1275 

855.  Browne  v.  Byrne  (England,  1854) 1277 

856.  Walls  V.  Bailey  (New  York,  1872) 1277 

857.  Stoops  V.  Smith  (Massachusetts,  1868) 1279 

858.  Goode  v.  Riley  (Massachusetts,  1891) 1282 

859.  Violette  v.  Rice  (Massachusetts,  1899) 1282 

860.  Rickerson  v.  Hartford  Fu-e  Ins.  Co.  (New  York,  1896) 1283    ♦ 

SUB-TITLE  II.     SOURCES  FOR  DETERMINING  INTERPRETATION 

862.  History 1286 

863.  Sir  James  Wigram,  "Interpretation  of  Wills" 1287 

864.  Attorney-General  v.  Drummond  (England,  1842) 1287 

Topic  I.     Declarations  of  Intention 

865.  Francis,  Lord  Bacon,  "Maxims" 1287 

866.  The  Lord  Cheyney's  Case  (England,  1591) 1288 

867.  Miller  v.  Travers  (England,  1832) 1288 

868.  Doe  dem.  Simon  Hiscocks  v.  John  Hiscocks  (England,  1839)    .      .      .  1292 

869.  Willard  v.  Darrah  (Missouri,  1902) 1294 

870.  Sir  J.  F.  Stephen,  "Digest  of  the  Law  of  Evidence" 1297 

871.  A.  M.  Kidd,  "Note  on  Doer.  Hiscocks"       ........  1298 


XXxii  CONTENTS 

PAGE 
Topic  2.     Falsa  Demonstratio 

873.  Myers  u.  Ladd  (Illinois,  1861) 1299 

874.  Winkley  v.  Kaime  (New  Hampshire,  1855) 1299 

875.  Kurtz  v.  Hibner  (Illinois,  1870) 1301 

876-879.   Isaac  T.  Redfield,  John  D.  Caton,  John  H.   Wigmore,  Henry 

Schofield,  "Comments  on  Kurtz  t).  Hibner" 1303 

APPENDICES 
APPENDIX  I 

Topical  List  of  Cross-References  to  Sections  in  the  Compiler's  Treatise 
on  Evidence  and  Pocket  Code  of  Evidence 1311 

APPENDIX  II 

Review  Problems,  for  Applying  the  Rules  of  Evidence 1339 

APPENDIX  III 

Practical  Exercises  in  Introducing  Evidence  in  Court 1357 


INDICES 
LIST  OF  CASES  REPRINTED    ...        1363 

LIST  OF  STATUTES  REPRINTED 1371 

LIST   OF   AUTHORS   OF   EXTRACTS   REPRINTED      ....  1373 

INDEX   OF   TOPICS 1375 


SELECT    CASES    ON 

THE  LAW  OF  EVIDENCE 


INTRODUCTORY  TOPICS 

1.  History.^  The  marked  divisions  of  chronology,  for  our  law  of 
evidence,  may  be  said  to  be  seven,  —  from  primitive  times  to  1200  a.d., 
thence  to  1500,  thence  to  1700,  to  1790,  to  1830,  to  1860,  and  to  the 
present  time: 

(1)  A.  D.  700-1200.  Up  to  the  period  of  the  1200s,  the  history  of  the  rules 
of  evidence,  in  the  modern  sense,  is  like  the  chapter  upon  ophidians  in  Erin;  for 
there  were  none.  Under  the  primitive  practices  of  trial  by  ordeal,  by  battle, 
and  by  compurgation,  the  proof  is  accomplished  by  a  judicium  Dei,  and  there  is 
no  room  for  our  modern  notion  of  persuasion  of  the  tribunal  by  the  credibility 
of  the  witnesses;  ^  for  the  tribunal  merely  verified  the  observance  of  the  due 


^  From  the  Compiler's  "Treatise  on  the  System  of  Evidence,"  1905,  Vol.  I, 
§8. 

For  further  reading  on  the  history  of  the  law  of  Evidence,  Anglo-American 
and  Continental,  consult  the  following  works: 

James  Bradley  Thayer,  "A  Preliminary  Treatise  on  Evidence  at  the  Common 
Law"  (1898),  cc.  i-iv  (on  "The  Older  Modes  of  Trial"  and  "Development  of 
Trial  by  Jury"); 

Sir  James  Fitzjames  Stephen,  "A  History  of  the  Criminal  Law  of  England" 
(1883),  Vol.  I,  cc.  vii,  viii,  xi;  reprinted  in  Vol.  II  of  "Select  Essays  in  Anglo- 
American  History"  (1908),  No.  34  ("Criminal  Procedure  from  the  13th  to  the 
18th   Century")  ; 

Wm.  S.  Holdsworth,  "A  History  of  English  Law"  (1909),  Vol.  Ill,  c.  vi 
("Procedure  and  Pleading  in  the  Medieval  Law"); 

Sir  F.  Pollock  and  Frederic  Wm.  Maitland,  "The  History  of  English  Law 
before  the  Time  of  Edward  I"  (2d  ed.,  1899),  Vol.  II,  c.  ix,  §  4  ("Pleading  and 
Proof"); 

A.  Esmein,  "History  of  Continental  Criminal  Procedure"  (1913;  Conti- 
nental Legal  History  Series,  Vol.  V),  Part  II,  title  ii,  c.  iii  ("The  Theory  of 
Legal  Proofs"),  and  Appendix  II  ("A  Brief  History  of  the  Law  of  Evidence"). 

The  Continental  system  in  its  history  may  be  more  fully  studied  in  the  work 
of  Raoul  dc  la  Grasserie,  "  De  la  Preuve  au  Civil  et  au  Criminel,  en  droit  fran^ais 
et  dans  les  legislations  etrangeres;  Evolution,  Comparaison,  Critique,  Reforme" 
(2  vols.   1912). 

'  This  is  indeed  elaborately  denied  by  Declareuil,  in  "Nouvelle  revue  hist, 
du  droit  fr.  et  etr.,"  1898,  XXII,  220  ff. ;  but  all  prior  students  have  assumed  the 
contrary.  It  is  no  doubt  difficult  to  replace  ourselves  in  the  primitive  mental 
attitude. 


2  INTRODUCTORY   TOPICS  No.  1 

formalities,  and  did  not  conceive  of  these  as  directly  addressed  to  their  own 
reasoning  powers.  Nevertheless,  a  few  marks,  indelibly  made  by  these  earlier 
usages,  were  left  for  a  long  time  afterwards  in  our  law.  The  summoning  of 
attesting  witnesses  to  prove  a  document,  the  quantitative  effect  of  an  oath,  the 
conclusiveness  of  a  seal  in  fixing  the  terms  of  a  documentary  transaction,  the 
necessary  production  of  the  original  of  a  document,  —  these  rules  all  trace  a 
continuous  existence  back  to  this  earliest  time,  although  they  later  took  on 
different  forms  and  survived^or  reasons  not  at  all  connected  with  their  primitive 
theories. 

(2)  A.  D.  1200-1500.  With  the  full  advent  of  the  jury,  in  the  1200s,  the 
general  surroundings  of  the  modern  system  are  prepared;  for  now  the  tribunal 
is  to  determine  out  of  its  own  conscious  persuasion  of  the  facts,  and  not  merely 
by  supervising  external  tests.  The  change  is  of  course  gradual;  and  trial  by 
jury  is  as  yet  only  one  of  several  competing  methods;  but  at  least  a  system  for 
the  process  of  persuasion  becomes  possible.  In  this  period,  no  new  specific 
rules  seem  to  have  sprung  up.  The  practice  for  attesting  witnesses,  oaths  and 
documentary  originals  is  developed.  The  rule  for  the  conclusiveness  of  a  sealed 
writing  is  definitely  established.  But  during  these  three  centuries  the  general 
process  of  pleading  and  procedure  is  only  gradually  differentiated  from  that  of 
proof,  —  chiefly  because  the  jurors  are  as  yet  relied  upon  to  furnish  in  themselves 
both  knowledge  and  decision ;  for  they  are  not  commonly  caused  to  be  informed 
by  witnesses,  in  the  modern  sense. 

(3)  A.  D.  1500-1700.  By  the  1500s,  the  constant  employment  of  witnesses, 
as  the  jury's  chief  source  of  inforination,  brings  about  a  radical  change.  Here 
enter,  very  directly,  the  possibilities  of  our  modern  system.  With  all  the  em- 
phasis gradually  cast  upon  the  witnesses,  their  words  and  their  documents,  the 
whole  question  of  admissibility  arises.  One  first  great  consequence  is  the  struggle 
between  the  numerical  or  quantitative  system,  which  characterized  the  canon 
law  and  still  dominated  all  other  methods  of  proof,  and  the  unfettered  system- 
less  jury  trial;  and  it  was  not  for  two  centuries  that  the  numerical  system  was 
finally  repulsed.  Another  cardinal  question  now  necessarily  faced  was  that  of 
the  competency  of  witnesses;  and  by  the  end  of  the  1500s  the  foimdations  were 
laid  for  all  the  rules  of  disqualifications  which  prevailed  thenceforward  for  more 
than  two  centuries,  and  in  part  still  remain.  At  the  same  time,  and  chiefly  from 
a  simple  failure  to  differentiate,  most  of  the  rules  of  privilege  and  privileged 
communication  were  thereby  brought  into  existence,  at  least  in  embryo.  The 
rule  for  attorneys,  which  alone  stood  upon  its  own  ground,  also  belongs  here, 
though  its  reasons  were  newly  conceived  after  the  lapse  of  a  century.  A  third 
great  principle,  the  right  to  have  compulsory  attendance  of  witnesses,  marks 
the  very  beginning  of  this  period.  Under  the  primitive  notions,  this  all  rested 
upon  the  voluntary  action  of  one's  partisans;  the  calling  of  compurgators  and 
documentary  attestors,  under  the  older  methods  of  trial,  was  in  effect  a  matter 
of  contract.  But  as  soon  as  the  chief  reliance  came  to  be  the  witnesses  to  the 
jurors,  and  the  latter  ceased  to  act  on  their  own  knowledge,  the  necessity  for  the 
provision  of  such  information,  compulsory  if  not  otherwise,  became  immedi- 
ately obvious.  The  idea  progressed  slowly;  it  was  enforced  first  for  the  Crown, 
next  for  civil  parties;  and  not  until  the  next  period  was  it  conceded  to  accused 
persons.  Thus  was  laid  down  indirectly  the  general  principle  that  there  is  no 
privilege  to  refuse  to  be  a  witness;  to  which  the  other  rules,  above  mentioned, 
subsequently  became  contrasted  as  exceptions.  A  fourth  important  principle, 
wholly  independent  in  origin,  here  also  arose  and  became  fixed  by  the  end  of  this 


No.  1  HISTORY  3 

period,  —  the  privilege  against  self-crimination.  The  creature,  under  another 
form,  of  the  canon  law,  in  which  it  had  a  long  history  of  its  own,  it  was  trans- 
ferred, under  stress  of  political  turmoil,  into  the  common  law,  and  thus,  by  a 
singular  contrast,  came  to  be  a  most  distinctive  feature  of  our  trial  system. 
About  the  same  period  —  the  end  of  the  1600s  —  an  equally  distinctive  feature, 
the  rule  against  using  an  accused's  character,  became  settled.  Finally,  the 
"  parol  evidence  "  rule  enlarged  its  scope,  and  came  to  include  all  WTitings  and  not 
merely  sealed  documents;  this  development,  and  the  enactment  of  the  statute 
of  frauds  and  perjuries,  represent  a  special  phase  of  thought  in  the  end  of  this 
period.  It  ends,  however,  rather  with  the  Restoration  of  1660  than  with  the 
Revolution  of  1688,  or  the  last  years  of  the  century;  for  the  notable  feature  of 
it  is  that  the  regenerating  results  of  the  struggle  against  the  arbitrary  methods 
of  James  I  and  Charles  I  began  to  be  felt  as  early  as  the  return  of  Charles  II. 
The  mark  of  the  new  period  is  seen  at  the  Restoration.  Justice,  on  all  hands, 
then  begins  to  mend.  Crudities  which  Matthew  Hale  permitted,  under  the 
Commonwealth,  Scroggs  put  aside,  under  James  II.  The  privilege  against  self- 
crimination,  the  rule  for  two  witnesses  in  treason,  and  the  character  rule  —  three 
landmarks  of  our  law  of  evidence  —  find  their  first  full  recognition  in  the  last 
days  of  the  Stuarts. 

(4)  A.  D.  1700-1790.  Two  circumstances  now  contributed  independently 
to  a  further  development  of  the  law  on  two  opposite  sides,  its  philosophy  and  its 
practical  efficiency.  On  the  one  hand,  the  final  establishment  of  the  right  of 
cross-examination  by  counsel,  at  the  beginning  of  the  1700s,  gave  to  our  law  of 
evidence  the  distinction  of  possessing  the  most  efficacious  expedient  ever  invented 
for  the  extraction  of  t.aith  (although,  to  be  sure,  like  torture,  —  that  great  instru- 
ment of  the  continental  system,  —  it  is  almost  equally  powerful  for  the  creation 
of  false  impressions).  A  notable  consequence  was  that  by  the  multiplication  of 
oral  interrogation  at  trials  the  rules  of  evidence  were  now  developed  in  detail 
upon  such  topics  as  naturally  came  thus  into  new  prominence.  All  through  the 
1700s  this  expansion  proceeded,  though  slowly.  On  the  other  hand,  the  already 
existing  material  began  now  to  be  treated  in  doctrinal  form.  The  first  treatise 
on  the  law  of  evidence  was  that  of  Chief  Baron  Gilbert,  not  published  till  after 
his  death  in  1726.  About  the  same  time  the  abridgments  of  Bacon  and  of 
Comyns  gave  many  pages  to  the  title  of  Evidence;  ^  but  no  other  treatise  ap- 
peared for  a  quarter  of  a  century,  when  the  notes  of  Mr.  J.  Bathurst  (later  Lord 
Chancellor)  were  printed,  under  the  significant  title  of  the  "Theory  of  Evi- 
dence." But  this  propounding  of  a  system  was  as  yet  chiefly  the  natural  cul- 
mination of  the  prior  century's  work,  and  was  independent  of  the  expansion  of 
practice  now  going  on.  In  Gilbert's  book,  for  example,  even  in  the  fifth  edition 
of  1788,  there  are  in  all,  out  of  the  three  hundred  pages,  less  than  five  concerned 
with  the  new  topics  brought  up  by  the  practice  of  cross-examination;  in  Bathurst's 
treatise  (by  this  time  embodied  in  his  nephew  Buller's  "Trials  at  Nisi  Prius") 
the  number  is  hardly  more;  Blackstone's  Commentaries,  in  1768,  otherwise  so 
full,  are  here  equally  barren.  The  most  notable  result  of  these  disquisitions,  on 
the  theoretical  side,  was  the  establishment  of  the  "best  evidence"  doctrine, 
which  dominated  the  law  for  nearly  a  century  later.  But  this  very  doctrine 
tended  to  preserve  a  general  consciousness  of  the  supposed  simplicity  and  narrow- 
ness of  compass  of  the  law  of  evidence.     As  late  as  the  very  end  of  the  century 

^  Hawkins,  in  1716,  and  Hale,  in  1680,  in  their  treatises  on  the  criminal  law, 
had  had  short  chapters  on  evidence  at  these  earlier  dates. 


4  INTRODUCTORY  TOPICS  No.  1 

Mr.  Burke  could  argue  down  the  rules  of  evidence,  when  attempted  to  be  enforced 
upon  the  House  of  Lords  at  Warren  Hastings'  trial,  and  ridicule  them  as  petty 
and  inconsiderable.^  But,  none  the  less,  the  practice  had  materially  expanded 
during  his  lifetime.  In  this  period,  besides  the  rules  for  impeachment  and  cor- 
roboration of  witnesses  (which  were  due  chiefly  to  the  development  of  cross- 
examination),  are  to  be  reckoned  also  the  origins  of  the  rules  for  coHfessions,  for 
leading  questions,  and  for  the  order  of  testimony.  The  various  principles  affect- 
ing documents  —  such  as  the  authorization  of  certified  (or  office)  copies  and  the 
conditions  dispensing  from  the  production  of  originals  —  now  also  received  their 
general  and  final  shape. 

(5)  A.  D.  1790-1830.  The  full  spring-tide  of  the  system  had  now  arrived. 
In  the  ensuing  generation  the  established  principles  began  to  be  developed  into 
rules  and  precedents  of  minutise  relatively  innumerable  to  what  had  gone  before. 
In  the  Nisi  Prius  reports  of  Peake,  Espinasse,  and  Campbell,  centering  around  the 
quarter-century  from  1790  to  1815,  there  are  probably  more  rulings  upon  evi- 
dence than  in  all  the  prior  reports  of  two  centuries.  In  this  development  the 
dominant  influence  is  plain;  it  was  the  increase  of  printed  reports  of  Nisi  Prius 
rulings.^  This  was  at  first  the  cause,  and  afterwards  the  self-multiplying  effect, 
of  the  detailed  development  of  the  rules.  Hitherto,  upon  countless  details,  the 
practice  had  varied  greatly  on  the  different  circuits;  moreover,  it  had  rested 
largely  in  the  memory  of  the  experienced  leaders  of  the  trial  bar  and  in  the  momen- 
tary discretion  of  the  judges.  In  both  respects  it  therefore  lacked  fixity,  and 
was  not  amenable  to  tangible  authority.  These  qualities  it  now  rapidly  gained. 
As  soon  as  Nisi  Prius  reports  multiplied  and  became  available  to  all,  the  circuits 
must  be  reconciled,  the  rulings  once  made  and  recorded  must  be  followed,  and 
these  precedents  must  be  open  to  the  entire  profession  to  be  invoked.  There 
was,  so  to  speak,  a  sudden  precipitation  of  all  that  had  hitherto  been  suspended 
in  solution.  This  effect  began  immediately  to  be  assisted  and  emphasized  by 
the  appearance  of  new  treatises,  summing  up  the  recent  acquisitions  of  precedent 
and  practice.  -  In  nearly  the  same  year,  Peake,  for  England  (1801),  and  MacNally, 
for  Ireland  (1802),  printed  small  volumes  whose  contents,  as  compared  with 
those  of  Gilbert  and  Buller,  seem  to  represent  almost  a  different  system,  so  novel 
were  their  topics.  In  1806,  Evans'  Notes  to  Pothier  on  Obligations  was  made 
the  vehicle  of  the  first  reasoned  analysis  of  the  rules.  In  this  respect  it  was 
epoch-making;  and  its  author  in  a  later  time  once  quietly  complained  that  its 
pages  were  "more  often  quoted  than  acknowledged."  The  room  for  new  trea- 
tises were  rapidly  enlarging.  Peake  and  MacNally,  as  handbooks  of  practice, 
were  out  of  date  within  a  few  years,  and  no  new  editions  could  cure  them.  In 
1814,  and  then  in  1824,  came  Phillipps  and  Starkie,  —  in  method  combining 
Evans'  philosophy  with  Peake's  strict  reflection  of  the  details  of  practice.  There 
was  now  indeed  a  system  of  evidence,  consciously  and  fully  realized.  Across 
the  water  a  similar  stage  had  been  reached.  By  a  natural  interval  Peake's 
treatise  was  balanced,  in  1810,  by  Swift's  Connecticut  book,  while  Phillipps  and 

^  As  to  rules  of  law  and  evidence,  he  did  not  know  what  they  meant;  ...  it 
was  true,  something  had  been  written  on  the  law  of  Evidence,  but  very  general, 
very  abstract,  and  comprised  in  so  small  a  compass  that  a  parrot  he  had  known 
might  get  them  by  rote  in  one  half-hour  and  repeat  them  in  five  minutes"  (1794, 
Hastings'  Trial,  Lords'  Journal,  Feb.  25). 

^  Compare  Campbell's  account  of  the  conditions  when  he  began  to  Report  in 
1807  ("Life,"  I,  214). 


No.  1  HISTORY  5 

Starkie  (after  a  period  of  sufficiency  under  American  annotations)  were  replaced 
by  Greenleaf's  treatise  of  1842. 

(6)  A.  D.  1830-1860.  Meantime,  the  advance  of  consequences  was  proceed- 
ing, by  action  and  reaction.  The  treatises  of  Peake  and  Phillipps,  by  embodying 
in  print  the  system  as  it  existed,  at  the  same  time  exposed  it  to  the  Hght  of  criti- 
cism. It  contained,  naturally  enough,  much  that  was  merely  inherited  and 
traditional,  much  that  was  outgrown  and  outworn.  The  very  efforts  to  supply 
explicit  reasons  for  all  this  made  it  the  easier  to  puncture  the  insufficient  reasons 
and  to  impale  the  irrational  rules.  This  became  the  office  of  Bentham.  Be- 
ginning with  the  first  publication,  in  French,  of  his  Theory  of  Judicial  Evidence, 
in  1818,  the  influence  of  his  thought  upon  the  law  of  evidence  gradually  became 
supreme.  While  time  has  only  ultimately  vindicated  and  accepted  most  of  his 
ideas  (then  but  chimeras)  for  other  practical  reforms,  and  though  some  still 
remain  untried,  the  results  of  his  proposals  in  this  department  began  almost 
immediately  to  be  achieved.  Mature  experience  constantly  inclines  us  to  believe 
that  the  best  results  on  hiunan  action  are  seldom  accomplished  by  sarcasm  and 
invective;  for  the  old  fable  of  the  genial  sun  and  the  raging  wind  repeats  itself. 
But  Bentham's  case  must  always  stand  out  as  a  proof  that  sometimes  the  con- 
trary is  true,  —  if  conditions  are  meet.  No  one  can  say  how  long  our  law  might 
have  waited  for  regeneration,  if  Bentham's  diatribes  had  not  lashed  the  com- 
munity into  a  sense  of  its  shortcomings.  It  is  true  that  he  was  particularly 
favored  by  circumstances  in  two  material  respects,  —  the  one  personal,  the  other 
broadly  social.  He  gained,  among  others,  two  incomparable  disciples,  who  served 
as  a  fulcrum  from  which  his  lever  could  operate  directly  upon  legislation.  Henry 
Brougham  and  Thomas  Denman  combined  with  singular  felicity  the  qualities 
of  leadership  in  the  technical  arts  of  their  profession  and  of  energy  for  the  abstract 
principles  of  progress.  Holding  the  highest  offices  of  justice,  and  working 
through  a  succession  of  decades,  they  were  enabled,  ^athin  a  generation,  to  bring 
Bentham's  ideas  directly  into  influence  upon  the  law.  One  who  reads  the  great 
speech  of  Broughana,  on  February  7,  1828,  on  the  state  of  the  common  law  courts, 
and  the  reports  of  Denman  and  his  colleagues,  in  1852  and  1853,  on  the  common 
law  procedure,  is  perusing  epoch-making  deliverances  of  the  century.^  The 
other  circumstance  that  favored  Bentham's  cause  was  the  radical  readiness  of 
the  times.  The  French  Revolution  had  acted  in  England;  and  as  soon  as  the 
Napoleonic  wars  were  over,  the  influence  began  to  be  felt.  One  part  of  public 
opinion  was  resolved  to  achieve  a  radical  change;  the  other  and  dominant  part 
felt  assured  that  if  the  change  did  not  come  as  reform,  it  would  come  as  revolu- 
tion; and  so  the  reform  was  given,  to  prevent  the  revolution.  In  a  sense,  it 
did  not  much  matter  to  them  where  the  reform  came  about,  —  in  the  economic, 
or  the  political,  or  the  juridical  field,  —  if  only  there  was  reform.  At  this  stage, 
Bentham's  denouncing  voice  concentrated  attention  on  the  subject  of  public 
justice,  —  criminal  law  and  civil  procedure;  and  so  it  was  here  that  the  move- 
ment was  felt  among  the  first.  As  a  matter  of  chronological  order,  the  first 
considerable  achievements  were  in  the  field  of  criminal  law,  beginning  in  1820, 
under  Romilly  and  Mackintosh ;  then  came  the  political  upheaval  of  the  Reform 

^  "The  great  controversy  now  [1851]  is  upon  the  Evidence  Bill,  allowing  the 
parties  to  be  examined  against  and  for  themselves.  ...  If  it  passes,  it  will  create 
a  new  era  in  the  administration  of  justice  in  this  country"  {Campbell's  "Life," 
II,  292).  "Our  new  procedure  (which  is  in  truth  a  jm-idical  revolution)  is  now 
[1854]  established,  and  people  submit  to  it  quietly"  {Ibid.,  II,  328). 


6  INTRODUCTORY   TOPICS  No.   1 

Bill,  in  1832,  under  Russell  and  Grey;  next  the  economic  regeneration,  beginning 
with  Huskisson  and  culminating  with  Peel  in  the  Corn  Law  Repeal  of  1846. 
Not  before  the  Common  Law  Procedure  Acts  of  1852  and  1854  were  large  and 
final  results  achieved  for  the  Benthamic  ideas  in  procedure  and  evidence.  But 
over  the  whole  preceding  twenty  years  had  been  spread  initial  and  instructive 
reforms.  Brougham's  speech  of  February  7,  1828,  was  the  real  signal  for  the 
beginning  of  this  epoch,  —  a  beginning  which  would  doubtless  have  culminated 
more  rapidly  if  urgent  economic  and  political  crises  had  not  intervened  to  absorb 
the  legislative  energy. 

In  the  LInited  States,  the  counterpart  of  this  period  came  only  a  little  later. 
It  seems  to  have  begun  all  along  the  line  and  was  doubtless  inspired  by  the 
accounts  of  progress  made  and  making  in  England,  as  well  as  by  the  writings  of 
Edward  Livingston,  the  American  Bentham,  and  by  the  legislative  efforts  of 
David  Dudley  Field,  in  the  realm  of  civil  procedure.  The  period  from  1840 
to  1870  saw  the  enactment,  in  the  various  jurisdictions  in  this  country,  of  most 
of  the  reformatory  legislation  which  had  been  carried  or  proposed  in  England. 

(7)  A.  D.  1860.  After  the  Judicature  Act  of  1875,  and  the  Rules  of  Court 
(of  1883)  which  under  its  authority  were  formulated,  the  law  of  evidence  in 
England  attained  rest.  It  is  still  overpatched  and  disfigured  with  multiplici- 
tous  fragmentary  statutes,  especially  for  documentary  evidence.  But  it  seems 
to  be  harmonious  with  the  present  demands  of  justice,  and  above  all  to  be  so 
certain  and  settled  in  its  acceptance  that  no  further  detailed  development  is 
called  for.  It  is  a  sub-stratum  of  the  law  which  comes  to  light  only  rarely  in 
the  judicial  rulings  upon  practice. 

Far  otherwise  in  this  country.  The  latest  period  in  the  development  of  the 
law  of  evidence  is  marked  by  a  temporary  degeneracy.  Down  to  about  1870, 
the  established  principles,  both  of  common  law  rules  and  of  statutory  reforms, 
were  re-stated  by  our  judiciary  in  a  long  series  of  opinions  which,  for  careful  and 
copious  reasoning,  and  for  the  common  sense  of  experience,  were  superior  (on  the 
whole)  to  the  judgments  uttered  in  the  native  home  of  our  laAv.  Partly  because 
of  the  lack  of  treatises  and  even  of  reports,  —  partly  because  of  the  tendency 
to  question  imported  rules  and  therefore  to  defend  on  grounds  of  principle  and 
policy  whatever  could  be  defended,  —  partly  because  of  the  moral  compulsion 
upon  the  judiciary,  in  new  communities,  to  vindicate  by  intellectual  effort  its  right 
to  supremacy  over  the  bar,  —  and  partly  also  because  of  the  advent,  coincidently, 
of  the  same  rationalizing  spirit  which  led  to  the  reformatory  legislation,  —  this 
.very  necessity  of  restatement  led  to  the  elaboration  of  a  finely  reasoned  system. 
The  "mint,  anise,  and  cummin"  of  mere  precedent  ^  were  not  unduly  revered. 
There  was  always  a  reason  given,  —  even  though  it  might  not  always  be  a 
worthy  reason.  The  pronouncement  of  Bentham  came  near  to  be  exemplified, 
that  "so  far  as  evidence  is  concerned,  the  English  practice  needs  no  improvement 
but  from  its  own  stores.  Consistency,  consistency,  is  the  one  thing  needful. 
Preserve  consistency,  and  perfection  is  accomplished."  ^ 

But  the  newest  States  in  time  came  to  be  added.     New  reports  spawned  a 


'  Lumpkin,  J.,  in  33  Ga.  306. 

^  "Rationale  of  Judicial  Evidence,"  b.  X,  conclusion.  Bentham  never  failed 
to  preach  the  impropriety  of  not  furnishing  reasons.  "  T  think,  therefore  I 
exist,'  was  the  argument  of  Descartes;  'I  exist,  therefore  I  have  no  need  to  think 
or  be  thought  about,'  is  the  argument  of  jurisprudence"  (b.  II,  c.  x,  §  12;  so  also 
in  b.  Ill,  c.  iv,  note). 


No.   1  DEFINITIONS  7 

multifarious  mass  of  new  rulings  in  fifty  jurisdictions,  —  each  having  theoreti- 
cally an  equal  claim  to  consideration.  The  liheral  spirit  of  choosing  an<l  testing 
the  better  rule  degenerated  into  a  spirit  of  empiric  eclecticism  in  which  all  things 
could  be  questioned  and  requestioned  ad  infinitum.  The  partisan  spirit  of  the 
bar,  contesting  desperately  on  each  trifle,  and  the  unjust  doctrine  of  new  trials, 
tempting  counsel  to  push  up  to  the  appellate  courts  upon  every  ruling  of  evi- 
dence, increased  this  tendency.  Added  to  this  was  the  supposed  necessity  in 
the  newer  jurisdictions  of  deciding  over  again  all  the  details  that  had  been  long 
settled  in  the  older  ones.  Here  the  lack  of  local  traditions  at  the  bar  and  of  self- 
confidence  on  the  bench  led  to  the  tedious  re-exposition  of  countless  elementary 
rules.  This  lack  of  peremptoriness  on  the  supreme  bench,  and  (no  less  impor- 
tant) the  marked  separation  of  personality  between  courts  of  trial  and  courts  of 
final  decision,  led  also  to  the  multifarious  heaping  up,  within  each  jurisdiction, 
of  rulings  upon  rulings  involving  identical  points  of  decision.  This  last  phenom- 
enon may  be  due  to  many  subtly  conspiring  causes.  But  at  any  rate  the  fact 
is  that  in  numerous  instances,  and  in  almost  every  jurisdiction,  recorded  de- 
cisions of  Supreme  Courts  upon  precisely  the  same  rule  and  the  same  application 
of  it  can  be  reckoned  by  the  dozens  and  scores.  This  wholly  abnormal  state  of 
things  —  in  clear  contrast  to  that  of  the  modern  English  epoch  —  is  the  marked 
feature  of  the  present  period  of  development  in  our  own  country. 

Of  the  change  that  is  next  to  come,  and  of  the  period  of  its  arrival,  there 
seem  as  yet  to  be  no  certain  signs.  Probably  it  will  come  either  in  the  direction 
of  the  present  English  practice  —  by  slow  formation  of  professional  habits  —  or 
in  the  direction  of  attempted  legislative  relief  from  the  mass  of  bewildering 
judicial  rulings  —  by  a  concise  code.  The  former  alone  might  suffice.  But  the 
latter  will  be  a  false  and  futile  step,  unless  it  is  founded  upon  the  former;  and 
in  any  event  the  danger  is  that  it  will  be  premature.  A  code  fixes  error  as  well 
as  truth.  No  code  can  be  worth  casting,  until  there  has  been  more  explicit  dis- 
cussion of  the  reasons  for  the  rules  and  more  study  of  them  from  the  point  of 
view  of  synthesis  and  classification.  The  time  must  first  come  when,  in  the 
common  understanding  and  acceptance  of  the  profession,  "  every  rule  is  referred 
articulately  and  definitely  to  an  end  which  it  subserves,  and  when  the  grounds 
for  desiring  that  end  are  stated  or  are  ready  to  be  stated  in  words."  ^ 


Mr.  Justice  Holmes. 


INTRODUCTORY  TOPICS  No.  2 


2.  Definitions.  In  Procedure,  i.e.,  the  method  of  enforcing  legal 
relations,  one  of  the  stages  is  the  Trial,  i.e.,  the  parties'  attempt  to  demon- 
strate to  the  tribunal  the  correctness  of  their  respective  legal  positions. 
In  the  trial,  the  materials  used  comprise  Evidence  and  Argument.  The 
term  Evidence  is  applied  to  all  adduced  materials  outside  of  the  tribunal's 
own  mental  operations;  the  term  Argument  is  applied  to  the  parties' 
words  invoking  those  mental  operations  upon  the  evidence  adduced. 

Evidence  may  concern  either  law  or  fact,  so-called,  but  in  common 
usage  is  applied  to  the  latter  only.  Evidence  may  be  offered  to  either 
Judge  or  Jury,  —  commonly  to  the  latter. 

Evidence,  as  applied  to  the  persuasion  of  a  jury  on  facts,  has  three 
aspects : 

(a)  The  Evidence,  strictly  so-called,  i.e.,  the  materials,  data,  or 
"facts,"  as  offered,  and  each  piece  of  such  materials. 

(6)  The  Inference,  i.e.,  the  persuasive  effect  supposed  to  belong 
provisionally  to  each  piece  of  these  materials;   and 

(c)  The  Proof,  i.e.,  the  total  persuasive  effect  of  the  whole  mass  of 
data  on  the  issue  before  the  tribunal. 

In  the  Anglo-American  system  of  procedure,  the  parties  to  the  cause 
are  expected  to  obtain  the  evidence  and  present  it  to  the  tribunal ;  rarely 
does  the  tribunal  itself  search  for  evidence.  Hence,  the  rules  of  evi- 
dence are  commonly  regarded  from  the  party's  point  of  view.  Thus 
regarded,  they  fall  naturally  into  five  broad  divisions  (here  entitled 
Books) : 

Book  I.     What  Evidence  may  he  ■presented  (Rules  of  Admissibility). 

Book  II.  What  is  the  Procedure  for  presenting  Evidence  (Offers, 
Objections,  and  Rulings). 

Book  III.  To  Whom  the  Evidence  is  to  he  presented  (Judge  or  Jury; 
Law  and  Fact). 

Book  IV.  By  Whom  the  Evidence  is  to  he  presented  (Burdens  of  Proof; 
Presumptions). 

Book  V.  Of  What  Matters  No  Evidence  need  he  presented  (Judicial 
Admissions;   Judicial  Notice). 


BOOK   I.    RULES   OF   ADMISSIBILITY   OF 
EVIDENCE 

2.  Definitions  (continued).  When  Evidence  is  presented,  the  main 
object  is,  of  course,  to  persuade  the  jury  with  it.  Hence,  the  logical 
(or,  probative,  or,  persuasive)  power  of  the  evidence  (each  piece  and 
the  whole  mass)  on  the  jury's  belief,  i.e.,  the  Weight  of  the  evidence, 
its  Proof,  would  naturally  be  supposed  to  be  the  sole  consideration. 
But  it  is  not.  Before  the  evidence  is  allowed  to  be  presented  to  the 
jury,  the  Judge  determines,  under  the  law,  its  Admissibility;  and  often 
rejects  it. 

This  is  because  long  experience  in  millions  of  trials  has  shown  plainly 
the  abuses  and  dangers  of  unrestricted  admission.  In  the  first  place, 
the  jurors  are  untrained  in  the  science  and  art  of  estimating  evidence, 
and  need  to  be  protected  by  the  law  from  those  dangers.  In  the  next 
place,  the  Jurors,  and  all  men,  are  too  susceptible  to  the  false  force  of 
some  kinds  of  evidence.  In  the  third  place,  there  are  clients  and  counsel 
in  all  epochs  and  communities,  who  are  unscrupulous  or  careless  or  lazy 
or  ignorant  enough  to  present  all  sorts  of  false  or  misleading  evidence; 
and  thus  the  safeguards  tested  by  experience  must  be  uniformly  applied 
in  all  cases,  to  prevent  the  risk  of  erroneous  verdicts.  The  policies  or 
principles  thus  found  useful  in  experience  are  applied  to  restrict  the 
kinds  of  evidence  that  may  be  used,  or  to  impose  conditions  on  their 
use.     Thus  arise  the  Rules  of  x\dmissibility. 

These  rules  of  Admissibility  therefore  are  not  based  on  the  intrinsic 
persuasive  (logical,  probative)  effect  of  the  evidence  itself.  That  is, 
those  rules  do  not  exclude  the  evidence  because  it  does  not  logically 
prove  or  persuade  the  mind;  nor  even  because  its  probative  value  is 
small.  Some  of  the  rules,  to  be  sure,  are  applied  only  to  evidence  having 
small  probative  value;  but  there  is  always  some  other  special  policy 
combining  therewith  to  justify  the  rule.  Hence,  the  principles  of  Logic 
and  Psychology  (as  examined  in  the  present  Compiler's  "Principles  of 
Judicial  Proof")  furnish  little  or  no  basis  for  those  Rules  of  Admissibility. 
Most  of  them  are  based  mainly  on  a  broad  experience,  in  trials,  of  the 
dangers  of  misuse  of  evidence  by  jurors  and  parties.  The  others  are 
based  on  other  policies  of  civio  importance,  which  override  for  the  time 
being  the  quest  for  truth  in  trials. 

In  studying  the  Rules  of  Admissibility,  therefore,  the  first  caution  is, 
Not  to  regard  them  as  synonymous  with  the  principles  of  Proof,  or  Weight 
of  Evidence;  and  the  second  caution  is,  To  look  for  the  practical  policy  or 


10  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  2 

principle  of  safeguard,  based  on  trial  experience,  which  is  at  the  basis  of 
each  one. 

The  Rules  of  Admissibility  fall  into  two  groups,  according  to  the 
purpose  of  the  policy  which  dictates  the  rule. 

The  first  group  (here  termed  Part  I),  Rules  of  Auxiliary  Probative 
Policy,  aim  to  safeguard  against  risks  of  erroneous  verdicts.  They  have 
regard  only  for  the  ascertainment  of  the  truth  in  litigation.  They 
assume  that  truth,  in  the  long  run,  will  best  be  attained  by  the  exclusions 
or  conditions  which  they  impose. 

The  second  group  (here  termed  Part  II),  Rules  of  Extrinsic  Policy, 
are  based,  on  the  contrary,  on  outside  considerations.  They  frankly 
admit  that  they  wall  hamper  the  inquiry  into  truth,  but  maintain  that 
other  interests  are  paramount,  for  the  time  being.  They  do  not  carry 
their  scope  so  far  as  to  stifle  the  truth;  they  merely  exclude  a  small  part 
of  the  materials  available  for  getting  at  it.  And  they  do  this  because 
the  incidental  loss,  viz.,  the  risk  of  blocking  the  truth,  is  small  as  compared 
with  the  gain  to  the  extrinsic  interests  thereby  protected.  This  group 
of  rules  comprises  the  various  so-called  Privileges,  —  husband  and  wife, 
attorney  and  client,  State  secrets,  self-crimination,  etc. 


No.  2  DEFINITIONS  11 


PART    I.    RULES  OF    AUXILIARY    PROBATIVE 

POLICY 

2.   Definitions  (continued). 

The  Rules  of  Auxiliary  Probative  Policy  may  best  be  classified,  not 
according  to  the  kinds  of  policy  involved  (which  are  more  or  less  conglom- 
erate and  inseparable),  but  according  to  what  each  rule  actually  does  to 
the  evidence.  There  are  thus  five  groups  (here  termed  Titles) :  Elimina- 
tive,  Preferential,  Analytic,  Prophylactic,  Synthetic. 

Title  I:  Eliminative  Rules.  These  rules  simply  shut  out  certain  kinds 
of  evidence.  The  rules  are  numerous;  but  the  policies  which  underlie 
them  are  mainly  three:  Undue  Prejudice,  Unfair  Surprise,  and  Confusion 
of  Issues. 

Undue  Prejudice.  This  policy  rests  on  the  danger,  shown  by  ex- 
perience, that  juries  will  be  moved  by  prejudice  or  ignorance  to  give 
inordinate  weight  to  evidence  which  intrinsically  should  not  persuade 
them,  and  that  parties  will  take  advantage  of  this  trait.  For  instance, 
the  jurors,  on  hearing  of  an  accused's  criminal  record,  may  find  him 
guilty  of  the  act  now  charged,  without  actually  believing  that  he  did  it, 
and  merely  because  he  seems  a  fit  man  to  be  punished  generally. 

Unfair  Surprise.  This  policy  rests  on  the  danger,  shown  by  experi- 
ence, that  an  opponent  may  be  overcome  by^false  evidence,  merely  for 
lack  of  an  opportunity  before  trial  to  prepare  to  refute  it.  The  mere 
surprise  is  of  no  account;  but  when  a  man  is  surprised  to  find  false 
evidence  produced,  it  might  be  unfair  to  him  to  admit  it,  if  he  could  not 
have  known  in  advance  the  tenor  of  the  false  evidence. 

Confusion  of  Issues.  •  This  policy  rests  on  the  danger,  shown  by 
experience,  that  a  cumulation  of  complex  and  controverted  details  on 
collateral  issues  may  so  distract  the  attention  of  the  jurors  that  the  real 
issue  will  be  lost  from  sight,  and  they  will  be  moved  to  render  their  general 
verdict  by  some  of  these  collateral  details,  not  by  the  evidence  on  the 
main  issues  of  the  case. 

These  three  policies,  expressed  or  implied,  appear  again  and  again 
as  the  source  of  most  of  the  rules  in  this  group. 

Nevertheless,  the  slight  probative  value  of  certain  kinds  of  evidence 
enters  often  as  a  part  of  the  reason  for  the  rule.  I.e.,  the  above  policies 
would  not  avail  to  exclude  the  evidence  unless  it  had  been  in  itself  of 
slight  probative  value.  Thus  in  many  cases,  notably  under  Circum- 
stantial Evidence,  the  judge  will  be  found  discussing  the  slight  probative 
value  of  the  evidence  offered,  because  the  policies  of  exclusion  would 
otherwise  not  be  applied. 

In  Testimonial  Evidence  (Sub-title  II),  to  be  sure,  there  is  little  said 
by  the  judges  about  the  three  policies  above  named;  the  slight  proba- 
tive value  of  the  testimony  is  apparently  the  main  consideration.     Yet, 


12  BOOK  l:     RULES   OF  ADMISSIBILITY  No.  2 

underlying  and  unexpressed,  is  a  general  policy,  allied  to  that  of  Undue 
Prejudice,  which  fears  the  danger  of  the  jury  being  misled  by  a  plausible 
witness  who  really  is  of  a  class  deemed  untrustworthy.  This  policy, 
being  rarely  expressed,  cannot  be  given  a  name.  And  it  tends  to  be  less 
and  less  considered;  so  that  testimonial  evidence  is  now  more  freely 
admitted  than  formerly.  Nevertheless,  in  these  rules,  as  in  those  for 
Circumstantial  Evidence,  the  distinction  should  always  be  looked  for 
between  excluding  the  evidence  solely  for  slight  probative  value  and 
excluding  it  because  of  known  dangers  of  fraud,  prejudice,  etc. 

Title  II:  Preferential  Rules.  These  rules,  declaring  one  kind  of  evi- 
dence preferable  to  another,  insist  that  the  former  must  be  produced,  if 
it  can  be;  or,  otherwise  put,  they  refuse  to  admit  the  latter  unless  the 
former  is  shown  to  be  not  obtainable.  They  rest  on  the  known  risks  of 
error  in  the  latter  sort.  Such  are  the  rules  for  producing  the  original  of 
a  document  (instead  of  a  copy),  and  for  producing  the  attesting  witness 
to  a  will  (instead  of  a  mere  bystander). 

Title  III:  Analytic  Rules.  This  tj^pe  of  rule  requires  that  the  evidence 
be  tested,  to  expose  its  possible  weakness,  at  the  time  of  its  admission. 
There  is  but  one  rule  exclusively  of  this  type,  —  the  Hearsay  rule,  i.e., 
requiring  that  testimony  be  delivered  in  court,  where  the  opponent  can 
cross-examine  the  witness  and  the  tribunal  can  observe  his  demeanor 
under  examination.  The  benefits  of  this  process  are  the  same  that  we 
obtain  in  chemistry  by  testing  an  unknown  liquid  with  litmus-paper 
or  by  roasting  a  salt  in  a  test-tube.  The  actual  process  is  therefore  one 
of  analysis,  —  separating  into  plain  view  the  strong  or  weak  elements 
hitherto  lying  hidden  in  the  testimony  and  otherwise  unascertainable. 

Title  IV:  Prophylactic  Rules.  These  rules  apply  to  certain  kinds  of 
evidence  an  extra  measure  of  precaution  which  will  counteract  its  possible 
dangers.  The  oath,  the  separation  of  witnesseg,  etc.,  belong  here.  The 
policy  of  these  rules  recognizes  that  there  are  special  dangers  of  falsity, 
but  realizes  that  we  cannot  expect  always  to  detect  the  falsity,  and 
endeavors  to  protect  against  it  by  an  appropriate  safeguard;  the  oath, 
for  instance,  is  expected  to  check  the  witness  who  might  have  contem- 
plated telling  a  falsehood. 

Title  V:  Synthetic  Rules.  These  rules  require  that  two  or  more  kinds 
of  evidence  shall  be  produced  together,  i.e.,  that  one  of  them  alone  shall 
not  be  used.  Their  policy  rests  on  the  knowTi  experience  of  weakness 
in  a  certain  kind  of  evidence,  and  seeks  protection  by  uniting  other  evi- 
dence to  strengthen  it.  There  now  remain  but  few  of  these  rules,  e.g., 
the  rule  requiring  two  witnesses  for  an  act  of  treason. 


No.  2  DEFINITIONS  13 


TITLE  I.    ELIMINATIVE  RULES 

2.  Definitions  (continued).  In  taking  up  the  Eliminative  Rules,  it 
is  necessary  to  distinguish  between  the  three  kinds  of  evidential  materials : 
Circumstantial  Evidence,  Testimonial  Evidence,  and  Autoptic  Proference. 
The  difference  of  the  materials  gives  rise  to  entirely  different  rules. 

Autoptic  Profe^ticc.  This  occurs  when  the  tribunal  observes  the 
thing  with  its  own  senses.  The  more  common  name  (invented  by 
Bentham,  but  afterwards  misapplied)  is  Real  Evidence,  i.e.,  the  evidence 
furnished  by  a  view  of  a  "res,"  or  thing  itself.  As  a  term  correct  in 
etymology  and  analogous  usage,  Atitoptic  (autopsy)  indicates  that  the 
tribunal  uses  its  own  senses  to  observe  the  thing,  and  Proference  (profert) 
indicates  that  the  parties  produce  the  thing  for  that  purpose  to  the 
tribunal.  When  a  bloody  knife  is  in  issue,  the  Autoptic  Proference  of 
it  is  to  be  distinguished  from  Circumstantial  Evidence  about  it  (e.g.,  a 
cut-mark  or  blood-stain  left  on  a  garment  by  the  knife)  and  from  Testi- 
monial Evidence  about  it  (e.g.,  a  witness'  assertion  that  he  saw  it). 

Autoptic  Proference  is,  in  one  sense,  not  evidence  of  a  thing;  it  is 
the  thing.  But  that  is  a  matter  of  theory,  and  is  not  important,  except 
in  the  interpretation  of  statutes. 

Testimonial  Evidence.  This  includes  all  assertions  made  by  a  human 
being,  as  a  source  of  the  tribunal's  belief  in  the  fact  asserted.  An  asser- 
tion made  out  of  court  before  trial  is  testimonial  evidence,  as  well  as  an 
assertion  made  in  court  on  the  witness-stand;  the  hearsay  rule  may 
exclude  the  former  (though  not  always),  but  that  does  not  alter  its  nature. 

Circumstantial  Evidence.  This  comprises  all  evidence  not  testimonial. 
The  term  is  an  unfortunate  one,  but  cannot  be  dislodged  from  usage. 
Common  examples  are:  the  contour  of  a  flesh-wound,  as  evidencing  the 
kind  of  bullet  that  caused  it;  the  occurrence  of  a  storm,  as  evidencing  the 
probable  sinking  of  a  ship;  the  moral  character  of  a  man,  as  evidencing 
his  probable  doing  of  an  act. 

The  distinction  of  testimonial  from  circumstantial  evidence  is  of 
great  practical  importance.  Testimonial  evidence  (human  assertions) 
is  one  general  class  having  more  or  less  common  and  constant  features 
and  conditions,  and  hence  many  of  the  teachings  of  experience  as  to  its 
trustworthiness  can  be  reduced  to  rules  fairly  applicable  to  all  testimony. 
But  circumstantial  evidence  is  of  infinite  variety,  and  precisely  the  same 
conditions  seldom  recur;  hence,  general  rules  can  seldom  be  formulated. 
Moreover,  so  far  as  they  can  be,  they  deal  with  a  class  of  materials 
essentially  different  from  that  of  testimonial  evidence,  and  therefore 
form  a  different  branch  of  learning  and  can  be  studied  separately. 

In  the  following  pages,  it  will  be  desirable  to  take  up  these  three 
classes  in  the  following  order:  Autoptic  Proference;  Circumstantial 
Evidence;  Testimonial  Evidence. 


14  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  3 


SUB-TITLE   I.     RULES   EXCLUDING   AUTOPTIC   PROFERENCE 
(REAL   EVIDENCE) 

3.  Ings'  Trial.  (1820.  Howell's  State  Trials,  XXXIII,  1051.)  [The 
"Cato-street  conspiracy."  High  treason;  the  defendant,  claimed  that  he  was 
ignorantly  drawn  into  the  movement  and  did  not  know  of  t^e  specific  murderous 
designs  of  the  leaders.     A  constable  produced  the  conspirators'  weapons.] 

Mr.  Gurney.  —  Are  there  now  placed  upon  the  table  the  things  which  were 
taken  in  Cato-street?  —  Yes. 

You  gave  us  an  enumeration  yesterday  of  thirty-eight  ball-cartridges,  fire- 
lock and  bayonet,  one  powder-flask,  three  pistols,  and  one  sword,  with  six  bayo- 
net spikes,  and  cloth  belt,  one  blunderbuss,  pistol,  fourteen  bayonet  spikes,  and 
tliree  pointed  files,  one  bayonet,  one  bayonet  spike,  and  one  sword  scabbard, 
one  carbine  and  bayonet,  two  swords,  one  bullet,  ten  hand-grenades;  I  do  not 
see  them?  —  Here  they  are,  (producing  a  bag.)  , 

We  must  have  them  on  the  table  (they  were  emptied  out.) 

There  is  one  hand-grenade  much  larger  than  the  rest;  that  is  what  you  call 
the  large  hand-grenade?  —  Yes. 

Show  the  jury  the  fuse  to  it?  (it  was  shown  to  the  jury.)  —  There  are  some 
iron  spikes  tucked  in. 

Hand  one  of  the  small  hand-grenades  to  the  jury  with  a  fuse?  (it  was  handed 
to  the  jury.) 

Are  there  any  fire  balls  there?  (one  was  shown  to  the  jury.)  —  I  will  give  you 
an  account,  gentlemen,  by  another  witness,  of  the  composition  of  these.  I 
observe  here  are  some  bayonets  with  screws  at  the  end,  and  some  sharpened 
files  with  screws  at  the  end?  —  There  are  (they  were  shown  to  the  jiu-y.) 

Produce  the  pike  staves?  —  (they  were  produced.)  Take  one  of  the  pike 
staves  from  the  rest,  and  show  the  adaptation  of  it.  (the  witness  screwed  in 
one  of  the  pike  heads.)     They  are  all  made  to  receive  a  screw?  —  Yes. 

Have  they  a  ferrule  at  the  top?  —  They  have. 

Will  you  produce  the  belt  and  the  knife-case  found  upon  the  prisoner?  (they 
were  produced.)  Hand  that  knife  with  the  knife-case  and  the  belt  to  the  jury: 
you  observe,  gentlemen,  the  knife-case  and  the  belt  are  of  the  same  cloth. 

Ings.  —  The  knife  was  not  found  upon  me,  my  lord. 

Mr.  Gurney.  —  You  observe  the  handle  of  the  knife,  gentlemen,  is  bound 
round  with  wax-end?  (it  was  shown  to  the  jury.)  Where  are  the  two  haver- 
sacks that  were  found  upon  the  prisoner?  (they  were  handed  to  the  jury.)  Show 
the  jury  the  brass-barrelled  blunderbuss  (it  was  shown  to  the  jury.) — Which 
were  the  pike  staves  found  in  Cato-street?  —  The  bundle  I  have  just  shown.  .  .  . 

Mr.  Gurney.  —  Now  produce  to  us  the  things  out  of  the  basket  covered  with 
the  blue  apron?  —  These  are  flannel  bags  full  of  gunpowder;  there  are  also  some 
empty  (producing  them). 

A  Juryman.  — There  is  powder  in  those  bags.  There  is.  (One  of  the  bags 
was  opened,  and  the  contents  shown  to  the  jury). 

Mr.  Gurney.  —  The  bags  contain  one  pound  each,  I  believe?  —  Yes. 

Are  there  four  hand-grenades?  —  There  are.  (they  were  handed  to  the 
jury).  .  .  . 


No.  4  AUTOPTIC   PROFERENCE  15 

You  found  also  sixty-tliree  buHets?  —  I  did;  here  they  are.  (producing 
them).  .  .  . 

You  stated  that  in  a  haversack,  there  were  434  balls;  171  ball  cartridges, 
and  69  without  powder  (the  witness  produced  the  same.)  There  were  three 
pounds  of  gunpowder?  —  There  were,     (producing  them.)  .  .  . 

Produce  the  Ijox  you  found  with  the  ball  cartridges  (it  was  produced).  There 
are  965  ball  cartridges  in  that  box,  are  there?  —  There  are.  .  .  . 

Take  one  of  the  hand-grenades;  you  have  examined  two  of  them  before?  — 
Yes,  I  have. 

Take  that  to  pieces,  and  show  us  of  what  it  is  composed  (it  was  taken  to 
pieces  in  the  presence  of  the  jury).  .  .  . 

Take  out  the  nails  and  see  whether  you  find  a  tin  case  filled  with  gunpowder? 
—  Here  is  part  of  a  blanket  covering  the  tin  case.  .  .  . 

Is  it  good  gunpowder?  —  Very  good. 

That  would  be  a  quantity  of  gunpowder  sufficient  to  cause  the  explosion 
you  speak  of?  — -  Yes,  there  is  rather  more  than  we  put  to  burst  a  nine-inch  shell. 

I  need  scarcely  ask  you,  whether  that  grenade  would  be  a  most  formidable 
and  destructive  instrument?  —  It  certainly  would. 

Mr.  Attorney-General.  —  That,  my  lord,  is  the  case  on  the  part  of  the  Crown. 

Mr.  Adolphus  [counsel  for  the  defence,  in  his  address  to  the  jury]. 

You  have  had  that  which  produces  always  a  sort  of  mechanical  effect.  I 
do  not  mean  to  pay  an  ill  compliment  to  your  understandings;  but  you  have  had 
a  display  of  visible  objects,  pikes  and  swords,  gims  and  blunderbuses,  have  been 
put  before  you,  to  the  end  that  this  feeling  may  be  excited  in  every  man's  mind, 
"How  should  I  like  to  have  this  sort  of  thing  put  to  my  breast!  How  should  I 
feel  if  this  were  applied  to  my  chimney!  and  that  to  my  stair-case! "  and  so  on; 
this  is,  that  the  individual  feeling  of  each  man  may  make  him  separate  himself 
from  society,  —  may  make  him,  through  the  medium  of  his  own  personal  hatred 
of  violence  or  apprehension  of  danger,  think  that  this  contemptible  exliibition  of 
imperfect  armoury  could  operate  on  a  town  filled  by  a  million  of  loyal  inhabitants 
or  could  give  the  means  of  overwhelming  the  empire.  When  touched  by  reason, 
they  shrink  to  nothing,  and  will  never  produce  a  verdict  contrary  to  the  evidence 
of  facts.  It  is  like  displaying  the  bloody  robe  of  a  man  who  has  been  stabbed 
or  murdered;  it  is  like  the  trick  practised  at  every  sessions,  where  we  see  a  wit- 
ness pull  out  some  cloak  or  handkerchief  dipped  in  blood  of  the  person,  to  produce 
conviction  tlirough  the  medium  of  commiseration.  They  do  not  trust  to  descrip- 
tion, but  rely  upon  display.     That  is  the  effect  of  the  production  of  these  arms. 

4.  David  Paul  Brown  ("The  Forum,"  1856.  vol.  II.  p.  448).  [This  famous 
Philadelphia  advocate  is  recounting  the  story  of  a  celebrated  trial,  in  1834,  for 
the  homicide,  by  a  disappointed  lover,  of  the  woman  he  loved]:  Diu-ing  the 
course  of  the  trial  there  was  an  occurrence  which  is  entitled  to  notice.  When 
I  first  called  upon  the  prisoner,  after  he  had  furnished  me  with  some  of  the  promi- 
nent details,  I  asked  him  how  the  deceased  was  dressed  at  the  time  of  the  blow. 
He  said,  "in  black."  I  observed,  "that  was  better  than  if  the  dress  had  been 
white."  Upon  which  the  prisoner  turned  hastily  round,  and  asked  what  dif- 
ference that  could  make.  The  reply  was,  "No  difference  in  regard  to  your  offense, 
but  a  considerable  difference  in  respect  to  the  effect  produced  upon  the  jury  by 
the  exhibition  of  the  garments,  which,  no  doubt,  wall  be  resorted  to."  And  so 
upon  the  trial  it  turned  out.     The  black  dress  was  presented  to  the  jury,  —  the 


16  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  4 

eleven  punctures  through  the  bosom  pointed  out;  but  no  stain  was  observable, 
no  excitement  was  produced.  At  last,  however,  they  went  further,  and  produced 
some  of  the  white  undergarments  —  corsets,  etc.,  all  besmeared  with  human 
blood.  Upon  this  exhibition  there  was  not  a  dry  eye  in  the  courthouse.  And 
the  current  of  opinion  continued  to  run  against  the  defendant  from  that  moment 
until  the  close  of  the  case,  and  finally  bore  him  into  eternity. 


5.    STATE  V.  MOORE 

Supreme  Court  of  Kansas.      1909 

80  Kan.  232;   102  Pac.  475 

Appeal  from  District  Court,  Cowley  County;   C.  L.  Swarts,  Judge. 

John  C.  Moore  was  convicted  of  murder  in  the  first  degree,  and  he 
appeals.     Affirmed. 

See,  also,  77  Kan.  736,  95  Pac.  409. 

John  W.  Adams,  Geo.  W.  Adams,  and  L.  C.  Brown,  for  appellant. 
F.  S.  Jackson,  Atty.  Gen.  {Ed.  J.  Fleming  and  Jackson  &  Noble,  of  counsel), 
for  the  State. 

BuRCH,  J. —  On  Sunday,  December  27, 1906,  appellant  waylaid  his  wife 
as  she  was  returning  from  church,  shot  her  twice  through  the  body,  and 
killed  her  on  a  public  street  in  the  city  of  Arkansas  City.  He  was  con- 
victed of  murder  in  the  first  degree,  but  the  judgment  was  reversed 
because  of  the  admission  of  irrelevant  and  prejudicial  evidence.  State 
V.  Moore,  77  Kan.  736,  95  Pac.  409.  He  was  tried  a  second  time,  was 
again  convicted  of  murder  in  the  first  degree,  and  again  appeals.   .   .   . 

Error  is  assigned  because  the  jacket  which  the  deceased  wore  when 
she  was  shot  was  introduced  in  evidence.  It  was  fully  identified,  was 
pierced  in  the  back  by  two  bullet  holes,  and  its  lining  was  stained  with 
blood.  When  the  jacket  was  offered,  counsel  for  appellant  sought  to 
forestall  its  exhibition  to  the  jury  by  the  statement  to  the  Court  that  no 
evidence  would  be  introduced  on  the  part  of  the  defense  concerning  the 
shooting.  In  the  case  of  State  v.  Jones,  89  Iowa,  182,  56  N.  W.  427,  the 
syllabus  reads:  "The  fact  that  the  defendant,  in  a  prosecution  for 
homicide,  admits  the  killing,  is  not  a  ground  for  the  exclusion  of  the 
weapon  with  which  the  crime  was  committed  from  evidence."  This  is 
true  for  two  reasons:  The  bare  admission  of  the  killing  subtracts  little 
from  the  issues,  and  it  may  be  very  important  for  the  State,  with  the 
burden  resting  upon  it  to  establish  all  the  charges  of  the  indictment  or 
information  beyond  a  reasonable  doubt,  to  make  its  own  case  in  its  own 
way,  and  the  evidence  may  be  very  valuable  in  illustrating  or  establishing 
other  material  facts.  Beyond  this,  the  statement  under  consideration 
was  too  carefully  guarded.  It  did  not  admit  the  shooting  or  any  other 
fact  connected  with  the  homicide,  not  even  that  appellant's  wife  was 
dead.  Its  import  was  merely  that  whatever  the  State  proved  relating 
to  the  shooting  would  not  be  contradicted,  and  the  burden  still  rested  on 


No.  5  AUTOPTIC   PROFERENCE  17 

the  State  to  prove  every  fact  alleged  in  the  information  beyond  a  reason- 
able doubt.  .  .  .  The  inanimate  garment  told  clearly  and  truthfully  the 
story  of  a  woman  shot  twice  in  the  back,  and  hence,  by  legitimate  in- 
ference, maliciously,  willfully,  deliberately,  premeditatedly,  and  without 
justification  or  excuse.  It  had  a  rightful  place  among  the  accusing  wit- 
nesses, none  of  whom  could  be  set  aside  at  appellant's  option  because 
they  were  numerous. 

It  is  argued  that  the  introduction  in  evidence  of  the  dead  woman's 
bloody  jacket  destroyed  the  mental  poise  of  the  jury  by  riveting  their 
minds  upon  a  scene  of  carnage,  to  the  exclusion  of  any  calm  consideration 
of  appellant's  sanity,  the  only  matter  finally  disputed  by  way  of  defense. 
The  State  rested  under  the  necessity  of  establishing  a  tragedy  involving 
the  violent  death  of  a  human  being  from  mortal  wounds  deliberately 
inflicted  with  malice  aforethought  —  a  thing  most  likely  to  include  some 
blood  along  with  the  wickedness,  perhaps,  too,  the  terrifying  report  of 
pistol  shots  in  a  peaceful  street  on  a  Sunday  just  after  church,  the  piteous 
appeals  for  life,  and  the  agonized  death  screams  of  a  defenseless  woman 
as  she  is  being  shot  down,  and  other  shocking  things.  Such  a  subject  is 
never  a  nice  one  to  investigate.  Any  of  the  details  have  a  decided  ten- 
dency to  horrify  and  to  appall,  but  a  court  cannot  arrange  for  lively  music 
to  keep  the  jury  cheerful  while  the  State's  case  in  a  murder  trial  is  being 
presented,  and  grewsome  evidence  cannot  be  suppressed  merely  because 
it  may  strongly  tend  to  agitate  the  jury's  feelings.  In  the  case  of  Turner 
V.  State,  89  Tenn.  547,  15  S.  W.  838,  a  section  of  the  murdered  man's 
ribs  and  vertebra  was  introduced  in  e^'idence.  Objection  was  made 
because  the  object  was  calculated  to  inspire  the  jury  with  such  horror 
as  to  influence  their  verdict.  The  purpose  of  the  e\ddence  was  to  show 
the  direction  and  lodgment  of  the  bullet,  and  it  was  held  to  be  clearly 
admissible.  .  .  .  Innumerable  cases  might  be  quoted  to  the  same  effect. 
Generally  physical  objects,  which  constitute  a  portion  of  a  trans- 
action, or  which  serve  to  unfold  or  explain  it,  may  be  exhibited  in  evi- 
dence, if  properly  identified,  whenever  the  transaction  is  under  judicial 
investigation. 

Appellant  has  cited  some  cases  in  which  it  seems  to  be  indicated  that 
the  exhibition  of  bloody  garments  serves  no  purpose  when  the  condition 
and  location  of  wounds  made  through  them  have  been  described  by  wit- 
nesses. This  Court  prefers  to  abide  by  the  well-established  rule  that, 
ordinarily,  whatever  the  jury  may  learn  through  the  ear  from  descrip- 
tions given  by  witnesses,  they  may  learn  directly  through  the  eye  from 
the  objects  described.  State  v.  Stair,  87  Mo.  268,  273,  56  Am.  Rep. 
449.  Of  course  spectacular  exhibitions  may  be  framed  for  the  purpose 
of  arousing  prejudicial  emotions,  and  all  such  improprieties  should  be 
thwarted  or  promptly  suppressed.  The  production  of  real  evidence 
should  not  be  permitted  to  exaggerate,  and  should  not  be  allowed, 
through  cunning  presentation,  to  stir  up  passion  or  unduly  excite  sym- 
pathy or  pity,  and  so  lead  the  jury  to  act  upon  sentiment,  instead  of 


18  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  5 

proof.  But  the  proceeding  is  always  under  the  control  of  the  trial  judge, 
who  has  authority  to  confine  the  use  of  such  evidence  to  proper  purposes 
and  to  regulate  the  time,  manner,  and  extent  of  its  presentation,  and  his 
discretion  will  not  be  interfered  with  unless  abused  with  prejudicial 
consequences.  The  chief  objection  to  the  exhibition  of  weapons,  wounds, 
bloody  clothing,  and  the  like  is  that  the  jury  may  be  led  to  associate  the 
accused  with  the  atrocity  under  investigation  without  sufficient  proof. 
Prof.  Wigmore  disposes  of  this  objection  in  the  following  way:  "No 
doubt  such  an  efl"ect  may  occasionally  and  in  an  extreme  case  be  produced, 
and  no  doubt  the  trial  Court  has  a  discretion  to  prevent  the  abuse  of  the 
process;  but,  in  the  vast  majority  of  instances  where  such  objection  is 
made,  it  is  frivolous,  and  there  is  no  ground  for  apprehension.  Accord- 
ingly, such  objections  have  almost  invariably  been  repudiated  by  the 
Courts"  —  citing  many  cases.  Wigmore  on  Evidence,  vol.  2,  §§  1157, 
1354.   .   .   .  Judgment  affirmed. 

6.  Mansfield,  L.  C.  J.  R^des  for  Views.  (1757.  Burr.  252).  Before  the 
4  &  5  Anne,  c.  16,  §  8,  there  could  be  no  view  till  after  the  cause  had  been  brought 
on  to  trial.  If  the  Court  saw  the  question  involved  in  obscurity  which  might 
be  cleared  up  by  a  view,  the  cause  was  put  off,  that  the  jurors  might  have  a  view 
before  it  came  on  to  be  tried  again.  The  rule  for  a  view  proceeded  upon  the 
previous  opinion  of  the  Court  or  judge,  at  the  trial,  "that  the  nature  of  the  ques- 
tion made  a  view  not  only  proper  but  necessary";  for  the  judges  at  the  assizes 
were  not  to  give  way  to  the  delay  and  expense  of  a  view  unless,  they  saw  that  a 
case  could  not  be  understood  without  one.  However,  it  often  happened  in  fact 
that  upon  the  desire  of  either  party  causes  were  put  off  for  want  of  a  view  upon 
specious  allegations  from  the  nature  of  the  question  that  a  view  was  proper,  — 
without  going  into  the  proof  so  as  to  be  able  to  judge  whether  the  evidence  might 
not  be  understood  without  it.  This  circuity  occasioned  delay  and  expense;  to 
prevent  which  the  4  &  5  Anne,  c.  16,  §  8,  impowered  the  Courts  at  Westminster 
to  grant  a  view  in  the  first  instance  previous  to  the  trial.  .  .  .  [He  then  refers 
to  the  other  statute  of  3  G.  II,  and  to  the  supposed  rule  as  to  the  number  of 
viewers  necessary.]  Upon  a  strict  construction  of  these  two  acts  in  practice,  the 
abuse  which  is  now  grown  into  an  intolerable  grievance  has  arisen.  Nothing 
can  be  plainer  than  the  4  &  5  Anne,  c.  16,  §  8.  .  .  .  The  Courts  are  not  bound 
to  grant  a  view  of  course;  the  Act  only  says  "they  7nay  order  it,  where  it  shall 
appear  to  them  that  it  will  be  proper  and  necessary."  .  .  .  [He  then  refers  to  the 
abuse  of  repeated  postponement  of  trial  to  obtain  a  view.]  We  are  all  clearly 
of  opinion  that  the  Act  of  Parliament  meant  a  view  should  not  be  granted  unless 
the  Court  was  satisfied  that  it  was  proper  and  necessary.  The  abuse  to  which 
they  are  now  perverted  makes  this  caution  our  indispensable  duty;  and,  there- 
fore, upon  every  motion  for  a  view,  we  will  hear  both  parties,  and  examine,  upon 
all  the  circumstances  which  shall  be  laid  before  us  on  both  sides,  into  the  pro- 
priety and  necessity  of  the  motion;  unless  the  party  who  applies  will  consent 
to  and  move  it  upon  terms  which  shall  prevent  an  unfair  use  being  made  of  it,  to 
the  prejudice  of  the  other  side  and  the  obstruction  of  justice. 


No.  7  AUTOPTIC   PROFERENCE  19 

7.    SPRINGER  V.   CHICAGO 

Supreme  Court  of  Illinois.     1891 

135///.  553;  26  iV.  E.  514 

Appeal  from  the  Appellate  Court  for  the  First  District;  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon. 
R.  S.  TuTHiLL,  Judge,  presiding. 

Messrs.  Knight  &  Brown,  and  Mr.  E.  H.  Gary,  for  the  appellant: 
It  was  error  to  permit  the  jury  to  inspect  the  premises.  Doud  v.  Guthrie, 
13  Bradw.  656.  .  .  . 

Mr.  Jonas  Hidchinson,  Mr.  Clarence  S.  Darrow,  Mr.  Byron  Boyden, 
and  Mr.  H.  H.  Martin,  for  the  appellee:  .  .  .  The  order  for  viewing 
the  premises  was  proper.  ...  It  is  within  the  discretion  of  the  trial 
judge  to  allow  the  plaintiff  in  an  accident  case  to  exhibit  his  injured  limb 
or  body  to  the  jury.  .  .  . 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court: 

This  was  an  action  to  recover  damages  alleged  to  have  been  caused 
to  the  property  of  appellant  by  the  construction  of  Jackson-street  bridge 
and  viaduct,  and  the  approach  on  Canal  street,  by  the  city  of  Chicago. 
On  a  trial  the  jury  returned  a  verdict  in  favor  of  defendant,  the  city  of 
Chicago.  The  Court  overruled  a  motion  for  a  new  trial,  and  rendered 
judgment  on  the  verdict.  On  appeal  to  the  Appellate  Court  the  judg- 
ment was  affirmed.   .   .   . 

After  the  jury  was  impaneled,  and  before  the  trial  commenced,  the 
Court,  on  motion  of  defendant,  permitted  the  jury,  in  charge  of  an  officer, 
to  go  upon  and  view  the  premises  in  controversy,  and  this  ruling  is  relied 
upon  as  error.  It  is  not  claimed  that  in  the  conduct  of  the  men  there 
was  any  misbehavior  on  the  part  of  the  officer  in  charge,  or  on  behalf  of 
any  of  the  jury,  or  on  behalf  of  either  representative  of  the  respective 
parties  who  accompanied  the  jury.  The  naked  claim  is  a  want  of 
power  on  the  part  of  the  Court  to  permit  the  view.  The  viaduct  was 
completed  in  August,  1888,  and  the  trial  occurred,  and  the  view  was 
had,  in  December,  1889.   .   .   . 

If  the  parties  had  the  right  to  prove  by  oral  testimony  the  condition 
of  the  property  at  the  time  of  the  trial,  (and  upon  this  point  we  think 
there  can  be  no  doubt,)  upon  what  principle  can  it  be  said  the  Court 
could  not  allow  the  jury  in  person  to  view  the  premises,  and  thus  ascertain 
the  condition  thereof  for  themselves?  The  premises  in  view  may  be 
regarded,  as  it  is  termed  in  the  books,  "real  evidence,"  and  oral  testimony 
in  reference  to  the  premises  could  not  be  as  satisfactory  in  its  character 
as  the  real  evidence.  In  1  Best,  Ev.  (Morgan's  Ed.),  §  197,  it  is  said: 
"Real  evidence  is  either  immediate  or  reported.  Immediate  real  evi- 
dence is  where  the  thing  which  is  the  source  of  evidence  is  present  to  the 
senses  of  the  tribunal."     In  section  198  it  is  said:    "Reported  real  evi- 


20  BOOK  l:     RULES   OF  ADMISSIBILITY  No.  7 

dence  is  where  the  thing  which  is  the  source  of  the  evidence  is  not  present 
to  the  senses  of  the  tribunal,  but  the  existence  of  it  is  conveyed  to  them 
through  the  medium  of  witnesses  or  documents.  This  sort  of  proof  is, 
from  its  very  nature,  less  satisfactory  and  convincing  than  immediate 
real  evidence."  See,  also,  Tayl.  Ev.  "(Sth  Ed.),  §  554;  1  Whart.  Ev.  (3d 
Ed.),  §345.  It  is  a  common  practice  in  the  trial  of  causes  in  the  Circuit 
Court  to  permit  parties  to  produce  things  before  the  jury  for  their 
inspection,  and  that  practice  has  been  approved.  Thus,  in  Iron  Works  v. 
Weber,  129  111.  535,  which  was  an  action  to  recover  for  a  personal  injury, 
we  held  that  the  torn  clothing  which  plaintiff  was  wearing  when  injured 
might  properly  be  shown  to  the  jury.  In  Express  Co.  v.  Spellman,  90 
111.  455,  —  an  action  against  a  carrier  for  the  loss  of  a  can  of  yeast,  —  it 
was  held  to  be  proper  to  allow  plaintiff  to  put  in  evidence  a  can  similar 
to  the  one  in  which  the  yeast  was  shipped  for  the  examination  of  the  jury. 
In  Jupitz  V.  People,  34  111.  516,  when  defendant  was  on  trial  for  receiving 
stolen  brass  couplings,  a  brass  coupling  similar  to  those  alleged  to  have 
been  received  was  allowed  to  be  submitted  to  the  jury.  In  other  States 
numerous  cases  may  be  found  where  the  same  rule  of  evidence  has  been 
adopted.  Thus,  in  an  accident  case,  it  is  held  to  be  within  the  discretion 
of  the  Court  to  allow  the  plaintiff  to  exhibit  to  the  jury  his  injured  limb 
or  body.  Barker  v.  Town  of  Perry,  67  Iowa,  146;  Railroad  Co.  v.  Wood, 
113  Ind.  548,  549;  Mulhado  v.  Railroad  Co.,  30  N.  Y.  370;  Hatfield  v. 
Railroad  Co.,  33  Minn.  130.  The  clothes  of  the  accused  were  held  ad- 
missible in  People  v.  Gonzalez,  35  N.  Y.  49,  and  Drake  v.  State,  75  Ga. 
413;  the  weapon  used  by  the  accused,  in  Wynne  v.  State,  56  Ga.  113; 
surgical  instruments  in  a  trial  under  an  indictment  for  illegal  operations 
on  a  woman.  Com.  v.  Brown,  121  Mass.  69;  the  stick  with  which  a  burglar 
struck  the  prosecutor  in  a  trial  on  charge  of  burglary.  State  v.  Mordecai, 
68  N.  C.  207;  tools  used,  where  a  burglary  has  been  committed.  People 
V.  Earned,  7  N.  Y.  445.  In  State  v.  Woodruff,  67  N.  C.  89,  it  was  held 
in  a  bastardy  case,  that  the  mother  of  a  bastard  child  might  hold  it  up 
for  the  inspection  of  the  jury.  It  was  also  held  in  Hatfield  v.  Railroad 
Co.,  33  Minn.  130,  on  the  trial  of  an  accident  case,  the  trial  Court  had 
the  power  to  require  the  plaintiff  to  walk  across  the  court-room  in  the 
presence  of  the  jury,  in  order  that  the  jury  might  see  how  he  had  been 
affected  by  the  injury.  It  is  there  said:  "As  the  object  of  all  judicial 
investigations  is,  if  possible,  to  do  exact  justice,  and  obtain  the  truth  in 
its  entire  fullness,  we  have  no  doubt  of  the  power  of  court,  in  a  proper 
case,  to  require  the  party  to  perform  a  physical  act  before  the  jury  that 
will  illustrate  or  demonstrate  the  extent  and  character  of  his  injuries." 
This  is  in  accordance  with  analogous  cases  in  other  branches  of  the  law. 
When  a  view  of  real  estate  will  aid  the  jury  in  reaching  a  conclusion,  it 
is  within  the  discretion  of  the  Court  to  permit  it.  AYhen  an  inspection 
of  an  article  of  personal  property  will  aid  them,  it  is  not  infrequent  to 
cause  the  article  to  be  brought  into  court  for  the  same  purpose.  Line  v. 
Taylor,  3  Fost.  &  F.  731 ;  Lewis  v.  Hartley,  7  Car.  &  P.  405.    The  practice 


No.  7  AUTOPTIC   PROFERENCE  21 

in  patent  and  in  certain  equity  cases,  of  allowing  tests  to  be  applied  before 
the  court,  is  somewhat  analogous  in  principle.  So  is  the  practice  of 
divorce  courts,  of  ordering  an  examination  of  the  person  of  the  party  in 
certain  cases.  ...  In  Nutter  v.  Ricketts,  6  Iowa,  92  where  there  was  a 
controversy  in  regard  to  two  horses,  and  the  trial  Court  allowed  the  jury 
to  go  in  the  court-house  yard  and  inspect  the  horses,  the  action  of  the 
Court  was  sustained.  It  is  there  said:  "There  is  no  objection,  in  prin- 
ciple, to  a  jury  seeing  an  object  which  is  the  subject  of  testimony.  By 
this  means  they  may  obtain  clearer  views,  and  be  able  to  form  a  better 
opinion."     See,  also,  1  Hale,  P.  C.  635. 

Other  cases  might  be  cited  where  the  same  doctrine  is  laid  down, 
but  we  have  referred  to  enough  to  establish  the  rule  that  on  a  trial,  in  a 
proper  case,  things  may  be  exhibited  to  the  jury.  And,  if  evidence  of 
that  character  may  be  brought  before  the  jury,  upon  the  same  principle 
we  perceive  no  good  reason  why  a  jury  may  not,  under  proper  regulations 
established  by  the  Court,  go  upon  and  view  premises  which  are  the  sub- 
ject-matter of  the  litigation.  Had  the  plaintiff  procured  a  careful  survey 
and  plat  of  the  premises,  showing  the  location  with  reference  to  streets 
and  alleys,  showing  the  location  of  all  buildings,  and  showing  the  im- 
provement made  by  the  city,  such  a  paper  would  have  been  competent 
evidence  to  go  to  the  jury.  Had  a  photograph  or  picture  of  the  premises 
been  taken,  it  would  have  been  competent  evidence  to  go  to  the  jury. 
If  a  plat  or  photograph  of  the  premises  would  be  competent  evidence, 
why  not  allow  the  jury  to  look  at  the  property  itself  instead  of  a  picture 
of  the  same?  There  may  be  cases  where  a  trial  Court  should  not  grant 
a  view  of  the  premises,  where  it  would  be  expensive,  or  cause  delay,  or 
where  a  view  would  serve  no  useful  purpose.  But  this  affords  no  reason 
for  a  ruling  that  the  power  to  order  a  view  does  not  exist  or  should  not 
be  exercised  in  any  case.  If  the  appellant  desired  to  control  the  effect 
the  view  might  have  on  the  jury  in  connection  with  the  other  evidence 
introduced,  that  might  have  been  done  by  an  appropriate  instruction; 
but,  as  no  instruction  was  asked  on  that  point,  he  is  in  no  position  to 
complain. 

In  what  cases  a  view  was  allowed  at  common  law  is  a  subject  upon 
which  the  authorities  we  have  examined  are  not  yet  very  clear.  But 
a  view  by  jury,  as  we  understand  the  subject,  is  sanctioned  by  the  com- 
mon-law practice.  In  Stearns  on  Real  Actions,  102,  the  author  says: 
"In  the  ancient  practice  there  were  two  kinds  of  view  on  real  actions: 
(1)  View  by  the  party;  (2)  view  by  the  jury."  The  author  further 
says :  "  View  by  the  jury  was  allowed  in  several  real  actions,  as  assize  of 
novel  disseisin,  waste,  and  assize  of  nuisance.  In  these  cases,  therefore,  a 
view  by  the  party,  being  rendered  unnecessary,  was  not  permitted  by 
the  law.  8  Hen.  VI.  27;  50  Edw.  III.  11.  The  design  of  this  proceeding 
was  to  enable  the  jury  better  to  understand  the  matter. in  controversy 
between  the  parties.  It  was  not  confined  to  real  actions,  but  was  allowed 
in  several  personal  actions  for  an  injury  to  the  realty,  as  trespass  quare 


22  BOOK    l:     RULES   OF  ADMISSIBILITY  No.  7 

clausum  f regit,  trespass  on  the  case,  and  nuisance."  In  Burrow's  note 
in  1  Burrow,  253,  [ante,  No.  6]  the  practice  in  regard  to  jury  views,  as 
settled  upon  by  the  King's  Bench,  is  stated.  If  at  common  law,  inde- 
pendent of  any  English  statute,  the  Court  had  the  power  to  order  a  view 
by  jury,  as  we  think  it  plain  the  Court  had  such  power,  as  we  have 
adopted  the  common  law  in  this  State  our  Courts  have  the  same 
power.   .   .  . 

Here  it  is  apparent  that  the  jury  could  obtain  a  much  better  under- 
standing of  the  issue  presented  by  the  pleadings  by  a  view  of  the  premises, 
and,  in  the  exercise  of  a  sound  legal  discretion,  we  think  the  Court  did 
not  err  in  allowing  the  view.  The  judgment  of  the  Appellate  Court  will 
be  affirmed.  Judgment  affirmed. 

Bailey  and  Wilkin,  JJ.  :  We  do  not  concur  with  that  portion  of  the 
foregoing  opinion  which  relates  to  the  action  of  the  Court  in  permitting 
the  jury  to  go  upon  and  view  the  premises.  In  our  opinion  such  view 
by  the  jury  was  improper. 


No.  10         CIRCUMSTANTIAL   EVIDENCE:     MORAL   CHARACTER  23 


SUB-TITLE  II.     RULES   EXCLUDING   CIRCUMSTANTIAL 
EVIDENCE 

Topic  1.  Moral  Character  as  Evidence ' 

Sub-topic  A.     Accused's  Character  as  Evidence  of  an  Act 

9.  Thomas  Brewster's  Trial.  (1663.  Old  Bailey  Sessions.  Howell's 
State  Trials,  VI,  513,  546).  [The  defendant,  a  bookseller,  was  charged  with  sedi- 
tion, in  printing  and  selling  the  dying  speeches  of  the  regicides,  executed  for 
sharing  in  the  judgment  and  execution  of  King  Charles  I.] 

Justice  Ti'RREL.  —  You  speak  of  your  behaviour,  have  you  any  testimony 
here? 

Brewster.  —  I  do  expect  some  neighbors;  Major-General  Brown  knows  me, 
Capt.  Sheldon,  Capt.  Colchester,  and  others;  I  can  give  a  very  good  account  as 
to  my  behaviour  ever  since.  .  .  .  My  lord,  here  are  now  some  neighbors  to 
testify  that  I  am  no  such  person  as  the  indictment  sets  forth,  that  I  did  mali- 
ciously and  seditiously  do  such  and  such  things. 

L.  C.  J.  H^T)E.  —  We  will  hear  them,  though  I  will  tell  you  it  will  not 
much  matter;  the  law  says  it  is  malice. 

Capt.  Sheldon  sworn.  —  My  Lord,  all  that  I  can  say  is,  he  was  ready  at  beat 
of  drum  upon  all  occasions.  What  he  has  been  guilty  of  by  printing  or  other- 
wise, I  am  a  stranger  to  that.  I  know  he  was  of  civil  behaviour  and  deportment 
amongst  his  neighbors. 

Just.  Keeling.  —  It  is  very  ill  that  the  king  hath  such  trained  soldiers  in 
the  band. 

Capt.  Hanson  and  otliers,  offered  to  like  purpose. 

L.  C.  J.  Hyde.  —  If  you  have  a  thousand  to  this  purpose  only,  what  signifies 
it?  ...  I  will  tell  you:  Do  not  mistake  yourself;  the  testimony  of  your  civil 
behaviour,  going  to  church,  appearing  in  the  trained-bands,  going  to  Paul's, 
being  there  at  common  service,  —  this  is  well;  but  you  are  not  charged  for  this; 
a  man  may  do  all  this,  and  yet  be  a  naughty  man  in  printing  abusive  books,  to 
the  misleading  of  the  king's  subjects.  If  you  have  anything  to  say  as  to  that,  I 
shall  be  glad  to  find  you  innocent. 

Brewster.  —  I  have  no  more  to  say. 

10.  William  Turner's  Trial.  (Special  Commission  at  Derby.  1817. 
How.  St.  Tr.  XXXII,  957,  1007.)  [Charge  of  seditious  publication.]  Mr. 
Elijah  Hall  senior,  cross-examined  for  the  defendant  by  Mr.  Cross. 

You  have  known  William  Turner  for  some  years?  —  I  have. 

You  are  acquainted  with  his  general  character?  —  Yes. 

He  has  worked  with  you  I  understand?  —  Yes. 

For  how  many  years  do  you  think  you  have  known  him?  —  I  have  known 
him  twenty  years. 

He  has  frequently  worked  with  you?  —  He  has  worked  with  me  for  these 
three  or  four  years  back  at  different  times. 

^  For  the  principles  of  Logic  and  Psychology  here  applicable,  see  the  present 
Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos.  84-99. 


24  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   10 

What  has  been  his  general  character  as  far  as  you  have  known  him?  — 

Mr.  Gurney.  —  I  submit  to  your  lordships  that  the  proper  question  is  as  to 
loyalty. 

Mr.  Cross.  —  I  submit  to  your  lordships  that  there  is  no  objection  to  the 
question  as  to  his  general  character. 

Mr.  Denman.  —  If  he  is  generally  a  respectable  man,  an  inference  arises  that 
he  is  a  loyal  man. 

Mr.  Cross.  —  It  would  be  a  most  extraordinary  thing  if  I  might  put  that 
question  generally  in  case  of  felony  and  not  on  an  indictment  for  high  treason. 

Mr.  Gurney.  —  If  a  man  is  indicted  for  felony,  evidence  is  produced  to  his 
honesty;   if  for  rape,  to  his  chastity,  and  so  on. 

Mr.  Denman.  —  Your  lordships  recollect  that  in  the  case  of  Home  Tooke, 
evidence  as  to  his  writings  many  years  before  were  received  in  evidence  in  order 
to  show  it  improbable  that  he  should  commit  treason. 

Mr.  Justice  Abbott.  — As  far  as  my  experience  goes,  the  inquiry  into  character 
is  always  adapted  to  the  charge.  .  .  .  The  question  was  objected  to  as  too  general 
and  therefore  not  applying;  it  was  not  whether  he  was  a  peaceable  man,  but 
as  to  his  general  character. 


11.   CANCEMI  r.  PEOPLE 

Court  of  Appeals  of  New  York.     1858 

16  N.  Y.  501 

Writ  of  error  to  the  Supreme  Court.  IVIichael  Cancemi  was  indicted, 
at  the  New  York  General  Sessions,  for  the  murder  of  Eugene  Anderson, 
a  policeman.  One  count  of  the  indictment  charged  that  Cancemi,  being 
engaged  in  burglariously  entering,  in  the  day  time,  a  shoe  store,  with 
intent  to  steal,  encountered  Anderson,  who  was  about  to  arrest  him, 
when  he  was  shot  with  a  pistol  by  the  defendant.  The  indictment  was 
removed  to  the  Oyer  and  Terminer,  and  the  trial  there  resulted  in  a 
disagreement  of  the  jury.  .  .  .  Nineteen  witnesses  were  called  by  the 
defendant,  all  of  whom  testified  to  the  general  good  character  of  the 
defendant,  for  peace  and  quietness,  and  for  honesty  and  industry,  and 
proved  it  to  have  been  unexceptionable  from  his  youth  upwards.  The 
judge  charged  the  jury,  in  reference  to  the  evidence  of  character,  in  the 
words  of  Chief  Justice  Shaw,  of  Massachusetts,  in  the  case  of  Dr.  Webster 
(5  Cush.  325),  as  follows: 

"WTiere  it  is  a  question  of  great  and  atrocious  criminality,  the  commission 
of  the  act  is  so  unusual,  so  out  of  the  ordinary  course  of  things,  and  beyond  human 
experience,  it  is  so  manifest  that  the  offence,  if  perpetrated,  must  have  been 
influenced  by  motives  not  frequently  operating  upon  the  human  mind,  that  evi- 
dence of  character  and  of  a  man's  habitual  conduct,  under  common  circumstances, 
must  be  considered  far  inferior  to  what  it  is  in  the  instance  of  accusations  of  a 
lower  grade.  Against  facts  strongly  proved,  good  character  cajinot  avail.  It 
is  therefore  in  smaller  offences,  in  such  as  relate  to  the  actions  of  daily  and 
common  life,  as  where  one  is  charged  with  pilfering  and  stealing,  that  evidence 


No.  11         CIRCUMSTANTIAL  EVIDENCE:     MORAL   CHARACTER  25 

of  a  high  character  for  honesty  would  satisfy  a  jury  that  he  would  not  be  likely 
to  yield  to  such  a  temptation.  In  every  case  where  the  evidence  is  doubtful, 
proof  of  character  may  be  given  with  good  effect,  and  should  preponderate  in  his 
favor.  But  still,  even  with  regard  to  the  higher  crimes,  testimony  of  good  char- 
acter, though  of  less  avail,  is  competent  evidence  to  the  jury." 

The  prisoner  excepted  to  this  charge.  He  was  found  guilty.  The 
record  of  proceedings  at  the  circuit  ("postea")  was  sent  to  the  Supreme 
Court  at  general  term,  and  judgment  was  there  pronounced.  The 
defendant  sued  out  a  writ  of  error. 

Edmon  Blankman  and  John  JV.  Ashmead,  for  the  plaintiff  in  error. 
A.  Oakcy  Hall,  for  the  People. 

By  the  Court,  Strong,  J.  .  .  .  Another  question  in  the  case  arises 
upon  the  charge  to  the  jury  in  relation  to  the  evidence  given  by  the 
defendant  of  his  previous  good  character.  A  large  number  of  witnesses 
had  testified  to  the  general  good  character  of  the  defendant  for  peace 
and  quietness,  honesty  and  industry,  and  that  it  had  been  unexceptionable 
from  his  jouth  upwards.  In  respect  to  this  evidence,  and  in  connection 
with  many  just  observations  as  to  the  importance  and  effect  of  proof  of 
good  character  by  a  defendant  in  criminal  cases,  the  justice  stated  to  the 
jury  that  where  the  question  was  one  of  great  and  atrocious  criminality, 
evidence  of  good  character,  and  of  a  man's  habitual  conduct  under  com- 
mon circumstances,  must  be  considered  far  inferior  to  what  it  is  in  the 
instances  of  accusations  of  a  lower  grade;  but  still,  even  with  regard  to 
the  higher  crimes,  testimony  of  good  character,  though  of  less  avail,  was 
competent. 

The  principle  upon  which  good  character  may  be  proved  is,  that  it 
affords  a  presumption  against  the  commission  of  crime.  This  presump- 
tion arises  from  the  improbability,  as  a  general  rule,  as  proved  by  common 
observation  and  experience,  that  a  person  who  has  uniformly  pursued  an 
honest  and  upright  course  of  conduct  will  depart  from  it  and  do  an  act 
so  inconsistent  with  it.  Such  a  person  may  be  overcome  by  temptation 
and  fall  into  crime,  and  cases  of  that  kind  often  occur,  but  they  are 
exceptions ;  the  general  rule  is  otherwise.  The  influence  of  this  presump- 
tion from  character  will  necessarily  vary  according  to  the  varying  cir- 
cumstances of  different  cases.  It  must  be  slight  when  the  accusation  of 
crime  is  supported  by  the  direct  and  positive  testimony  of  credible 
witnesses ;  and  it  will  seldom  avail  to  control  the  mind  in  cases  where  the 
testimony,  though  circumstantial,  is  reliable,  strong,  and  clear.  But  in 
cases  where  the  other  evidence  is  nearly  balanced,  but  slightly  prepon- 
derating against  the  defendant,  the  presumption  from  proof  of  good 
character  is  entitled  to  great  weight;  and  will  often  be  sufficient  to  turn 
the  scale  and  produce  an  acquittal. 

I  am  unable  to  perceive  why  this  presumption  may  not,  and  should 
not,  as  a  general  rule,  be  as  controlling  in  cases  of  high  crimes  as  in  those 
of  smaller  ones.  In  a  case  of  murder,  arson,  robbery,  or  any  other  great 
offense,  when  it  is  apparent  that  it  must  have  been  planned  and  com- 


i 


26  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  11 

mitted  with  great  deliberation  and  the  evidence  against  the  accused  is 
uncertain,  why  should  not  proof  of  good  character  influence  the  judg- 
ment as  powerfully  as  in  any  case?  I  can  readily  see  that  in  cases  of 
great  crimes,  evidently  perpetrated  with  but  little  if  any  forethought, 
under  the  influence  of  some  sudden  and  powerful  motive,  such  proof  will 
be  comparatively  weak,  but  it  will  be  so  in  reference  to  any  other  crime 
with  similar  circumstances.  The  attending  circumstances  must,  I  think, 
determine  the  degree  of  force  which  evidence  of  good  character  should 
have;  it  is  not  in  ordinary  cases  affected  by  the  grade  of  the  offense. 
Formerly,  such  evidence  was  admissible  in  capital  cases  only,  but  now 
it  will  be  received  in  criminal  cases  generally.  (1  McNally's  Ev.,  320- 
323;  2  Mass.  317;  18  Ala.  720;  2  Starkie,  303;  2  Bennet  &  Heard's 
Leading  Criminal  Cases,  159,  160;  Burrill's  Circumstantial  Evidence, 
530,  532.)  The  doctrine  of  the  charge  which  has  been  considered  was 
stated  to  the  jury  in  such  a  manner  as  to  be,  if  not  in  efFect  an  instruction 
controlling  the  weight  of  the  evidence,  calculated  to  mislead  the  jury 
as  to  the  weight  which  the  evidence  should  receive;  and  affords,  there- 
fore, good  ground,  under  the  act  of  1855  (Laws  of  1855,  ch.  337,  p.  613), 
for  a  new  trial.  .  .  .  The  judgment  must  be  reversed  and  a  new  trial 
be  directed.  Ordered  accordingly. 


12.   STATE  V.   SURRY 

Supreme  Court  of  Washington.     1900 

23  Wash.  655;  63  Pac.  557 

Appeal  from  Superior  Court,  King  County.  —  Hon.  Orange  Jacobs, 
Judge.     Affirmed. 

The  appellant  was  charged  by  information,  under  §  23  of  Hill's  Penal 
Code  (Ballinger's  Code,  §  7058)  with  an  assault  with  a  deadly  weapon 
(a  revolver)  upon  one  Edward  May,  with  intent  to  do  bodily  injury, 
no  considerable  provocation  appearing  therefor.  On  the  trial  upon  the 
information,  the  jury  returned  a  verdict  of  guilty  of  assault  and  battery, 
and  the  Court,  after  denying  his  motion  for  a  new  trial,  sentenced  the 
appellant  to  pay  a  fine  and  to  imprisonment  in  the  county  jail.  It 
appears  from  the  record  that  about  two  o'clock  on  the  morning  of  October 
7,  1898,  the  appellant,  who  was  then  a  "merchants'  patrolman"  and 
deputy  sheriff,  and  two  police  officers,  discovered  the  prosecuting  witness, 
Edward  May,  then  a  youth  of  the  age  of  seventeen  years,  together  wath 
three  companions,  in  or  about  a  vacant  lot  near  Madison  street  and 
Second  avenue,  in  the  city  of  Seattle.  Suspecting  from  their  movements 
that  these  four  young  persons  were  about  to  engage  in  some  unlawful 
transaction,  appellant  and  the  two  policemen  concluded  to  apprehend 
them  and  ascertain  what  they  were  doing  at  that  place.  .  .  .  One  of  the 
officers  went  dowm  to  the  lot,  and  very  soon  thereafter  the  complaining 


No.  13         CIRCUMSTANTIAL   EVIDENCE:     MORAL  CHARACTER  27 

witness,  May,  came  up  the  steps  to  the  sidewalk  not  far  from  where  the 
appellant  was  standing,  and  ran  down  Madison  street  towards  First 
avenue.  The  appellant  ran  after  him  and,  as  he  says,  called  upon  him 
several  times  to  stop.  After  he  had  pursued  May  for  some  distance 
without  overtaking  him,  appellant  drew  his  revolver,  while  he  was  run- 
ning, and  fired.  After  firing  the  shot  he  continued  the  pursuit  for  the 
distance  of  a  block  and  a  half,  and  then  gave  up  the  chase.  May  con- 
tinued running  until  he  reached  the  residence  of  his  mother,  where  he 
informed  her  that  he  had  been  shot.  Physicians  were  immediately 
summoned,  and,  upon  examination,  it  was  ascertained  that  the  bullet 
from  the  pistol  struck  May  in  the  back  part  of  the  thigh,  and,  passing 
upwards,  lodged  near  the  groin.  ...  It  was  admitted  by  the  appellant  at 
the  trial  that  he  fired  the  shot  that  struck  May,  but  he  claimed  as  a 
defense  that  he  did  not  shoot,  or  intend  to  shoot,  at  him;  that  he  fired 
at  the  sidewalk,  and  that  May's  injury  was  caused  by  the  accidental 
glancing  of  the  ball. 

William  Parmerlee,  for  appellant.  James  F.  McElroy,  Prosecuting 
Attorney,  John  B.  Hart  and  Walter  S.  Fulton,  for  the  State.  The  opinion 
of  the  Court  was  delivered  by  Anders,  -J.   .   .   . 

Complaint  is  made  of  the  action  of  the  Court  in  refusing  to  permit 
the  appellant  to  prove  his  reputation  as  a  careful,  conservative,  and  con- 
scientious peace  officer  in  the  community  in  which  he  resided;  and  it  is 
insisted  that  the  particular  trait  of  character  sought  to  be  proved  was  in 
issue,  and  hence  admissible  in  evidence.  But  we  are  unable  to  assent 
to  that  proposition.  It  is  a  general  rule  in  criminal  cases  that  evidence 
of  the  character  of  the  accused,  when  offered  by  him,  is  relevant  and 
therefore  admissible.  But  the  character  or  reputation  he  is  entitled  to 
prove  must  be  such  as  would  make  it  unlikely  that  he  would  commit  the 
particular  offense  with  which  he  is  charged.  Wharton,  Criminal  Evi- 
dence (9th  Ed.),  §  60.  In  this  case  the  appellant's  character  as  a  peace 
officer  was  not  involved,  but  his  character  as  an  individual  was  involved 
in  the  offense  charged  against  him,  and  therefore  evidence  of  his  reputa- 
tion as  a  peaceable  and  quiet  citizen  in  the  community  where  he  resided 
woidd  have  been  admissible.  But  no  such  evidence  was  offered.  State 
V.  King,  78  Mo.  555.  .  .  .  The  judgment  is  affirmed.  Fullerton  and 
Reavis,  JJ.,  concur.     Dunbar,  C.  J.,  dissents. 


13.   REGINA  V.   ROWTON 

Crown  Cases  Reserved.     1865 

Leigh  &  Cave  520;   10  Cox  Cr.  C.  25 

The  following  case  was  stated  by  the  Deputy  Assistant  Judge  of  the 
county  of  Middlesex. 

James  Rowton  was  tried  before  me,  at  the  Middlesex  Sessions,  on  the 


28  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  13 

30th  of  September,  1864,  on  an  indictment  which  charged  him  with  having 
committed  an  indecent  assault  upon  George  Low,  a  lad  about  fourteen 
years  of  age.  On  the  part  of  the  defendant,  several  witnesses  were  called, 
who  had  known  him  at  different  periods  of  his  life;  and  they  gave  him 
an  excellent  character,  as  a  moral  and  well-conducted  man.  On  the  part 
of  the  prosecution,  it  was  proposed  to  contradict  this  testimony;  and 
a  witness  was  called  for  that  purpose.  This  was  objected  to  by  the 
defendant's  counsel,  who  contended  that  no  such  evidence  was  receiv- 
able, and  cited  the  case  of  Regina  v.  Burt.  I  thought  the  evidence  was 
admissible;  and,  after  the  witness  had  stated  that  he  knew  the  defend- 
ant, the  following  question  was  put  to  him :  "  What  is  the  defendant's  gen- 
eral character  for  decency  and  morality  of  conduct?  "  His  reply  was,  "  I 
know  nothing  of  the  neighborhood's  opinion,  because  I  was  only  a  boy 
at  school  when  I  knew  him ;  but  my  owm  opinion,  and  the  opinion  of  my 
brothers  who  were  also  pupils  of  his,  is  that  his  character  is  that  of  a  man 
capable  of  the  grossest  indecency  and  the  most  flagrant  immorality." 
It  was  objected  that  this  was  not  legal  evidence  at  all  of  bad  moral 
character.  I  considered  that  it  was  some  e\'idence ;  and  I  left  the  weight 
and  effect  of  it,  as  an  answer  to  the  evidence  of  good  character,  to  be 
determined  by  the  jury.  The  defendant  was  convicted,  and  is  now  in 
prison  awaiting  the  judgment  of  your  Lordships.  The  questions  upon 
which  I  respectfully  request  your  decision  are :  —  First,  —  WTiether 
when  witnesses  have  given  a  defendant  a  good  character,  any  evidence 
is  admissible  to  contradict?  Secondly,  —  Whether  the  answer  made  by 
the  witness  in  this  case  was  properly  left  to  the  jury?  ^  This  case  was 
argued  on  the  19th  of  November,  1864,  before  Pollock,  C.  B.,  Willes, 
J.,  Channell,  B.,  Byles,  J.,  and  Shee,  J.,  by  Sleigh,  for  the  prisoner, 
and  Tayler,  for  the  Crown.  At  the  conclusion  of  their  argument  the 
Court  took  time  to  consider  their  judgment;  but,  there  being  a  diff'erence 
of  opinion  among  the  Judges,  a  rehearing  before  the  full  Court  was 
directed;  and  accordingly,  on  the  21st  and  28th  of  January,  1865,  the 
case  was  again  argued  before  Cockburn,  C.  J.,  Erle,  C.  J.,  Pollock, 
C.  B.,  W'lLLiAMS,  J.,  Martin,  B.,  Willes,  J.,  Channell,  B.,  Byles, 
J.,  Blackburn,  J.,  Keating,  J.,  Mellor,  J.,  Pigott,  B.,  and  Shee,  J. 

Sleigh,  for  the  prisoner.  —  E\'idence  is  not  admissible  in  reply  to 
e\'idence  of  good  character.  .  .  .  Such  evidence  is  inadmissible  on  the 
broad  principle  that  character  forms  no  part  of  the  issue  on  the 
record.  .   .   . 

Tayler,  for  the  Crowm.  —  Evidence  in  reply  to  evidence  of  good 
character  is  clearly  admissible.  .  .  .  (Cockburn,  C.  J.  —  W'e  require 
no  argument  upon  that  point.  .  .  .  Pollock,  C.  B.  —  There  is  no  doubt 
that  e\ndence  of  bad  character  could  not  be  given,  unless  the  prisoner  had 
himself  raised  the  issue  by  calling  witnesses  to  show  he  bore  a  good  one.) 


^  [The  argument  and  the  opinion  on  this  second  point  —  the  Opinion  rule  — 
are  printed  post,  as  No.  173.] 


No.  14         CIRCU]MSTANTIAL  EVmENCE:     MORAL  CHARACTER  29 

CocKBURN,  C.  J.  .  .  .  There  are  two  questions  to  be  decided.  The 
first  is  whether,  when  evidence  of  good  character  has  been  given  in  favor 
of  a  prisoner,  evidence  of  his  general  bad  character  can  be  called  in  reply. 
I  am  clearly  of  opinion  that  it  can  be.  It  is  true  that  I  do  not  remember 
any  case  in  my  own  experience  where  such  evidence  has  been  given; 
but  that  is  easily  explainable  by  the  fact  that  evidence  of  good  character 
is  not  given  when  it  is  known  that  it  can  be  rebutted;  and  it  frequently 
happens  that  the  prosecuting  counsel,  from  a  spirit  of  fairness,  gives 
notice  to  the  other  side,  when  he  is  in  a  position  to  contradict  such  evi- 
dence. But,  when  we  come  to  consider  whether  the  evidence  is  admis- 
sible, it  is  only  possible  to  come  to  one  conclusion.  It  is  said  that 
evidence  of  good  character  raises  only  a  collateral  issue;  but  I  think  that, 
if  the  prisoner  thinks  proper  to  raise  that  issue  as  one  of  the  elements  for 
the  consideration  of  the  jury,  nothing  could  be  more  unjust  than  that  he 
should  have  the  advantage  of  a  character  which,  in  point  of  fact,  may  be 
the  very  reverse  of  that  which  he  really  deserves.  .   .   . 

[But  on  the  second  question,  the  evidence  having  been  erroneously 
admitted,  the  conviction  must  be  set  aside.] 

Erle,  C.  J.  [concurring  on  the  first  question].  I  concur  with  the  Chief 
Justice  of  England  on  many  points  of  the  judgment  that  he  has  just 
delivered.  The  admissibility  of  evidence  of  character  for  the  prisoner 
stands  on  peculiar  grounds.  The  question  of  the  admissibility  of  evidence 
that  the  good  character  given  to  the  prisoner  is  undeserved  is  now  brought 
for  the  first  time  before  us  for  adjudication.  The  progress  of  our  law 
should  be  adapted  to  the  interests  of  society ;  and  the  rules  relating  to  the 
admissibility  of  evidence  should  be  regulated  by  attending  carefully  to 
the  interests  of  truth.  If  the  prisoner,  having  a  bad  character,  misleads 
the  Court  by  calling  witnesses  to  say  that  he  has  a  good  one,  in  the 
interests  of  truth  and  justice  the  false  impression  should  be  removed; 
and  I  quite  agree  with  the  Chief  Justice  of  the  Queen's  Bench  upon  the 
first  question,  that  evidence  was  admissible  in  this  case  to  rebut  the  good 
character  given  to  the  prisoner.   ...  \ 

WiLLES,  J.  I  am  of  opinion  that  .  .  .  the  ruling  of  the  judge 
was  right.  .   .   . 

The  other  learned  judges  concurred  in  the  judgment  delivered  by 
the  Lord  Chief  Justice  of  England. 

14.  State  v.  Lapage.  (1S76.  New  Hampshire.  57  N.  H.  245,  289). 
CusfflNG,  C.  J.  ...  I  think  we  may  state  the  law  in  the  following  propositions: 
It  is  not  permitted  to  the  prosecution  to  attack  the  character  of  the  prisoner, 
unless  he  first  puts  that  in  issue  by  offering  evidence  of  his  good  character.  .  .  . 
It  is  a  maxim  of  our  law,  that  every  man  is  presumed  to  be  innocent  until  he  is 
proved  to  be  guilty.  It  is  characteristic  of  the  humanity  of  all  the  English  speak- 
ing peoples,  that  you  cannot  blacken  the  character  of  a  party  who  is  on  trial  for 
an  alleged  crime.  Prisoners  ordinarily  come  before  the  Court  and  the  jury  under 
manifest  disadvantages.  The  very  fact  that  a  man  is  charged  with  a  crime  is 
sufficient  to  create  in  many  minds  a  belief  that  he  is  guilty.     It  is  quite  incon- 


30  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  14 

sistent  with  that  fairness  of  trial  to  which  every  man  is  entitled,  that  the  jury 
should  be  prejudiced  aj^ainst  him  by  any  evidence  except  what  relates  to  the 
issue;  above  all  should  it  not  be  permitted  to  blacken  his  character,  to  show  that 
he  is  worthless,  to  lighten  the  sense  of  responsibility  which  rests  upon  the  jury, 
by  showing  that  he  is  not  worthy  of  painstaking  and  care,  and,  in  short,  that  the 
trial  is  what  the  chemists  and  anatomists  call  "experimentum  in  corpore  vili." 
Of  course,  if  the  respondent  sees  fit  to  put  his  character  in  issue  by  oflfering 
evidence  tending  to  show  that  it  is  good,  it  is  then  permitted  to  the  prosecution 
to  rebut  this  testimony  by  showing  that  it  is  bad. 

15.  William  Trickett.  Character-Evidence  in  Criminal  Cases.  (1904. 
The  Forum,  Dickinson  College  of  Law,  vol.  VIII,  p.  121.)  Character,  in  a  wide 
sense,  imports  the  sum  of  the  mental  and  corporal  qualities  of  a  man.  In  a 
narrower  sense,  it  signifies  the  moral  tendencies,  which  evince  themselves  in 
habitual  action.  .  .  .  The  persistent  drifts  or  tides  of  emotion,  appetite,  passion, 
which  characterize  men,  are  equally  evidential  of  their  doing  or  not  doing  specific 
acts  congenial  or  uncongenial  to  them.  One  whose  cupidity  has  always  been 
feeble,  and  whose  respect  for  law  has  been  strong,  will,  with  some  difficulty,  be 
believed  guilty  of  a  crime  of  which  cupidity  was  the  only  instigation,  be  it  theft, 
embezzleAient,  robbery,  bm-glary  or  murder.  "Evidence  of  good  character," 
says  Rice,  P.  J.,  (Commonwealth  v.  Weathers,  7  Kulp  1;  Commonwealth  r. 
Irwin,  1  CI.  329),  "does  not  operate  as  a  bar  to  a  prosecution  (e.g.,  for  murder). 
It  is  not  of  itself  a  defence.  It  is  simply  an  item  of  evidence.  The  argument 
to  be  drawn  from  it  is,  that  it  is  improbable  that  a  person  of  good  character  for 
peace  and  quietness  would  commit  an  act  of  violence,"  etc.  "If  you  were  told," 
observed  McClure,  P.  J.,  "some  one  you  knew  was  honest  had  been  guilty  of 
larceny,  you  would  be  slow  to  believe;  your  belief  would  yield  to  proof,  but  with 
reluctance."     (Commonwealth  v.  Kuhn,  1  Pitts.  13.)  .  .  . 

It  is  evident  that  while  a  good  character  makes  improbable  an  act  not  con- 
sonant with  it,  a  bad  character  lessens  the  improbability  of  an  act  which  accords 
wnth  it.  When,  however,  an  act,  e.g.,  of  cruelty,  is  done,  and  the  question  is, 
did  A  do  it,  the  fact  that  A  had  been  uniformly  kind  and  gentle  for  many  years 
more  strongly  persuades  that  he  did  not  do  it,  than  the  fact  that  he  had  been  very 
often  cruel  persuades  that  he  did  it.  That  the  act  was  done  by  a  cruel  man  is 
much  more  nearly  certain,  than  that  it  was  done  by  a  particular  man  who  is 
cruel.  The  cruelty  of  the  act  tends  to  negative  the  agency  of  a  generally  kind 
man,  but  it  does  not  negative  the  existence  of  many  other  cruel  men  than  the 
defendant,  or  the  agency  of  some  unknown  one  of  these  men.  That  he  has  the 
congenial  trait  of  character  does  not  tend  to  show  that  others  have  it  not,  and 
that  some  other,  having  it,  has  not  done  the  deed.  It  is  a  well-established  prin- 
ciple, therefore,  that  the  defendant  in  a  criminal  case  is  permitted  to  prove  his 
character  in  order  to  negative  his  participation  in  the  crime,  but  the  Common- 
wealth is  not  permitted  in  the  first  instance  to  show  that  his  character  is  bad  in 
order  to  diminish  the  jury's  difficulty  in  concluding  him  to  be  guilty  (Common- 
wealth r.  Weber,  167  Pa.  153). 

This,  perhaps,  is  an  anomaly.  It  is  permissible  to  the  Commonwealth  to 
show  that  the  defendant  is  of  the  class,  a  member  of  which  must  have  committed 
the  act.  It  can  show,  e.g.,  that  he  was  near  the  place  at  the  time  of  the  occur- 
rence, and  so  put  him  in  the  class  of  the  possibly  guilty.  It  can  prove  that  he  had 
an  instrument,  e.g.,  a  gun,  a  quantity  of  poison,  by  the  like  of  which  only  the  crime 
could  have  been  done,  in  order  to  put  him  within  the  comparatively  small  class 


No.  16         CIRCUMSTANTIAL   EVIDENCE:     MORAL   CHARACTER  31 

of  the  possibly,  or  probably,  guilty.  Nobody  poisons  who  does  not  have  poison. 
When  it  is  proved  that  A  had  the  poison,  he  is  put  into  the  comparatively  small 
class  of  persons  one  of  whom  must  have  done  the  act.  .  .  .  The  courts,  however, 
will  not  allow  evidence  that  A  is  of  the  cruel,  or  vindictive,  or  life-despising  class 
—  a  comparatively  small  class  —  some  member  of  which,  in  all  likelihood,  did 
the  deed.  The  justification  for  the  exclusion  is  stated  by  Greenleaf  to  be  "that 
such  evidence  is  too  likely  to  move  the  jury  to  condemnation,  irrespective  of 
his  actual  guilt  of  the  offense  charged."  (Greenleaf,  Evidence,  p.  39,  16th  ed. 
Boston.  This  is  not  the  only  rule  based  on  the  assumption  of  the  fatuousness 
of  juries.) 


Sub-topic  B.    Character  as  Evidence  of  an  Act,  in  Other  Cases 

16.   RUAN  V.   PERRY 

Supreme  Court  of  New  York.      1805 

3  Cai7ies  R.  120 

This  was  an  action  of  trespass  brought  against  the  defendant,  who 
was  commander  of  the  United  States  frigate  General  Green,  for  seizing 
and  taking  the  Danish  schooner  WilHam  and  Mary  and  her  cargo,  the 
property  of  the  plaintiff.  The  declaration  contained  two  counts;  one 
charging  the  defendant  with  seizing,  arresting,  and  for  a  long  time 
detaining,  the  vessel  and  cargo,  and  conveying  them  towards  Jacmel  in 
Hispaniola,  out  of  the  course  of  the  voyage  on  which  bound,  by  means 
whereof  they  were  attacked,  seized,  and  carried  away  as  prize,  by  persons 
on  board  a  French  barge,  in  the  service  of  Toussaint,  [the  French  gov- 
ernor], in  consequence  of  which  they  became  totally  lost  to  the  plaintiff. 
The  other  with  doing  the  same,  and  delivering  up  the  vessel  and  cargo 
to  the  barge  of  Toussaint,  by  which,  etc.  The  cause  was  tried  before 
Mr.  Justice  Livingston,  at  the  New  York  sittings,  in  January,  1805. 

At  the  trial  the  plaintiff  examined  his  captain  as  a  witness,  and  read 
the  deposition  of  one  of  the  crew  of  the  schooner,  from  which  it  appeared 
that  the  vessel  and  cargo,  both  the  bona  fide  property  of  the  plaintiff, 
a  Danish  subject,  sailed  from  St.  Croix  bound  to  Acquim,  a  port  in 
Hispaniola,  about  ten  leagues  from  Jacmel,  and  had  arrived  within  four 
or  five  leagues  of  their  destination,  when  they  were  brought  to  by  the 
General  Green,  a  boat  from  which  boarded  the  William  and  Mary,  took 
possession  of  her,  ordered  out  all  her  hands  but  the  mate,  and  carried 
them  on  board  the  defendant's  ship.  That,  immediately  after  this  was 
done,  the  frigate  proceeded  in  company  with  the  schooner  towards 
Jacmel,  and  having  arrived  off  that  place,  fired  some  guns,  within  an 
hour  after  which  an  armed  barge  came  out  from  that  port,  commanded 
by  a  white  officer  in  uniform,  said  to  be  Toussaint's,  and  manned  with 
negroes.  That  the  officer  came  on  board  the  frigate,  delivered  letters  to 
the  defendant,  and  received  some  from  him.     That  the  French  officer 


32  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  16 

commanding  the  barge,  the  master  of  the  WilHam  and  Mary,  and  the 
captain  of  another  Danish  vessel  brought  to  by  the  defendant,  dined  with 
him.  That  about  two  hours  after  dinner  was  over,  the  defendant  gave 
back  the  papers  of  the  WilHam  and  Mary  to  her  captain,  and  sent  him 
in  the  frigate's  boat  on  board  his  own  vessel.  .  .  .  Upon  this  the  schooner 
and  her  cargo  were,  by  the  crew  of  the  barge  who  had  taken  possession 
of  her,  carried  into  Hispaniola  where  they  were  shortly  after  condemned 
as  prize  to  a  privateer,  to  which  the  barge  that  had  taken  them 
belonged.   .   .   . 

On  the  part  of  the  defendant  was  exliibited  a  part  of  his  instructions 
from  the  navy  department,  by  which  he  was  directed,  in  order  to  carry 
into  effect  the  act  "for  suspending  the  commercial  intercourse  between 
the  United  States  and  France  and  the  dependencies  thereof,"  to  take  and 
send  in  vessels  covered  by  Danish  and  other  papers,  if  suspected  to  be 
really  American.  Testimony  of  the  defendant's  general  character  was 
then  offered,  and  objected  to,  but  admitted,  because  the  imputation  of 
a  gross  fraud  was  attempted  to  be  proved  by  mere  circumstances, 
and,  therefore,  evidence  of  general  character  certainly  admissible.  The 
defendant  then  adduced  testimony,  fully  establishing  a  fair  and  good 
reputation. 

The  learned  judge  summed  up  in  favor  of  the  defendant,  and  charged 
the  jury  that  .  .  .  the  defendant  was,  by  his  instructions,  warranted  in 
examining  the  William  and  Mary,  and  not  liable  for  taking  her  out  of 
her  course  during  the  time  necessary  for  that  purpose.  That  it  was 
doubtful  whether  Captain  Perry  had  a  right  to  afford  protection  against 
the  barge  of  Toussaint ;  but  allowing  he  had,  he  certainly  was  not  bound 
to  do  so;  but  if  they  thought  that  there  was  any  collusion  between  the 
defendant  and  Toussaint,  they  ought  to  decide  in  favor  of  the  plaintiff. 
The  jury  having  found  a  verdict  for  the  defendant,  it  was  submitted, 
without  argument,  to  the  Court,  whether  it  ought  not  to  be  set  aside 
and  a  new  trial  granted,  on  some  one  or  all  of  the  following  grounds: 
(1)  Because  the  evidence  of  character  was  inadmissible;  (2)  Because 
the  judge  misdirected  the  jury;  (3)  Because  the  verdict  was  against 
evidence. 

Tompkins,  J.,  delivered  the  opinion  of  the  Court.  .  .  .  The  judge 
directed  them,  that  if  they  should  be  of  opinion  that  Captain  Perry 
acted  in  collusion  with  the  Frenchmen,  they  should  find  for  the  plaintiff. 
This  direction  was  undoubtedly  proper,  and  affords  no  ground  to  support 
the  point  of  misdirection  by  the  judge.  The  evidence  of  character  was 
also,  in  my  opinion,  properly  admitted.  In  actions  of  tort,  and  especially 
charging  a  defendant  with  gross  depravity  and  fraud  upon  circumstances 
merely,  as  was  the  case  here,  evidence  of  uniform  integrity  and  good 
character  is  oftentimes  the  only  testimony  which  a  defendant  can  oppose 
to  suspicious  circumstances.  W'e  cannot  say  we  are  dissatisfied  with  the 
verdict  of  the  jury,  or  that  the  same  is  against  the  weight  of  evidence. 

Postea  to  the  defendant. 


No,  18         CIRCUMSTANTIAL  EVIDENCE:     MORAL  CHARACTER  33 

17.  GouGH  V.  St.  John.  (1837.  New  York.  16  Wend.  645,  652.  Action 
for  false  representation  as  to  solvency).  Cowen,  J.  Another  conclusive  ground 
for  a  new  trial  is  the  admission  of  testimony  to  character.  Such  evidence  is, 
in  general,  confined  to  criminal  prosecutions  involving  the  question  of  moral 
turpitude.  To  this  there  is,  I  apprehend,  a  chain  of  authority  unbroken  in  every 
common  law  country  except  New  York.  The  case  of  lluan  v.  Perry,  3  Caines, 
120  [ante,  No.  16],  is  to  the  contrary;  but  that  is  virtually  exploded  by  later 
authorities  in  this. court,  and,  I  should  presume,  has  not  for  many  years  been 
followed  at  the  circuit  to  any  considerable  extent.  I  have  never  followed  it  in 
any  instance,  but  have  always  confined  such  proof  to  the  criminal  side.     Indeed 

1  have  hardly  heard  the  case  insisted  on  by  any  of  the  bar. 

I  mean  to  be  understood  as  speaking  of  the  general  distinction.  I  know  there 
are  exceptions.  They  lie  in  that  class  of  actions  or  rather  of  issues  where  general 
character  is  drawn  in  question  by  the  pleadings  or  the  points  involved  in  a  cause. 
In  slander,  the  plaintiff's  general  moral  character  is  an  object  of  inquiry,  with 
a  view  to  the  amount  of  damages  which  he  is  entitled  to  claim.  Cases  of  criminal 
conversation  and  breach  of  marriage  promise,  also  present  frequent  exceptions. 
There  are  some  other  instances  which  it  is  unnecessary  to  mention.  But  where 
a  civil  action  is  brought  for  an  injury  to  property,  though  the  injury  was  legally 
criminal  and  involved  moral  turpitude,  in  so  much  that,  on  an  indictment, 
character  would  be  obviously  receivable,  there  is  no  authoritative  case,  save 
Ruan  V.  Perry,  which  favors  its  admissibility.     The  Attorney  General  v.  Bowman, 

2  B.  &  P.  532,  note  a,  is  the  leading  English  case.     It  settles  the  distinction,  and 
has  uniformly  been  followed  at  Westminster  Hall. 

18.  Wright  v.  McKee.  (1864.  Vermont.  37  Vt.  161).  [Action  of  trover 
for  a  package  of  money].  Alois,  J.  Many  considerations  concur  in  rejecting 
such  evidence  [of  character]  in  civil  cases.  Evidence  of  this  character  has  but  a 
remote  bearing  as  proof  to  show  that  wrongful  acts  have  or  have  not  been  com- 
mitted, and  the  mind  resorts  to  it  for  aid  only  when  the  other  evidence  is  doubtful 
and  nicely  balanced.  It  may  then  perhaps  serve  to  turn  the  wavering  scales. 
Very  rarely  can  it  be  of  substantial  use  in  getting  at  the  truth.  It  is  uncertain 
in  its  nature  —  both  because  the  true  character  of  a  large  portion  of  mankind 
is  ascertained  with  difficulty,  and  because  those  who  are  called  to  testify  are 
reluctant  to  disparage  their  neighbors,  —  especially  if  they  are  wealthy,  influen- 
tial, popular,  or  even  only  pleasant  and  obliging.  It  is  mere  matter  of  opinion, 
and  in  matters  of  opinion  men  are  apt  to  be  greatly  influenced  by  prejudice, 
partisanship,  or  other  bias,  of  which  they  are  unconscious;  and  in  cases  which 
are  not  quite  clear  they  are  apt  to  agree  with  the  one  who  first  speaks  to  them 
on  the  subject,  or  to  form  their  opinions  upon  the  opinions  of  others.  The  intro- 
duction of  such  evidence  in  civil  causes,  wherever  character  is  assailed,  would 
make  trials  intolerably  long  and  tedious  and  greatly  increase  the  expense  and 
delay  of  litigation.  It  is  a  kind  of  evidence  that  might  be  easily  manufactured 
—  is  liable  to  abuse,  and  if  in  common  use  in  the  courts,  as  likely  to  mislead  as 
to  guide  aright.     The  authorities  are  quite  unanimous  in  excluding  such  testimony. 


34  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  19 

19.   TENNEY  v.  TUTTLE 
Supreme  Judicial  Court  or  Massachusetts.     1861 
1  All.  185 

Tort  for  an  injury  received  from  a  collision  of  carriages  in  the  high- 
way. At  the  trial  in  the  superior  court  the  plaintiffs*  offered  evidence 
tending  to  prove,  that  the  defendant  left  his  horses,  harnessed  to  a  wagon, 
standing  on  his  own  land  within  about  fifteen  feet  of  his  house  and  within 
the  enclosure  adjoining  the  same,  without  being  tied,  or  under  the  charge 
of  any  person;  and  went  into  the  house,  out  of  sight  of  the  horses,  to  give 
directions  to  the  workmen  employed  therein ;  and  that  the  horses  started 
and  ran  into  the  road  and  against  the  wagon  in  which  the  plaintiffs  were 
riding,  and  thereby  injured  the  female  plaintiff.  The  defendant  offered 
evidence  tending  to  control  and  vary  this  evidence  of  the  plaintiff,  and 
also  offered  to  show  his  own  character  as  a  careful,  prudent,  and  cautious 
man,  as  bearing  on  the  question  of  whether  he  used  ordinary  care  on  this 
occasion.  To  this  last  the  plaintiffs,  objected,  and  Morton,  J.,  rejected 
the  evidence.  The  jury  returned  a  verdict  for  the  plaintiffs,  and  the 
defendant  alleged  exceptions. 

G.  M.  Brooks,  for  the  defendant,  cited  Adams  v.  Carlisle,  21  Pick.  146; 
Baldwin  v.  Western  Railroad,  4  Gray,  333.  W\  P.  Webster,  (B.  F.  Butler 
with  him,)  for  the  plaintiffs. 

Metcalf,  J.  —  This  action  is  brought  to  recover  damages  for  an 
injury  caused  by  reason  of  the  negligence  of  the  defendant,  and  can  be 
supported  only  by  proof  of  such  want  of  care  as  constitutes  actionable 
neghgence.  At  the  trial  the  only  fact  offered  in  proof  of  the  alleged 
cause  of  action  was  the  defendant's  leaving  his  horses,  that  were  harnessed 
to  a  wagon,  standing  on  his  land  near  his  house,  without  tying  them  or 
leaving  them  under  the  charge  of  any  other  person.  The  verdict  shows 
that  this  fact,  though  there  was  conflicting  testimony  concerning  it, 
was  found  by  the  jury,  and  that  they  also  found  that  it  was  legal  proof  of 
such  want  of  care  as  rendered  the  defendant  liable  for  the  injury  sustained 
by  the  female  plaintiff.  And  the  Court  are  of  opinion  that  evidence 
of  the  defendant's  being  a  careful,  prudent,  and  cautious  man  was  not 
admissible  for  the  purpose  of  showing  that  he  used,  in  this  instance,  such 
care  of  his  horses  as  the  law  requires  in  order  to  exempt  him  from  responsi- 
bility for  the  mischief  produced  by  their  escape  into  the  highway.  When 
the  precise  act  or  omission  of  a  defendant  is  proved,  the  question  whether 
it  is  actionable  negligence  is  to  be  decided  by  the  character  of  that  act 
or  omission,  and  not  by  the  character  for  care  and  caution  that  the 
defendant  may  sustain.  If  such  exidence  as  was  offered  and  rejected  at 
the  trial  is  ever  admissible,  in  a  case  like  this,  we  incline  to  the  opinion 
that  it  is  only  when  the  plaintiff  attempts  to  prove  the  defendant's  negli- 
gence by  merely  circumstantial  evidence,  or,  perhaps,  by  witnesses  shown 


No.  20         CIRCUMSTANTIAL  EVIDENCE:     MORAL  CHARACTER  35 

to  be  of  doubtful  veracity.  These  exceptions  do  not  show,  nor  was  it  sug- 
gested in  argument,  that  the  excluded  evidence  was  admissible  on  either 
of  these  grounds.  .  .  .  Exceptions  overruled. 


20.   FONDA  V.   ST.   PAUL  CITY  RY.    CO. 

Supreme  Court  of  Minnesota.     1898 

71  Minn.  438;   74  A^  W.  166 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Ram- 
sey county,  Willis,  J.,  denying  its  alternative  motion  for  judgment 
notwithstanding  the  verdict,  or  for  a  new  trial,  after  a  verdict  for  the 
plaintiff  for  ^17,640.30.     Reversed  and  a  new  trial  granted. 

Munn  &  Thygeson,'  for  appellant.  .  .  .  The  Court  below  erred  in 
admitting  evidence  of  the  general  incompetency  of  the  motorman.  It 
makes  no  difference  how  negligent  he  may  have  been  at  other  times  prior 
to  the  accident.  If,  as  a  matter  of  fact,  he  handled  the  car  in  a  prudent 
and  proper  manner  at  the  time  of  the  accident,  the  defendant  would  not 
be  liable.  .  .  . 

Stevens,  O'Brien,  Cole  &  Alhrecht,  for  respondent.  .  .  .  Evidence  is 
admissible  of  the  general  incompetency  of  the  motorman  when  such 
incompetency  is  radical,  inherent,  and  natural,  arising  out  of  constitu- 
tional defects  which  render  him  unfit  to  perform  the  duty  assigned.  .  .  . 

Mitchell,  J.  —  The  plaintiff,  a  stranger  to  and  not  an  employee  of, 
the  defendant,  recovered  a  verdict  for  personal  injuries  caused  by  the 
alleged  negligence  of  defendant's  servants;  and  from  an  order  denying 
its  motion  for  judgment  notwithstanding  the  verdict,  or  for  a  new  trial, 
the  defendant  appealed.  .  .  .  The  accident  occurred  at  or  near  the  east- 
erly intersection  of  Walnut  and  Seventh  streets,  in  the  city  of  St.  Paul.  .  .  . 
In  the  forenoon  of  the  day  of  the  accident,  plaintiff  had  traveled  southerly, 
down  Walnut  street,  to  Seventh,  for  the  purpose  of  taking  an  east-bound 
car  going  down  town.  He  had  reached  the  northeast  corner  of  Walnut 
and  Seventh,  and  then  started  to  cross  the  latter,  for  the  purpose  of 
getting  on  the  south  side  of  the  southerly  track  in  order  to  take  his  car. 
His  testimony  as  to  what  occurred  is  as  follows: 

"Just  as  I  left  the  sidewalk  to  cross  Seventh  street,  I  looked  up,  and  looked 
both  ways.  I  saw  a  car  approaching  from  the  east  over  a  block  away,  and  I 
also  looked  the  other  way  towards  the  west,  and  there  was  a  car  coming  from 
that  way  too;  and  I  walked  out  on  the  rails,  and  my  intention  was,  as  I  walked 
out  there,  to  get  across  the  rails,  before  the  east-bound  car  got  down  there  (the 
car  I  was  going  to  take).  As  I  walked  out  on  the  track,  that  east-bound  car  got 
down  there,  and  I  couldn't  cross  it.  So  I  hesitated  a  minute  as  the  car  got  down 
by  me.  Then  I  started  to  walk  around  the  tail  end.  Just  as  I  started  to  walk 
around  the  tail  end,  and  took  a  few  steps,  this  west-bound  car  came  along,  and 
struck  me,  and  knocked  me  down."  .  .  . 


36  BOOK   i:     RULES    OF   ADMISSIBILITY.  *  Xo.  20 

The  conjuncture  of  circumstances  was  such  as  to  require  pecuHar 
caution  on  the  part  of  the  motorman  on  the  west-bound  car.  .  .  .  The 
jury  were  abundantly  justified  in  finding  that  he  was  guilty  of 
negligence.   .   .   . 

Upon  the  trial,  the  Court,  against  the  objection  of  defendant,  admitted 
evidence  of  the  general  incompetency  of  the  motorman,  based  on  the 
observations  of  witnesses  who  had  seen  him  operate  his  car  on  prior 
occasions.  We  think  this  was  error.  .  .  .  The  sole  issue,  aside  from  that 
as  to  plaintiff's  contributory  negligence,  was  whether  or  not  the  motorman 
was  guilty  of  negligence  at  the  time  of  the  accident.  When  the  act  or 
omission  is  proved,  whether  it  be  actionable  negligence  is  to  be  determined 
by  the  character  of  the  act  or  omission  itself,  and  not  by  the  character 
of  prior  acts  of  the  party  committing  it.  If  the  plaintiff  could  offer 
testimony  as  to  the  general  incompetency  or  as  to  prior  negligent  acts 
or  omissions  of  the  motorman,  then  with  equal  propriety  the  defendant, 
upon  the  issue  of  contributory  negligence,  might  offer  evidence  of  plain- 
tiff's general  carelessness,  or  of  his  negligent  acts  on  other  occasions. 
Indeed,  we  do  not  see  why  the  plaintiff  would  not,  upon  the  same  princi- 
ple, have  the  right  to  introduce  evidence  that  he  himself  was  an  habitually 
careful  and  cautious  man.  As  the  liability  of  a  master  for  the  acts  of  his 
servant  rests  upon  the  doctrine  of  respondeat  superior,  it  can  make  no 
difference  as  to  the  admissibility  of  such  evidence  whether  the  alleged 
negligent  act  was  committed  by  the  servant  or  by  the  master  in  person. 
Hence,  if  the  offered  evidence  was  admissible  in  this  case,  it  would  have 
been  equally  competent  had  the  defendant  been  a  natural  person,  and 
operating  the  car  himself,  to  prove  that  he  was  incompetent  to  perform 
such  work,  or  had  performed  it  negligently  on  former  occasions. 

There  are  some  cases  which  hold  that  where  the  person  injured  was 
killed,  and  there  were  no  eye-witnesses  of  the  occurrence,  the  general 
character  of  the  deceased  as  a  careful  and  prudent  man  may  be  shown  for 
the  purpose  of  raising  a  presumption  that  he  was  not  negligent  on  the 
occasion  in  question.  But  this  rule  is  based  upon  the  supposed  neces- 
sities of  the  case,  and  is  repudiated  by  very  eminent  authorities.  .  .  . 
Many  of  the  authorities  cited  by  plaintiff's  counsel  are  cases  where  a 
servant  brought  an  action  against  his  master  for  injuries  caused  by  the 
negligence  of  a  fellow  servant.  In  such  cases  the  doctrine  of  "  respondeat 
superior"  does  not  apply,  the  gist  of  action  being  the  negligence  of  the 
master  in  employing  or  retaining  an  incompetent  servant.  A  moment's 
reflection  will  show  that  such  cases  are  not  at  all  in  point.  .  .  . 

We  have  examined  all  of  the  numerous  cases  cited  on  this  question, 
and  find  that,  aside  from  obiter  remarks  in  one  or  two  in  which  the 
question  was  not  involved  or  raised,  only  the  following  at  all  tend  to 
support  plaintiff's  contention,  viz.:  Vicksburgh  v.  Patton,  31  Miss.  156; 
State  V.  Manchester,  52  N.  H.  528;  Craven  v.  Central,  72  Cal.  345,  13 
Pac.  878;  State  v.  Boston,  58  N.  H.  410.  But  a  careful  examination  of 
these  cases  shows  that  all  they  hold  (unless  it  is  the  first)  is  that  when 


No.  21         CIRCUMSTANTIAL  EVIDENCE:     MORAL  CHARACTER  37 

evidence  is  conflicting  as  to  whether  a  person,  in  conducting  his  business 
or  performing  his  services,  performed  a  particular  act,  or  performed  it 
in  a  particular  way,  it  is  competent  to  show  that  he  was  in  the  habit 
of  performing  the  act,  or  performing  it  in  that  peculiar  way,  —  not  as 
evidence  of  character  or  of  fitness  or  unfitness,  but  simply  as  having  some 
tendency  to  show  that  on  the  particular  occasion  in  question  he  probably 
did  the  act,  or  did  it  in  a  peculiar  way,  in  accordance  with  his  general 
habit  or  custom.  Whether  this  rule  is  correct  or  incorrect,  it  falls  short 
of  sustaining  the  contention  of  plaintiff's  counsel  in  the  present  case. 
The  evidence  introduced  was  not  directed  or  limited  to  showing  that  the 
motorman  was  in  the  habit  of  doing  or  omitting  to  do  some  particular 
act  which  the  other  evidence  tended  to  prove  that  he  did  or  omitted  to 
do  on  the  occasion  in  question.  It  was  to  the  effect  that  he  was  generally 
incompetent,  as  shown  in  a  variety  of  ways,  by  his  method  of  managing 
his  car  on  former  occasions.  In  brief,  the  inference  sought  to  be  drawn 
is  that,  if  he  was  generally  incompetent,  it  was  more  probable  that  he 
operated  the  car  improperly  on  this  occasion.  Such  an  inference  might 
at  first  blush  seem  to  be  a  legitimate  one,  but  it  is  too  remote  and  con- 
jectural to  be  permissible.  Any  such  rule  of  evidence  would  drag  innu- 
merable collateral  issues  into  the  trial  of  a  case;  for  evidence  of  general 
incompetency  would  necessarily  result  in  the  introduction  of  evidence  of 
particular  acts.  ... 

For  the  errors  already  referred  to,  the  order  appealed  from  must  be 
reversed,  and  a  new  trial  granted.  So  ordered. 


21.  HEIN  V.  HOLDRIDGE 

Supreme  Court  of  Minnesota.    1900 

78  Minn.  468;  81  N.  W.  522 

Action  in  the  District  Court  for  Olmsted  County  to  recover  $5,031.50 
damages  for  seduction  of  plaintiff 's  daughter.  The  case  was  tried  before 
Snow,  J.,  and  a  jury,  which  rendered  a  verdict  in  favor  of  plaintiff  for 
S531;  and  from  an  order  denying  a  motion  for  a  new  trial,  defendant 
appealed.     Reversed. 

James  E.  Bradford  and  Webber  &  Lees,  for  appellant.  .  .  .  Evidence 
of  defendant's  reputation  for  chastity  and  good  moral  character  was 
admissible.  Schuek  v.  Hagar,  24  Minn.  339;  Bingham  v.  Bernard,  36 
Minn.  114.  .  .  . 

H.  A.  Eckholdt,  for  respondent.  .  .  .  Defendant's  character  was  not 
put  in  issue,  nor  impeached.  Until  attacked,  he  must  rely  on  the  general 
presumption  of  good  character.  Cochran  v.  Toher,  14  Minn.  293  (385) ; 
Lotto  V.  Davenport,  50  Minn.  99.  Schuek  v.  Hagar,  24  Minn.  339,  is 
contrary  to  the  overwhelming  weight  of  authority  elsewhere,  and  should 
not  be  followed.  .  .  . 


38  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  21 

Start,  C.  J.  —  This  is  an  action  by  a  father  for  the  alleged  seduction 
of  his  daughter  by  tlie  defendant.  Verdict  for  the  plaintiff  in  the  sum 
of  $531,  and  the  defendant  appealed  from  an  order  denying  his  motion 
for  a  new  trial.  The  assignments  of  error  present  two  general  questions 
for  our  decision.  ...  (2)  Did  the  trial  Court  err  in  excluding  evidence 
offered  by  the  defendant  to  show  that  his  general  reputation  for  chastity 
was  good? 

The  only  evidence  as  to  the  alleged  acts  of  sexual  intercourse  between 
the  defendant  and  the  plaintiff's  daughter  was  the  testimony  of  the  daugh- 
ter and  of  the  defendant.  They  flatly  contradicted  each  other.  The 
daughter,  who  was  at  that  time  a  servant  in  the  family  of  the  defendant, 
testified  to  such  acts,  and  that  the  defendant  was  the  father  of  her  illegiti- 
mate child.  The  defendant,  who  was  a  married  man,  positively  denied 
her  testimony.  Thereupon  the  defendant  offered  to  show,  by  witnesses 
who  had  known  him  from  his  birth,  and  lived  near  him,  that  his  general 
reputation  for  chastity  was  good.  The  Court  excluded  the  e\'idence, 
and  the  defendant  duly  excepted.     Was  the  ruling  correct? 

The  charge  against  the  defendant  involved  the  commission  of  a  crime 
by  him,  and,  if  this  were  a  criminal  case,  it  is  certain  that  the  excluded 
e\ddence  would  have  been  admissible.  The  accused  in  a  criminal  case, 
whether  the  charge  be  a  felony  or  a  misdemeanor,  may  always  prove  his 
previous  good  character,  of  which  his  general  reputation  is  evidence,  as 
tending  to  disprove  the  commission  of  the  offense ;  that  is,  as  tending  to 
show  the  improbability  of  a  person  of  his  previous  character  committing 
the  act  charged.  The  rule  is  not  limited  to  cases  where  the  probative 
force  of  the  evidence  against  the  accused  is  weak.  There  would  seem 
to  be  no  logical  reason  why  the  same  rule  should  not  apply  to  civil  actions 
in  which  the  defendant  is  charged  with  a  crime. 

But  the  accepted  general  rule  is  that  exidence  of  the  general  character 
of  parties  to  civil  actions,  where  character  is  not  a  part  of  the  issue,  is 
inadmissible.  The  rule  seems  to  be  one  of  practical  convenience,  for 
the  purpose  of  avoiding  the  confusion  of  issues.  1  Greenleaf,  Ev.  (16th 
Ed.),  §  14b,  subd.  4. 

On  principle,  however,  it  would  seem  that  there  ought  to  be  exceptions 
to  this  general  rule.  In  this  State,  whatever  may  be  the  case  in  other 
jurisdictions,  such  exceptions  are  recognized.  Inasmuch  as  the  general 
rule  is  not  based  upon  any  philosophical  reason,  but  is  merely  one  of 
convenience,  it  ought  not  to  be  applied  to  cases  where  justice  to  the 
defendant  requires  that  the  inconvenience  arising  from  a  confusion  of 
the  issues  should  be  disregarded,  and  he  be  permitted  to  give  evidence  of 
his  previous  good  character;  or,  in  other  words,  such  e\adence  ought  to 
be  received  in  a  ci\'il  action  when  it  is  of  a  character  to  bring  it  within 
all  of  the  reasons  for  admitting  such  evidence  in  criminal  cases.  Civil 
actions  for  an  indecent  assault,  for  seduction,  and  kindred  cases,  are  of 
this  character;  for  such  cases  are  not  infrequently  mere  speculative  and 
blackmailing  schemes.     The  consequences  to  the  defendant  of  a  ver- 


No.  21         CIRCUMSTANTIAL   EVIDENCE:     MORAL   CHARACTER  39 

diet  against  him  in  such  a  case  are  most  serious,  for  the  issue  as  to  him 
involves  his  fortune,  his  honor,  his  family.  From  the  very  nature  of  the 
charge,  it  often  happens  that  an  innocent  man  can  only  meet  the  issue 
by  a  denial  of  the  charge,  and  proof  of  his  pre\aous  good  character. 
Ought  a  defendant  in  such  a  case  be  deprived  of  the  right  to  lay  before 
the  jury  evidence  of  his  previous  good  character,  because  it  will  tend  to 
confuse  the  issue,  while  a  defendant  in  a  case  where  the  State  charges  him 
with  a  simple  assault,  involving  no  more  serious  consequences  than  the 
payment,  perhaps,  of  a  fine  of  five  dollars,  is  accorded  the  absolute  right 
to  give  such  evidence?  The  question  has  been  answered  in  the  negative 
by  this  Court.  If  evidence  of  the  previous  good  character  of  a  defendant 
is  admissible  in  a  civil  action  for  an  indecent  assault,  it  necessarily  follows 
that  such  evidence  is  admissible  in  a  civil  action  for  seduction,  for  the 
cases  in  this  respect  cannot  be  distinguished. 

Now,  in  the  case  of  Schuek  v.  Hagar,  24  Minn.  339,  which  was  a 
civil  action  to  recover  damages  for  an  indecent  assault,  the  defendant 
offered  evidence  of  his  previous  good  character;  and  this  Court,  reversing 
the  trial  Court,  held,  without  dissent,  that  such  evidence  was  admissible. 
In  the  case  of  Bingham  v.  Bernard,  36  Minn.  114,  30  N.  W.  404,  which 
was  a  similar  action,  it  was  assumed  by  Court  and  counsel  that  the  rule 
of  Schuek  v.  Hagar  was  correct,  and  e\idence  of  defendant's  good  char- 
acter was  received  without  objection.  If  the  doctrine  of  Schuek  v. 
Hagar  is  to  be  adhered  to,  it  necessarily  follows  that  it  is  decisive  of  the 
question  we  are  now  considering.  ...  It  therefore  ought  to  be  adhered 
to  on  the  ground  of  "stare  decisis,"  if  for  no  other,  and  we  so  hold.  We 
are  also  of  the  opinion  that  the  doctrine  of  that  case  ought  not  to  be 
extended  to  ci\dl  actions  where  the  issue  relates  to  a  simple  assault,  or  to 
the  fraud,  deceit,  or  negligence  of  the  defendant,  or  to  similar  actions, 
for  they  are  not  within  the  reasons  we  have  suggested  for  the  admission 
of  evidence  of  good  character  in  exceptional  civil  actions.  Our  conclu- 
sion is  that  the  trial  Court  erred  in  ruling  out  the  proffered  evidence. 

Order  reversed,  and  a  new  trial  granted. 

Collins,  J.  —  The  universal  rule  is  that  the  character  of  a  party 
to  a  civil  action  is  not  admissible  in  evidence  as  tending  to  prove  that 
he  did  not  do  the  act  in  question.  The  nature  of  every  transaction  in- 
volved in  such  an  action  is  to  be  determined  by  its  own  facts  and  circum- 
stances, and  not  by  the  character  of  the  parties.  But  this  rule  was 
departed  from  by  this  Court,  in  1877,  in  Schuek  v.  Hagar,  24  Minn.  339. 
And,  to  be  consistent,  the  doctrine  of  that  case  should  be  applied  when- 
ever the  charge  made  in  a  civil  action  imputes  any  kind  of  moral  turpitude 
to  a  defendant,  such  as  fraud  or  falsehood  or  kindred  delinquencies;  for, 
whenever  the  character  of  a  defendant  for  fraudulent  or  deceitful  practices 
or  for  truth  or  honesty  is  at  issue,  he,  for  the  same  reasons  exactly,  ought 
to  be  permitted  to  lay  before  the  jury  evidence  of  his  previous  good 
character,  as  tending  to  show  that  he  was  not  morally  delinquent,  and 
not  inclined  to  fraud  or  falsehood.     This  would  be  a  departure  from  the 


40  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  21 

well-settled  rules  of  evidence  not  to  be  thought  of,  and  yet,  on  principle, 
not  a  step  in  ad\'ance  of,  or  materially  different  from,  that  laid  down, 
without  discussion  and  without  citation  of  authority,  in  the  Schuek  case. 
I  am  convinced  that  the  Court  was  radically  wrong  in  that  case.  But 
on  the  ground  of  "stare  decisis"  I  concur  in  the  main  opinion. 

I  am  authorized  to  say  that  Justice  Brown  coincides  with  these  views. 


22.  McCLURE  v.   STATE  BANKING  CO. 

Court  of  Appeals  of  Georgia.     1909 

6  Ga.  App.  303;  65  S.  E.  33 

Error  from  City  Court  of  Hall  County;  J.  C.  Boone,  Judge. 

Action  by  the  State  Banking  Company  against  J.  M.  McClure. 
Judgment  for  plaintiff,  and  defendant  brings  error.     Reversed. 

The  bank  sued  McClure  on  a  note  made  payable  to  one  Turner  and 
indorsed  by  him  to  the  bank.  The  defendant  claimed  that  the  note  was 
a  forgery,  and  that  Turner  had  committed  the  forgery.  He  offered  to 
prove,  in  support  of  this  contention,  that  the  general  reputation  of 
Turner  was  very  bad  and  that  he  bore  the  general  reputation  of  having 
been  engaged  in  the  business  of  committing  forgeries.  The  Court 
declined  to  allow  the  proof.  There  was  a  verdict  for  the  plaintiff,  and 
the  defendant  excepts  to  the  overruling  of  his  motion  for  a  new  trial. 

Geo.  K.  Looper  and  B.  P.  GaiUard,  Jr.,  for  plaintiff  in  error.  W.  I. 
Hobbs  and  H.  H.  Perry,  for  defendant  in  error. 

Powell,  J.^The  rule  prevailing  in  England  and  in  most  of  the 
American  States,  that  evidence  of  character  is  not  usually  received  when 
offered  for  the  purpose  of  throwing  light  on  the  probability  of  the  doing 
of  a  certain  act  by  the  person  whose  character  is  in  question,  is  not  of 
force  in  this  state.  The  contrary  doctrine  has  been  recognized  in  our 
jurisprudence  from  a  very  early  date.  Civil  Code  1895,  §  5159,  provides: 
"The  general  character  of  the  parties,  and  especially  their  conduct  in 
other  transactions,  are  irrelevant  matters,  unless  the  nature  of  the  action 
involves  such  character  and  renders  necessary  or  proper  the  investiga- 
tion of  such  conduct."  The  rule  is  especially  applicable  to,  if  not  con- 
fined to,  cases  where  a  particular  trait  of  the  person  whose  conduct  is 
under  investigation  is  involved,  or  the  alleged  conduct  is  such  that  no 
person  of  good  character  would  likely  commit  it.  If  only  a  particular 
trait  is  involved,  the  testimony  should  be  limited  accordingly.  On  the 
subject  generally,  see  McNabb  v.  Lockhart,  18  Ga.  496,  512  (in 
which  the  party's  character  for  honesty  and  general  trustworthiness  was 
involved) ;  Planters'  Bank  v.  Neel,  74  Ga.  576,  581  (in  which  a  person's 
character  as  a  man  of  close  attention  to  business  was  involved) ;  Falkner 
V.  Behr,  75  Ga.  672,  676  (in  which  the  general  character  of  one  of  the 
parties  was  involved);    Du  Bose  v.  Du  Bose,  75  Ga.  753  (in  which  the 


No.  23         CIRCUMSTANTIAL   EVIDENCE:     MORAL   CHARACTER  41 

husband's  character  for  decency  was  involved  in  a  divorce  action); 
Columbus  Ry.  Co.  v.  Christian,  97  Ga.  56  (in  which  the  character  of  the 
defendant's  agent  as  a  dangerous  man  was  involved) ;  German  American 
Life  Ass'n  v.  Farley,  102  Ga.  720  (in  which  the  plantiff's  character  was 
involved  on  an  issue  as  to  whether  he  had  committed  fraud  in  procuring 
a  policy  of  insurance).  In  all  of  these  cases  it  was  held  that  evidence  as 
to  the  particular  or  general  traits  of  character  involved  in  the  respective 
actions,  was  admissible. 

Frequently  this  kind  of  evidence  has  a  distinct  relevancy  and  a  high 
degree  of  probative  value,  because  it  tends  to  make  the  question  involved 
in  the  issue  more  or  less  probable  in  favor  of  one  side  of  the  case  or  the 
other.  Even  those  Courts  and  text-writers  who  support  and  lay  down 
the  proposition  that  the  evidence  is  not  admissible  do  not  put  it  on  the 
ground  that  the  evidence  lacks  relevancy  or  probative  value,  but  rather 
rely  on  the  ancient  and  well-established  character  of  the  rule  itself.  The 
Courts  of  this  state,  out  of  deference  to  the  policy  expressed  in  the 
maxim  "  Let  there  be  light,"  have  rejected  the  old  rule,  which  has  long 
outlived  the  reason  from  which  it  sprang. 

In  the  case  at  bar  the  maker  of  the  note  claimed  that  Turner  had 
forged  his  signature.  Now,  if  Turner  were  a  man  of  good  character,  this 
fact  would  have  made  the  defendant's  contention  very  improbable. 
Unquestionably  the  plaintiff  would  have  had  the  right  to  prove  that 
Turner  was  a  man  of  good  character,  and  it  was  not  even  necessary  for 
him  to  prove  this  to  get  the  benefit  of  it  in  the  argument;  for  there  is  a 
presumption,  until  the  contrary  appears,  that  every  person  has  a  good 
character,  and  this  presumption  is  strong  enough  to  afford  a  basis  for 
argument  by  counsel  and  for  action  by  the  jury.  Goggans  v.  Monroe, 
31  Ga.  331;  Bennett  v.  State,  86  Ga.  404;  Ga.  Ry.  &  Elec.  Co.  v.  Dough- 
erty, 4  Ga.  App.  614,  616,  618.  On  the  other  hand,  proof  that  Turner 
was  a  man  of  bad  character,  and  especially  that  he  had  the  general 
reputation  of  being  a  frequent  and  notorious  forger,  would  tend  to  make 
the  defendant's  contention  that  the  signature  to  the  note  was  a  forgery 
more  probable.  The  conduct  charged  to  Turner  in  the  present  inquiry 
was  such  as  to  involve  his  general  bad  character,  and  also  his  special 
bad  character,  as  we  may  call  it,  and  the  rule  limiting  the  evidence  to  a 
particular  trait  (Anderson's  Case,  107  Ga.  506)  was  not  applicable. 

Judgment  reversed. 

23.  THE  QUEEN  v.  RYAN 

Central  Criminal  Court.     1846 

2CoxCr.  115 

The  prisoner  was  indicted  for  rape.  The  prosecutrix  was  an  idiot, 
and  when  asked  questions  in  the  witness-box,  was  evidently  unconscious 
of  their  purport,  and  not  in  a  condition  to  understand  right  from  wrong. 


42  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  23 

Platt,  B.,  interrogated  her  father  as  to  her  general  habits,  whether  they 
were  those  of  decency  and  propriety,  and  an  answer  in  the  affirmative 
was  returned. 

Platt,  B.,  in  summing  up. — The  question  is,  Did  the  connection 
take  place  with  her  consent?  It  seems  that  she  was  in  a  condition  in- 
capable of  judging;  and  it  is  important  to  consider  whether  a  young  per- 
son, in  such  a  state  of  incapacity,  was  likely  to  consent  to  the  embraces 
of  this  man;  because  if  her  habits,  however  irresponsible  she  might  be, 
were  loose  and  indecent,  there  might  be  a  probability  of  such  consent 
being  given,  and  a  jury  might  not  think  it  safe  to  conclude  that  she  was 
not  a  willing  party.  .  .  .  The  prisoner  was  convicted. 


24.   FRANKLIN  v.   STATE 

Supreme  Court  of  Alabama.     1856 

29  Ala.  14 

From  the  Circuit  Court  of  Pike.  Tried  before  the  Hon.  E.  W. 
Pettus.  Indictment  against  Philemon  J.  Franklin  for  the  murder  of 
his  brother,  Christopher  Franklin,  by  shooting  him  with  a  gun.  The 
only  evidence  in  relation  to  the  killing  w^as  the  testimony  of  a  young  man, 
then  about  sixteen  years  of  age,  who  was  an  eye-witness  of  it,  and  whose 
testimony,  in  substance,  is  stated  in  the  opinion  of  the  Court.  On  the 
part  of  the  prisoner,  evidence  of  his  peaceable  character  was  introduced. 
.  .  .  The  prisoner  then  offered  to  prove,  "that  the  general  character  of 
the  deceased  was  that  of  a  turbulent  and  dangerous  man";  but  this 
evidence  also  was  excluded  by  the  Court,  and  the  prisoner  excepted.  .  .  . 

E.  C.  Bullock,  for  the  prisoner.  While  the  bad  character  of  the 
deceased,  per  se,  does  not  in  the  slightest  degree  affect  the  character 
of  the  homicide,  it  yet  becomes  a  legitimate  and  important  subject  of 
inquiry,  where  the  circumstances  make  the  precise  grade  of  the  crime 
doubtful,  and  where  the  ferocious  temper  of  the  deceased  might  furnish 
a  key  to  the  whole  transaction.  .  .  . 

M.  A.  Baldwin,  Attorney-General,  contra.  The  character  of  the  de- 
ceased can  never  become  a  matter  of  controversy,  under  an  indictment 
for  homicide,  except  when  involved  in  the  res  gestae.  When  a  homicide 
is  committed  under  such  circumstances  as  tend  to  show  that  the  prisoner 
acted  in  self-defense,  then  the  conduct  of  the  person  slain,  construed  with 
reference  to  his  known  character,  becomes  a  part  of  the  transaction; 
but,  when  the  evidence  not  only  fails  to  show  any  conduct  on  the  part 
of  the  deceased  which  could  raise  the  question  of  self-defense,  but  affirma- 
tively shows  (as  it  does  here)  that  his  situation  and  position  precluded 
that  question,  his  bad  character  cannot  be  received  to  mitigate  the 
offense.  .  .  . 

Walker,  J.  —  It  has  been  twice  decided  in  this  State,  and  must  now 


No.  24         CIRCUMSTANTIAL  EVIDENCE!     MORAL  CHARACTER  43 

be  regarded  as  law,  that  the  testimony,  in  prosecutions  for  murder,  may 
be  such  as  will  justify  the  admission  of  the  bad  character  of  the  deceased 
as  evidence  for  the  accused.  Quesenberry  v.  The  State,  3  S.  &  P.  308; 
Pritchett  v.  The  State,  22  Ala.  39.  ...  In  both  cases,  it  is  carefully 
and  properly  denied  that  the  bad  character  of  the  deceased  can,  of  itself, 
lessen  the  criminality  of  his  murder.  The  rule  is  laid  down  in  Oliver's 
case  (17  Ala.  599)  that  "the  necessity  which  exculpates  the  accused 
from  guilt,  need  not  be  actual;  that  if  the  circumstances  be  such  as  to 
induce  a  reasonable  belief  that  such  necessity  exists,  the  law  will  acquit 
the  slayer  of  all  guilt."  It  seems  to  result  as  a  sequence  from  this  princi- 
ple, that  the  character  of  the  deceased  for  turbulence,  violence,  revenge- 
fulness,  blood-shed,  and  the  like,  where  it  qualifies,  explains,  and  gives 
meaning  and  point  to  the  conduct  of  the  deceased,  should  be  proper 
evidence.  Conduct  of  a  man  of  peaceable  character  and  harmless  de- 
portment might  pass  by  without  exciting  a  reasonable  apprehension  of 
impending  peril ;  while,  on  the  other  hand,  the  same  conduct,  from  a  man 
of  notoriously  opposite  character  and  habits,  might  reasonably  produce 
a  consciousness  of  the  most  imminent  peril,  and  a  conviction  of  the 
necessity  of  prompt  defensive  action.  Whenever  such  bad  character  on 
the  part  of  the  deceased  thus  illustrates  the  circumstances  attending  a 
homicide,  and  the  circumstances,  so  illustrated,  tend  to  produce  a  reason- 
able belief  of  imminent  danger  in  the  mind  of  the  slayer,  the  character, 
as  mingled  with  the  transaction,  is  a  part  of  it,  and  is  indispensable  to  its 
correct  understanding.  Such  we  understand  to  be,  in  effect,  the  decisions 
in  Quesenberry's  and  Pritchett's  cases.  To  avoid  detriment  in  the 
practical  application  of  the  rule,  it  must  be  understood  neither,  on  the  one 
hand,  to  excuse  the  taking  of  one's  life  because  he  is  a  bad  man,  nor,  on 
the  other,  to  be  limited  to  those  cases  where  the  facts  are  such  as  to  make 
it  doubtful  whether  the  homicide  was  committed  "se  defendeido."  The 
law  cannot  apportion  the  criminality  of  the  homicide  to  the  character 
of  the  deceased,  and  it  cannot  confine  the  rule  to  cases  of  doubt;  because, 
in  such  cases,  the  defendant  is  entitled  to  an  acquittal,  and  therefore 
to  so  limit  it  would  deny  to  it  all  practical  effect.  .  .  . 

We  now  turn  to  the  testimony,  for  the  purpose  of  inquiring  whether 
the  circumstances  were  such  that,  under  the  rule  we  have  laid  down, 
the  character  of  the  deceased,  "as  a  turbulent  and  dangerous  man," 
ought  to  have  been  admitted  in  evidence.  The  prisoner  and  the  deceased 
were  brothers,  and  worked  together  in  a  blacksmith  shop.  The  deceased 
went  to  the  prisoner's  house,  with  a  loaded  gun,  late  in  the  evening,  and 
near  the  door  of  the  prisoner's  house,  used  reproachful  and  angry  words 
for  some  time,  but  did  not  use  any  language  of  menace,  or  indicating  an 
intention,  either  present  or  prospective,  to  perpetrate  violence  upon 
the  prisoner.  The  deceased  afterwards  went  into  the  house,  where  the 
prisoner  was  at  the  time  lying  upon  a  bed.  Immediately  afterwards, 
the  prisoner  said  to  the  deceased,  "  You  have  come  here  with  your  arms, 
and  I  have  nothing  to  defend  myself."     The  deceased  then  placed  his 


44  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  24 

gun  on  the  bed  on  which  the  prisoner  was  lying,  and  turned  and  walked 
off  about  ten  feet  to  a  table,  and  turned  and  sat  down  on  the  table,  with 
his  face  to  the  prisoner.  As  the  deceased  turned  to  walk  off  from  the 
bed,  the  prisoner  seized  the  gun,  cocked  and  presented  it;  and  at  the 
instant  when  the  deceased  sat  down  on  the  table,  the  gun  fired,  and 
the  load  entered  the  breast  of  the  deceased,  who  fell  forward,  with  his 
head  towards  the  bed,  and  his  feet  three  or  four  feet  from  the  table,  and 
expired  in  about  half  an  hour.  .  .  .  There  was  not  a  word  spoken,  not 
an  act  done,  which,  illustrated  by  the  character  of  the  deceased,  and 
construed  by  the  prisoner  in  the  light  of  that  character,  could  tend  to 
produce  a  reasonable  belief  of  imminent  peril.  Nor  was  there  any  act 
or  word  from  the  prisoner,  which,  explained  by  his  character,  could 
aggravate  his  conduct  into  such  a  provocation  as  to  mitigate  the  offense 
to  a  lower  degree.  .  .  . 

The  judgment  of  the  Court  below  must  be  affirmed,  and  its  sentence 
executed. 

25.   WILLIAMS  v.   FAMBRO 

Supreme  Court  of  Georgia.     1860 

30  Ga.  232 

Trespass  vi  et  armis,  in  Pike  Superior  Court.  Tried  before  Judge 
Cabannis,  at  October  Term,  1859.  This  was  an  action  brought  by  Allen 
G.  Fambro  against  Richard  W.  Williams,  for  the  recovery  of  damage  for 
killing  a  negro  man  slave,  named  Jim,  alias  Jim  Sheet,  the  property  of 
plaintiff".  The  declaration  alleged  that  the  negro  was  worth  $1,200,  and 
that  he  came  to  his  death  by  wounds  inflicted  upon  him  by  the  defendant. 
The  defendant  pleaded  the  general  issue.  Upon  the  trial  it  appeared  from 
the  testimony,  that  at  the  time  the  negro  was  killed,  March  23,  1857,  the 
defendant  was  overseeing  for  plaintiff;  that  the  plantation  upon  which 
the  negro  was  killed,  was  in  the  county  of  Crawford,  and  that  plaintiff 
resided  about  thirty  miles  distant.  None  of  the  witnesses  examined  was 
present  at  the  killing;  the  negro  was  found  dead  —  stabbed  in  the  left 
side;  the  wound  having  the  appearance  of  having  been  inflicted  with 
a  long  knife.  .  .  .  When  the  case  was  called  for  trial  and  plaintiff 
announced  ready,  defendant  moved  for  a  continuance,  on  the  ground  of 
the  absence  of  a  witness  who  resided  in  the  county,  and  had  been  duly 
subpoenaed,  and  by  whom  defendant  expected  to  prove  that  the  negro 
killed  was  of  bad  character,  turbulent,  and  unruly;  plaintiff  objected  to 
the  showing  as  insufficient ;  the  testimony  of  the  absent  witness,  as  stated 
by  defendant,  if  procured,  being  immaterial  and  inadmissible.  The 
Court  held  the  showing  insufficient,  and  refused  the  motion  to  continue, 
and  defendant  excepted. 

The  plaintiff  having  closed  his  testimony,  the  defendant  offered  to 
read  the  depositions  of  one  Robert  D.  Walker,  a  witness  examined  by 


No.  25         CIRCUMSTANTIAL  EVIDENCE:     MORAL   CHARACTER  45 

commission.  The  substance  of  the  answers  of  this  witness  was,  that  he 
knew  the  boy,  Jim;  that  his  character  in  the  neighborhood  was,  that 
he  was  hard  to  manage  and  control,  and  of  a  violent  disposition.  .  .  . 
Nat  Lucas  and  Frank  Bacon  told  witness  that  the  character  of  the 
negro  was  bad,  and  they  wanted  him  to  keep  Jim  away  from  their 
plantations;  they  said  he  was  a  dangerous  negro,  and  of  bad  habits; 
witness  considered  him  dangerous.  Plaintiff's  counsel  objected  to  the 
reading  of  these  depositions,  upon  the  ground  that  the  testimony  was 
irrelevant  and  immaterial.  Defendant's  counsel  stated  that  this  testi- 
mony was  offered  for  two  purposes:  (1)  To  show  the  character  and 
conduct  of  the  negro.  (2)  To  mitigate  the  damages.  The  Court  sus- 
tained the  objections  and  ruled  out  the  depositions,  so  far  as  they  went 
to  prove  the  general  character  of  the  negro  for  violence,  unless  some  act 
of  violence  was  shown  to  defendant,  or  knowledge  on  his  part  of  the 
negro's  character  for  violence.  To  which  ruling  defendant  excepted.  .  .  . 
The  jury  found  for  the  plaintiff  twelve  hundred  dollars.  Whereupon 
defendant  moved  for  a  new  trial,  on  the  ground  that  the  verdict  was 
contrary  to  law  and  evidence,  and  because  of  error  in  the  rulings,  deci- 
sions, charges,  and  refusal  to  charge  above  stated  and  excepted  to.  The 
Court  overruled  the  motion,  and  defendant  excepted. 

Peeplcs  &  Smith,  for  plaintiff  in  error.     Gibson  &  Floyd,  contra. 

By  the  Court.  —  Stephens,  J.,  delivering  the  opinion.  We  think 
the  plaintiff  in  error  was  entitled  to  the  continuance  to  get  the  benefit 
of  Bacon's  testimony,  and  that  he  ought  also  to  have  had  the  benefit 
of  Walker's  testimony,  which  was  offered  but  ruled  out.  We  think  the 
testimony  of  these  two  witnesses  was  material  and  admissible,  so  far  as 
it  related  to  their  own  general  knowledge  of  the  negro's  disposition.  .  .  . 
The  thing  to  be  proven  in  this  case  was,  not  the  negro's  reputation,  but 
his  character,  his  disposition  or  nature,  and  especially  his  aptness  for 
strife  and  his  proneness  to  insubordination  —  a  fact  which  ought  to  be 
proven  by  witnesses  who  know  it,  or  by  the  admissions  of  the  opposite 
party.  The  fact,  if  proven  from  the  proper  sources,  ought  to  have  gone 
to  the  jury  for  two  purposes,  as  tending  to  aid  the  theory  of  the  defense 
that  the  negro  was  killed  in  an  act  of  insubordination,  and  as  tending 
to  lessen  the  value  of  the  negro,  and  so  to  mitigate  the  damages. 

To  prove  a  proneness  to  insubordination,  to  be  sure,  does  not  prove 
an  act  of  insubordination,  but  it  does  increase  the  probability  of  the 
story  when  there  is,  as  there  was  in  this  case,  other  evidence  suggestive  of 
such  an  act.  Such  a  story  of  rebellion,  if  told  by  a  witness,  or  indicated 
by  circumstances,  ought  to  be  more  easily  believed  concerning  a  violent, 
turbulent  negro,  than  concerning  a  meek,  humble  one.  I  think  that  any 
mind  in  search  of  truth  in  such  a  case,  or  finding  itself  in  doubt,  would 
want  to  know  the  character  of  the  negro. 

The  presiding  Judge  intimated  that  he  would  have  allowed  this 
evidence,  if  it  had  been  shown  that  this  character  had  been  communicated 
to  Williams  before  he  killed  the  negro.     His  knowledge  or  ignorance  has 


46  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  25 

nothing  to  do  with  that  hearing  of  the  character  which  I  have  pointed  out. 
The  sole  purpose  for  which  character  was  admissible,  in  this  case,  on  the 
question  of  justification,  was  from  the  negro's  general  readiness  for 
rebellion,  to  render  more  probable  the  evidence  which  tended  to  show 
an  act  of  rebellion  at  the  time  when  he  was  killed ;  and  this  probability- 
is  evidently  not  affected  in  the  slightest  degree  by  Williams'  previous 
knowledge.  The  light  comes  from  the  fact  that  the  negro  was  one  who 
was  apt  or  likely  to  do  such  an  act  as  the  one  imputed  to  him,  and  not 
from  Williams'  knowledge  of  the  fact. 

As  to  the  bearing  of  the  negro's  character  upon  the  question  of  dam- 
ages, it  is  very  obvious  that  a  negro's  bad  character  detracts  from  his 
value,  and  ought  to  lessen  the  damages  for  killing  him.  .  .  . 

Judgment  reversed. 


26.   STATE  V.   KENNADE 

Supreme  Court  of  Missouri.      1894 

121  Mo.  405;  26  S.  W.  347 

Appeal  from  St.  Louis  Criminal  Court,  —  Hon.  H.  L.  Edmunds, 
Judge.  Affirmed.  The  defendant,  a  German,  indicted  for  the  murder 
of  Cora  Thompson,  a  negress,  by  shooting  her  with  a  pistol,  was  con- 
victed of  that  crime  in  the  second  degree,  his  punishment  being  assessed 
at  twenty  years'  imprisonment  in  the  penitentiary,  and  he  appeals  to 
this  Court. 

The  testimony  on  behalf  of  the  prosecution  was  substantially  this: 
On  the  afternoon  of  March  20,  1893,  defendant  was  in  a  saloon  on  Eighth 
street,  near  Clark  avenue,  in  the  city  of  St.  Louis.  ...  A  young  negro 
named  Morris  came  in  and  was  challengetl  to  play  by  defendant;  upon 
his  declining  on  the  score  of  having  no  money,  defendant  agreed  to  pay 
for  the  game,  and  they  began  to  play.  IMorris  won,  and  defendant 
proposed  to  play  for  a  quarter.  Another  negro  present  "  staked  "  Morris, 
and  they  played  several  games,  doubling  the  stakes  each  time,  Morris 
winning  every  game,  until  the  amount  at  stake  was  four  dollars,  and  the 
stakeholder  paid  over  the  money  to  Morris,  who  started  to  leave  the 
saloon.  Defendant  went  up  to  him,  and  without  saying  a  word,  slapped 
him,  knocked  off  his  hat,  and,  putting  his  hand  into  his  hip  pocket,  drew 
out  a  pistol.  jVIorris  ran  out  the  rear  door,  through  a  gangway,  into  the 
alley  near  deceased's  house.  .  .  .  Defendant  immediately  started  toward 
him,  putting  his  hand  in  his  pistol  pocket,  and  Morris  ran  past  the 
deceased's  house  to  a  vacant  lot,  and  thence  back  to  Eighth  street.  The 
deceased  was  in  her  room  at  the  time,  entertaining  a  visitor,  a  negro 
woman  named  Reynolds.  The  door  of  the  room  was  immediately  on 
the  alley,  about  a  foot  above  the  level  of  the  pavement,  and  had  a  single 
stone  step  in  front  of  it.     Hearing  a  noise  in  the  alley,  and  some  one 


No.  27         CIRCUMSTANTIAL  EVIDENCE:     MORAL  CHARACTER  47 

shouting,  "Run,  run!"  both  women  went  to  the  door,  and  just  then 
defendant  came  up  to  the  door  and  cried  out,  "Let  me  in!"  Deceased 
said,  "What  do  you  want  in  here?"  Defendant  repHed,  "I  want  to  get 
that  nigger  out  of  here."  Deceased  said,  "There  is  no  nigger  in  here; 
you  may  look  in,  but  you  can't  come  in."  He  tried  to  force  his  way  in, 
placing  his  foot  on  the  stone  step,  when  deceased  picked  up  a  seashell 
from  her  bureau,  and  raising  it  in  her  hand,  said,  "  If  you  come  in  here, 
I'll  knock  you  in  the  head."  Defendant  stepped  back,  and  the  woman 
closed  the  door;  he  drew  out  his  pistol,  advanced,  fired  twice  through 
the  door,  and  then  forced  the  door  open  and  fired  directly  at  the  woman, 
who  fell,  shot  through  the  heart,  and  died  almost  instantly.  .  .  . 

Charles  T.  Noland,  for  appellant. 

R.  F.  Walker,  Attorney-General,  and  C.  0.  Bishop,  for  the  State.  .  .  . 
The  question  by  appellant  of  the  officer  as  to  what  was  the  reputation  of 
deceased,  while  she  was  alive,  for  peacefulness,  as  a  law-abiding  citizen, 
was  properly  objected  to  and  the  objection  rightfully  sustained.  .  .  . 
Second.  Because  in  this  case  her  reputation  was  immaterial.  The  mere 
fact  that  one  is  a  bad  or  quarrelsome  person  is  no  excuse  for  killing  him. 
State  V.  Hardy,  95  Mo.  455.  The  theory  on  which  the  quarrelsome  or 
dangerous  character  of  a  deceased  may  be  shown  is  that,  because  of 
defendant's  knowledge  of  that  fact,  he  may  more  reasonably  appre- 
hend danger  to  life  or  limb  by  reason  of  threats  or  demonstrations 
made  against  him  by  deceased.  .  .  . 

Sherwood,  J.  .  .  .  Even  if  deceased  had  a  reputation  for  being  quarrel- 
some and  dangerous,  evideftce  of  it  could  not  have  been  received  unless 
it  had  been  previously  shown  that  defendant  kneiv  it,  and  therefore  might 
more  reasonably  apprehend  danger  in  certain  circumstances,  than  if  that 
reputation  had  been  different.  As  this  knowledge  of  defendant  of  the 
reputation  of  deceased  is  affirmatively  shown  by  his  own  testimony  not 
to  have  existed,  an  answer  to  the  question  asked  the  officers  was  correctly 
denied.     State  v.  Hicks,  27  Mo.  590.  .  .  . 

Judgment  affirmed.     All  concur. 

27.  People  v.  Lamar.  (1906.  California.  148  Cal.  564,  83  Pac.  993). 
LoRiGAN,  J.  It  is  the  rule  in  this  State  that  threats  of  hostile  intention  made 
by  a  deceased,  whether  communicated  or  uncommunicated,  are  admissible  evi- 
dence for  the  said  purpose  'when  the  evidence  is  equivocal.  People  v.  Scoggins, 
37  Cal.  686;  People  i'.  Travis,  56  Cal.  251;  People  r.  Tamkin,  62  Cal.  468;  People 
V.  Thomson,  92  Cal.  506,  28  Pac.  589.  The  philosophy  which  supports  this  rule 
as  to  the  admissibility  of  evidence  of  such  threats,  where  it  is  otherwise  in  doubt 
from  the  evidence  who  was  the  assailant,  is  that  it  is  more  probable  that  one  who 
has  made  threats  of  hostile  intention  towards  another  would,  when  opportunity 
permits,  attempt  to  carry  such  threats  into  execution  and  become  the  assailant, 
than  would  one  who  has  made  no  such  threats,  or  declared  no  such  intention. 
So,  too,  with  reference  to  the  admissibility  of  evidence  of  the  reputation  of 
deceased  as  being  a  violent,  turbulent,  dangerous  man,  such  proof,  w^hen  the 
evidence  as  to  who  was  the  assailant  is  in  doubt,  for  a  similar  philosophic  reason 


^ 


48  BOOK   i:     RULES   OF  ADMISSIBILITY  No.     27 

should  be  permitted;  it  being  more  probable  that  one  bearing  such  a  reputation 
would  precipitate  a  deadly  contest  than  would  one  having  no  such  reputation. 
Hence,  we  think  the  rule  should  be  that  whenever  the  circumstances  of  a  case 
permit  of  the  admission  of  evidence  of  threats  made  by  the  deceased  against  the 
defendant,  either  communicated  or  uncommunicated,  evidence  of  the  reputation 
of  the  deceased  as  being  a  violent,  quarrelsome,  dangerous  man,  cither  known  or 
unknoivn  to  the  defendant,  is  equally  admissible;  the  consideration  of  the  jury 
to  be  limited  by  proper  instructions  of  the  Court,  where  the  reputation  is  un- 
known to  defendant,  to  the  same  extent  that  the  law  limits  the  consideration 
by  them  of  uncommunicated  threats  —  to  the  question  solely  as  to  who  was  the 
assailant  in  the  fatal  encounter.  The  rule  as  to  such  limitation  when  applied 
to  uncommunicated  threats  is  declared  in  People  v.  Scoggins,  37  Cal.  686. 


Sub-topic    C.    Character  as  an  Issue  in  Citil  Cases 

28.   BUFORD  v.   M'LUNY 

Constitutional  Court  of  South  Carolina.     1818 

1  Nott  iSc  McC.  268 

This  case  was  submitted  without  argument;  and  the  only  question 
for  the  consideration  of  the  Court  was,  whether,  in  an  action  of  slander, 
the  general  bad  character  of  the  plaintiff  may  be  given  in  evidence,  by 
way  of  mitigating  the  damages?  The  opinion  of  the  Court  was  deliv- 
ered by 

Nott,  J.  —  This  question  may  be  considered  in  a  two-fold  point  of 
view:  1.  Whether  evidence  of  plaintiff's  character,  generally,  is  admis- 
sible, without  regard  to  the  particular  nature  of  the  offense  with  which  he 
is  charged?  And,  2.  If  that  is  not  to  be  allowed,  whether  such  evidence 
may  be  given,  so  far  as  regards  his  character  in  that  respect,  in  particular? 

1.  It  is  a  little  remarkable  that  such  a  question  should  have  remained 
so  long  undecided  in  our  Courts ;  and  it  is  not  less  so,  that  so  little  is  to 
be  found  on  the  subject  in  the  English  books.  Enough,  however,  is  to 
be  found  to  satisfy  my  mind  that,  upon  both  principle  and  authority,  such 
testimony  ought  to  be  allowed.  It  seems  to  be  a  rule  of  law,  that  what 
a  party  cannot  plead  by  way  of  justification,  he  may  give  in  evidence  by 
w^ay  of  mitigation.  Buller,  298;  Phillipps,  139;  and  it  is  admitted,  that 
this  matter  cannot  be  pleaded  by  way  of  justification.  I  consider  it  also 
to  be  a  rule  of  law,  that  character  may  be  given  in  ev-idence  where  it  is 
directly  in  issue.  And  I  can  conceive  no  case  where  it  is  in  issue,  if  it  be 
not  in  action  of  slander.  In  every  action  of  law,  the  object  is  to  recover 
reparation  for  some  injury  sustained.  And,  where  the  injury  is  to  prop- 
erty, the  value  of  the  article  is  the  principal  object  of  inquiry.  And  I 
can  see  no  good  reason  why  the  value  of  character  may  not  be  investi- 
gated, as  well  as  that  of  any  other  commodity,  when  the  reparation  of 
character  is  the  object  of  this  suit.  In  other  personal  actions,  such  as 
false  imprisonment,  assault  and  battery,  and  the  like,  the  actual  injury 


No.  28         CIRCUMSTANTIAL   EVIDENCE:     MORAL   CHARACTER  49 

sustained,  although  not  the  only  rule  by  which  damages  are  to  be  esti- 
mated, always  constitutes  a  necessary  ingredient  in  the  question;  and 
it  would  seem  reasonable  that  the  same  rule  should  apply  in  an  action  of 
slander,  as  in  other  personal  actions.  A  plaintiff  is  permitted  to  give  his 
good  character  in  evidence,  by  way  of  enhancing  the  damages,  and,  upon 
the  principle  of  reciprocity,  the  defendant  ought  to  be  permitted  to 
prove  the  contrary. 

If  we  consider  the  case  upon  authority,  we  are  led  to  the  same  con- 
clusion. The  whole  current  of  American  cases,  I  may  almost  say,  goes 
to  support  this  opinion.  .  .  . 

It  is  said  it  would  be  taking  a  person  by  surprise  thus  to  permit  an 
inquiry  into  his  character.  But  ...  he  commences  with  stating  that 
he  is  a  person  of  good  name,  fame,  and  reputation,  and  he  ought  to  be 
prepared  to  prove  that  allegation.  A  person  is  presumed  to  be  always 
prepared  to  defend  his  general  character,  if  he  has  a  good  one;  if  he  has 
not,  it  ought  to  be  exposed.  .  .  . 

2.  On  the  second  question,  I  apprehend  there  can  be  no 
doubt.  ...  In  the  case  of  Leicester  v.  Walter  (2  Camp.  251)  the 
defendant  was  allowed  to  show  that,  before  and  at  the  time  of  the 
publication  of  the  supposed  libel,  the  plaintiff  was  generally  suspected 
of  the  crime  imputed  to  him,  and  that  his  friends  had  ceased  to  associate 
with  him  on  that  account. 

In  every  point  of  view,  I  am  of  opinion,  the  testimony  ought  to  be 
allowed,  and  therefore  a  new  trial  must  be  granted. 

Justices  CoLCOCK  and  Johnson  concurred. 

Mr.  Justice  Cheves  dissented,  as  follows: 

In  this  case  I  differ  from  the  majority  of  the  Court.  The  question  is 
simply,  shall  the  defendant,  under  the  plea  of  not  guilty,  be  permitted 
to  give  the  general  character  of  the  plaintiff  in  evidence?  The  prominent 
arguments,  in  support  of  the  affirmative  of  this  question,  are : 

1.  That  the  pleadings  put  the  character  of  the  plaintiff  in  issue. 

2.  That  the  foundation  of  damages  is  the  actual  injury  suffered  by 
the  plaintiff  in  his  character,  and  that  where  he  had  no  character  to  lose, 
he  can  have  sustained  no  injury. 

3.  That  as  the  plaintiff  may  give  in  evidence  his  rank  and  condition 
in  life  in  aggravation,  the  defendant  may  do  the  same  in  mitigation. 
It  is  believed  that  all  the  arguments  in  the  affirmative  of  this  question 
may  be  brought  under  one  or  other  of  these  three  heads;  which  we  will 
now  consider: 

1.  It  is  alleged  that  the  pleadings  put  the  character  of  the  plaintiff 
in  issue;  now  it  is  not  true,  in  point  of  law,  that  the  character  of  the 
plaintiff  is  put  in  issue.  .  .  .  Mr.  Justice  Buller,  in  Janson  v.  Stewart, 
1  T.  Rep.  748,  says:  "It  is  not  true  that  the  general  character  of  the 
plaintiff  is  put  in  issue";  and  a  better  pleader  than  he  never  sat  on  the 
English  bench;  vide  also  1  Chitty  on  Plead.  226,  364. 

2.  But  it  is  said  that  the  foundation  of  the  damages  given  in  actions 


50  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  28 

of  slander  is  the  actual  injury  suffered  by  the  plaintiff  in  his  character. 
This  is  not  true.  It  is  upon  the  presumption  of  loss  (httle  more  than 
a  legal  fiction),  and  not  upon  the  actual  loss,  that  actions  of  slander  are 
principally  founded;  and  the  experience  of  the  profession  abundantly 
attests  the  fact,  that  the  heaviest  damages  are  often  given  where  the 
slightest  injury  is  sustained.  Are  not  the  heaviest  damages  given  when 
the  slander  is  uttered  against  unsullied  and  impregnable  character; 
where  the  malice  of  the  calumniator  has  been  shot,  "like  a  pointless 
arrow  from  a  broken  bow?"  To  the  tottering  and  questionable  char- 
acter, the  shafts  of  the  slanderer  are  fatal  and  ruinous.  In  this  case, 
the  damage  is  above  compensation.  Not  only  the  wreck  of  reputation 
is  swept  away,  but  hope  itself,  which  sustains  us  when  "  we  are  ready  to 
perish,"  is  not  allowed  to  cheer  the  sufferer.  In  such  cases,  we  know  that 
the  damages  are  usually  nominal,  though  the  injury  is  immeasurable  and 
intolerable.  .  .  . 

3.  The  last  general  ground  on  which  it  is  supposed  this  evidence  ought 
to  be  received,  is,  that  as  the  plaintiff  is  permitted  to  give  in  evidence 
his  rank  and  condition  in  life  in  aggravation  of  damages,  the  defendant 
should  be  permitted  to  do  the  same  in  mitigation  of  damages;  this  is 
the  point  decided  in  Larned  v.  Buffinton,  3  Mass.  Rep.  546.  But  I 
cannot  imagine  that  the  rank  and  condition  in  life  of  a  man  involves  his 
good  or  bad  character  in  a  moral  point  of  view.  .  .  .  Rank  and  condition 
in  life  merely,  should,  perhaps,  neither  increase  or  diminish  the  damages 
in  an  action  of  slander  under  this  government.  On  the  whole,  I  am  clearly 
and  decidedly  of  opinion  that  the  evidence  is  inadmissible,  and  that  a 
new  trial  ought  not  to  be  granted. 

Mr.  Justice  Gantt  concurred  with  Mr.  Justice  Cheves. 

Gunning,  for  the  motion;  Clarke,  Solicitor,  contra. 

29.  William  Trickett.  Character-Evidence  in  Civil  Cases.  (1904.  The 
Forum,  Dickinson  College  of  Law,  vol.  VIII,  p.  165.)  When  character  is  in 
issue.  —  There  are  civil  actions  in  which  the  character  of  a  party,  or  of  another 
specially  connected  with  him,  is  said  to  be  in  issue,  and  in  such  cases,  this  char- 
acter may  be  put  in  evidence.  "Putting  character  in  issue,"  says  Tilghman, 
C.  J.,  "is  a  technical  expression  and  confined  to  certain  actions,  from  the  nature 
of  which  the  character  of  the  parties,  or  some  of  them,  is  of  particular  importance. 
Such  is  the  action  brought  by  one  man  against  another,  for  seducing  his  wife, 
and  having  criminal  connection  with  her.  There  the  injury  done  to  the  plain- 
tiff consists  mainly  (sic?)  in  the  good  conduct  of  his  wife,  before  her  seduction, 
and,  therefore,  the  defendant  is  permitted  to  show  that  she  was  unchaste.  So 
in  an  action  of  slander,  the  plaintiff  in  his  declaration,  asserts  his  own  good  char- 
acter, and  avers  the  intent  of  the  defendant  to  rob  him  of  it.  He  puts  his  charac- 
ter in  issue,  therefore,  and  the  defendant  is  at  liberty  to  impeach  it."  (Anderson 
V.  Long,  10  S.  &  R.  55;  Porter  v.  Seiler,  23  Pa.  424.) 

When  the  action  seeks  to  recover  damages,  altogether  or  in  part  for  injury  to 
a  reputation,  the  question  is,  what  is  the  value  of  that  reputation?  It  is  compe- 
tent for  the  defendant  to  disclose  any  defects  in  it,  prior  to  his  having  done  the 
act  which  is  the  gravamen  of  the  complaint,  in  order  to  show  that  the  reputa- 


No.  30         CIRCUMSTANTIAL  EVIDENCE:     MORAL   CHARACTER  51 

tion  he  damaged  had  less  than  the  normal  value.  .  .  .  By  actions  for  seduction, 
whether  of  daughter  or  other  female,  damages  are  in  part  sought  for  the  injury 
to  the  social  position  and  reputation  of  the  plaintiff,  through  the  injury  to  the 
reputation  of  the  female.  .  .  .  The  damages  are  for  injury  to  the  reputation. 
It  matters  not  whether  this  reputation  is  better  than  is  deserved  or  not.  .  .  .  The 
sexual  character  of  a  party  to  a  contract  to  marry,  is  relevant  in  an  action  on  that 
contract  for  breach  of  it.  By  character  here  is  not  meant  reputation  but  conduct. 
A  woman  might  conceivably  have  a  bad  reputation  without  deserving  it.  Her 
misfortune  would  probably  be  no  bar  to  an  action  by  her.  But  if  without  the 
knowledge  of  the  man,  that  she  has  been  lewd  and  immoral,  he  contracts  to 
marry  her,  his  subsequent  discovery  of  this  fact  will  excuse  him  from  performing 
the  contract.  ...  A  slander  or  libel  is  a  tort  which  injures  or  tends  to  injure 
reputation,  and  the  action  founded  upon  it  seeks  to  recover  compensation  for 
this  injury.  The  character  of  the  plaintiff  is  therefore  in  issue  in  such  an 
action,  unless  the  plea  of  the  defendant  excludes  it  from  the  issue.  The  plea  of 
justification  confines  the  defendant  to  the  proof  of  the  truth  of  his  charge,  and 
he  is  precluded  from  showing  that  that  character  of  the  plaintiff  which  the  defama- 
tion touches,  was  before  the  defamation,  not  good.  (Drown  v.  Allen,  91  Pa. 
393.)  But  when  the  plea  of  "not  guilty"  is  pleaded,  either  alone  or  in  conjunc- 
tion, as  it  may  be,  with  that  of  justification,  the  defendant  may,  for  the  purpose 
of  mitigating  the  damages,  prove  the  badness  of  the  plaintiff's  reputation,  prior 
to  the  slander  or  libel.  ...  It  is  pertinent  to  the  issue  to  inquire  whether  he  had 
a  good  character;  for  if  he  did  not,  he  could  not  lose  it  by  the  act  of  the  defendant. 


30.   CLEGHORN  v.  NEW  YORK  CENTRAL  &  HUDSON  RIVER 

RAILROAD   CO. 

Court  of  Appeals  of  New  York.      1874 

56  N.  Y.  44 

Appeal  from  judgment  of  the  General  Term  in  the  fourth  judicial 
department,  affirming  a  judgment  in  favor  of  plaintiff  entered  on  a 
verdict,  and  affirming  an  order  denying  motion  for  a  new  trial. 

This  was  an  action  to  recover  for  injuries  alleged  to  have  been  occa- 
sioned by  defendant's  negligence.  On  the  17th  of  September,  1869, 
plaintiff  was  a  passenger  upon  a  train  upon  defendant's  road.  A  switch- 
man at  Lyons  station  left  the  switch  open  on  to  a  side-track,  but  gave 
the  signal  indicating  that  all  was  right;  in  consequence  the  train  was  run 
off  upon  the  side-track  and  collided  with  another  train  standing  there. 
Plaintiff  was  seriously  injured.  * 

Evidence  w'as  given  tending  to  show  that  the  switchman  was  intoxi- 
cated at  the  time;  also  that  he  was  a  man  of  intemperate  habits,  which 
was  known  to  the  station  agent,  who  was  authorized  to  and  did  hire 
and  discharge  the  men  there  employed.  This  evidence  was  objected  to 
and  received  under  objection.     Further  facts  appear  in  the  opinion. 

Samuel  Hand,  for  the  appellant.  It  was  error  to  receive  evidence  of 
the  intemperate  habits  of  the  switchman.  .  .  . 


52  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  30 

John  F.  Seymour,  for  the  respondent.  Evidence  as  to  the  switch- 
man's intemperance  was  admissible  with  a  view  to  punitive  damages.  .  .  . 

Church,  Ch.  J.  —  The  accident  was  caused  by  the  carelessness  of  the 
switchman,  in  neglecting  to  close  the  switch  after  the  stock  train  had 
passed  on  to  the  side-track,  and  in  giving  a  false  signal  to  the  approach- 
ing passenger  train,  that  the  track  was  all  right.  It  was  a  clear  case 
of  negligence;  and  for  the  injury  to  the  plaintiff  produced  thereby  the 
defendant  is  liable  in  this  action. 

It  is  insisted  that  the  Court  erred  in  admitting  evidence  of  the  in- 
temperate habits  of  the  switchman,  and  that  the  case  of  Warner  v.  N.  Y. 
C.  R.  R.  Co.  (44  N.  Y.  465)  is  a  direct  authority  against  it.  That  was 
a  case  of  injury  at  a  road  crossing.  It  was  proved  that  the  flagman 
neglected  to  give  the  customary  signal,  and  was  intoxicated  at  the  time. 
The  Commission  of  Appeals  held  it  error  to  show  previous  habits  of 
intemperance  known  to  the  officers  of  the  company,  upon  the  ground 
that  such  evidence  had  no  bearing  upon  the  question  of  negligence  at 
the  time.  In  that  view  the  decision  was  right.  Previous  intoxication 
would  not  tend  to  establish  an  omission  to  give  the  signal  on  the  occasion 
of  the  accident.  In  this  case  it  was  sought  to  be  proved,  not  only  that 
Hartman  was  intoxicated  at  the  time  of  the  accident,  but  that  he  was  a 
man  of  intemperate  habits,  which  were  known  by  the  agent  of  the  com- 
pany, having  the  power  to  employ  and  discharge  him  and  other  subordi- 
nates, with  a  view  of  claiming  exemplary  damages.  For  this  purpose 
the  evidence  was  competent.  It  is  unnecessary  in  this  connection,  to 
speak  of  the  strength  of  the  proof  upon  which  a  claim  for  exemplary 
damages  was  made  in  this  case.  It  is  sufficient  to  say  that  the  evidence 
was  competent  upon  the  question  of  gross  negligence  on  the  part  of  the 
defendant  in  employing  or  continuing  the  employment  of  a  subordinate 
known  to  be  unfit  for  his  position  by  reason  of  intoxication. 

A  more  serious  question  arises  upon  the  charge  of  the  judge  in  relation 
to  exemplary  damages.  .  .  .  For  the  error  in  the  charge,  the  judgment 
must  be  reversed,  and  a  new  trial  granted,  costs  to  abide  the  event. 

All  concur.     Judgment  reversed. 


Topic  2.  Conduct  as  Evidence  of  a  Human  Quality  or  Condition 

Sub-topic  A.     Conduct  as  Evidence  of  Accused's  Moral 
Character  ^ 

31.  Robert  Hawkins'  Trial.  (1669.  Howell's  State  Trials,  VI,  921, 
935,  949).  [One  Larimore  charged  the  accused,  a  clergyman,  with  burglary, 
by  breaking  into  his  house  and  taking  some  rings  and  money.  After  adducing 
his  evidence  to  the  burglary  charged  in  jfhe  indictment,  the  prosecutor  went  on 
to  prove  other  felonies  against  the  accused]. 


^  For  the  principles  of  Logic  and  Psychology  here  applicable,  see  the  present 
Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos.  84-99. 


No.  32  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  53 

L.  C.  B.  Hale.  —  Larimore,  have  you  any  more?  .  .  .  Call  them,  for  I 
will  hear  all,  if  I  sit  until  night. 

Then  Larimore  called  Dodsworth  Croke,  William  Croke,  John  Stop,  Thomas 
Welch,  Samuel  Salter,  and  William  Sanders;  all  these  being  sworn,  the  sum  and 
substance  of  their  evidence  was  to  this  effect:  That  they  had  heard  John  Chilton 
say,  that  Mr.  Hawkins  had  stolen  a  pair  of  boots  from  him.  .  .  . 

L.  C.  B.  Hale.  — What,  more  boots  still?  Come,  Larimore,  have  you  any 
more? 

Larimore  said.  Yes,  my  lord,  one  Mr.  Boyce.  Who,  being  sworn,  said,  That 
at  a  certain  time,  he  coming  into  a  house  at  Chilton,  found  this  Mr.  Hawkins, 
now  the  prisoner  at  the  bar,  and  one  James  Noble  (which  Noble  was  then  drunk, 
and  asleep  upon  a  bed),  and  I  saw  Mr.  Hawkins  have  his  hand  in  Noble's  pocket, 
and  the  said  Noble  told  me,  that  at  that  time  he  lost  a  gold  ring  and  a  piece  of 
gold  out  of  his  pocket.  .  .  . 

Hawkins.  —  Boyce,  you  might  have  done  well,  to  have  told  Mr.  Noble  of 
this,  when  he  told  you  that  he  had  lost  his  ring  and  piece  of  gold;  but  can  you 
say  anything  touching  Larimore's  being  robbed,  or  do  you  know  that  I  am  the 
person  that  robbed  him? 

Boyce.  —  No,  not  \,  my  lord,  I  cannot  charge  him.  .  .  . 

My  Lord  Chief  Baron  Hale's  Directions  to  the  jury  were  to  this  effect: 

L.  C.  B.  said,  —  You  that  are  of  the  jury,  the  prisoner  at  the  bar  stands 
indicted  for  robbing  this  Larimore,  and  you  have  heard  at  large  both  the  prose- 
cutor's evidence  to  prove  him  guilty  (which  if  you  do  believe)  I  never  heard  a 
fuller.  And  2dly,  You  have  also  heard  the  prisoner's  defence,  wherein  (as  I 
think)  he  hath  as  fully  answered  the  same  charge.  I  shall.  First,  repeat  the 
evidence  against  him,  which  consists  of  two  branches;  the  first  is  the  prosecutor's 
proof  of  this  indictment;  and  secondly,  his  charging  him  with  other  crimes  of 
the  like  nature,  as  the  stealing  of  Chilton's  boots,  and  the  picking  of  Noble's 
pocket.  .  .  .  Secondly,  He  seems  to  charge  him  with  other  acts  of  the  like 
nature;  as  1,  —  He  brings  in  one  Chilton  to  swear,  that  the  prisoner  at  the  bar 
did  steal  a  pair  of  boots  from  him,  and  four  or  five  persons  swear,  that  they  did 
hear  Chilton  say  he  did.  2,  —  He  brings  in  one  Boyce  from  London  (a  person, 
I  think,  of  no  great  credit) ;  who  swears,  that  he  saw  the  prisoner  at  the  bar  about 
two  years  ago,  have  his  hand  in  the  pocket  of  one  James  Noble,  and  that  Noble 
said,  that  he  lost  a  gold  ring,  and  a  piece  of  gold  at  the  same  time.  This  (if  true) 
would  render  the  prisoner  now  at  the  bar  obnoxious  to  any  jury. 

32.  John  Campbell.  Lives  of  the  Chief  Justices  of  England.  (Vol.  HI,  p. 
24,  Amer.  ed.)  Lord  Holt  [1688  +]  put  an  end  to  the  practice  which  had  hitherto 
prevailed  in  England,  and  which  still  prevails  in  France,  of  trying  to  show  the 
probability  of  persons  having  committed  the  offense  for  which  they  are  tried  by 
giving  evidence  of  former  offenses  of  which  they  are  supposed  to  have  been  guilty. 
Thus,  on  the  trial  before  him  of  Harrison,  for  the  murder  of  Dr.  Clench,^  the 
counsel  for  the  prosecution  calling  a  witness  to  prove  some  felonious  design  of 
the  prisoner  tlu'ee  years  before,  the  Judge  indignantly  exclaimed,  "Hold,  Hold! 
what  are  you  floing  now?  Are  you  going  to  arraign  his  whole  life?  How  can  he 
defend  himself  from  charges  of  which  he  has  no  notice?  and  how  many  issues 
are  to  be  raised  to  perplex  me  and  the  jury?  Away,  away!  that  ought  not  to 
be;   that  is  nothing  to  this  matter." 

1  12  How.  St.  Tr.  833,  874. 


54  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  33 

33.  Alexander  Davison's  Trial.  (King's  Bench,  1808.  Howell's  State 
Trials,  XXXI,  187.)    [Fraud  in  public  accounts,  by  a  former  commissary-general.] 

Lord  Moira  (formerly  general-in-command),  sworn  for  the  defense:  "I  never 
had  the  remotest  ground  for  suspicion  [against  the  accused].  .  .  .  Shall  I  state 
the  particulars?" 

L.  C.  J.  Ellenborough:  "One  is  very  unwilling  to  diminish  the  scope  of 
these  inquiries,  but  the  general  inquiry  is  as  to  the  general  character." 

John  Martin  Leake  sworn;  examined  by  Mr.  Holroi/d:  VI  believe  you  are 
one  of  the  comptrollers  of  the  army  accounts^"    "I  am." 

"In  that  character  have  you  at  any  time  had  Mr.  Davison's  accounts  before 
you?"    "Yes;" 

"Have  those  been  examined  by  you?" 

L.  C.  J.  Ellenborough:  "I  really  must  interfere.  It  would  be  dangerous 
as  a  precedent  to  permit  particular  instances  to  be  given  in  evidence  where  there 
can  have  been  no  notice.  General  evidence  of  general  character  is  admissible; 
but  this  is  certainly  contrary  to  all  rule." 

Mr.  Holroyd :  "I  ask  this  question  to  show  Mr.  Leake's  means  of  knowledge." 

L.  C.  J.  Ellenborough:  "You  ask  as  to  his  knowledge  of  the  examination 
of  public  accounts.  Now  would  it  be  proper  to  try  a  collateral  issue  for  which 
the  other  side  cannot  be  prepared?  It  is  as  clear  a  rule  of  evidence  as  can  be 
that  you  must  not  examine  to  particular  facts."  .  .  . 

Mr.  Holroyd :  "I  ask  this  only  as  introductory  of  general  character." 

L.  C.  J.  Ellenborough:  "If  you  mean  only  to  ask  whether  the  witness  has 
had  such  means  of  knowing  him  as  to  form  the  judgment  he  is  about  to  give,  I 
have  no  objection  to  that." 

Mr.  Holroyd:  "Had  you  opportunities,  from  examining  Mr.  Davison's 
accounts,  of  knowing  his  general  character?"  "I  have  seen  many  of  his  accounts, 
and  many  of  them  were  extremely  regular;  in  the  years  1794,  1795,  and  1796, 
they  were  before  the  comptrollers." 

L.  C.  J.  Ellenborough:  "I  cannot  admit  this;  you  must  go  into  general 
character." 

34.   PEOPLE  V.   WHITE 
Supreme  Court  of  New  York.     1835 
14  Wend.  Ill 

The  prisoner  was  tried  at  the  Washington  Oyer  and  Terminer  in 
1834,  before  the  Hon.  Esek  Cowen,  one  of  the  circuit  judges,  on  an 
indictment  for  having  in  his  possession  counterfeit  bank  bills  with  the 
intent  to  pass  the  same. 

M.  Strong,  a  witness  for  the  prosecution,  testified  to  a  conversation 
between  him  and  the  prisoner,  in  which  he  inquired  of  the  prisoner  about 
some  money  which  had  been  stolen  from  the  Rutland  Bank,  and  the 
prisoner  declared  his  innocence  of  any  participation  in  the  robbery. 
The  witness  was  proceeding  to  detail  the  further  conversation  of  the 
prisoner  at  the  same  time,  when  the  prisoner's  counsel  objected  to  his 
proceeding  in  the  same,  unless  the  district  attorney  would  state  his 
precise  object  in  calling  for  the  confessions  of  the  prisoner.     The  district 


No.  34  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  55 

attorney  stated  that  a  part  of  the  prisoner's  conversation  was  already 
out,  and  that  he  chiimed  the  whole,  without  apprising  the  prisoner's 
counsel  of  the  use  he  intended  to  make  of  it.  The  judge  decided  that  the 
witness  might  state  all  the  conversation  of  the  prisoner  at  the  time 
alluded  to  by  the  witness.  To  which  decision  the  prisoner's  counsel 
excepted.  The  witness  then  stated  that  the  prisoner  said  he  should 
never  have  been  suspected  of  robbing  the  Rutland  Bank,  if  it  had  not 
been  his  misfortune  to  have  once  been  in  the  State  prison  in  Massachu- 
setts. Previous  and  also  subsequent  to  the  testimony  of  Strong,  proof 
was  exhibited  in  support  of  the  prosecution  which  it  is  not  necessary  to 
detail.  When  the  proofs  were  closed,  the  jury  were  charged,  and  the 
judge  who  delivered  the  charge  commented  upon  the  evidence,  and 
among  other  things  observed  that  the  jury  had  a  right  to  notice  that  the 
prisoner  had  not  given  any  proof  of  good  character;  that  he  probably 
could  not  produce  such  proof,  judging  from  the  circumstances  of  his 
former  conviction;  at  any  rate,  he  had  not  done  so.  The  prisoner's 
counsel  excepted  to  the  charge,  and  the  jury  pronounced  a  verdict  of 
guilty.  The  indictment  and  bill  of  exceptions  signed  in  this  case  were 
brought  up  by  certiorari. 

D.  Russell  &  S.  Stevens,  for  the  prisoner.  Green  C.  Bronson  (Attorney 
general),  for  the  People. 

By  the  Court,  Sutherland,  J. — The  material  question  presented  by 
this  bill  of  exceptions  is,  whether  the  testimony  of  Moses  Strong,  to  the 
prisoner's  confession  that  he  had  been  in  the  State  prison  in  Massachu- 
setts, ought  to  have  been  received.  .  .  .  The  declarations  or  confessions 
of  the  prisoner  are  competent  evidence  to  establish  any  fact  which  could 
be  legally  proved  in  any  other  manner. 

The  question  then  arises,  whether  the  public  prosecutor  could  have 
proved  by  the  record  of  conviction,  or  by  the  testimony  of  witnesses, 
that  the  prisoner  had  been  in  the  State  prison  in  Massachusetts.  He 
was  on  trial  upon  an  indictment  for  having  counterfeit  money  ija  his 
possession,  knowing  it  to  be  counterfeit,  with  intent  to  pass  it.  The 
fact  of  his  having  been  in  the  State  prison  in  Massachusetts  had  certainly 
no  direct  bearing  upon  the  issue  joined  in  the  case ;  and  the  general  rule 
is,  that  the  evidence  is  to  be  confined  to  the  point  in  issue;  and  this  rule 
is  applied  more  rigidly,  if  possible,  in  criminal  than  in  civil  cases.  1  Phil. 
Ev.  442. 

The  only  point  of  view  in  which  it  can  be  contended  that  it  would 
have  been  competent  for  the  public  prosecutor  to  prove  this  fact  is, 
that  it  went  to  show  the  bad  character  of  the  prisoner.  But  the  general 
rule  in  criminal  as  in  civil  cases  is,  that  the  prosecutor  cannot  enter 
into  the  defendant's  character,  unless  the  defendant  enable  him  to  do  so, 
by  calling  witnesses  in  support  of  it;  but  even  then  the  prosecutor 
cannot  examine  to  particular  facts,  the  general  character  of  the  defendant 
not  being  put  in  issue,  but  coming  in  collaterally.  .  .  .  Here  the  prisoner 
had  called  no  witnesses  to  support  his  character,  nor  was  it  put  in  issue 


56  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  34 

by  the  prosecution.  The  prosecutor  therefore ,  had  no  right  even  to 
impeach  his  general  character,  much  less  to  prove  specific  facts  against 
him. 

The  evidence  seems  to  have  been  admitted  by  the  judge,  on  the 
ground  that  the  witness  had  stated  a  part  of  the  conversation  or  con- 
fession of  the  prisoner  before  any  objection  was  made.  .  .  .  The  district 
attorney  contended,  that  as  part  of  the  conversation  had  been  given  in 
evidence  without  objection,  he  had  a  right  to  give  the  whole,  and  of 
course  that  the  whole  conversation  was  proper  evidence  in  the  case. 
And  so  the  Court,  I  think,  must  have  intended  to  decide.  If  not,  they 
would  have  told  the  jury  that  the  fact  that  the  prisoner  had  confessed 
that  he  had  been  in  the  State  prison  in  Massachusetts,  ought  to  be 
excluded  from  their  consideration  in  making  up  their  verdict.  .  .  . 

I  think  it  highly  probable  that  the  prisoner's  confession  turned  the 
scale  against  him.  The  evidence  was  entirely  circumstantial,  sufficient 
perhaps  to  raise  a  strong  probability  of  the  prisoner's  guilt  of  the  crime 
for  which  he  was  indicted;  but  certainly  leaving  the  fact  involved  in  so 
much  doubt,  that  the  jury  might  well  have  come  to  a  different  conclusion. 
It  is  precisely  one  of  those  cases  in  which  the  fact  that  the  prisoner  had 
already  been  convicted  of  an  infamous  crime,  and  been  sent  to  the  State 
prison,  would  be  likely  to  operate  with  decisive  efl'ect  against  him.  I 
think  the  evidence  was  improperly  admitted,  and  that  a  new  trial  should 
be  granted.  ...  New  trial  granted. 

35.  People  v.  Stout.  (1858.  New  York.  4  Park.  Cr.  C.  97).  Mr. 
John  Norton  Pomeroy  [arguing  for  the  defendant]:  In  its  administration  of 
criminal  jurisprudence,  the  Civil  [Continental]  law  allows  and  requires  such 
evidence.  It  investigates  the  antecedent  character,  disposition,  habits,  asso- 
ciates, business,  —  in  short,  the  entire  history  of  an  accused  person,  to  discover 
whether  it  is  probable  that  he  would  commit  the  alleged  crime.  English  and 
American  criminal  law,  in  its  practical  administration,  confines  itself  to  the 
investigation  of  the  very  crime  charged,  and  restricts  judicial  evidence  to  cir- 
cumstances directly  connected  with  and  necessary  to  elucidate  the  issue  to  be 
tried.  These  two  systems  are  diametrically  opposed  to  each  other,  and  whatever 
may  be  said  of  their  comparative  merits,  the  rule  of  the  common  law  is  so  firmly 
established  that  it  lies  at  the  very  foundation  of  criminal  procedure,  as  an  insep- 
arable element  of  trial  by  jury.  Trained  judicial  minds  may  be  able  to  eliminate 
from  a  mass  of  irrelevant  and  general  criminative  facts  those  which  directly 
bear  upon  the  crime  charged  against  the  prisoner;  but  the  very  character  of 
juries,  and  the  theory  of  trial  by  jury,  require  that  all  prejudicial  evidence  tend- 
ing to  raise  in  their  minds  an  antipathy  to  the  prisoner,  and  which  does  not 
directly  tend  to  prove  the  simple  issue,  should  be  carefully  excluded  from  them. 

36.  State  v.  Lapage.  (1876.  New  Hampshire.  57  N.  H.  275,  299). 
[  On  a  charge  of  murder  committed  in  an  attempt  to  rape,  the  fact  of  the  defend- 
ant's prior  rape  of  another  person  was  offered.] 

Mr.  Norris  [arguing  for  the  defence]:  "Making  no  point  of  remoteness  in 
time  or  space,  let  us  see  how  well  this  evidence  will  bear  analyzing.     Premise 


No.  37  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  57 

to  be  proved:  he  committed  a  rape,  in  no  way,  except  in  kind,  connected  with 
this  crime.  Inference:  a  general  disposition  to  commit  this  kind  of  offence. 
Next  premise  this  general  disposition  in  him.  Inference:  he  committed  this 
particular  offence.  ...  It  may  be  tried  by  the  common  test  of  the  validity  of 
arguments.  Some  men  who  commit  a  single  crime  have,  or  thereby  acquire, 
a  tendency  to  commit  the  same  kind  of  crimes;  if  this  man  committed  the  rape, 
he  might  therefore  have  or  thereby  acquire  a  tendency  to  commit  other  rapes; 
if  he  had  or  so  acquired  such  a  tendency,  and  if  another  rape  was  committed 
within  his  reach,  he  might  therefore  be  more  likely  to  be  guilty;  if  more  likely 
to  be  guilty  of  rape,  and  if  there  was  a  murder  committed  in  perpetrating  or 
attempting  to  perpetrate  rape,  he  might  therefore  be  more  likely  to  be  guilty 
of  this  rape,  and  hence  of  this  murder;  a  sort  of  an  ex-parte  conviction  of  a  single 
rape,  from  which  the  jury  are  to  find  a  general  disposition  to  that  kind  of  crimes 
in  order  to  help  them  out  in  presuming  the  commission  of  another  rape  as  a 
motive  or  occasion  of  the  murder.     We  can  find  nothing  like  it  in  the  book. 

Ladd,  J. :  It  is  argued  on  behalf  of  the  State  (if  I  have  not  wholly  misappre- 
hended the  drift  of  the  argument)  that  the  evidence  was  admitted  because,  as 
matter  of  fact,  its  natural  tendency  was  to  produce  conviction  in  the  mind  that 
the  prisoner  committed  rape  upon  his  victim  at  the  time  he  took  her  life.  ...  I 
shall  not  undertake  to  deny  this.  If  I  know  a  man  has  broken  into  my  house 
and  stolen  my  goods,  I  am  for  that  reason  more  ready  to  believe  him  guilty  of 
breaking  into  my  neighbor's  house  and  committing  the  same  crime  there.  We 
do  not  trust  our  property  with  a  notorious  thief.  We  cannot  help  suspecting 
a  man  of  evil  life  and  infamous  character  sooner  than  one  who  is  known  to  be 
free  from  every  taint  of  dishonesty  or  crime.  We  naturally  recoil  with  fear  and 
loathing  from  a  known  murderer,  and  watch  his  conduct  as  we  would  the  motions 
of  a  beast  of  prey.  When  the  community  is  startled  by  the  commission  of  some 
great  crime,  our  first  search  for  the  perpetrator  is  naturally  directed,  not  among 
those  who  have  hitherto  lived  blameless  lives,  but  among  those  whose  conduct 
has  been  such  as  to  create  the  belief  that  they  have  the  depravity  of  heart  to  do 
the  deed.  This  is  human  nature  —  the  teaching  of  human  experience.  If  it 
were  the  law,  that  everything  which  has  a  natural  tendency  to  lead  the  mind 
towards  a  conclusion  that  a  person  charged  with  crime  is  guilty  must  be  admitted 
in  evidence  against  him  on  the  trial  of  that  charge,  the  argument  for  the  State 
would  doubtless  be  hard  to  answer.  If  I  know  a  man  has  once  been  false,  I 
cannot  after  that  believe  in  his  truth  as  I  did  before.  If  I  know  he  has  committed 
the  crime  of  perjury  once,  I  more  readily  believe  he  will  commit  the  same  aw^ul 
crime  again,  and  I  cannot  accord  the  same  trust  and  confidence  to  his  statements 
under  oath  that  I  otherwise  should.  .  .  .  Suppose  the  general  character  of  one 
charged  with  crime  is  infamous  and  degraded  to  the  last  degree;  that  his  life 
has  been  nothing  but  a  succession  of  crimes  of  the  most  atrocious  and  revolting 
sort:  does  not  the  knowledge  of  all  this  inevitably  carry  the  mind  in  the  direc- 
tion of  a  conclusion  that  he  has  added  the  particular  crime  for  which  he  is  being 
tried  to  the  list  of  those  that  have  gone  before?  Why,  then,  should  not  the  prose- 
cutor be  permitted  to  show  facts  which  tend  so  naturally  to  produce  a  conviction 
of  his  guilt? 

The  answer  to  all  these  questions  is  plain  and  decisive :  The  law  is  otherwise. 

37.  People  v.  Shay.  (1895.  New  York.  147  N.  Y.  78,  41  N.  E.  508). 
Peckham,  J. :  Two  antagonistic  methods  for  the  judicial  investigation  of  crime 
and  the  conduct  of  criminal  trials  have  existed  for  many  years.     One  of  these 


58  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  37 

methods  favors  this  kind  of  evidence  in  order  that  the  tribunal  which  is  engaged 
in  the  trial  of  the  accused  may  have  the  benefit  of  the  light  to  be  derived  from  a 
record  of  the  whole  past  life  of  the  accused,  his  tendencies,  his  nature,  his  asso- 
ciates, his  practices,  and,  in  fine,  all  the  facts  which  go  to  make  up  the  life  of  a 
human  being.  This  is  the  method  which  is  ])ursued  in  France,  and  it  is  claimed 
that  entire  justice  is  more  apt  to  be  done' where  such  course  is  pursued  than  where 
it  is  omitted.  The  common  law  of  England,  however,  has  adopted  another,  and, 
so  far  as  the  party  accused  is  concerned,  a  much  more  merciful  doctrine.  .  .  . 
In  order  to  prove  his  guilt,  it  is  not  permitted  to  show  his  former  character,  or 
to  prove  his  guilt  of  other  crimes,  merely  for  the  purpose  of  raising  a  presumption 
that  he  who  would  commit  them  would  be  more  apt  to  commit  the  crime  in 
question. 

38.  William  Trickett.  Character-Evidence  in  Criminal  Cases.  (1904. 
The  Forum,  Dickinson  College  of  Law,  vol.  VIII,  p.  127.)  How  Character  is  to 
be  Proven.  The  mental  drifts  of  a  human  being  are  revealed  to  himself  only 
by  the  thoughts,  feelings  and  volitions  which  they  cast  into  his  consciousness. 
No  other  human  being  can  know  them,  except  from  his  observation  of  their 
effects  in  words  and  acts.  That  A  is  kind  can  be  known  to  B  only  by  B's  having 
watched  him  in  a  variety  of  circumstances,  and  seen  how  he  has  acted  towards 
other  sentient  beings  within  his  reach;  or  by  his  having  learned  from  one  who  has 
thus  observed.  The  tendencies  which  are  secluded  in  a  piece  of  iron  are  detected 
by  observation  of  its  behavior  in  a  variety  of  conditions.  No  other  method 
discovers  the  properties  of  a  man.  If,  then,  the  question  is,  is  A  a  chaste  man, 
how  is  it  to  be  answered  but  by  learning  what  his  words  and  acts  are?  If  the 
question  is,  is  he  honest,  the  answer  must  come  from  observing  how  he  acts 
respecting  the  property  of  others,  his  contracts  with  them,  etc.  If  he  is  always 
careful  to  pay  what  he  owes,  if  he  never  seeks  to  deceive  or  defraud,  if  he  never 
appropriates  that  which  is  another's,  he  will  be  inferred  to  be  honest.  .  .  . 

A  conceivable  way,  therefore,  of  establishing  a  defendant's  character  would 
be  the  testimony  of  persons  who  knew  him,  to  his  specific  acts,  or  to  so  many  of 
them  as  might  be  deemed  decisive  of  tendency.  The  objection  to  this  mode 
of  proof  is  similar  to  that  which  is  suggested  by  Mitchell,  J.,  then  in  the  Common 
Pleas  of  Philadelphia,  to  the  proof  of  the  character  of  the  deceased  in  a  murder 
case:  "Evidence  of  a  specific  act  is  not  admissible.  It  would  lead  to  a  collat- 
eral inquiry,  into  which  we  could  not  enter,  to-wit:  the  circumstances  of  that 
case.  Nothing  could  be  more  unfair  than  to  give  in  evidence  a  single  act  as  proof 
of  a  brutal  and  dangerous  disposition,  without  inquiring  into  all  the  circum- 
stances of  that  act.  .  .  .  This  would  be  impossible,  and  without  it,  the  evidence 
of  a  specific  act  would  be  worse  than  useless;  it  would  be  dangerous."  (Common- 
wealth V.  Richmond,  6  W.  N.  C.  431.)  This,  the  most  scientific  method,  is  for 
the  Courts  impracticable. 

39.  French  Trials.  (1)  Trial  for  the  Murder  of  the  Baroness  de 
Valley.  (1896.  Paris.  Albert  Bataille.  "Causes  Criminelles  et  Mondaines." 
1896,  p.  249).  [On  June  16,  1896,  Baroness  de  Valley  was  found  strangled  in  her 
apartment  in  Paris.  She  was  rich,  and  made  a  business  of  lending  her  money 
at  usurious  rates.  Robbery  was  the  object  of  her  murderers.  A  party  of 
several  young  fellows,  Kiesgen,  Ferrand,  Lagueny  and  Truel,  were  charged  with 
the  murder.  One  of  them,  Kiesgen,  son  of  a  merchant,  appeared  well  dressed 
and  well  brought  up;    he  had  no  occupation  and  his  father  furnished  him  with 


No.  39  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  59 

pocket-money.  The  others  were  of  not  so  respectable  surroundings.  Presiding 
Judge  PouPARDiN  thus  conducted  the  opening  examination  at  the  trial,  on 
November  24.] 

Judge.  —  None  of  you  have  a  criminal  record;  ])ut  that  is  far  from  saying 
that  you  have  a  good  record. 

You,  Kiesgen,  seem  to  have  a  mode  of  life  not  at  all  creditable.  You  fre- 
quent the  low  saloons  of  the  Latin  Quarter.  You  were  an  haljitue  of  the  Harcourt 
Cafe.  You  have  been  getting  all  the  money  you  could  from  women.  Your 
mistress,  Jeanne  Prevost,  alias  Margot,  gave  you  15  francs  a  day  from  her  earn- 
ing as  a  prostitute.  You  are  a  panderer  of  the  worst  sort.  In  your  cell  at  Mazas 
Prison,  you  kept  writing  to  Margot,  asking  her  to  send  you  cash.  Unfortunately 
for  you,  she  was  at  that  time  herself  in  St.  Lazare  Prison.  (Laughter  in  the 
audience). 

As  for  you,  Truel,  alias  Julien,  alias  Curlyhead,  you  are  the  son  of  a  mechani- 
cal draftsman  at  Charenton.  After  having  a  job  as  apprentice-draftsman  in 
a  factory,  you  were  discharged  for  a  brutal  assault.  After  that  you  lived  off 
your  mother,  who  .  .  . 

Then  you  became  an  habitue,  like  Kiesgen,  of  the  saloons  and  women  of  the 
Latin  Quarter.  You  seem  to  have  been  one  of  a  gang  of  bicycle  thieves.  In 
short,  after  starting  as  an  honest  workingman,  you  gave  up  that  pursuit,  and 
became  an  agent  for  houses  of  ill-fame.  You  see  what  you  have  been  brought 
to  by  bad  company. 

You,  Lagueny,  like  your  fellow-defendants,  are  scarcely  twenty  years  old. 
You  are  the  natural  son  of  an  unfortunate  woman  who  died  insane,  two  years 
ago,  at  the  St.  Anne  Asylum.  During  all  your  boyhood  you  were  left  by  her  to 
loaf  on  the  streets.  You  picked  up  a  living  by  hawking  things  now  and  then; 
selling  newspapers,  sometimes  dogs,  sometimes  peddling  olives  at  restaurant- 
doors;  sleeping  in  the  public  refuges.  At  twelve  years  of  age,  a  charitable  society 
had  you  baptized  in  the  Sacred  Heart  Church  at  Montmartre,  and  next  day  you 
partook  of  your  first  communion.  Your  mother  seems  to  have  done  some  ques- 
tionable errands  for  Baroness  Valley,  and  told  you  that  the  Baroness  was  your 
godmother.  You,  ever  since  you  became  a  young  man,  have  been  an  agent  for 
the  assignations  of  girls  in  the  Latin  Quarter.  That  was  where  you  made  the 
acquaintance  of  Kiesgen  and  of  Julien  the  Curlyhead.  To  them  you  made  the 
proposal  to  go  and  rob  the  Baroness.  She  had  always  showed  a  kind  interest  in 
you;   she  used  to  give  you  odd  change. 

Lagueny.  —  Gave  me  money?  Well,  I  guess  not!  The  old  skinflint!  She 
would  even  pick  up  old  crusts  of  bread  in  the  street. 

Judge.  —  Well,  at  any  rate,  your  mother  used  to  be  her  housekeeper,  and  the 
Baroness  sometimes  gave  you  a  lunch. 

[Then  the  evidence  directly  to  the  crime  was  put  in.] 

Nov.  25.  The  jury  found  three  of  the  defendants  guilty.  But  in  view  of 
the  youth  and  lack  of  a  criminal  record  for  Kiesgen  and  Truel  (the  two  who  did 
the  actual  killing),  they  recommended  those  two  for  leniency.  Both  were  sen- 
tenced to  hard  labor  for  life.  .  .  . 

Lagueny,  who  had  proposed  the  robbery,  was  sentenced  to  ten  years'  im- 
prisonment, Ferrand  to  five  years,  and  Durlin  was  acquitted. 


60  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  40 

40.  French  Trials.  (2)  Trial  for  Blackmailing  Max  Lebaudy.  (1896. 
Paris.  Albert  Bataille.  "Causes  Criminelles  et  Mondaines,"  1896,  p.  95).  [Max 
Lebaudy  was  a  young  millionaire,  foolish  and  extravagant.  About  the  years 
1894-5,  he  became  the  prey  of  a  number  of  blackmailers,  some  of  them  journal- 
ists, some  ex-military  men,  some  mere  adventurers.  Several  different  wide- 
spread intrigues  against  him  were  unearthed.  He  was  bled  for  various  sums,  — 
fr.  30,000;  10,000;  40,000;  etc.  Various  well-known  personages,  political,  literary, 
and  dramatic,  more  or  less  innocent,  were  more  or  less  involved  in  the  scandals. 

On  March  30,  1896,  the  trial  began,  under  Presiding  Judge  Planteau.] 

Examination  of  Viscount  JJlrich  de  Civry. 

Judge.  —  You  took  part  in  the  war  of  1870,  and  I  am  bound  to  say  that  you 
behaved  very  creditably.  Leaving  the  army  in  1873,  with  the  rank  of  cavalry 
quartermaster,  you  went  back  to  journalism,  and  were  at  last  accounts  chief 
editor  of  the  Army  Echo.  You  also  went  into  politics;  and  were  candidate  for 
the  Assembly  at  Yvonne  in  1893. 

But  I  am  obliged  to  remind  you  that  you  have  a  record  in  the  criminal  court. 
In  1876,  the  Paris  Court  of  Appeals  sentenced  you  to  one  year's  imprisonment 
for  illegally  wearing  military  uniform.  In  1880,  the  same  Court  sentenced  you 
to  two  months  for  unlawful  eloignment  of  goods  under  attachment. 

Civry.  —  My  counsel  will  explain  about  those  convictions. 

Judge.  —  But  those  are  not  all.  You  were  convicted  by  default,  in  1877, 
at  the  Seine  Assize  Court,  of  robbery,  and  were  sentenced  to  twenty  years' 
imprisonment  with  hard  labor.  They  had  to  extradite  you  from  England,  and  the 
penalty  was  commuted  to  three  years.  But  the  judgment  was  set  aside  on 
technical  grounds;  you  had  a  new  trial  at  Melun,  and  the  public  prosecutor 
withdrew  his  charge,  and  you  were  of  course  acquitted. 

To  get  the  money  for  your  legal  expenses,  you  had  borrowed  large  sums, 
through  several  notaries.  One  of  these  notaries  has  himself  just  been  convicted 
by  the  Seine  Assize  Court.  The  sums  you  thus  borrowed  amounted  in  notes 
to  more  than  fr.  1,000,000,  nominally,  though  you  yourself  received  only  some 
fr.  500,000. 

[The  judge  then  entered  into  details  of  the  Hennion  case,  reading  from  the 
records.  Hennion  was  a  young  man  of  means  from  the  provinces,  who  had  become 
entangled  in  the  usurers'  and  speculators'  clutches  by  the  medium  of  Viscount 
Civry,  and  the  Viscount  had  narrowly  escaped  another  criminal  sentence.] 

Judge.  —  The  judgment  of  the  Court  there  said:  "Hennion's  ruin  was 
obviously  due  to  the  machinations  of  unscrupulous  adventurers,  among  whom 
figured  Ulrich  de  Civry.  Unfortunately,  the  Penal  Code  does  not  reach  all 
forms  of  dishonesty." 

Well,  in  spite  of  these  unsavory  incidents  in  yoiu-  past,  you  maintained  some- 
thing of  a  position  in  a  certain  section  of  Parisian  society.  When  you  left  your 
regiment  in  1891,  you  were  adjutant.     What  is  your  business  now? 

Civry.  ■ —  Horse-trading. 

Judge.  —  That  is  not  a  business.  It  is  reported  that  you  do  not  do  much 
of  anything,  and  are  living  as  a  parasite  off  other  persons.  You  spent  two  years 
in  Normandy  with  an  old  chum  from  your  regiment,  Mr.  Davout,  but  he  finally 
gave  you  to  understand,  in  correct  but  unmistakable  manner,  that  you  had 
reached  the  limits  of  his  hospitality.  You  then  came  back  to  live  in  Paris,  where 
you  ran  up  debts,  even  with  the  house-porter. 

Civry.  —  That  was  for  my  room-breakfasts.  And  I  did  not  have  time  to 
pay  him;  they  arrested  me  too  soon.     (Laughter  in  the  audience). 


No.  40  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  61 

Judge.  —  You  are  still  owing  two  months'  rent,  besides  fr.  170  to  that  house- 
porter  for  breakfasts.     You  have  no  regular  occupation. 

[The  examination  of  the  next  accused,  de  Cesti,  was  thus  conducted  by  the 
judge.] 

Judge.  —  Your  name  is  not  "de  Cesti,"  but  just  "Cesti."  Your  birth- 
registry  has  never  been  discovered.  It  is  known,  however,  that  you  took 
employment  in  1863  by  the  name  of  Lionel  Werther  de  Cesti.  You  were  a 
lieutenant,  but  were  in  1876  placed  on  the  retired  list  because  of  unpaid  debts. 
Creditors  sued  you  on  all  hands,  and  in  1877  you  resigned  from  the  service,  — 
doubtless  on  request.  After  that,  you  went  into  politics,  and  were  actively 
mixed  up  in  the  Norton  scandal. 

Cesti.  —  My  only  share  in  that  was  to  lend  my  office  to  Mr.  Millevoye  to 
arrange  a  duelling  affair  with  Mr.  Clemenceau.  That  was  all  I  had  to  do  with 
the  Norton  scandal. 

Judge.  —  You  are  next  found  making  one  of  the  parties  who  helped  to  ruin 
the  unfortunate  Hennion  [above-mentioned].  A  woman  friend  of  his  mother  tes- 
tified before  the  magistrate  that  you  had  bled  that  unfortunate  youth  unmer- 
cifully; she  wanted  to  lay  charges  against  both  Mr.  Civry  and  yourself. 

Cesti.  —  Yes.  That  was  the  lady  who  was  then  going  with  General  Boulanger. 
I  do  not  know  what  basis  she  could  have  for  such  testimony. 

Judge.  —  You  were  also  mixed  up  in  the  affairs  of  another  youth  of  good 
family,  Mr.  Carnegie,  whom  you  also  helped  to  ruin. 

Advocate  Jullemier  (for  the  defense).  But  Mr.  Carnegie  himself  repudiated 
that  charge. 

[The  examination  of  another  of  the  accused,  Armand  Rosenthal,  came  on 
March  12.] 

Judge.  —  Your  name  is  Armand  Rosenthal.     You  were  born  in  Paris? 

Rosenthal.  —  Yes,  in  Paris,  Nov.  9,  1853,  and  I  want  that  fact  to  be 
publicly  recorded.  There  has  been  a  good  deal  of  slander  about  my  being  born 
somewhere  else. 

Judge.  —  You  have  gone  under  the  alias  of  Jacques  Saint-Cere.  You  served 
your  army-term  first  in  the  24th  Line  Regiment,  then  in  the  19th.  It  is  said 
against  you  that  as  a  young  man  you  were  extravagant  w'ith  your  money.  In 
1879  your  family  had  to  appoint  a  conservator  for  you.  .  .  .  About  that  time  you 
left  Paris  and  lived  in  Germany,  where  you  helped  edit  a  review. 

Rosenthal.  —  It  was  a  Francophile  Review,  —  published  in  Germany,  but 
aiming  to  spread  French  principles  in  Austrian  Poland.  Its  columns  were 
inspired  from  France.  My  associate,  Mr.  Sacher  Masoch,  even  earned  for  his 
services  the  distinction  of  being  decorated  with  the  Legion  of  Honor. 

Judge.  —  .  .  Why  did  you  leave  France?  I  am  obliged  to  remind  you 
of  a  serious  incident  of  the  year  1879:  You  were  convicted,  by  default,  of  breach 
of  trust  and  attempt  at  cheating,  and  were  sentenced  by  the  Seine  Police  Court 
to  three  months  in  jail.     You  never  served  that  sentence? 

Rosenthal.  —  I  swear  that  I  never  even  knew  a  thing  about  what  had  been 
done  in  that  case.  The  first  news  I  ever  had  of  the  astounding  affair  was  from 
Magistrate  Meyer,  when  he  examined  me  on  the  present  charge.  If  I  had  known 
about  that  judgment,  rendered  in  my  absence,  do  you  suppose  that  I  should 
have  been  bold  enough  to  go  into  Parisian  journalism  and  write  such  combative 


62  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  40 

articles  as  I  did?  That  charge  in  1879  was  concocted  by  a  money-lender  who 
took  advantage  of  my  absence  from  this  country. 

Judge.  —  But  the  peculiar  thing  is  that  you  left  France  that  very  year 
and  did  not  come  back  till  1SS4,  when  the  five-year  statute  of  limitations  had 
released  you. 

Rosenthal.  —  Excuse  me,  I  did  come  back  to  Paris  in  the  interim,  several 
times;  and  my  counsel  will  prove  it.  I  wish  also  to  say  that  in  1886  I  obtained 
an  order  releasing  me  from  the  conservatorship,  and  when  I  was  in  Court  then, 
the  judge  who  examined  me  never  said  a  word  about  that  default-sentence. 

Judge.  —  Well,  I  have  the  record  of  that  case  here  in  front  of  me,  and  I  am 
bound  to  say  that  some  of  the  testimony  in  it  has  given  me  a  strong  impression 
about  you. 

[Assistant-Judge  Pezous  then  proceeded  to  read  some  of  the  testimony  from 
Rosenthal's  above  trial  in  1879. 

The  first  was  that  of  a  cabman,  who  testified  that  Mr.  Rosenthal  had  once 
ridden  with  him  for  an  entire  afternoon  in  Paris  in  the  Bois,  and  that  Mr.  Rosen- 
thal had  then  gone  off  without  paying,  stating  that  he  had  lost  his  purse  and  had 
no  money.] 

Rosenthal.  —  But  see  here,  Mr.  Presiding  Judge,  how  can  you  expect  me  to 
answer  to  this?  You  are  asking  me  about  a  matter  that  goes  back  more  than 
sixteen  years.     How  can  I  remember  what  I  said  to  some  cabman  in  1879? 

[Assistant  Judge  Pezous  next  read  the  testimony  in  1879  of  another  cabman; 
who  testified  that  Mr.  Rosenthal  on  one  occasion  when  the  cabman  had  taken  him 
to  a  certain  house  and  was  on  orders  awaiting  him,  had  gone  off  through  the  back 
door  of  the  house  and  never  returned  to  pay  him.  The  cabman  also  alleged 
that  Mr.  Rosenthal  had  a  habit  of  cheating  cabmen  in  one  way  or  another. 

The  deposition  was  then  read  of  a  barmaid  in  the  Place  de  la  Madeleine, 
Miss  Elena,  who  charged  that  Mr.  Rosenthal  had  once  got  from  her  a  watch,  to 
be  sold  for  her,  but  had  never  returned  either  watch  or  proceeds. 

On  March  26,  the  verdict  and  judgment  were  rendered. 

Joseph  de  Ci\Ty,  Georges  de  Labruyere,  Chiarosolo,  Rosenthal,  and  Carle 
des  Perrieres  were  acquitted. 

Ulrich  de  Civry  and  Cesti  were  found  guilty,  and  sentenced  to  thirteen 
months  in  jail  and  500  francs  fine.] 


41.   HALL  V.   COMMONWEALTH 

Court  of  Appeals  of  Kentucky.     1899 

106  Ky.  894;  51  S.  W.  804 

Appellant  was  found  guilty  of  grand  larceny,  under  an  indictment 
which,  in  addition  to  the  charge  of  grand  larceny,  alleged  that  she  had 
been^twice  theretofore  convicted  of  felonies,  the  punishment  of  which 
was  confinement  in  the  penitentiary,  setting  forth  the  terms  and  courts 
at  which  the  former  convictions  had  been  had.  The  evidence  of  her 
guilt  was  circumstantial.  It  was  shown  that  the  prosecuting  witness, 
having  divided  his  money,  put  thirty-tw^o  dollars  of  it  in  a  sock,  which  he 


No.  41  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  63 

concealed  in  a  tub  in  the  yard  of  the  house  where  he  was  staying;  that 
he  slept  in  the  same  room  with  appellant,  another  woman,  and  two 
children;  that  appellant  went  out  in  the  yard  about  four  o'clock  in  the 
morning;*  and  made  purchases  of  furniture  and  other  things,  and  paid 
her  rent,  on  that  day.  Evidence  was  also  introduced  as  to  two  former 
convictions,  which  were  both  for  grand  larceny.  Objection  was  made 
both  to  the  admission  of  this  testimony,  and  to  the  unofficial  character 
of  the  person  by  whom  the  records  of  the  former  conviction  were  produced; 
he  being  a  son  of  the  clerk  of  the  penitentiary,  and  acting  as  clerk  during 
the  clerk's  sickness.  Appellant  testified  to  the  fact  that  she  found  the 
money,  not  in  a  sock,  but  lying  in  the  path  leading  through  the  back 
yard;  that  she  did  not  know  it  was  the  property  of  prosecutor,  and, 
from  his  statement  made  the  night  before,  thought  he  had  no  money. 

The  Court  gave  the  ordinary  instruction  as  for  grand  larceny;  direct- 
ing the  jury  that,  if  they  found  her  guilty,  they  should  fix  her  punishment 
at  confinement  in  the  penitentiary  for  not  less  than  one  nor  more  than 
five  years,  and  gave  in  addition  an  instruction  that  if  they  found  her 
guilty  under  the  first  instruction,  and  should  further  believe  that  she  had 
been  twice  theretofore  convicted  of  felony,  as  charged  in  the  indictment, 
they  should  so  find  and  state  in  their  verdict. 

DuRELLE,  J.,  for  the  Court  (after  stating  the  case  as  above).  .  .  . 
It  is  earnestly  urged  that  it  was  error  to  permit  the  introduction  of  evi- 
dence of  former  convictions  at  all  until  the  jury  should  have  first  found 
her  guilty  under  the  charge  for  which  she  was  then  being  tried;  that  it 
amounted  to  the  admission  of  testimony  to  impeach  her  general  character, 
which  she  had  not  put  in  issue,  and  enabled  the  Commonwealth  to  show 
her  to  the  jury  in  the  light  of  a  common  thief,  and  rebut  the  presumption 
of  innocence  which  the  law  gives  her  by  evidence  in  chief  upon  a  trial 
for  grand  larceny. 

It  is  painfully  apparent  that,  with  the  circumstances  shown  as  to  the 
loss  of  the  money,  and  evidence  of  two  former  convictions  for  grand 
larceny,  the  accused,  who  is  an  ignorant  negro  woman,  had  not  the 
slightest  chance  that  an  average  jury  would  entertain  a  reasonable  doubt 
of  her  guilt;  while,  without  the  evidence  of  former  convictions,  there  was 
a  possibility  that  they  might  do  so.  There  is  considerable  force,  there- 
fore, in  the  proposition  urged,  that  this  procedure  denied  the  accused  a 
fair  trial  of  the  offense  whereof  she  was  accused.  But  the  statute  as  to 
habitual  criminals  (Kentucky  Statutes,  §  1130)  seems  to  have  created  an 
additional  and  higher  degree  of  offense,  viz.,  the  commission  of  a  felony 
having  been  theretofore  twice  convicted  of  a  felony,  etc.  To  show  the 
accused  guilty  of  this  degree  of  the  offense  charged,  it  is  necessary  to 
show  the  former  convictions;  and  this,  of  course,  is  bound  to  prejudice 
the  accused,  —  just  as  evidence  showing  malice  is  bound  to  prejudice 
the  defendant  in  a  murder  case,  —  but  it  may  be  shown  to  make  out  the 
higher  degree  of  the  offense,  which  authorizes  the  severer  punishment. 
The  statute  has  been  held  constitutional,  and  it  has  been  held  essential 


64  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  41 

to  allege  the  former  conviction  or  convictions  in  the  indictment.  Stewart 
V.  Com.,  2  Ky.  Law  Rep.  386;  Mount  v.  Com.,  2  Duv.  93;  Taylor  v. 
Com.,  3  Ky.  Law  Rep.  783;  Boggs  v.  Com.,  9  Ky.  L.  R.  342,  (s'^S.  W. 
307). 

The  statute  requires  the  jui,,  ^^  find  the  fact  of  the  former  convictions. 
There  is  no  provision  for  a  separate  trial  of  the  fact  of  former  conviction, 
nor  do  we  think  the  statute  intended  there  should  be  one.  The  law  seems 
to  work  a  hardship,  but  it  is  a  hardship  the  Legislature  alone  can  remedy. 


Sub-topic  B.    Conduct  as  Evidence  of  Accused's  Intent, 
Knowledge,  Motive^ 

42.  Hathaway's  Trial.  (Surrey  Assizes,  1702.  Howell's  State  Trials, 
XIV,  639,  6.3.5,  as  quoted  by  J.  G.  Phillimore,  "History  and  Principles  of  the 
Law  of  Evidence,"  1S50,  p.  493.)  ...  A  very  grotesque  trial,  which  ilkistrates 
the  gross  superstition  of  our  forefathers,  took  place  before  Lord  Holt,  in  the  year 
1702.  It  was  that  of  John  Hathaway,  for  a  cheat  and  impostor.  This  WTetch 
had  pretended  to  be  bewitched,  and  under  that  pretence  had  committed  many 
savage  outrages  on  a  helpless  old  woman,  named  Morduck,  against  whom  he 
had  done  his  best  to  inflame  the  populace.  The  imposture  was  detected  once 
by  the  good  sense  of  a  physician.  But,  notwithstanding  this,  the  people  were 
dissatisfied,  and  the  patrons  of  Hathaway,  irritated  by  his  detection,  pursued 
the  poor  old  woman  with  more  malice  than  before;  they  used  her  so  barbarously, 
that  she  was  forced  to  leave  Southwark.  .  .  . 

[On  Hathaway's  trial,  it  was  alleged  that]  one  of  the  impostor's  tricks  was 
fasting.  To  prove  this,  his  counsel  called  Dr.  Hamilton.  ...  In  order  to  shew 
the  fraud,  evidence  was  offered  of  Hathaway's  conduct  after  the  time  mentioned 
in  the  indictment.  This  was  objected  to.  Again,  under  the  auspices  of  Holt, 
common  sense  obtained  a  victory. 

Serjt.  Jenner.  —  "My  Lord,  the  record  bears  date  the  first  day  of  Term: 
all  this  [proposed  testimony]  is  since  the  record." 

L.  C.  J.  Holt.  —  "It  is  to  prove  the  imposture  committed  before  now.  What 
Mr.  Kenry  says  of  his  pretending  to  fast  twelve  weeks,  though  two  or  more  be 
not  within  the  time  of  the  information,  I  hope  they  may  give  it  as  evidence  sub- 
sequent to  prove  what  was  done  before.  ...  It  is  an  evidence  of  his  cheating 
since  that  time,  and  that  out  of  the  information;  but  it  is  evidence  also  to  prove 
that  his  pretended  fasting  was  a  mere  deceit;  for  he  then  pretended  to  have 
fasted  ten  weeks  before  he  came  thither,  and  after  pretends  to  continue  fasting 
in  the  same  manner.  If  that  be  proved  to  be  a  fraud,  it  is  strongly  to  be  inferred 
that  this  pretended  fasting  before  was  so  too." 

Serjt.  Jenner.  —  "But  then  they  may  not  give  evidence  in  matter  after." 

L.  C.  J.  Holt.  —  "Matter  afterwards,  that  proves  a  thing  done  before."  .  .  . 

Serjt.  Jenner.  —  "And  will  that  prove  what  was  before?" 

L.  C.  J.  Holt.  —  "It  is  certainly  so.  The  thing  is,  whether  I  can  give  in 
evidence  anything  after  to  prove  what  was  done  before?  If  he  pretends  to  fast 
twelve  weeks,  ten  weeks  before  he  came  there  and  the  two  weeks  after,  he  did 

^  For  the  principles  of  Logic  and  Psychology  here  applicable,  see  the  present 
Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos.  30-50,  101-129. 


No.  44  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  65 

not  fast  but  only  pretended  it.  Whether  what  he  did  after,  be  not  evidence  of 
what  he  did  before?  Sure,  it  is.  For  he  that  cannot  hold  out  fasting  two  weeks, 
but  was  glad  to  eat,  though  he  pretend  to  fast,  may  strongly  be  presumed  to 
have  eaten  during  the  ten  weeks,  though  then  he  pretended  to  fast." 

43.  Vaughan's  Trial  (1(596.  Howell's  State  Trials,  XIII,  485,  as  quoted 
by  J.  G.  Phillimore,  "History  and  Principles  of  the  Law  of  Evidence,"  1850, 
p.  483).  [At  least  one  overt  act  was  essential  to  a  charge  of  treason,  by  the 
statute  7  Wm.  Ill,  c.  3  (1695),  and  such  overt  act  or  acts  must  be  alleged  in  the 
indictment.  The  overt  act  charged  against  Vaughan,  as  an  act  of  levying  war, 
and  adhering  to  the  King's  enemies,  was  his  cruising  and  marauding  in  a  ship 
called  the  Loyal  Clancarty.]  The  coimsel  for  the  Crown  offered  evidence  of 
hostile  acts  committed  in  another  boat :  this  was  objected  to.  .  .  . 

L.  C.  J.  Holt.  —  "Consider:  if  it  be  not  a  good  indictment  without  alleging 
particular  acts,  then  it  necessarily  follows,  that  if  particular  acts  are  alleged,  and 
you  do  not  prove  them,  as  is  alleged,  you  have  failed  in  the  indictment,  and  so 
his  objection  will  lie  upon  you." 

The  act  was  read. 

L.  C.  J.  Holt.  —  "You  may  give  evidence  of  an  overt  act  that  is  not  in  the 
indictment,  if  it  conduce  to  prove  one  that  is  in  it.  You  cannot  give  evidence 
of  a  distinct  act  that  has  no  relation  to  the  overt  act  mentioned  in  the  indict- 
ment, though  it  shall  conduce  to  prove  the  same  species  of  treason." 

The  counsel  for  the  Crown  argued,  that  they  might  give  in  evidence  other 
acts  in  other  ships. 

L.  C.  J.  Holt.  —  "I  cannot  agree  to  that.  .  .  .  Because  a  man  has  a  design 
to  commit  a  depredation  on  the  King's  subjects  in  one  ship,  does  that  prove  he 
meant  to  do  it  in  another?    Go  on,  and  shew  what  he  did  in  the  Clancarty." 

The  evidence  that  the  prisoner  had  gone  cruising  in  the  Custom  House  barge 
was  then  rejected.  I  quote  the  commentary  of  the  wise,  learned,  and  humane 
Foster,  on  this  decision:  "The  rule  of  rejecting  all  manner  of  evidence  in  criminal 
prosecutions  that  is  foreign  to  the  point  in  issue,  is  founded  on  sound  sense  and 
common  justice.  For  no  man  is  bound,  at  the  peril  of  life  or  liberty,  fortune  or 
reputation,  to  answer  at  once  and  unprepared  for  every  action  of  his  life.  Few, 
even  of  the  best  of  men,  would  choose  to  be  put  to  it.  And  had  not  those  con- 
cerned in  state  prosecutions,  out  of  their  zeal  for  the  public  service,  sometimes 
stepped  over  this  rule  in  the  case  of  treasons,  it  would,  perhaps,  have  been 
needless  to  have  made  an  express  provision  against  it  in  that  case." 


44.   REGINA  v.   DOSSETT 

Nisi  Prius.     1846 

2  C.  &  K.  306 

Arson.  —  The  prisoner  was  indicted  for  liaving,  on  the  29th  of  March, 
1846,  feloniously  set  fire  to  a  rick  of  wheat-straw,  the  property  of  William 
Cox. 

It  appeared  that  the  rick  was  set  on  fire  by  the  prisoner's  having  fired 
a  gun  very  near  it;   and  it  was  proposed  on  the  part  of  the  prosecution 


66  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  44 

to  go  into  evidence  to  show  that  the  rick  had  been  on  fire  on  the  28th  of 
March,  and  that  the  prisoner  was  then  close  to  it  with  a  gun  in  his  hand. 

J .  Jefferys  WiUidvi.s',  for  the  prisoner.  —  I  submit  that  this  evidence 
is  not  admissible.  It  is  seeking  to  prove  one  felony  by  another;  and  it 
is  in  effect  asking  the  jury  to  infer  that  the  prisoner  set  fire  to  the  rick  on 
the  29th,  because  he  did  so  on  the  28th.  The  firing  of  the  rick  on  the 
28th,  if  wilfully  done,  was  a  distinct  felony. 

Maule,  J.  —  Although  the  evidence  ofl"ered  may  be  proof  of  another 
felony,  that  circumstance  does  not  render  it  inadmissible,  if  the  evidence 
be  otherwise  receivable.  In  many  cases  it  is  an  important  question 
whether  a  thing  was  done  accidentally  or  wilfully.  If  a  person  were 
charged  with  having  wilfully  poisoned  another,  and  it  were  a  question 
whether  he  knew  a  certain  white  powder  to  be  poison,  evidence  would 
be  admissible  to  show  that  he  knew  what  the  powder  was  because  he 
had  administered  it  to  another  person,  who  had  died,  although  that  might 
be  proof  of  a  distinct  felony.  In  the  cases  of  uttering  forged  bank  notes 
of  knowing  them  to  be  forged,  the  proofs  of  other  utterings  are  all  proofs 
of  distinct  felonies.     I  shall  receive  the  evidence. 

The  evidence  was  given. 


45.   BOTTOMLEY  v.  UNITED  STATES 

United  States  Circuit  Court.     1840 

1  Story  135;  3  Fed.  Cas.  971 

This  is  a  writ  of  error  to  a  judgment  of  condemnation  in  rem  by  the 
District  Court  upon  an  information  of  seizure  of  two  cases  and  one 
hundred  and  fourteen  pieces  of  broadcloth  seized  on  land  at  Boston, 
forfeited  to  the  United  States,  and  claimed  by  James  Bottomley,  Jr., 
as  owner.  The  cause  was  tried  by  a  jury,  and  a  verdict  found  for  the 
United  States,  upon  the  issue  on  the  first  count  in  the  information,  and 
upon  this  verdict  the  judgment  of  forfeiture  was  pronounced  by  the 
District  Judge.  A  bill  of  exceptions  was  filed  at  the  trial,  and  upon  that 
bill  of  exceptions  the  present  writ  of  error  was  brought  by  the  claimant 
to  reverse  the  judgment.  ... 

Upon  the  first  count  the  claimant  filed  a  plea,  alleging  that  the  goods 
were  not  unladen  or  delivered  from  any  ship  or  vessel  within  the  United 
States,  without  a  permit  or  special  license  for  such  unlading  and  deliver- 
ing, in  manner  and  form,  as  in  the  first  count  was  alleged.  ...  In  point 
of  fact,  the  goods  in  the  present  case  were  unladen  and  delivered  at  the 
port  of  New  York,  upon  a  permit,  regular  in  form,  granted  by  the  deputy 
collector,  to  the  claimant.  But  the  United  States  contended,  and 
offered  proof,  that  the  permit  was  obtained  by  the  claimant  by  a  fraudu- 
lent conspiracy  with  the  bribery  of  the  deputy  collector  of  the  port  of 
New  York,  and  by  false  and  fraudulent  invoices  produced  by  the  claim- 


No.  45  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  67 

ant;  and  the  United  States  contended,  that  if  this  state  of  facts  was 
estabhshed  in  evidence,  then  the  permit  was  a  mere  nulHty.  .  .  .  And 
for  the  purpose  of  explaining  and  showing  the  said  system  of  fraudulent 
collusion  and  bribery,  .  .  .  the  counsel  for  the  government  further 
proposed  to  show,  that  certain  broadcloths  of  the  same  character,  cost, 
and  value  as  those  imported  by  claimant  in  the  Roscoe,  were  shipped  in 
England  at  or  about  the  time  when  said  claimant's  goods  by  the  Roscoe 
were  shipped;  that  said  goods  were  shipped  by  the  same  persons  in 
Liverpool  as  had  shipped  the  claimant's  goods  by  the  Roscoe,  and  all  the 
other  goods  of  claimant  contained  in  said  twenty-three  entries  before 
described;  that  the  marks  on  the  cases  containing  said  goods  were 
identical  with  the  marks  on  the  cases  of  claimant's  goods  by  the  Roscoe; 
that  the  numbering  on  said  cases  was  an  exact  and  progressive  con- 
tinuation of  the  numbering  on  the  cases  containing  claimant's  said  goods 
by  the  Roscoe;  that  said  goods  arrived  by  four  distinct  importations  at 
New  York,  soon  after  the  seizure  of  the  claimant's  goods  per  Roscoe, 
and  before  notice  of  said  seizure  could  possibly  have  reached  England; 
that  said  goods,  on  their  arrival,  were  not  entered,  but  sent  to  the  custom- 
house stores,  where  they  lay  several  months;  but  they  were  eventually 
entered  by  one  William  Bottomley,  as  being  the  property  of  James 
Bottomley,  Sr.,  that  the  invoices  had  no  exporter's  oath  at  the  time  of 
shipment,  as  is  usual,  but  the  same  was  taken  in  England  several  months 
afterwards,  and  after  a  lapse  of  time  fully  sufficient  for  the  transmission 
of  intelligence  to  England  of  said  seizure  of  claimant's  goods  by  the 
Roscoe;  that  the  said  invoices  and  oaths  (when  thus  after  the  said  lapse 
of  time  produced)  set  forth  the  cost  of  said  goods  at  a  greatly  higher  rate 
and  sum  than  said  goods  so  imported  by  claimants  in  the  Roscoe,  and 
proposed  to  submit  this  evidence  to  the  jury,  as  tending  to  show  that 
the  said  goods  in  fact  belonged  to  the  claimant,  and  that  the  cost  of  said 
goods,  as  set  forth  in  the  invoices  and  entries  thereof,  thus  eventually 
made,  show  that  the  cost  of  the  goods  by  the  Roscoe,  as  entered  by 
the  claimant,  was  knowingly  and  fraudulently  set  forth  in  the  entry 
thereof.   .   .    . 

The  cause  was  argued  by  Mills,  District  Attorney,  and  Fletcher 
and  Bartlett,  for  the  United  States,  and  by  Sprague  and  Gray,  (with  whom 
was  Miller,  of  New  York).    .    .     . 

Story,  J. :  .  .  .In  respect  to  the  evidence  admitted  at  the  trial,  I 
am  clearly  of  opinion  that  the  whole  of  it  was  admissible  to  substantiate 
the  fraud.     It  divides  itself  into  four  heads:  .  .  . 

(4)  The  evidence  of  the  importation  of  other  goods  of  the  same  char- 
acter, cost,  and  value,  as  those  imported  by  the  claimant  in  the  Roscoe, 
shipped  about  the  same  time  with  those  in  the  Roscoe,  marked  with  the 
same  marks,  and  numbered  in  an  exact  and  progressive  continuation  of 
the  cases  of  the  goods  of  the  claimant  in  the  Roscoe;  and,  also,  evidence, 
that  the  same  goods  arrived  in  four  different  shipments  soon  after  the 
seizure  of  the  claimant's  goods  in  the  Roscoe,  and  before  the  news  of  the 


68  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  45 

seizure  could  have  reached  England ;  that  the  same  goods  were  not  then 
entered  at  the  custom  house,  but  were  entered  by  one  William  Bottomley, 
as  being  the  property  of  James  Bottomley,  St.,  after  full  knowledge  of 
the  seizure  must  have  been  known  in  England;  and  that  they  were  then 
entered  at  a  greatly  enhanced  price  and  rate  beyond  those  imported 
in  the  Roscoe.  This  last  evidence  was  avowedly  offered  as  tending  to 
establish  two  important  facts:  1,  That  the  claimant  was  the  real  owner  of 
these  shipments ;  2,  that  the  cost  of  the  goods  by  the  Roscoe,  as  entered 
by  the  claimant,  was  knowingly  and  fraudulently  set  forth  in  the  entry. 

The  objection  taken  to  all  these  three  last  portions  of  the  evidence 
excepted  to,  is,  that  it  is  "res  inter  alios  acta,"  and  upon  other  occasions; 
and  therefore,  not  properly  admissible  to  establish  a  fraud  in  the  case  of 
the  importation  of  the  goods  now  before  the  Court.  But  it  appears  to 
me  clearly  admissible  upon  the  general  doctrine  of  evidence  in  cases  of 
conspiracy  and  fraud,  where  other  acts  in  furtherance  of  the  same  general 
fraudulent  design  are  admissible,  first,  to  establish  the  fact  that  there  is 
such  a  conspiracy  and  fraud;  and,  secondly,  to  repel  the  suggestion  that 
the  acts  might  be  fairly  attributed  to  accident,  mistake,  or  innocent 
rashness  or  negligence.  In  most  cases  of  conspiracy  and  fraud,  the  ques- 
tion of  intent  or  purpose  or  design  in  the  act  done  whether  innocent  or 
illegal,  whether  honest  or  fraudulent,  rarely  admits  of  direct  and  positive 
proof;  but  it  is  to  be  deduced  from  various  circumstances  of  more  or 
less  stringency  and  often  occurring,  not  merely  between  the  same  parties, 
but  between  the  party  charged  with  the  conspiracy  or  fraud  and  third 
persons.  And  in  all  cases  where  the  guilt  of  the  party  depends  upon  the 
intent,  purpose,  or  design  with  which  the  act  was  done,  or  upon  his  guilty 
knowledge  thereof,  I  understand  it  to  be  a  general  rule  that  collateral 
facts  may  be  examined  into,  in  which  he  bore  a  part,  for  the  purpose  of 
establishing  such  guilty  intent,  design,  purpose,  or  knowledge.  Thus, 
in  a  prosecution  for  uttering  a  bank  note,  or  bill  of  exchange,  or  promissory 
note,  with  knowledge  of  its  being  forged,  proof,  that  the  prisoner  had 
uttered  other  forged  notes  or  bills,  whether  of  the  same  or  of  a  different 
kind,  or  that  he  had  other  forged  notes  or  bills  in  his  possession,  is  clearly 
admissible  as  showing,  that  he  knew  the  note  or  bill  in  question  to  be 
forged.  The  same  doctrine  is  applied  to  a  prosecution  for  uttering  coun- 
terfeit money,  where  the  fact  of  having  in  his  possession  other  counterfeit 
money,  or  having  uttered  other  counterfeit  money,  is  proper  proof  against 
the  prisoner  to  show  his  guilty  knowledge. 

Many  other  cases  may  be  easily  put,  involving  the  same  considera- 
tions. Thus,  upon  indictment  for  receiving  stolen  goods,  evidence  is 
admissible  that  the  prisoner  had  received,  at  various  other  times,  different 
parcels  of  goods,  which  had  been  stolen  from  the  same  persons,  in  proof 
of  the  guilty  knowledge  of  the  prisoner.  In  short,  wherever  the  intent  or 
guilty  knowledge  of  a  party  is  a  material  ingredient  in  the  issue  of  a  case, 
these  collateral  facts,  tending  to  establish  such  intent  or  knowledge,  are 
proper  evidence.  Exceptions  overruled. 


No.  46  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  69 

46.   STATE  V.  LAPAGE 

Supreme  Court  of  New  Hampshire.     1876 

57  N.  H.  245 

Indictment,  charging  respondent  with  the  murder  of  Josie  A.  Lang- 
maid,  who  was  killed  October  4,  1875,  about  nine  o'clock  in  the  morn- 
ing, while  passing  over  the  Academy  road,  in  Pembroke,  on  her  way  to 
school.    .    .     . 

The  government  claimed  that  the  murder  was  committed  in  perpe- 
trating or  attempting  to  perpetrate  rape.  As  tending  to  show  that  the 
prisoner  had  an  intent  to  commit  such  a  crime,  .  .  .  Julienne  Rousse 
testified  that  she  resided  in  Joliet,  Canada,  and  was  a  sister  of  Joseph 
Lapage's  wife,  and  knew  him;  .  .  .  went  to  a  pasture  to  milk  cows  while 
living  at  St.  Beatrice,  Canada,  and  met  Lapage  there;  when  she  arrived 
at  the  pasture  the  cows  were  not  there;  ...  it  was  seven  o'clock  in  the 
morning,  June,  1871 ;  he  tried  to  catch  her;  she  shouted  and  tried  to  run 
away;  after  she  had  gone  four  or  five  rails  he  overtook  her,  caught  hold 
of  her,  .  .  .  after  she  was  choked  and  lost  her  strength  he  outraged 
her;  ...  he  did  not  strike  her  with  the  stick,  but  committed  rape 
upon  her.  .  .  .  To  the  admission  of  all  the  foregoing  testimony  the 
respondent  excepted.  .  .  . 

Concerning  the  foregoing  evidence,  the  Court  charged  the  jury  as 
follows : 

"You  have  heard  the  testimony  of  Julienne  Rousse  to  the  effect  that  in  June, 
1871,  this  prisoner  committed  a  rape  upon  her.  In  considering  this  evidence 
(if  you  believe  the  witness),  you  will  be  required  to  use  careful  discrimination 
of  the  way  and  manner  in  which  it  is  to  be  applied  to  this  case,  if  it  is  to  be  applied 
at  all.  We  have  admitted  the  evidence,  not  because  it  is  necessarily  connected 
with  the  issue  which  you  are  to  try,  —  which  is,  the  guilt  or  the  innocence  of  the 
prisoner  of  the  offence  with  which  he  is  here  and  now  chargegl,  —  but  because  it 
viay  have  a  legal  bearing  upon  that  issue.  ...  It  is  a  fundamental  principle 
of  law,  that  evidence  that  a  defendant  committed  one  offence  cannot  be  received 
to  prove  that  he  committed  another  and  distinct  oflFence.  This  principle  we 
must  take  care  not  to  violate.  And,  therefore,  you  are  not  to  regard  the  evi- 
dence of  Julienne  Rousse  as  any  proof  or  evidence  that  the  prisoner  killed  Josie 
Langmaid.  Therefore,  unless  you  find  from  other  evidence,  entirely  independent 
of  that  of  Julienne  Rousse,  that  the  prisoner  killed  and  murdered  Josie  Langmaid, 
you  must  reject  her  evidence  altogether.  ...  If  you  find,  from  other  evidence 
in  the  case  than  that  of  Julienne  Rousse,  that  the  defendant  killed  Josie  Lang- 
maid deliberately  and  premeditatedly,  or  in  perpetrating  or  attempting  to  per- 
petrate rape,  you  may  and  your  duty  is  to  reject  her  testimony  altogether.  But 
if  you  are  not  so  satisfied  by  all  the  other  evidence  and  circumstances  of  the 
case,  you  may  consider  her  evidence.  .  .  .  The  evidence  you  see,  therefore, 
bears  only  upon  the  question  of  the  intention  of  the  prisoner  in  killing  Josie 
Langmaid,  and  thus  upon  the  degree  of  guilt,  i.e.,  whether  the  offence  is  nuirder 


70  BOOK    i:     RULES    OF   ADMISSIBILITY  Xo.  46 

of  the  first  or  second  degree.  .  .  .  Tlie  principle  upon  which  such  evidence  is 
admitted  is,  that,  'though  the  prisoner  is  not  to  be  prejudiced  in  the  eyes  of  the 
jury  by  the  needless  admission  of  testimony  tending  to  prove  another  crime,  yet, 
whenever  the  evidence  which  tends  to  prove  the  other  crime  tends  also  to  prove 
this  one,  not  merely  by  showing  the  prisoner  to  be  a  bad  man,  but  by  showing 
the  particular  bad  intent  to  have  existed  in  his  mind  at  the  time  when  he  did 
the  act  comj)lained  of,  it  is  admissible.  .  .  .  Does  the  testimony  of  Julienne 
Rousse,  or  any  other  evidence  in  the  case,  tend  to  show  the  existence  in  the 
mind  of  the  prisoner  of  a  motive  or  passion  which  would  render  the  commission 
of,  or  an  attempt  to  commit,  a  rape  upon  Josie  Langmaid  more  probable  than  it 
would  otherwise  seem  to  you?  Does  it  or  not  tend  to  show  that  such  a  lustful 
intent  existed  in  the  heart  of  the  prisoner  at  the  time  as  would  render  the  com- 
mission of  a  rape  more  probable?  Does  this  evidence  supply  a  motive  for  the 
commission  of  the  offence?  The  crime  committed  upon  Julienne  Rousse  wa^ 
four  years  and  more  antecedent  to  the  offence  under  consideration.  Since  that 
time  a  change  may  have  taken  place  in  his  mind.  There  has  been  time  for  re- 
pentance; and  the  lustful  disposition  he  bore  then  may  have  been  eradicated. 
The  more  remote  the  evidence  of  this  mental  condition,  the  less  force  and  weight 
belong  to  it.  ..." 

The  respondent  was  con\'icted  of  murder  in  the  first  degree,  and 
sentenced  to  be  hanged. 

Lewis  W.  Clark,  Attorney  General  (with  whom  were  W.  W.  Flanders, 
solicitor,  and  C.  P.  Sanborn),  for  the  State.  .  .  .  The  only  question  of 
law  raised  by  the  bill  of  exceptions  is,  whether  the  evidence  objected  to 
is  admissible  for  any  purpose.  Does  this  evidence  have  a  legal  tendency 
to  show  that  the  defendant  killed  the  deceased,  or  that  he  intended  to 
commit  a  rape  upon  her?  .  .  .  Although  evidence  offered  in  support  of 
an  indictment  for  felony  be  proof  of  another  felony,  that  circumstance 
does  not  render  it  inadmissible.  If  the  evidence  offered  tends  to  prove 
a  material  fact,  it  is  admissible,  although  it  may  also  tend  to  prove  the 
commission  of  another  distinct  and  separate  offense. 

Suppose  the  defendant  w'ere  tried  for  breaking  and  entering  the  store 
at  the  north  end  of  Elm  street  in  IManchester  - —  the  most  northern  of 
all  the  stores  on  that  street  —  with  intent  to  steal ;  suppose  it  were  proved 
that  he  broke  and  entered  that  store;  that  he  was  arrested  as  soon  as  he 
entered  it,  and  the  only  question  was  whether  he  intended  to  steal; 
suppose  there  w^ere  one  hundred  other  stores  on  that  street,  and  he  had 
broken  and  entered  every  one  of  them,  and  stolen  something  in  every  one 
of  them,  beginning  at  the  south  end  of  the  street  and  taking  the  stores  in 
succession,  on  his  burglarious  march  from  one  end  of  the  street  to  the 
other;  .suppose  he  did  all  this  in  one  night,  and  was  completing  his  night's 
work  when  arrested;  on  the  question  of  his  intent  in  entering  the  one 
hundred  and  first  store,  would  any  one  think  of  objecting  to  evidence  of 
his  one  hundred  larcenies  in  the  other  one  hundred  stores?  His  robbing 
one  hundred  stores  would  tend  to  show  that  he  intended  to  rob  the  one 
hundred  and  first,  just  as  his  passing  counterfeit  money  in  the  one  hundred 
would  tend  to  show  that  he  intended  to  pass  counterfeit  monev  found  in 


No.  46  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  71 

his  possession  in  the  one  hundred  and  first.  There  would  be  no  difference 
between  his  presence  in  the  one  hundred  and  first  store,  and  his  having 
counterfeit  money  in  his  pocket  in  that  store,  that  would,  on  the  question 
of  intent,  affect  the  admissibility  of  the  evidence  of  what  he  had  done  in 
the  other  hundred  stores. 

Suppose,  instead  of  robbing  stores,  he  had  robbed  persons,  going 
from  one  end  of  the  street  to  the  other,  and  knocking  down  and  robbing 
one  hundred  men,  one  after  the  other,  and  not  touching  a  single  woman ; 
suppose  when  he  had  knocked  down  the  one  lumdred  and  first  man,  and 
before  he  had  had  time  to  rob  him,  he  had  been  arrested,  and  the  question 
were  whether  he  intended  to  rob  him,  —  whether  his  last  offense  were 
an  attempt  to  rob,  or  a  mere  assault,  or  an  assault  with  intent  to  kill; 
would  anybody  suppose  his  robbing  the  other  hundred  men,  after  he 
knocked  them  down,  was  no  evidence  of  the  intent  with  which  he  knocked 
down  number  one  hundred  and  one?  Suppose  the  one  hundred  and  one 
persons  whom  he  assaulted  were  women;  suppose  he  touched  no  man; 
suppose  he  had  unsuccessfully  attempted  to  ravish  one  hundred  of  them, 
and  were  arrested  at  the  instant  of  his  knocking  down  the  one  hundred 
and  first,  and  the  question  were  whether  his  last  assault  were  a  mere 
assault,  or  an  assault  with  intent  to  commit  a  robbery,  or  an  assault 
with  intent  to  commit  a  rape;  suppose  the  last  woman  assaulted  should 
die  of  her  injuries,  and  the  defendant  were  indicted  for  her  murder;  .  .  . 
how  would  you  expect,  if  you  were  the  prosecuting  officers,  to  find  any 
better  evidence  of  the  defendant's  intent  than  his  attempts  upon  the 
other  one  hundred  women?  .  .  . 

If  a  ship-master  lands  in  Congo,  obtains  a  cargo  of  blacks,  and  carries 
them  to  Cuba,  and  four  years  and  four  months  afterwards  he  is  found  at 
another  place  on  the  African  coast,  as  far  from  Congo  as  Pembroke 
Academy  is  from  St.  Beatrice,  with  a  hundred  blacks  in  his  possession,  — 
would  anybody  think  that  his  proved  intent  on  the  former  occasion  had, 
as  a  matter  of  fact,  no  tendency  to  show  what  he  intended  to  do  on  the 
latter  occasion?  .  .  .  No  man  on  earth  would  refuse  to  hear  it,  or  to 
consider  it,  unless  he  were  bound  by  some  arbitrary  and  irrational  rule 
overriding  his  understanding,  and  dictating  a  course  at  war  with  his 
common  sense.    .     .    . 

The  jury  having  found,  on  other  evidence  than  that  of  Julienne 
Rousse,  that  the  defendant  committed  the  homicide,  her  testimony  was 
competent  to  show  the  intent  with  which  he  committed  it.  ...  If  a 
man's  intent  to  pass  counterfeit  money  at  one  time  is  evidence  of  his 
intent  to  pass  other  counterfeit  money  found  in  his  possession  at  another 
time;  if  his  intent  to  sell  liquor  at  one  time  is  evidence  of  his  intent  to 
sell  other  liquor  at  another  time;  if  his  intent  to  send  one  negro  boy  into 
slavery  is  evidence  of  his  intent  to  make  the  same  disposition  of  another 
found  in  his  possession,  —why  is  not  his  intent  to  commit  a  rape  upon 
Julienne  Rousse,  when  he  took  possession  of  her,  evidence  of  his  intent  to 
make  the  same  disposition  of  Josie  Langmaid,  when  he  took  possession 


72  BOOK   i:     RULES   OF   .ADMISSIBILITY  No.  46 

of  her?  Manifestly  the  only  objection  to  this  evidence  is  the  remoteness 
of  the  rape  in  point  of  time  and  place.  .  .  . 

W.  T.  N orris  (with  whom  were  S.  B.  Page  and  H.  W.  Grccnv),  for  the 
respondent,  .  .  .  [argued  as  quoted  in  part  ante,  No.  36.] 

CcsHiNG,  C.  J.  .  .  .  The  admission  of  the  testimony  of  Julienne 
Rousse  gives  rise  to  by  far  the  most  important  question  in  the  case. 
The  testimony  tended  to  prove  that  the  prisoner,  about  four  years  and 
a  half  before  the  trial,  at  a  place  beyond  the  jurisdiction  of  the  United 
States,  committed  the  crime  of  rape  upon  a  person  other  than  the 
deceased;  and  the  question  is,  whether  that  bald,  naked  fact,  being  put 
in  evidence,  had  any  tendency  to  prove  any  matter  in  issue  between 
the  State  and  the  defendant. 

.  .  .  I  think  we  may  assume,  in  the  outset,  that  it  is  not  the 
quality  of  an  action,  as  good  or  bad,  as  unlawful  or  lawful,  as  criminal  or 
otherwise,  which  is  to  determine  its  relevancy.  I  take  it  to  be  gener- 
ally true,  that  any  act  of  the  prisoner  may  be  put  in  evidence  against 
him,  provided  it  has  any  logical  and  legal  tendency  to  prove  any  matter 
which  is  in  issue  between  him  and  the  State,  notwithstanding  it  might 
have  an  indirect  bearing,  which  in  strictness  it  ought  not  to  have,  upon 
some  other  matter  in  issue.    .    .    . 

I  think  we  may  state  the  law  in  the  following  propositions: 

(1)  It  is  not  permitted  to  the  prosecution  to  attack  the  character  of  the 
prisoner,  unless  he  first  puts  that  in  issue  by  offering  evidence  of  his  good 
character. 

(2)  It  is  not  permitted  to  show  the  defendant's  bad  character  by  show- 
ing particular  acts. 

(3)  It  is  not  permitted  to  show  in  the  prisoner  a  tendency  or  disposi- 
tion to  comrnit  the  crime  with  which  he  is  charged. 

(4)  It  is  not  permitted  to  give  in  evidence  other  crimes  of  the  prisoner, 
unless  they  are  so  connected  by  circumstances  with  the  particular  crime 
in  issue  as  that  the  proof  of  one  fact  with  its  circumstances  has  some  bear- 
ing upon  the  issue  on  trial  other  than  such  as  is  expressed  in  the  foregoing 
three  propositions.  .  .  .  The  cases  of  this  sort  cited  by  counsel  for  the 
government  admit  of  being  classified  into  several  distinct  groups. 

In  the  first  place  is  the  class  of  cases  in  which  other  offenses  are  shown 
for  the  purpose  of  proving  guilty  knowledge.  To  this  class  belong  those 
cases  in  which,  in  the  trial  of  indictments  for  uttering  forged  bank  notes, 
or  counterfeit  coin,  the  proof  of  other  offenses  of  the  same  kind  is 
admitted.  It  might  well  happen  that  a  person  might  have  in  his 
possession  a  single  counterfeit  bill  or  coin  without  knowing  it  to  be  such; 
but  he  would  be  much  less  likely  to  do  so  twice,  and  every  repetition  of 
such  an  act  would  increase  the  probability  that  he  knew  that  the  bills  or 
coins  were  counterfeit.  .   .   . 

Another  class  of  cases  consists  of  those  in  which  it  becomes  necessary 
to  show  that  the  act  for  which  the  prisoner  was  indicted  was  not  accidental, 
—  e.g.  where  the  prisoner  had  shot  the  same  person  twice  within  a  short 


No.  46  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  73 

time,  or  where  the  same  person  had  fired  a  rick  of  grain  twice  or  where 
several  deaths  by  poison  had  taken  place  in  the  same  family,  or  where 
children  of  the  same  mother  had  mysteriously  died.  In  such  cases  it 
might  well  happen  that  a  man  should  shoot  another  accidentally,  but  that 
he  should  do  it  twice  within  a  short  time  would  be  very  unlikely.  So, 
it  might  easily  happen  that  a  man  using  a  .p;un  might  fire  a  rick  of  barley 
once  by  accident,  but  that  he  should  do  it  several  times  in  succession 
would  be  very  improbable.  So,  a  person  might  die  of  accidental  poison- 
ing, but  that  several  persons  should  so  die  in  the  same  family  at  different 
times  would  be  very  unlikely.  So,  that  a  child  should  be  suffocated  in 
bed  by  its  mother  might  happen  once,  but  several  similar  deaths  in  the 
same  family  could  not  reasonably  be  accounted  for  as  accidents.  So, 
in  the  case  of  embezzlement  effected  by  means  of  false  entries,  a  single 
false  entry  might  be  accidentally  made;  but  the  probability  of  accident 
would  diminish  at  least  as  fast  as  the  instances  increased.  .  .  . 

There  is  another  class  of  cases  in  which  proof  of  the  commission  of 
one  crime  tends  to  show  a  -motive  for  the  commission  of  the  crime  with 
which  the  prisoner  is  charged.  .  .  .  So,  in  Com.  v.  Ferrigan,  the  adulter- 
ous intercourse  of  the  defendant  with  the  wife  of  the  deceased  tends  to 
show  a  motive  for  the  murder.  .  .  . 

Another  class  of  cases  consists  of  those  in  which  the  evidence  tends 
to  show  a  general  plan  or  conspiracy,  one  act  of  which  was  that  which  is  in 
issue.  ...  If  the  indictment  were  for  being  a  common  seller  of  spirituous 
liquor,  the  charge  could  be  proved  in  hardly  any  other  way  than  by  show- 
ing many  specific  acts;  and  conversely,  if  a  man  were  proved  to  be  a 
professional  counterfeiter,  that  would  be  evidence  tending  to  show  his 
guilty  intent.  .  .  . 

It  should  also  be  remarked  that  this  being  a  matter  of  judgment,  it 
is  quite  likely  that  Courts  would  not  always  agree,  and  that  some  Courts 
might  see  a  logical  connection  where  others  could  not.  But,  however 
extreme  the  case  may  be,  I  think  it  will  be  found  that  the  Courts  have 
always  professed  to  put  the  admission  of  the  testimony  on  the  ground 
that  there  was  some  logical  connection  between  the  crime  proposed  to 
be  proved  other  than  the  tendency  to  commit  one  crime  as  manifested 
by  the  tendency  to  commit  the  other.  In  the  case  under  consideration, 
I  cannot  see  any  such  logical  connection,  between  the  commission  of  the 
rape  upon  Julienne  Rousse  and  the  murder  of  Josephine  Langmaid,  as 
the  law  requires.  I  am  unable  to  see  any  connection  by  which  from  the 
first  crime  can  be  inferred  that  the  respondent  was  attempting  the  com- 
mission of  a  rape  when  he  committed  the  murder,  if  he  did  it,  other  than 
such  inference  as  I  understand  the  law  expressly  to  exclude.  ...  I  think 
a  careful  examination  of  that  part  of  the  charge  which  relates  to  this 
evidence  will  show  that  it  really,  in  substance,  amounted  to  instructing 
the  jury  that  they  were  to  find  the  character  of  the  prisoner  from  the  fact 
proved  by  Rousse,  and  infer  from  such  character  that  he  would  be  likely 
to  be  actuated  by  passion  and  lust.     It  was  really  instructing  the  jury 


74  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  46 

that  they  might  find,  from  a  particular  act  proved,  the  prisoner's  char- 
acter as  a  man  possessed  by  unlawful  and  lustful  passion,  and  infer  from 
that  that  he  was  actuated  by  such  passion  in  his  conduct  to  the  deceased. 
The  matter  really  reduces  itself  to  attacking  the  prisoner's  character  by 
the  proof  of  particular  acts,  which  the  authorities  clearly  show  to  be 
inadmissible.  .  .  . 

Ladd,  J.  ...  I  think  the  admission  of  the  testimony  of  Julienne 
Rousse  was  error,  because  it  violated  the  fundamental  principle  of  law, 
that  evidence  that  a  defendant  committed  one  offense  cannot  be  received 
to  prove  that  he  committed  another  and  distinct  offense.  The  other 
exceptions,  I  think,  should  be  overruled,  for  the  reasons  given  by  the 
attorney  general  in  his  brief. 

Smith,  J.  .  .  .  The  whole  answer  to  the  position,  that  the  evi- 
dence of  Julienne  Rousse  was  relevant  to  the  issue  tried,  is,  that  it  does 
not  show  or  tend  to  show  that  the  prisoner  perpetrated  or  attempted  to 
perpetrate  a  rape  upon  Josie  Langmaid.  .  .  .  No  one  will  pretend  that 
evidence  that  the  prisoner  had  committed  another  murder,  in  Canada, 
or  Texas,  or  Europe,  could  be  shown  on  this  trial.  One  cannot  be  con- 
victed of  murder,  by  showing  that  he  has  at  some  time  and  somewhere 
else  committed  another  murder;  or  of  larceny,  by  showing  that  he  has 
committed  the  crime  before,  and  therefore  has  an  evil  disposition  inclin- 
ing him  towards  that  particular  crime.  The  trouble  with  the  position 
of  the  State  is,  that  it  is  not  here  a  question  of  motive  or  intent.  Cer- 
tainly, committing  a  rape  in  Canada  in  1871,  would  not  show  any  motive 
for  committing  a  rape  in  New  Hampshire  in  1875;  nor  does  it  disclose 
any  intent  so  to  do.  .  .  . 

Because  of  the  admission  of  the  testimony  of  Julienne  Rousse,  there 
must  be  a  new  trial  granted. 


47.   COMMONWEALTH  v.  ROBINSON 

Supreme  Judicial  Court  of  Massachusetts.     1888 

146  Mass.  571;  16  N.  E.  452;  and  Official  Report  of  Trial,  passim 

Indictment  for  the  murder  of  Prince  Arthur  Freeman  by  poisoning. 
At  the  trial,  before  Field  and  Knowlton,  JJ.,  there  was  evidence  tending 
to  prove  the  following  facts : 

In  February,  1885,  Freeman  occupied  a  tenement  in  South  Boston 
with  his  wife,  Annie  Freeman,  who  was  a  sister  of  the  defendant,  and 
their  two  children.  On  February  20,  1885,  the  defendant  called  upon 
her  sister,  staying  but  a  short  time,  and  on  February  23,  1885,  again 
went  to  her  sister's  house  to  take  care  of  her,  and  there  stayed  until  Mrs. 
Freeman  died  on  February  26,  1885,  after  an  illness  of  about  three  weeks. 
The  children  had  been  taken  to  the  defendant's  house  in  Cambridge  on 
February  22,  and,  immediately  after  the  death  of  his  wife.  Freeman  went 


No.  47  CIRCUMSTANTIAL   EVIDEN'CE:     CONDUCT  75 

to  live  with  the  defendant,  and  there  remained,  with  his  children.  The 
baby  died  in  April,  1SS5.  In  1882  Freeman  had  taken  out  a  certificate 
of  insurance  for  S2,000  in  the  United  Order  of  Pilgrim  Fathers,  his  wife 
being  the  beneficiary  named  in  the  certificate,  and  after  her  death,  on 
or  about  May  13,  1885,  appointed  the  defendant  his  beneficiary  under 
the  certificate,  as  authorized  by  the  by-laws  of  the  order.  Freeman, 
while  still  an  inmate  of  the  defendant's  family,  died,  on  June  27,  1885, 
after  an  illness  of  about  six  days,  from  the  effects  of  arsenic  administered 
to  him  by  the  defendant.  On  July  23,  1886,  the  boy,  Thomas  Arthur, 
died.  From  a  period  prior  to  1885,  the  defendant  had  been  indebted  to 
different  persons  to  the  amount  of  six  or  seven  hundred  dollars,  which 
she  was  unable  to  pay,  and  for  which  she  had  been  hard  pressed  by  her 
creditors,  and  this  indebtedness  she  paid  off  out  of  Freeman's  insurance, 
which  she  duly  received  from  the  order  on  September  23,  1885. 

(1)  The  prosecution  offered,  for  the  sole  purpose  of  establishing  the 
defendant's  motive  in  killing  her  brother-in-law,  to  prove  that  prior  to 
the  death  of  Annie  Freeman  the  defendant  had  formed  the  plan  and 
intention  of  securing  to  her  own  use  the  82,000  of  insurance,  and  as  a 
means  of  accomplishing  this  result,  and  as  a  part  of  the  scheme,  deter- 
mined first  to  kill  her,  then  to  induce  Freeman  to  make  her  the  bene- 
ficiary under  the  certificate,  and  then  to  kill  him.  ]\Ir.  Stevens,  District 
Attorney,  stated  the  object  of  the  offer.  .  .  . 

Field,  J. :  Do  you  offer  it  for  the  purpose  of  rendering  it  more  prob- 
able that  she  committed  the  murder  charged,  or  for  the  purpose  of  show- 
ing the  intent  of  the  murder  with  which  she  is  charged,  six  months  before 
committing;  for  the  purpose  of  showing  the  same  motive  operating? 

Mr.  Stevens :  I  put  it  as  the  strongest  piece  of  evidence  which  has  a 
tendency  in  this  case  in  showing  what  was  the  motive.  .  .  . 

Field,  J. :  Does  the  force  of  the  evidence  stop  with  proving  that  she 
formed  the  intent  of  killing  her  brother-in-law  before  her  sister  died? 

Mr.  Stevens:   Certainly.  .  .  . 

Field,  J. :  But  the  fact  that  she  killed  her  sister,  is  that  offered  for 
any  purpose  except  to  show  that  she  had  the  intent  of  killing  her  brother- 
in-law  at  that  time?  Is  it  offered  to  show  if  she  killed  her  sister,  she 
killed  her  brother-in-law? 

Mr.  Stevens :  Not  in  the  slightest  degree.   .   .    . 

The  Court,  by  Field,  J.,  admitted  this  evidence,  in  the  following 
terms:  ...  If  evidence,  direct  or  circumstantial,  is  offered  and  ad- 
mitted tending  to  show  that  this  defendant  knew  before  her  sister's  death 
of  the  existence  of  the  insurance,  and  that  it  could  be  transferred  on  the 
death  of  her  sister  to  herself  and  made  payable  to  herself  on  the  death  of 
her  brother-in-law;  and  that  she,  before  the  sister's  death,  had  formed  in 
her  own  mind  a  plan  or  intention  to  obtain  this  insurance  for  her  own 
benefit,  and  this  plan  or  intention  continued  to  exist  and  be  operative  up 
to  the  time  of  the  death  of  her  brother-in-law;  then  we  are  of  the  opinion 
that  evidence  ma}-  be  offered  that  her  sister  died  of  poison  and  that  this 


76  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  47 

defendant  administered  it  as  a  part  of  the  method  employed  by  her  to 
carry  this  plan  or  intention  into  effect,  in  connection  with  evidence 
that  she  administered  poison  to  her  brother-in-law  as  another  part  of 
the  same  plan  or  intention. 

(2)  [The  prosecution  afterwards  offered  further  to  prove  that  after 
the  death  of  her  brother-in-law  and  her  receipt  of  the  insurance  money 
in  her  own  right,  as  beneficiary,  she  poisoned  the  remaining  child,  Thomas 
Arthur,  in  July,  188(5.  This  offer  was  stated  and  opposed  in  the  following 
terms] : 

Mr.  Stevens :  The  government  has  already  offered  evidence  that  this 
money  was  received  for  the  purpose  of  taking  care  of  Thomas  Arthur 
Freeman,  and  the  position  of  the  government  is  that  the  motive  which 
induced  this  woman  to  kill  Prince  Arthur  Freeman  was  for  the  purpose  of 
getting  two  thousand  dollars  to  use  for  her  own  benefit.  .  .  .  Now,  this 
testimony  of  the  death  of  Thomas  relates  back  and  explains  more  fully 
the  real  motive  and  the  strength  of  the  motive  which  induced  her  to  kill 
Prince  Arthur.  It  shows  that  she  did  not  receive  the  money  for  the 
purpose  of  using  it  to  take  care  of  Thomas  Arthur,  but  has  a  tendency 
to  show  that  the  real  purpose  and  the  real  motive  was,  not  the  alleged 
motive  by  which  she  had  received  it,  for  the  purpose  of  taking  care  of 
Thomas  Arthur,  but  was  for  her  own  personal  benefit.  .  .  . 

Field,  J.:  Does  it  not  amount  to  this,  that  you  show  she  killed 
Thomas  Arthur  for  the  purpose  of  getting  rid  of  the  burden  of  supporting 
him? 

Mr.  Stevc7is :  Not  entirely.  I  do  not  think  it  would  be  admissible 
simply  for  that  purpose.  I  do  not  think  it  is  admissible  except  on  the 
ground  that  it  relates  back  to  the  original  motive.  .  .  . 

Field,  J.:  Suppose  you  prove  that  she  wanted  the  money  for  the 
purposes  of  the  expenses  of  the  family  generally,  then  can  the  death  of 
any  member  of  her  family  at  any  subsequent  time  be  shown  in  order  to 
relate  back  and  help  to  prove  the  original  motive?  .  .  . 

Mr.  Stevens :  I  should  say  no,  on  general  principles,  unless  there  was 
some  particular  circumstance.  It  seems  to  me  that  that  differs  from  this 
case.  .  .  . 

Field,  J. :  You  know  the  rule  of  law  is,  that  you  shall  not  submit  the 
evidence  of  one  crime  to  prove  another.  The  general  rule  of  law  is 
undoubtedly  against  it.  If  you  are  indicted  for  assaulting  A,  it  is  not 
competent  to  prove  that  you  have  assaulted  B,  C,  and  D. 

Mr.  Stevens :  Because  ordinarily  it  has  not  any  natural  tendency  to 
satisfy  the  reasonable  mind  that  the  prisoner  committed  that  crime. 

Field,  J.:  It  has  some  tendency  to  show  that  he  is  a  man  who  is 
habitually  assaulting  people. 

Mr.  Stevens :  I  tried  to  argue,  —  but  I  did  not  argue  successfully,  — 
in  the  former  trial,  that  under  certain  combinations  I  thought  that  was 
admissible,  but  the  Court  overruled  it,  and  of  course  I  cannot  argue  that 
now. 


No.  47  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  77 

Field,  J. :  Suppose  you  are  indicted  for  cheating  A  in  a  horse  trade, 
the  fact  that  you  have  cheated  twenty-seven  other  persons  within  three 
months,  is,  independently  of  legal  rules,  some  evidence  to  the  point 
that  you  have  cheated  the  last  person;  but  yet,  it  is  not  admissible  if 
there  is  no  connection  between  the  different  acts. 

Mr.  Stevens:  I  don't  know  about  that;  but  the  Court  says  it  is  not. 
But  if  I  pass  a  piece  of  counterfeit  money,  and  if  it  is  a  fact  that  I  had 
another  piece  of  counterfeit  money  in  my  possession,  that  would  be 
evidence  against  me.  I  do  not  think  the  rules  of  law  are  always  con- 
sistent. 

Field,  J.:  That  is  an  exception,  and  it  goes  simply  to  the  point  of 
whether  you  knew  it  was  counterfeit.  The  ground  is  that  a  man  may 
have  one  counterfeit  half-dollar  and  not  know  it;  but  if  he  has  a  good 
many  in  his  possession  and  on  successive  days,  it  is  evidence  that  he 
knows  that  the  money  is  counterfeit. 

Mr.  Stevens:  Where  a  distinct  crime  is  committed,  we  do  not  put  it 
in  that  position.  But  does  it  not  have  a  natural  tendency,  and  is  it  not 
connected  circumstantially,  with  the  principal  fact,  in  so  far  as  it  tends 
to  go  back  and  explain  the  motive? 

Field,  J.:  Is  it  not  more  reasonable,  on  general  principles,  that  if 
there  be  any  evidence  that  she  killed  the  son,  the  motive  to  do  that  was 
formed  after  the  death  of  the  father,  than  that  it  was  formed  before,  — 
on  general  principles?  Is  it  not  merely  collateral  as  connected  with  the 
original  motive? 

Mr.  Stevens :   I  do  not  think  it  is,  if  you  go  along  step  by  step.  .  .  . 

Mr.  Goodrich  [for  the  defense]:  It  is  admitted  that  there  was  no 
contract  in  writing,  there  was  no  trust  created  by  any  instrument,  but 
she  simply  acknowledged  that  she  had  the  care  and  the  charge  of  the  child 
and  was  to  take  care  of  the  child,  and  she  recognized  the  expense  of  it.  .  .  . 
If  evidence  of  the  death  of  Thomas  Arthur  Freeman  is  competent  in  this 
case,  it  is  because  that  death  was  a  part  of  the  original  scheme.  Now, 
if  the  original  scheme  was  to  get  possession  of  the  money,  then  to  make 
this  evidence  competent  it  must  appear  that  it  would  serve  that  end,  — 
the  scheme  of  getting  the  money.  Therefore  it  would  be  material  whether 
or  not  the  money  had  been  got  and  spent;  because  if  the  prisoner  had 
obtained  the  money  at  the  time  of  Thomas  Arthur  Freeman's  death, 
and  had  spent  it  and  it  was  gone,  then  some  other  motive  except  the 
obtaining  of  the  money  must  have  been  the  motive  for  Thomas  Arthur's 
death.  Now,  in  point  of  fact,  it  is  proper  for  me  to  say  that  the  money 
had  been  spent  and  was  gone;  and,  therefore,  her  only  object  and  motive 
in  committing  the  murder  of  Thomas  Arthur  Freeman  must  have  been 
to  get  rid  of  her  responsibility  of  taking  care  of  him.  .  .  . 

[The  justices  went  out  for  consultation.  They  then  returned  and 
said,  by] 

Field,  J. :  The  justices  have  considered  the  question  submitted  to 
them  and  are  divided  in  opinion.     The  result  is  that  in  a  capital  case, 


78  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  47 

where  the  point  does  not  concern  the  general  administration  of  justice, 
but  is  dependent  upon  the  particular  facts  of  a  particular  case,  infavorem 
ritae,  the  evidence  must  be  excluded. 

[In  the  Supreme  Court,  the  admission  of  the  first  part  of  the  evidence 
above  was  held  proper,  in  the  following  terms] : 

C.  Allen,  J.:  While  it  is  well  settled  in  this  Commonwealth  that  on 
the  trial  of  an  indictment  the  government  cannot  be  allowed  to  prove 
other  independent  crimes  for  the  purpose  of  showing  that  the  defendant  is 
wicked  enough  to  commit  the  crime  on  trial,  this  rule  does  not  extend  so 
far  as  to  exclude  evidence  of  acts  or  crimes  which  are  shown  to  have  been 
committed  as  part  of  the  same  common  purpose  or  in  pursuance  of  it. 
In  such  cases  there  is  a  distinct  and  significant  probative  effect,  resulting 
from  the  continuance  of  the  same  plan  or  scheme  and  from  the  doing  of 
other  acts  in  pursuance  thereof.  It  is  somewhat  of  the  nature  of  threats 
or  declarations  of  intention,  but  more  especially  of  preparations  for  the 
commission  of  the  crime  which  is  the  subject  of  the  indictment.  If,  for 
example,  it  could  be  shown  that  a  defendant  had  formed  a  settled  purpose 
to  obtain  certain  property  which  could  only  be  got  by  doing  several 
preliminary  things,  the  last  of  which  in  the  order  of  time  was  criminal, 
the  government  might  show,  on  his  trial  for  the  commission  of  that  last 
criminal  act,  that  he  had  formed  the  purpose  to  accomplish  the  result  of 
obtaining  the  property,  and  that  he  had  done  all  of  the  preliminary  things 
which  were  necessary  to  that  end.  This  would  be  quite  plain  if  the 
evidence  of  the  purpose  were  direct  and  clear,  —  as,  if  a  letter  in  the 
defendant's  handwriting  should  be  discovered,  stating  in  terms  to  a  con- 
federate his  purpose  to  obtain  the  property  by  the  doing  of  the  several 
successive  acts  the  last  of  which  was  the  criminal  act  on  trial.  In  such 
case,  no  one  would  question  that  proof  might  be  offered  that  the  defendant 
had  done  all  the  preliminary  acts  referred  to,  which  were  necessary  stepS 
in  the  accomplishment  of  his  purpose.  But  such  purpose  may  also  be 
shown  by  circumstantial  evidence.  It  is,  indeed,  usually  the  case  that 
intentions,  plans,  purposes,  can  only  be  shown  in  this  way.  Express 
declarations  of  intention,  or  confessions,  are  comparatively  rare;  and 
therefore  all  the  circumstances  of  the  defendant's  situation,  conduct, 
speech,  silence,  motives  may  be  considered.  The  plan  itself,  and  the 
acts  done  in  pursuance  of  it,  may  all  be  proved  by  circumstantial  evidence, 
if  they  are  of  themselves  relevant  and  material  to  the  case  on  trial.  In 
such  a  case  it  makes  no  difference  whether  the  preliminary  acts  are  crimi- 
nal or  not ;  otherwise,  the  greater  the  criminal,  the  greater  his  immunity. 
Such  preliminary  acts  are  competent  because  they  are  relevant  to  the 
issue  on  trial;  and  the  fact  that  they  are  criminal  does  not  render  them 
irrelevant.  Suppose,  for  further  example,  one  is  charged  with  breaking 
a  bank,  and  there  is  evidence  that  he  had  made  preliminary  examinations 
from  a  neighboring  room;  that  his  occupation  of  such  room  was  accom- 
plished by  a  criminal  breaking  and  entering  would  not  render  the  evidence 
incompetent.     It  is  sometimes  said  that  such  evidence  may  be  introduced 


No.  48  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  79 

where  the  several  crimes  form  part  of  one  entire  transaction;  but  it  is 
perhaps  better  to  say,  where  they  have  some  connection  with  each  other, 
as  a  part  of  the  same  plan  or  induced  by  the  same  motive. 

.  .  .  The  ruling  at  the  trial,  therefore,  was  correct,  that  if  evidence 
should  be  offered  and  admitted  tending  to  show  that  the  prisoner  knew 
before  her  sister's  death  of  the  existence  of  the  insurance,  and  that  it 
could  be  transferred  on  the  death  of  her  sister  to  herself,  and  made 
payable  to  herself  on  the  death  of  Freeman,  and  that  before  her  sister's 
death  she  had  formed  a  plan  or  intention  to  obtain  this  insurance  for  her 
own  benefit,  and  this  plan  or  intention  continued  to  exist  or  be  operative 
up  to  the  time  of  Freeman's  death,  then  that  evidence  might  be  offered 
to  show  that  her  sister  died  of  poison,  and  that  the  prisoner  administered 
it  as  a  part  of  the  method  employed  by  her  to  carry  this  plan  or  intention 
into  effect,  in  connection  with  evidence  that  she  administered  poison  to 
Freeman  as  another  part  of  the  same  plan  and  with  the  same  general 
intention.  The  Court  therefore  properly  held  that  evidence  of  this  knowl- 
edge and  plan  or  intention  on  the  part  of  the  prisoner  should  first  be 
offered.  .  .  . 

We  are  further  of  the  opinion,  that  the  preliminary  evidence  which 
was  before  the  Court  .  .  .  certainly  tended  to  show  a  scheme  and  plan, 
entered  into  before  Mrs.  Freeman's  death,  to  have  the  insurance  money 
made  payable  to  the  prisoner.  Exceptions  overruled. 

48.    PEOPLE  V.  MARRIN 

Court  of  Appeals  of  New  York.    1912 

205  N.  Y.  275;  98  N.  E.  474 

Appeal  from  Supreme  Court,  Appellate  Division,  Second  Department. 

Frank  C.  Marrin  was  convicted  of  forgery  in  the  first  degree.  From 
a  judgment  of  the  Appellate  Division,  Second  Department  (147  App. 
Div.  903,  131  N.  Y.  Supp.  1134)  affirming  the  conviction,  he  appeals. 
Affirmed. 

On  the  3d  day  of  May,  1895,  the  defendant  was  indicted  for  the  crime 
of  forgery  in  the  first  degree,  in  that  on  the  9th  of  November,  1893,  in 
his  capacity  as  commissioner  of  deeds,  he  willfully,  falsely,  and  feloniously 
certified  that  a  mortgage  "purporting  to  have  been  made  and  executed 
by  one  James  Cahill  to  one  Caroline  Barry  in  the  sum  of  S4000  .  .  .  was 
acknowledged  by  a  party  thereto,  to  wit,  the  said  James  Cahill,  .  .  . 
whereas  in  truth  and  in  fact  .  .  .  such  certifying  by  him,  the  said 
Frank  C.  Marrin,  as  such  commissioner  of  deeds,  was  in  all  respects 
false,  fraudulent,  and  spurious,  as  he,  the  said  Frank  C.  Marrin,  then 
and  there  well  knew."  .  .  . 

The  jury  found  him  guilty  as  charged  in  the  indictment,  and  the 
judgment  entered  on  the  verdict  was  unanimously  affirmed  on  appeal 
to  the  Appellate  Division. 


80  BOOK  i:     RULES   OF   ADMISSIBILITY  No.  48 

William  Travers  Jerome,  of  New  York  City,  for  Appellant.     Joh7i  M. 
Perry,  of  New  York  City,  for  the  People. 

Vann,  J.  (after  stating  the  facts  as  above).  Upon  the  chfirge  that 
the  defendant,  as  a  commissioner  of  deeds,  "willfully  certified  falsely" 
that  the  mortgage  in  question  was  duly  acknowledged  before  him,  a 
serious  difference  of  opinion  has  arisen  in  regard  to  the  admission  of 
certain  evidence  given  in  support  of  the  accusation.  The  circumstances 
under  which  that  evidence  was  received  were  as  follows :  The  defendant, 
a  practicing  lawyer  in  the  city  of  Brooklyn,  had  as  a  client  an  old  lady 
named  Caroline  Barry,  a  resident  of  that  city,  who  on  or  about  the  3d 
of  November,  1893,  gave  him  $4000  to  invest  for  her.  In  a  short  time 
he  delivered  to  her  the  paper  set  forth  in  the  indictment  purporting  to  be 
a  mortgage  duly  acknowledged  before  himself  as  commissioner  of  deeds 
and  to  have  been  executed  by  James  Cahill,  as  mortgagor,  to  Caroline 
Barry,  as  mortgagee,  to  secure  the  payment  of  $4000  in  three  years 
from  date  with  interest  payable  semiannually.  There  was  a  false  certifi- 
cate of  record  indorsed  on  the  mortgage,  which  purported  to  cover  the 
adjoining  halves  of  two  lots  in  Brooklyn;  the  division  lines  passing  nearly 
through  the  center  of  the  buildings  thereon.  It  was  shown  that  no 
person  named  James  Cahill  had  ever  been  connected  with  the  record, 
title,  or  possession  of  either  piece  of  property.  Several  persons  of  that 
name  were  called  by  the  prosecution,  each  of  whom  swore  that  he  was 
not  the  James  Cahill  named  in  the  instrument,  that  the  signature  thereto 
was  not  that  of  any  James  Cahill  known  to  him,  and  that  he  neither 
signed  nor  acknowledged  it  himself.  The  defendant  embezzled  said 
mone}^  but  from  time  to  time  paid  Mrs.  Barry  what  purported  to  be 
the  interest  upon  the  mortgage  as  it  fell  due. 

Thereupon,  in  order  to  show  that  James  Cahill  was  a  myth,  that  if 
any  one  acknowledged  the  instrument  the  defendant  knew  it  was  not 
the  person  described  therein,  and  that  the  transaction  was  part  of  a 
continuous  scheme  to  defraud  Mrs.  Barry,  eight  similar  mortgages  were 
offered  and  received  for  that  purpose  only.  At  the  time  they  were 
received,  as  well  as  in  the  charge,  the  Court  carefully  instructed  the  jury 
to  that  effect  and  distinctly  told  them  that  such  mortgages  could  not 
be  considered  as  any  evidence  of  an  independent  crime  or  for  any  purpose 
except  the  one  thus  announced. 

These  mortgages  purported  to  have  been  given  within  a  period  of  less 
than  two  years,  being  dated  two  or  three  months  apart,  and  they  were 
all  actually  recorded,  except  the  last  two,  which  were  dated  after  the 
one  in  question  and  bore  false  certificates  of  record.  Each  was  delivered 
by  the  defendant  to  Caroline  Barry  as  evidence  of  an  investment  made 
by  him  for  her  of  money  intrusted  by  her  to  him,  to  be  invested  in 
mortgages  in  her  name,  shortly  before  the  date  of  each  instrument,  but 
in  each  case  the  money,  instead  of  being  invested  in  any  way,  was  con- 
verted by  him  to  his  own  use.  Each  ran  to  her  as  mortgagee,  and  each 
covered  no  unit  of  realty,  but  parts  of  houses  on  adjacent  lots  belonging 


No.  48  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  81 

to  different  owners,  or  rear  ends  or  sides  of  lots.  In  each  instance  the 
person  named  as  mortgagor  was  unknown  and  could  not  be  found  after 
diligent  inquiry.  Each  was  a  stranger  to  the  record,  title,  and  possession 
of  the  premises  covered  by  the  mortgage.  Each  mortgage  was  certified 
by  the  defendant  to  have  been  acknowledged  before  him  as  commissioner 
of  deeds,  and  he  paid  the  interest  on  each  as  it  became  due  from  money 
intrusted  to  him  by  Mrs.  Barry  for  investment.  He  used  all  the  money, 
amounting  to  over  $30,000,  for  his  own  purposes. 

It  was  not  enough  for  the  people  to  show  simply  that  the  certificate 
in  question  as  made  by  the  defendant  was  false.  It  was  necessary  for 
them  to  go  further  and  show  that  he  knew  it  was  false,  as  the  statute 
condemns  one  who  "wilfully  certifies  falsely."  "Wilfully,"  as  thus 
used,  means  intentionally,  so  that  proof  of  intention  to  make  a  false 
certificate  is  expressly  required.  ...  In  order  to  show  knowledge, 
intention,  and  the  absence  of  mistake,  the  district  attorney  had  the  right 
to  prove  similar  acts,  done  under  similar  circumstances  at  about  the 
same  time,  with  intent  to  defraud  the  same  person  by  the  same  means. 
The  common  method,  purpose,  and  victim  formed  the  connecting  links 
which  strung  together  the  nine  successive  and  successful  efforts  to  defraud 
pursuant  to  a  common  scheme.  People  v.  Dolan,  186  N.  Y.  4,  10.  The 
mortgagor  named  in  the  indictment  may  or  may  not  have  been  a  myth; 
but  when  eight  similar  myths  appeared  as  mortgagors  in  eight  similar 
mortgages,  some  dated  before  and  some  after  the  one  in  question,  but 
no  two  far  apart,  each  given  to  and  used  to  defraud  the  same  person  and 
each  acknowledged  before  the  defendant  who  received  the  proceeds  of 
the  fraud  in  each  case,  the  probability  that  the  mortgagor  in  question 
was  a  myth  was  greatly  strengthened.  The  probative  force  of  such 
evidence  bore  logically  on  the  question  whether  the  defendant  knew 
that  James  Cahill  was  a  myth,  and  with  cumulative  power  in  proportion 
to  the  number  of  instances,  tended  to  exclude  the  possibility  of  mistake 
on  his  part  in  that  regard.  It  also  tended  to  show  his  intention  to  make 
a  false  certificate. 

The  suggestion  that  evidence  could  not  be  received  to  show  that  the 
same  man  picked  the  pocket  of  the  same  person  on  several  successive 
occasions  near  together  does  not  apply  to  this  case,  because  the  pickpocket 
knows  when  he  steals.  There  can  be  no  mistake  about  it;  whereas  here 
there  may  have  been  a  mistake.  James  Cahill  may  not  have  been  a 
myth.  Some  one  may  have  assumed  to  be  James  Cahill  and  may  have 
convinced  the  defendant  that  he  bore  that  name  and  was  in  fact  the 
mortgagor,  so  that  while  the  certificate  was  false  the  defendant  may 
not  have  known  it  was  false.  The  people  did  not  know  how  much 
evidence  might  be  presented  by  him  tending  to  show  that  he  was 
mistaken,  and  the  way  was  open  to  the  prosecution  to  reduce  the 
possibility  of  mistake  to  a  minimum  by  proving  eight  similar  and 
connected  transactions,  each  of  which  as  well  as  the  one  in  question  was 
part  of  a  general  scheme  to  defraud  Mrs.  Barry  by  means  of  spurious 


82      *  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  48 

mortgages  certified  by  the  defendant  in  the  same  way  and  under  similar 
circumstances. 

2.  The  evidence  also  bore  upon  intent,  not  merely  the  intention  of 
the  defendant  to  make  the  certificate,  but  with  a  special  weight  upon  his 
intention  to  commit  a  crime  in  making  it.  If  one  plan  ran  through  all 
the  transactions  and  was  worked  out  in  the  same  way,  at  nearly  the 
same  time,  by  the  same  means,  with  intent  to  defraud  the  same  person, 
with  the  same  effort  to  conceal  by  payment  of  interest,  and  a  common 
method,  agency,  and  purpose  welded  all  the  mortgages  together,  all  were 
competent  to  show  that  the  defendant  was  not  mistaken  in  doing  the 
single  act  for  which  he  was  tried,  because  nine  mistakes  of  the  same  kind, 
each  of  which  put  a  large  sum  of  money  in  his  pocket,  are  impossible  of 
belief. 

It  is  conceded  that,  where  knowledge  is  a  necessary  ingredient  of  a 
crime,  evidence  of  similar  acts  by  the  defendant  at  or  about  the  same 
time  is  admissible.  It  is  further  conceded  that  proof  of  scienter  was 
necessary  in  order  to  show  that  the  defendant  knew  that  any  person  who 
may  have  appeared  before  him  was  not  the  James  Cahill  described  in 
the  mortgage.  And,  finally,  it  is  conceded  that  if  the  eight  mortgages 
had  all  purported  to  have  been  executed  by  James  Cahill,  they  would 
have  been  competent  to  show  knowledge  and  improbability  of  deception 
or  mistake. 

It  seems  to  me  that  the  distinction  between  the  case  and  the  conces- 
sion is  too  narrow  for  practical  use  in  administering  the  law.  If  all  the 
mortgagors  in  the  eight  mortgages  were  myths,  the  mythical  names  they 
bore  were  of  slight  importance.  The  false  name  was  not  the  material 
fact,  but  the  false  man  and  the  furtive  intent  in  certifying  that  he  was 
a  true  man  and  the  mortgagor.  If  the  eight  mortgagors  were  myths, 
it  was  probable  that  the  ninth  was  also,  and  equally  probable  that  the 
defendant  knew  it,  whether  they  bore  the  same  name  or  different  names. 
The  theory  of  the  prosecution  was  not  that  because  the  defendant  forged 
on  eight  occasions  he  forged  on  the  ninth,  but  that  on  the  ninth  he  was 
not  mistaken,  deceived,  or  misled. 

Such  evidence  has  been  sanctioned  for  time  out  of  mind  in  cases 
involving  the  uttering  of  forged  instruments,  counterfeiting,  obtaining 
money  by  false  pretenses,  receiving  stolen  property,  setting  buildings 
on  fire  with  intent  to  defraud  insurance  companies,  sexual  crimes,  viola- 
tion of  the  excise  law,  gambling,  and  other  offenses.  People  v.  Molineux, 
168  N.  Y.  264;  People  v.  Harris,  136  N.  Y.  423;  People  v.  Doty,  175 
N.  Y.  164;  Rex  v.  Dossett,  2  C.  &  K.  307  [a7ite,  No.  44];  Rex  r.  Cooper, 
3  Cox  Cr.  547;  State  v.  Lapage,  57  N.  H.  345  [ante,  No.  46]. 

See,  also,  the  interesting  and  instructive  chapter  of  Prof.  Wigmore  on 
"Other  Offenses,  or  Similar  Acts,  as  Evidence  of  Knowledge,  Design  or 
Intent."  1  Wigmore  on  Evidence,  c.  12. 

The  defendant  relies  upon  a  case  which  I  regard  as  a  direct  authority 
against  him.     People  v.  Weaver,  177  N.  Y.  434.     The  indictment  in  that 


No,  48  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  83 

case  contained  two  counts,  the  first  for  forging  the  name  of  one  Davis 
as  indorser  on  a  promissory  note  made  by  the  defendant,  and  the  second 
for  uttering  the  note  so  indorsed  with  intent  to  defraud.  The  defendant 
testified  that  she  beheved  she  had  imphed  authority  from  Davis  to  indorse 
his  name  on  notes  made  by  herself.  Evidence  given  by  the  prosecution 
that  she  had  indorsed  the  name  of  Davis  on  another  note  made  by  herself 
was  held  competent  to  prove  scienter;  but  evidence  that  she  had  forged 
or  uttered  other  notes  which  did  not  purport  to  have  been  indorsed  by 
Davis,  and  which  had  no  connection  with  the  transaction  in  question, 
was  held  incompetent.  The  evidence  held  competent  in  that  case  was 
the  same  in  principle  as  the  evidence  involved  in  this,  while  that  held 
incompetent  was  clearly  so,  for  it  simply  tended  to  prove  an  independent 
crime,  which  had  no  connection  whatever  with  the  crime  charged.  As 
was  said  in  People  v.  Dolan,  186  N.  Y.  4,  9,  the  Weaver  Case  has  not 
changed  the  rule  upon  the  subject  as  laid  down  in  the  previous  cases. 

I  think  that  no  error  was  committed  by  receiving  in  evidence  the  eight 
mortgages,  under  the  restrictions  laid  down  by  the  trial  court,  and,  as 
no  other  question  requires  discussion,  the  judgment  should  be  affirmed. 

CuLLEN,  C.  J.  (dissenting).  On  the  trial  no  evidence  was  given  in 
behalf  of  the  defendant,  but  against  his  objection  and  exception  the 
prosecution  was  allowed  to  prove  the  certification  of  several  other  mort- 
gages purporting  to  be  made  by  persons  other  than  said  Cahill  to  said 
Caroline  Barry,  as  follows:  By  David  Teare,  dated  June  15,  1892,  for 
$3000;  by  John  MacKay,  dated  August  8,  1892,  for  S2500;  by  Frederick 
Hoffman,  dated  September  7,  1892,  for  S5000;  by  William  J.  Driggs, 
dated  April  21,  1893,  for  $6000;  by  Horace  J.  Tindall,  dated  June  15, 
1893,  for  $5000;  by  James  Gillen,  dated  August  5,  1893,  for  $5500;  by 
Robert  F.  Griff  en,  dated  December  9,  1893,  for  $3500;  and  by  Peter  V. 
Ross,  dated  March  27,  1894,  for  $2000.  As  to  these  evidence  was  given 
tending  to  show  that  the  mortgagors  named  in  them  were  fictitious 
persons  and  that  the  defendant  had  falsely  certified  to  the  acknowledg- 
ments thereof  and  had  embezzled  or  misappropriated  the  money  rep- 
resented by  them.  The  only  question  raised  on  this  appeal  is  the 
admissibility  of  these  last-named  securities  and  of  the  testimony  given 
concerning  them. 

The  general  rule  of  law  is  well  established.  Testimony  which  fairly 
tends  to  establish  the  commission  by  a  defendant  of  the  particular  crime 
for  which  he  is  on  trial  is  admissible  even  though  such  testimony  also 
tends  to  prove  that  the  defendant  was  guilty  of  1  or  20  other  crimes. 
But  no  testimony  which  does  not  tend  to  connect  the  defendant  with 
the  particular  crime  on  trial  is  admissible  on  the  theory  that,  because 
the  defendant  has  been  guilty  of  1  or  20  crimes,  even  of  the  same  char- 
acter, it  is  probable  that  he  committed  the  crime  charged.  WTiere 
knowledge  is  a  necessary  ingredient  of  the  crime,  evidence  of  similar 
acts  by  the  defendant  at  or  about  the  same  time  is  admissible. 

So  also  it  would  be  competent  and  necessary  to  prove  scienter  in 


84  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  48 

this  case.  But  we  should  not  hide  ourselves  behind  generalities.  We 
should  analyze  and  see  the  exact  scienter  that  could  in  any  view  of  the 
case  be  material.  The  defendant  could  be  convicted  by  the  jury  only 
upon  the  prosecution  satisfying  it  of  one  of  two  things,  either  that  Cahill 
was  a  myth  and  that  no  one  acknowledged  the  execution  of  the  mortgage 
before  the  defendant,  or  that,  if  any  one  did  acknowledge  the  instru- 
ment, it  was  not  the  person  described  in  it,  and  the  defendant  knew  it. 
As  to  the  first  of  these  no  possible  scienter  could  be  necessary,  for  if  no 
one  appeared  before  the  defendant  to  make  the  acknowledgment,  then 
his  certificate  was  not  only  necessarily  false,  but  equally  necessarily  he 
knew  it  was  false.  As  to  the  second  theory,  that  though  somebody  might 
have  acknowledged  the  instrument  before  the  defendant,  that  person 
was  not  the  person  described  in  the  mortgage,  proof  of  scienter  doubtless 
was  necessary;  that  is  to  say,  it  was  necessary  to  establish  that  the 
defendant  knew  that  the  person  who  appeared  before  him  was  not  the 
same  James  Cahill  described  in  the  mortgage.  On  either  of  these  theories 
other  mortgages  purporting  to  be  executed  by  James  Cahill  than  the 
one  specified  in  the  indictment  would  have  been  competent,  because 
they  would  have  tended  to  show  knowledge  by  the  defendant  of  the 
personality  of  Cahill  and  his  ability  to  produce  him  or  account  for  him 
unless  he  was  a  myth,  or  if  a  person  did  actually  appear  before  the  defend- 
ant and  acknowledge  the  instrument,  the  improbability  of  the  defendant 
being  deceived  as  to  the  identity  of  the  person  making  the  acknowledg- 
ment, and  the  more  numerous  such  instruments,  the  stronger  and  more 
convincing  would  be  the  evidence.  But  evidence  that  the  defendant 
certified  to  false  acknowledgments  purporting  to  be  made  at  other  times 
and  by  other  parties  would  not  in  any  manner  tend  to  establish  either 
that  the  defendant  did  not  take  the  acknowledgment  of  any  one  to  the 
instrument  charged  in  the  indictment,  or  that  if  he  did  he  knew  that 
person  was  not  Cahill,  except  on  the  general  principle  that  a  man  who  had 
committed  one  crime  would  very  probably  commit  another.  I  do  not 
deny  the  probative  force  of  such  evidence  to  the  lay  mind  and  possibly 
to  all  minds.  If  we  know  of  a  theft  and  that  several  persons  have  had 
an  opportunity  to  commit  it,  if  we  also  know  that  one  of  such  persons 
has  been  a  thief,  we  would  very  naturally  suspect  him  of  the  crime.  But 
our  law  has  always  been  careful  to  exclude  evidence  of  that  character. 

I  have  already  said  that  we  should  not  be  misled  by  generalities. 
"Error  lurks  in  generalities."  Something  has  been  said  about  the 
necessity  of  proving  criminal  intent.  It  is  not  necessary  to  establish 
any  criminal  intent  in  this  case  other  than  to  do  the  act  made  criminal 
by  the  statute;  that  is  to  say,  to  knowingly  certify  falsely  to  the  acknowl- 
edgment. Nor  is  there  any  force  in  the  argument  that  the  defendant's 
acts  were  part  of  a  general  scheme  to  defraud.  Each  offense  was  complete 
in  itself.  They  were  no  more  parts  of  a  single  crime  than  might  be  said 
of  the  action  of  a  professional  thief  or  pickpocket  that  it  was  part  of  a 
general  scheme  to  take  the  money  of  any  one  from  whose  pockets  he 


Xo.  49  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  85 

could  successfully  extract  its  contents  and  whose  appearance  indicated 
sufficient  prosperity  to  make  the  booty  worth  the  risk  of  detection. 

It  is  not  necessary,  however,  to  rest  the  conclusion  which  I  have 
reached  on  principle  alone.  Authority  sustains  it.  I  insist  we  have 
decided  the  exact  question  in  the  case  of  People  v.  Weaver,  177  N.  Y. 
434,  447.  In  that  case  the  defendant  was  indicted  and  convicted  of 
having  forged  the  name  of  one  Martin  Davis  as  indorser  on  her  note. 
On  the  trial  of  the  action  she  claimed  that  she  believed  that  she  had 
Davis'  authority  to  indorse  her  own  note  in  his  name.  Other  notes 
negotiable  by  the  defendant  with  indorsements  claimed  to  have  been 
forged  by  her  were  put  in  evidence  by  the  prosecution.  One  of  these 
notes  purported  to  bear  the  indorsement  of  Davis;  the  others  that  of 
other  parties.  It  was  held:  "(1)  That  the  SoOOO  note,  purporting  to 
bear  the  indorsement  of  Davis,  was  competent  evidence  to  prove  scienter 
on  the  part  of  the  defendant.  (2)  That  it  was  error  to  allow  the  witness 
Davis  to  testify  or  refer  to  the  other  notes  alleged  to  be  forged  but  which 
did  not  purport  to  be  indorsed  by  Davis.  (3)  That  the  admission  in 
evidence  of  such  alleged  forged  notes  was  error."  For  this  error  the 
conviction  was  reversed. 

This  judgment  should  be  reversed,  and  a  new  trial  ordered. 

Haight,  Hiscock,  and  Chase,  JJ.,  concur  with  Vann,  J.  Willard 
Bartlett  and  Collin,  JJ.,  concur  with  Cullen,  C.  J. 

Judgment  of  conviction  affirmed. 


Sub-topic  C.    Conduct  as  Evidence  of  Character  in  Other  Cases 

49.    MORRIS  V.   EAST  HAVEN 

Supreme  Court  of  Errors  of  Connecticut.     1874 

41  Conn.  252 

Case,  for  an  injury  to  the  plaintiff's  intestate,  through  the  negligence 
of  the  defendants,  by  which  he  lost  his  life;  brought  to  the  Superior 
Court  in  New  Haven  County,  and  tried  to  the  jury,  on  the  general  issue, 
before  Pardee,  J. 

On  the  trial  the  plaintiff  claimed  to  have  proved  that  on  the  evening 
of  the  12th  of  November,  1871,  Adam  Lamb,  the  intestate,  with  his 
daughter,  started  from  Montowese,  in  North  Haven,  for  New  Haven, 
riding  in  a  business  wagon,  and  that  while  they  were  approaching  a 
bridge  in  East  Haven  the  horse  backed  over  the  embankment  on  the  east 
side  of  the  bridge,  at  a  place  where  there  was  no  railing,  and  they  were 
drowned  in  the  Quinnipiac  River. 

The  plaintiff,  for  the  purpose  of  proving  that  the  deceased  was  free 
from  negligence,  called  several  witnesses,  and  after  they  had  stated  that 
they  had  often  seen  him  drive  horses,  inquired  of  them  if  he  was  a  careful 
and  prudent  driver;    to  which  inquiry  the  defendant  objected  on  the 


86  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  49 

ground  that  it  was  irrelevant,  and  calling  for  the  expression  of  an  opinion, 
but  the  Court  overruled  the  objection  and  permitted  the  question  to  be 
put,  to  which  the  defendants  excepted.  The  jury  having  returned  a 
verdict  for  the  plaintiff,  the  defendants  moved  for  a  new  trial  for  error 
in  the  rulings  of  the  Court. 

C.  Ives  and  Doolittle,  in  support  of  the  motion.  Watrous,  with  whom 
was  Morris,  contra 

Park,  C.  J.  It  was  incumbent  upon  the  plaintiff  in  this  case  to 
prove,  as  in  all  other  cases  of  a  like  character,  that  on  the  occasion  com- 
plained of  his  intestate  exercised  reasonable  care  to  avoid  the  injury 
which  he  received.  This  he  attempted  to  do  by  means  of  witnesses  who 
had  on  other  occasions  seen  the  intestate  drive  horses,  and  who,  upon 
their  knowledge  thus  obtained,  testified  that  he  was  a  careful  and  prudent 
driver.  The  question  is,  whether  such  evidence  tends  legitimately  to 
prove  that  the  intestate  drove  his  horse  with  reasonable  care  on  the 
occasion  complained  of.  The  defendants  objected  to  the  admission  of 
this  evidence  upon  two  grounds ;  —  first,  that  the  manner  in  which  the 
intestate  drove  horses  on  other  occasions  had  no  relevancy  to  the  question 
how  he  drove  at  this  time.  .  .  . 

First,  then,  was  the  evidence  irrelevant?  All  that  the  witnesses 
could  say  was,  that  on  the  different  occasions  that  they  had  seen  the 
intestate  drive  horses,  he  drove  them  carefully  and  prudently.  Whether 
this  comes  up  to  the  standard  that  the  law  requires,  which  is  reasonable 
care  under  all  the  circumstances,  we  will  not  stop  to  inquire.  It  is 
obvious  that  there  are  many  degrees  of  care,  from  the  slightest  to  the 
greatest,  which  may  be  exercised.  Care  varies  in  different  cases,  and 
the  proper  degree  of  it  is  determined  by  the  danger  to  be  reasonably 
apprehended,  and  is  affected  by  the  character  of  the  horse  driven  and  by 
all  the  other  circumstances.  Every  case  has  of  course  its  peculiar  cir- 
cumstances, and  these  must  be  taken  into  consideration  in  determining 
whether  or  not  in  that  particular  case  reasonable  care  was  exercised. 
Hence,  what  would  be  reasonable  care  in  one  case  might  fall  far  short  of 
it  in  another,  and  consequently  the  question  whether  it  was  exercised 
in  one  case,  would  throw  no  light  upon  the  question  whether  it  was 
exercised  in  another.  We  think  it  clear  that,  where  the  question  is  how 
in  a  particular  case  a  man  managed  a  restive  horse  in  the  midst  of  danger 
and  difficulties,  nothing  could  be  gained  by  ascertaining  how  he  had 
driven  a  gentle  horse  upon  some  country  road,  where  no  danger  or  diffi- 
culties existed.  It  might  as  well  be  proved  that  a  party  was  negligent  on 
a  certain  occasion,  by  showing  that  he  had  been  negligent  on  other  occa- 
sions whether  other  parties  had  been  injured.  And,  furthermore,  in 
each  instance  that  either  of  the  witnesses  had  seen  the  intestate  driving 
a  horse,  there  might  be  made  a  question  whether  in  fact  care  was  exercised 
by  him,  involving  a  long  investigation,  thus  calling  the  minds  of  the 
jury  from  the  main  issue  in  the  case  to  the  examination  of  interminable 
collateral  questions.     We  think  the  first  ground  of  objection  taken  to  the 


No.  51  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  87 

evidence  was  well  founded.  .  .  .  We  think  the  evidence  should  have 
been  rejected;  and  we  advise  a  new  trial. 

In  this  opinion  the  other  judges  concurred;   except  Pardee,  J.,  who 
having  tried  the  case  in  the  Court  below,  did  not  sit. 


50.   FONDA  V.  ST.   PAUL  CITY  R.   CO. 

Supreme  Court  of  Minnesota.     1898 

71  Minn.  438;   74  A^.  W.  166 

[Printed  aiite,  as  No.  20] 

51.   McQUIGGAN  v.   LADD 

Supreme  Court  of  Vermont.     1906 

79  Vt.  90;  64  Atl.  503 

Exceptions  from  Chancery  Court,  Orange  County;  George  M. 
Powers,  Chancellor.  Action  by  James  McQuiggan  against  John  Ladd 
and  others.  There  was  a  verdict  and  judgment  for  defendants,  and 
plaintiff  brings  exceptions.  Reversed  and  remanded.  Argued  before 
RowELL,  C.  J.,  and  Tyler,  Munson,  Watson,  and  Miles,  JJ. 

Harvey,  Harvey  &  Harvey,  for  plaintiff.  Richard  A.  Hoar,  for 
defendants. 

Miles,  J.  This  is  an  action  for  an  assault  and  battery  against  John 
Ladd,  Daniel  Ladd,  and  Eugene  Spicer.  John  Ladd  and  Eugene  Spicer 
pleaded  the  general  issue.  Daniel  Ladd  pleaded  the  general  issue  and 
also  son  assault  demesne,  to  which  last  plea  the  plaintiff  replied  de  injuria. 
The  case  was  tried  by  jury  and  comes  to  this  Court  on  exceptions  to  the 
admission  of  certain  evidence,  and  to  the  charge  of  the  Court  upon 
the  matter  of  self-defense.  It  was  claimed  on  the  part  of  the  defend- 
ants, and  their  evidence  tended  to  show,  that  what  was  done  on  the 
occasion  complained  of  was  done  in  self-defense,  and  that  no  more  force 
was  used  by  Daniel  Ladd,  the  only  defendant  who  used  any  actual  force 
upon  the  plaintiff,  than  he  reasonably  believed  was  necessary  under  all 
the  circumstances.  The  defendants  further  claimed,  and  their  evidence 
tended  to  prove,  that  the  plaintiff  was  under  the  influence  of  intoxicating 
liquor  at  the  time  of  the  alleged  assault  and  battery,  which  Daniel  then 
detected,  and  that  Daniel  knew  at  that  time,  by  reputation  and  observa- 
tion, that  when  the  plaintiff  was  under  the  influence  of  intoxicating  liquor 
he  was  a  quarrelsome  and  dangerous  man.  ...  As  bearing  upon  the 
reasonableness  of  the  force  used  by  Daniel  in  repelling  the  claimed  assault 
of  the  plaintiff,  the  defendants  claimed  and  gave  evidence  tending  to 
prove  that  Daniel  knew  by  observation  and  reputation  at  the  time  of  the 
assault  that  the  plaintiff  when  under  the  influence  of  intoxicating  liquor, 


88  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  51 

was  a  quarrelsome  and  dangerous  man,  and  that  on  the  occasion  in  ques- 
tion the  plaintiff  was  under  the  influence  of  intoxicating  Hquor  which 
was  then  detected  by  Daniel,  and  that,  in  consequence  thereof,  and 
having  in  mind  what  he  knew  and  had  heard  of  the  plaintiff's  character 
under  such  circumstances,  he  was  afraid  of  him.  It  therefore  became 
important  for  the  defendant  to  show  that  the  plaintiff  was  under  the 
influence  of  intoxicating  liquor  at  the  time  of  the  alleged  assault,  and 
that  when  under  the  influence  of  intoxicating  liquor  he  was  a  quarrelsome 
and  dangerous  man,  or  was  reputed  to  be  such,  and  that  the  defendant 
Daniel  Ladd  had  knowledge  of  such  facts  or  report  at  the  time  of  the 
alleged  assault,  and  believed  them  to  be  true. 

The  plaintiff's  first  exception  is  to  the  admission  of  the  testimony  of 
Mrs.  Ladd,  Brown,  and  McCormick,  wherein  they  testify  that  they  had 
seen  the  plaintiff  on  different  occasions  under  the  influence  of  intoxi- 
cating liquor  at  times  previous  to  the  assault  in  question,  and  that  on 
those  occasions  he  was  cross  and  ugly,  as  stated  above.  The  plaintiff 
urges  that  this  was  error,  because  it  was  an  attempt  to  prove  character 
by  specific  instances,  and  he  cites  numerous  authorities  outside  of  this 
State  in  support  of  his  contention,  and  two  cases  from  this  State,  some 
of  which  support  his  contention  and  many  of  which  do  not.  Among 
those  cases  which  do  not  support  his  claim  are  the  two  cases  cited  from 
our  own  State,  and  these  cases  illustrate  the  error  into  which  the  pro- 
fession are  liable  to  fall  if  distinctions  are  not  carefully  observed. 

The  word  "character"  has  an  objective  as  well  as  a  subjective 
meaning,  which  is  quite  distinct.  As  applied  to  man,  objective  character 
is  his  actual  character.  Subjective  character  is  such  character  as  he 
possesses  in  the  minds  of  others,  and  is  the  aggregate  or  abstract  of  other 
persons'  opinions  of  him.  Powers  v.  Leach,  26  Vt.  270-278.  In  cases 
of  impeachment,  where  the  question  of  character  most  frequently  arises, 
the  subjective  character  is  the  only  one  involved ;  for  the  law  is  settled 
that  to  create  impeachment  one  must  have  been  so  untruthful  as  to 
create  a  reputation  in  the  community  where  he  resides,  and  hence  only 
general  reputation  is  admissible  to  establish  it.  But  in  a  case  like  the 
one  at  bar,  where  the  actions  of  a  third  person  are  to  be  affected  by  a 
knowledge  of  another's  character,  not  only  may  the  subjective  character 
be  involved,  but  the  objective  may  be  as  well,  for  the  action  of  one, 
influenced  by  the  character  of  another,  is  affected  to  the  same  extent 
by  a  belief  in  the  truth  of  general  report  as  it  is  by  a  knowledge  of  the 
fact;  because  in  either  case  he  believes  he  knows  the  fact,  and  it  is  that 
belief  which  is  important. 

This  principle  is  not  new.  It  was  sanctioned  in  Harrison  v.  Harrison, 
43  Vt.  417-424,  a  case  cited  by  the  plaintiff.  .  .  .  The  admissibility  of 
evidence  tending  to  show  objective  character  or  disposition  is  also 
sanctioned  in  State  v.  Meader,  47  Vt.  78-81,  wherein  the  rule  laid  down 
in  Harrison  v.  Harrison,  supra,  is  approved.  The  defendant  in  that  case 
offered  to  show  that  the  person  claimed  to  have  been  assaulted,  was  a 


No.  51  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  89 

quarrelsome,  fractious  man,  which  was  excluded,  because  the  offer  was 
not  accompanied  by  the  further  offer  to  show  that  the  defendant  had 
knowledge  of  that  fact  at  the  time  of  the  alleged  assault,  and  this  Court 
sustained  the  ruling  of  the  Court  below;  but  the  opinion  clearly  indicates 
that,  had  the  offer  contained  a  statement  of  knowledge  on  the  part  of  the 
defendant,  the  evidence  would  have  been  admissible.  .  .  . 

We  are  not  unmindful  of  the  fact  that  cases  can  be  found  outside  of 
this  State  somewhat  in  conflict  with  the  views  above  expressed;  but  the 
admissibility  of  such  evidence  is  so  well  settled  in  our  own  jurisdiction 
and  upon  such  well-grounded  reasons  that  we  do  not  feel  inclined  to 
depart  from  former  holdings  of  this  Court,  and  we  think  that  the  tendency 
of  the  Courts  is  to  extend  the  rule  governing  the  reception  of  specific 
instances  in  the  proof  of  character,  upon  the  idea  expressed  by  Mr. 
Wigmore  in  volume  I,  §  198,  of  his  excellent  work  on  Evidence,  wherein 
he  says:   "There  is  no  substantial  reason  against  it." 

From  the  foregoing  conclusions,  it  follows  that  it  was  admissible  for 
the  defendants  to  show  what  was  observed  as  to  the  character  of  the 
plaintiff,  as  to  being  cross  and  ugly  when  under  the  influence  of  intoxicat- 
ing liquor  at  a  time  previous  to  the  alleged  assault.  And,  in  order  to 
show  that,  it  was  necessary  to  show  that  he  was  under  the  influence  of 
intoxicating  liquor  on  those  occasions.  And,  as  the  case  tends  to  show 
that  the  defendant  Daniel  knew  of  those  traits  of  character  at  the  time 
of  the  alleged  assault  and  battery,  it  was  not  necessary  that  every  occa- 
sion observed,  which  went  to  make  up  and  establish  the  existence  of 
those  traits  of  character,  should  be  brought  to  the  knowledge  of  the 
defendant  in  all  their  details.  It  was  enough  that  he  knew  that  such 
traits  of  character  existed,  communicated  to  him  by  the  witnesses  who 
testified  respecting  them  or  coming  to  him  from  other  sources.  The 
evidence  objected  to  was  for  the  jury  to  say  whether  such  objective 
character  existed  as  the  defendant's  evidence  tended  to  show.  The 
plaintiff's  first  exception,  therefore,  was  not  well  taken.  .  .  . 

The  plaintiff's  fourteenth  exception  is  to  the  refusal  of  the  Court  to 
charge  as  requested  and  to  the  charge  as  made  upon  that  point.  With- 
out deciding  whether  there  was  or  was  not  error  in  the  Court's  omission 
to  charge  in  the  language  of  the  request,  we  hold  that  there  was  error  in 
the  charge  as  made.  ...  As  the  result  of  our  decision  sends  the  case 
back  to  the  County  Court  for  another  trial,  we  have  considered  all  the 
exceptions  raised  on  the  former  trial,  notwithstanding  that  the  case 
could  have  been  disposed  of  upon  the  fourteenth  alone. 

Judgment  reversed,  and  cause  remanded. 


90  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  52 

52.   STATE  V.   GREENE 

Supreme  Court  of  North  Carolina.     1910 

152  N.  C.  835;  68  S.  E.  16 

Appeal  from  Superior  Court,  Mitchell  County;  Councill,  Judge. 
Woodfin  Greene  was  convicted  of  murder  in  the  second  degree,  and  he 
appeals.  Affirmed.  Indictment  for  murder  tried  before  Councill,  J., 
and  a  jury  at  November  term,  1909,  of  the  Superior  Court  of  Mitchell 
County.  The  prisoner  was  con\4cted  of  murder  in  the  second  degree, 
and  from  the  judgment  of  the  Court  appealed. 

The  evidence  tended  to  prove  that  the  prisoner  shot  and  killed  Ed.  L. 
Young  on  September  9,  1909,  about  12  o'clock  in  the  day;  that  prisoner 
entered  the  house  of  the  deceased  while  he  was  asleep,  shot  twice  in  the 
ceiling  of  the  room,  presumably  to  awaken  the  deceased,  and  then  shot 
him  four  times.  Death  resulted  in  a  few  minutes.  As  prisoner  walked 
out  of  the  house  he  was  asked  what  was  the  matter,  and  he  replied  that 
"  there  was  a  man  hurt  and  hurt  bad,  and  that  I  had  better  come  and  take 
care  of  him."  The  prisoner,  not  having  offered  himself  as  a  witness, 
rested  his  defense  upon  the  plea  of  insanity  —  transitory  insanity;  that 
this  condition  of  irresponsibility  was  occasioned  by  a  statement  to  the 
prisoner  by  his  wife  a  few  hours  before  the  homicide.  The  prisoner  was 
engaged  in  working  at  night  at,  in,  or  about  the  Cranberry  mines,  and 
on  the  morning  of  the  9th  of  September,  about  6  o'clock,  he  came  to  his 
home,  met  the  deceased  at  his  gate,  and  walked  with  him  to  his  home,  a 
distance  of  about  300  yards;  in  a  short  time  prisoner's  wife  came  for 
him;  they  went  to  their  house,  ate  breakfast,  and,  as  was  his  custom, 
prisoner  went  to  his  bedroom  to  sleep.  In  a  short  time  prisoner's  wife 
came  in  the  room,  lay  down  on  another  bed,  and,  thinking  the  prisoner 
asleep,  began  to  cry.  The  prisoner  was  not  asleep,  but  upon  his  inquiry 
as  to  what  was  the  matter  the  wife  narrated  this  occurrence:  "Fin,  Ed. 
Young  made  me  drunk  last  night  and  overpowered  me,  and  threw  me 
back  on  the  bed,  and  in  spite  of  my  efforts  and  my  telling  him  to  leave, 
he  accomplished  his  purpose."  "Young  said  to  me,  'God  damn  you,  I 
have  fixed  you.'"  That  the  prisoner  jumped  up  in  the  floor,  wringing 
his  hands  and  saying,  "I  want  my  pistol,  I  want  my  pistol!  My  life  is 
wrecked!  My  home  is  ruined. "  That  she  refused  to  give  him  the  pistol, 
having  hidden  it;  that  prisoner  demanded  it  and  struck  her;  that  she 
ran  to  her  sister's,  and  then  to  her  father's ;  that  prisoner  followed  her 
demanding  his  pistol ;  that  she  had  a  difficulty  with  him,  and  threw  an 
ax  at  him;  that  finally  she  told  him  where  his  pistol  was,  when  he  left 
her,  and  the  next  thing  she  heard  was  that  he  had  killed  deceased.  There 
was  much  evidence  of  prisoner's  excited  condition,  and  his  wild  looks 
and  his  open  threats  to  kill  Young.  There  was  evidence  on  the  part  of 
the  State  tending  to  prove  that  prisoner  had  been  drinking  that  morning; 


No.  52  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  91 

that  he  said  he  was  two-thirds  drunk,  and  that  when  drunk  he  was  very 
rowdy.  The  testimony  of  prisoner's  unusual  condition  came  from  non- 
expert witnesses  —  his  kinpeople  who  saw  him  that  day  before  the  homi- 
cide. Immediately  after  the  homicide  the  insanity  seems  to  have  passed 
away  as  he  was  apparently  as  rational  as  ever,  and  escaped  to  the  woods, 
where  he  remained  for  a  day,  when  he  surrendered  himself.  There  was 
evidence  of  previous  threats  made  by  prisoner  against  deceased;  and  there 
was  also  evidence  of  very  friendly  relations  between  them.  Both  men 
drank  whisky  to  excess.  The  contest  between  the  State  and  the  prisoner 
was  over  the  defense  of  insanity,  and  both  State  and  prisoner  offered 
much  evidence  tending  to  support  the  one  theory  or  the  other. 

Chas.  E.  Greene  and  S.  J.  Ervin,  for  appellant.  The  Attorney  Gen- 
eral, Geo.  L.  Jones,  and  W.  C.  Newland,  for  the  State. 

Manning,  J.  .  .  .  The  errors  assigned  by  the  prisoner  are  directed 
solely  to  the  admission  of  incompetent,  and  the  rejection  of  competent, 
testimony.  The  trial  judge  permitted  the  prisoner's  wife  to  rehearse  to 
the  jury,  in  minute  detail,  everything  she  told  the  prisoner  about  the 
conduct  of  the  deceased  the  night  before.  The  prisoner  offered  to  prove 
as  a  substantive  and  independent  fact  the  truth  of  the  narrative  by  the 
wjfe,  but  this  was  excluded  by  his  honor. 

His  honor's  ruling  is,  we  think,  clearly  sustained  by  the  decision  of 
this  Court  in  State  v.  Banner,  149  N.  C.  519,  63  S.  E.  84,  in  which  this 
Court  held: 

"When  the  defense  is  a  plea  of  insanity  and  not  self-defense,  a  witness  may 
not  testify,  as  tending  to  show  self-defense,  that  he  had  seen  deceased  armed,  on 
a  dark  night,  at  a  place  where  the  prisoner  would  likely  pass,  some  two  weeks 
before  the  occurrence,  though  he  may  testify  that  he  had  told  the  prisoner  con- 
cerning it,  and  what  the  prisoner  said  and  did  in  consequence,  only  so  far  as  it 
may  affect  the  question  of  insanity,  and  for  that  purpose  alone." 

In  People  v.  Wood,  126  N.  Y.  249,  27  N.  E.  362,  Judge  Peckham,  in  a 
learned  and  elaborate  opinion,  held  that  it  was  competent  for  a  defendant 
to  offer  evidence  of  communication  made  to  him  (in  that  case  the  com- 
munications offered  were  of  a  similar  character  to  those  in  this  case), 
''for  the  purpose  of  showing  an  adequate  cause  for  the  state  of  mind 
existing  subsequent  to  the  communication."  This  being  the  sole  purpose 
of  the  evidence,  the  truth  or  falsity  of  the  communication  is  not  material, 
and  it  is  not  competent  to  inquire  into  it.  It  is,  of  course,  competent  to 
challenge  the  fact  of  communication,  but  not  its  truth  or  falsity. 

In  the  present  case,  his  honor  permitted  the  prisoner  to  show  in  minute 
detail  the  communication  to  him  by  his  wife,  and  his  conduct,  appearance, 
utterances,  and  acts  immediately  thereafter  and  to  the  time  of  the 
homicide.  This  was,  in  our  opinion,  as  far  as  it  was  permissible  to  go. 
There  was  no  evidence  of  any  disorder  of  the  brain  prior  to  the  morning 
of  September  9th,  the  day  of  the  homicide;  the  evidence  tended  to  show 
the  prisoner  to  be  a  man  possessed  of  an  ordinarily  normal  mind,  except 


92  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  52 

occasional  outbursts  when  intoxicated.  In  a  few  hours  after  the  homicide 
the  prisoner's  mind  seemed  to  recover  its  balance  and  to  resume  its 
normal  condition.  It  was  the  contention  of  the  prisoner  that  the  sudden 
"  brain  storm,"  which  was  so  violent  as  to  dethrone  reason  and  make  him 
irresponsible  for  his  acts,  was  caused  by  his  wife's  communication.  Of 
its  truth  or  falsity  he  could  know  nothing,  and  could  not  have  been 
influenced  by  such  knowledge.  The  theory  of  the  defense  and  its  plea 
is  that  he  believed  it  so  strongly  and  so  absolutely  that  the  prisoner  was 
made  insane.  If  the  purpose  was  to  show  the  character  of  the  deceased 
for  violence,  it  was  inadmissible  because  it  did  not  fall  within  one  of  the 
exceptions  to  the  rule  settled  in  this  State  for  admitting  such  evidence. 
State  V.  Banner,  supra;  State  v.  Turpin,  77  N.  C.  473,  24  Am.  Rep.  455; 
State  V.  Byrd,  121  N.  C.  688,  28  S.  E.  353;  State  v.  Mclver,  125  N.  C. 
646,  34  S.  E.  439.  In  our  opinion,  therefore,  the  offered  testimony  of  the 
wife  that  the  occurrence  communicated  by  her  to  the  prisoner,  her 
husband,  was  true  as  an  independent  and  substantive  fact  was  properly 
excluded.    .    .    .  Judgment  affirmed. 

53.   NOYES  V.   BOSTON  &  MAINE   R.   CO. 

Supreme  Judicial  Court  of  Massachusetts.     1912 

213  Mass.  — ;  99  N.  E.  457 

Exceptions  from  Supreme  Judicial  Court,  Worcester  County. 

Action  by  Emma  L.  Noyes  against  the  Boston  &  Maine  Railroad. 
Judgment  for  plaintiff,  and  defendant  excepts.     Exceptions  overruled. 

This  was  an  action  of  tort  brought  to  recover  damages  for  the  loss  of 
a  barn,  and  the  personal  property  contained  therein,  by  fire  communi- 
cated by  a  locomotive  engine  of  the  defendant  on  August  12,  1908.  The 
evidence  introduced  by  the  plaintiff  on  the  issue  of  the  cause  of  the  fire 
included  the  testimony  of  several  reputable  witnesses;  the  following 
was  a  representative  one:  Miss  Anna  Blodgett  testified  that  she  was 
out  on  the  porch  and  saw  a  train  go  by  the  Noyes  place  towards  Wor- 
cester five  or  ten  minutes  before  the  fire;  that  she  watched  it  for  quite 
a  way;  that  she  saw  a  lot  of  sparks  thrown  by  the  engine  and  called  to 
her  sister,  who  was  with  her,  "see  the  sparks";  that  soon  after  she  saw  a 
bright  spot  and  called  to  her  father  to  "see  the  red  moon";  that  this 
bright  spot  turned  out  to  be  a  small  spot  of  fire  on  the  roof  of  the  Noyes 
barn;  and  that  she  had  often  noticed  engines  throw  sparks  high  up  in 
the  air  while  passing  the  barn.  This  evidence  was  also  corroborated 
by  the  witness's  sister. 

The  defendant,  for  the  purpose  of  showing  other  possible  or  probable 
causes  for  the  fire,  made  the  following  offer  of  proof:  Emma  L.  Noyes, 
the  plaintiff  in  the  case,  had  a  son,  Leroy  Noyes,  who  was  at  home 
on  the  day  when  the  fire  which  destroyed  the  Noyes  barn  took  place,  and 
the  defendant  offers  to  show  was  there  at  the  time  of  the  fire.     And  the 


No.  53  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  93 

defendant  further  offers  evidence  tending  to  show  that  when  he  was  a 
young  boy  he  liad  a  strong  incHnation  to  set  fires,  and  did  set  several 
fires;  that  in  the  fall  of  1908  several  fires  occurred  within  a  radius  of  a 
mile  from  the  Noyes  homestead.  The  evidence  offered  in  regard  to 
these  fires  would  tend  to  show  that  this  boy,  Leroy,  was  very  near  the 
place  where  the  fires  took  place  at  the  time  when  the  fires  were  discovered. 
He  was  arrested  by  a  constable,  and  admitted  to  the  constable  that  he 
set  several  of  these  fires.  The  District  Court  of  Clinton  ordered  an 
examination  by  two  physicians,  who  committed  him  to  the  hospital  on 
the  ground  that  he  had  a  mania  for  setting  fires.  Said  admission  to  the 
constable  did  not  in  any  way  refer  to  the  fire  mentioned  in  the  plaintiff's 
declaration. 

The  plaintiff  objected  to  the  admission  of  any  such  evidence,  and 
the  Court  sustained  the  objections,  to  which  ruling  the  defendant  ex- 
cepted. 

Charles  M.  Thayer  and  Alexander  H.  Bullock,  both  of  Worcester,  for 
the  defendant.  In  the  absence  of  direct  evidence  it  was  clearly  com- 
petent for  the  plaintiff  to  endeavor  to  show  by  circumstantial  evidence 
the  cause  of  the  fire.  If  such  evidence  was  competent  for  the  plaintiff 
the  only  way  it  could  be  controlled  by  the  defendant,  in  the  absence  of 
direct  evidence,  was  by  evidence  tending  to  show  that  the  fire  may 
have  originated  in  other  ways,  and  such  evidence  has  been  repeatedly 
admitted. 

If  the  foregoing  principles  are  correct  the  only  questions  open  are, 
1.  Whether  the  fact  that  there  was  on  the  premises,  at  the  time  of  the 
fire,  an  uncontrolled  fire  setting  machine,  was  one  from  which  the  jury 
might  properly  infer  that  the  fire  came  from  such  a  source.  2.  Whether 
the  evidence  offered  was  of  such  a  nature  that  even  though  relevant 
its  admission  would  complicate  to  an  unwarranted  extent  the  trial  of 
the  issue. 

1.  On  the  first  point  the  defendant  maintains  that  from  the  presence 
of  such  a  person  the  jurors  might  as  logically  draw  inferences  which  would 
rebut  the  plaintiff's  theory  as  from  the  presence  of  a  commodity,  like 
cotton  seed,  which  might  ignite  from  spontaneous  combustion,  and  the 
right  to  show  the  presence  of  such  a  commodity  in  cases  of  this  char- 
acter has  never  been  questioned.  In  the  absence  of  direct  evidence, 
the  most  that  can  be  said  about  the  locomotive,  the  cotton  seed,  or  the 
insane  man,  is  that  the  presence  of  either  one  may  furnish  a  satisfactory 
explanation  of  the  fire.  Anything  which  would  give  the  jury  the  true 
nature  of  the  dangerous  element  must  be  relevant.  It  is  important  to 
show,  as  far  as  possible,  the  mechanism  of  this  boy,  with  an  established 
mania,  in  order  that  the  jury  may  judge  of  the  strength  and  activit}^  of 
his  mania,  its  transient  or  permanent  qualities.  And  it  was  competent 
to  show  this  by  evidence  of  what  the  boy  had  done  previously.  And 
if  the  acts  thus  shown  had  a  tendency  to  prove  a  mental  condition  not, 
in  its  nature,  temporary  or  transient,  the  jury  might  assume,  in  the 


94  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  53 

absence  of  testimony  to  the  contrary,  that  the  condition  was  the  same 
at  the  time  of  the  fire  for  which  damage  is  here  claimed. 

2.  On  the  second  question,  the  evidence  offered  divides  itself  into 
two  parts:  the  first  showing  that  a  man,  with  a  mania  for  setting  fires, 
was  on  the  premises  at  the  time  the  fire  was  discovered;  the  second, 
showing  certain  acts  which  this  man  had  done.  The  first  proposition 
was  not  dependent  on  the  second,  and  its  proof  could  not  have  compli- 
cated the  trial  by  diverting  it  into  side  issues.  It  should,  therefore, 
have  been  admitted,  whether  the  other  part  of  the  offer  was  admitted 
or  excluded.  It  is  further  submitted  that  the  evidence  of  the  acts  done 
was  not  properly  excluded,  if  the  ground  for  such  ruling  was  the  com- 
plication of  the  trial.  The  inclination  of  his  boyhood  must  have  been 
proved  by  the  statement  of  some  person  who  knew  him  at  that  time, 
and  presents  none  of  the  features  of  evidence  which  would  divert  the 
trial  from  the  main  issue.  The  proof  of  the  later  fires  could  not  require 
the  attorney  for  the  plaintiff,  in  order  to  protect  the  interests  of  his 
client,  to  investigate  the  circumstances  of  each  fire;  for  it  is  clear  that 
from  the  fact  that  a  man  sets  several  fires  in  a  short  period  of  time,  one 
of  two  conclusions  must  follow,  either  he  has  a  mania  for  setting  fires 
or  he  is  a  criminal. 

If  the  trial  judge  had  the  right  to  exercise  his  discretion  in  regard  to 
this  evidence,  it  was  not  an  absolute  discretion,  and  can  and  should  be 
revised  by  this  Court. 

Webster  Thayer,  Geo.  A.  Drury,  Fred  A.  Walker,  all  of  Worcester,  for 
the  plaintiff. 

1.  Even  if  the  defendant  had  offered  legal  evidence  tending  to  prove 
that  the  young  man  had  set  other  fires  in  the  vicinit}^  the  Court  would 
have  been  obliged  to  exclude  such  evidence.  The  other  occurrences 
were  "res  inter  alios."  The  Court  was  not  called  upon  to  try  in  this 
case  the  question  whether  previous  fires  had  occurred,  whether  they  were 
incendiary,  or  whether  other  fires  were  set  by  Leroy  or  by  the  defendant, 
or  by  some  other  person.  The  questions  are  collateral  and  immaterial 
and  would  not  aid  the  jury.  The  only  effect  of  such  evidence  would  be 
to  prejudice  the  jury,  and  to  compel  the  plaintiff  to  try  out  various 
other  issues. 

2.  The  Court,  at  least  in  its  discretion,  could  rightly  exclude  the 
evidence  regarding  the  inclination  of  the  boy  as  too  remote  both  in  time 
and  in  fact. 

3.  An  inclination  to  set  fires  when  young  has  no  tendency  to  prove 
that  in  later  years  a  person  did  climb  upon  a  roof  to  set  a  particular 
fire  for  which  no  motive  is  shown.  Even  if  the  son  at  other  times  set 
fires,  that  fact  would  have  no  tendency  to  prove  that  he  set  this  fire  at 
this  time  and  that  defendant  did  not  set  it. 

4.  There  was  no  e^•idence  to  show  that  the  fires  mentioned  in  the 
offer  were  of  incendiary  origin  (unless  the  confession  of  Leroy  is  evi- 
dence), or  upon  buildings,  or  similar  in  any  respect  to  this  fire,  and  no 


No.  53  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  95 

claim  can  be  made  that  the  fires  were  a  part  of  a  common  scheme  or 
occasioned  by  any  peculiar  device  or  method.  Further,  the  alleged 
admission  did  not  in  any  way  refer  to  this  fire. 

5.  The  admission  of  proposed  evidence  would  have  compelled  the 
plaintiff  to  explain  all  the  circumstances  of  the  other  fires.  It  might 
have  created  an  issue  regarding  each  fire.  Not  only  would  the  where" 
abouts  of  the  son  at  the  time  of  the  other  fires  be  in  issue,  but  the  place, 
character,  means,  motives,  circumstances,  times  and  causes  would  be 
involved.  If  an  inclination  to  set  fires  could  be  shown  and  could  have 
any  bearing,  the  limitations  of  that  inclination  would  have  to  be  shown. 
The  evidence  offered  would  not  only  have  created  various  collateral  issues 
to  the  confusion  of  the  real  issue,  but  would  have  prejudiced  the  jury. 

Braley,  J.  —  The  plaintiff  seeks  under  St.  1906,  pt.  2,  §  247,  to  recover 
damages  for  the  destruction  of  a  barn  with  its  contents,  alleged  to  have 
been  caused  by  fire  directly  communicated  by  the  locomotive  engine  of 
the  defendant.  But,  if  the  loss  is  unquestioned,  the  parties  were  at  issue 
as  to  the  origin  of  the  fire.  The  defendant  could  show,  by  relevant  testi- 
mony, that  it  originated  from  other  independent  causes;  even  if  the 
circumstantial  evidence  introduced  by  the  plaintiff  seems  to  have  been 
clear  and  abundant,  that  the  ignition  of  the  roof,  from  which  apparently 
the  fire  spread  through  the  building,  must  have  been  from  sparks  emitted 
by  the  engine.     Perley  v.  Eastern  Railroad  Co.,  98  Mass.  414. 

The  defendant  contends  that,  if  its  offer  of  proof  had  been  admitted  in 
evidence,  the  jury  would  have  been  warranted  in  finding  the  fire  had  been 
set  by  a  son  of  the  plaintiff,  or  at  least  sufficient  doubt  would  have  been 
raised  as  to  its  liability  to  have  overcome  the  burden  of  proof.  But  in 
the  absence  of  any  direct  evidence  connecting  him  with  the  occurrence, 
the  defendant  endeavored  to  show,  from  incidents  in  his  early  life, 
that  he  had  acquired  a  disposition  which  had  ripened  into  a  habit  to 
set  incendiary  fires  whenever  the  opportunity  offered.  A  habit  of  this 
character  is  abnormal,  and  it  may  be  criminal.  The  defendant  was 
required  to  satisfy  the  presiding  judge  that  the  course  of  conduct  on  which 
it  sought  to  predicate  the  commission  of  an  affirmative  wrongful  act  of 
the  character  claimed  had  become  so  continuous  and  systematic  that  the 
setting  of  the  fire  in  question  would  follow  as  a  reasonable  and  probable 
consequence.  Shailer  v.  Bumstead,  99  Mass.  112;  Thayer  v.  Thayer,  101 
Mass.  Ill,  113,  114;  Com.  v.  Abbott,  130  Mass.  472,  45'3;  Hathaway  v. 
Tinkham,  148  Mass.  85;  Lane  v.  Moore,  151  Mass.  87,  90;  Edwards  v. 
Worcester,  172  Mass.  104;  Wigmore  on  Evidence,  §§92,  376.  If  as  a 
young  boy  he  exhibited  a  strong  inclination  to  set  fires,  and  while  still 
a  youth  did  in  several  instances  set  them,  proof  of  these  instances  would 
not  raise  a  reasonable  presumption  that  he  had  destroyed  his  mother's 
property  wantonly,  even  if  at  the  time  he  is  shown  to  have  been  living  at 
home.  It  would  not  follow  from  common  experience,  that  because  on 
some  occasions  in  the  past  he  may  have  done  a  particular  thing  in  a 
particular  manner,  that  upon  another  and  different  occasion  he  would 


96  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  53 

act  in  the  same  way.  Robinson  v.  Fitchburg  &  Worcester  Railroad,  7 
Gray  92,  95;  Lewis  v.  Smith,  107  Mass.  334;  Peverly  v.  Boston,  136 
Mass.  366.  It  is  because  of  this  variability  and  uncertainty  in  the 
manifestations  of  individual  conduct,  even  where  the  circumstances  may 
be  more  or  less  uniform,  that  while  an  employee's  general  reputation  for 
incompetency  in  the  performance  of  work  for  which  he  has  been  engaged 
is  admissible,  if  the  employer  knew  or  by  the  exercise  of  reasonable 
diligence  should  have  known  of  it,  single  instances  of  carelessness  are 
inadmissible.  Cooney  v.  Commonwealth  Avenue  Street  Railway,  196 
Mass.  11,  14,  and  cases  cited.  The  defendant,  moreover,  if  it  had  been 
permitted  to  litigate  the  likelihood  of  his  conduct  by  going  at  large  into 
proof  of  alleged  instances  of  previous  fires,  would  have  presented  collateral 
issues  which  would  have  seriously  embarrassed  and  prejudiced  the  plain- 
tiff, and  tended  to  confuse  and  mislead  the  jury.  Emerson  v.  Lowell 
Gaslight  Co.,  3  Allen  410,  417;  .  .  .  Com.  v.  Hudson,  185  Mass.  402.  The 
subsequent  incendiary  fires  for  which  the  son  may  have  been  responsible, 
as  well  as  his  admission  of  having  set  some  of  them,  were  occurrences 
having  no  connection  with  the  plaintiff's  cause  of  action.  Com.  v. 
Campbell,  7  Allen  541.  .  .  . 

We  are  therefore  of  opinion  that  the  judge  in  his  discretion  properly 
excluded  the  offer  of  proof.  Exceptions  overruled. 

54.   CLARKE  v.   PERIAM 
High  Court  of  Chancery.     1741 
2  Atk.  333 

This  was  a  bill  brought  by  the  plaintiff,  to  establish  a  bond  for  secur- 
ing an  annuity  of  sixty  pounds  per  annum  given  her  as  a  "praemium 
pudicitiae";  the  defendant  by  a  cross-bill  insists  the  plaintiff  was  a  lewd 
woman  and  a  common  prostitute,  and  for  that  reason  was  not  entitled 
to  have  the  annuity  established,  and  therefore  prays  that  the  security 
may  be  delivered  up.  .  .  . 

The  counsel  for  the  defendant  offered  evidence  to  prove  the  plaintiff 
guilty  of  acts  of  lewdness  with  a  particular  person,  one  Mr.  Abingdon, 
before  she  was  acquainted  with  Periam.  An  objection  was  taken  by 
the  plaintiff's  counsel,  that  the  charge  in  the  cross-bill  is  only  that  Mrs. 
Clarke  was  a  lewd  woman  of  an  infamous  character,  and  that  the  bill 
does  not  require  any  answer  to  this,  and  therefore  the  defendant  in  the 
evidence  ought  to  confine  himself  to  a  general  character,  and  not  to 
particular  instances;  according  to  the  rule  of  law  upon  examining  to 
characters;  for  the  charge  here  is  so  loose  and  general,  that  it  was 
impossible  for  the  plaintiff  to  know  at  what  time  or  place,  or  with  what 
person,  they  intended  to  charge  her  with  acts  of  lewdness.  And  that, 
in  order  to  let  them  into  this  evidence,  they  ought  to  have  charged  that 
she  was  kept  by  the  person  they  pretend  to  have  had  criminal  conver- 


No.  54  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  97 

sation  with  her.  The  allegation  is  general,  that  she  is  a  lewd  woman, 
but  the  evidence  goes  to  particular  instances  of  prostituting  her  chastity. 
Mr.  Murray,  on  the  same  side,  argued,  that  they  ought  to  be  confined 
to  evidence  as  general  as  the  allegation;  in  every  case  at  law,  where  the 
character  of  a  person  is  called  in  question,  there  the  examination  must 
be  general;  and  goes  on  good  grounds,  because  they  will  not  suffer  wit- 
nesses to  come  upon  surprise,  with  particular  instances,  where  the  party 
is  not  prepared  to  answer.  .  .  . 

Mr.  Attorney  General  insisted,  in  support  of  the  propriety  of  this 
evidence:  ...  It  has  been  said  no  evidence  must  be  read  in  this  court, 
unless  the  nature  of  the  evidence  itself  is  put  into  issue.  Where  lewdness 
is  charged  upon  the  woman,  is  it  necessary  to  set  forth  at  what  particular 
tavern,  or  with  what  particular  gentleman,  she  has  been  guilty  of  lewd- 
ness? Besides,  this  would  be  attended  with  ill  consequences,  because 
it  would  lay  open  the  case  too  much,  and  put  the  adversary  party  upon 
their  guard,  and  give  them  an  opportunity  of  squaring  their  own  evidence, 
by  the  proofs  of  the  other  side.  In  cases  of  insanity,  the  court  never 
expect  particular  acts  to  be  charged,  and  yet  the  evidence  goes  to  par- 
ticular instances.  .  .  . 

Lord  Chancellor  Hardwicke.  —  The  original  bill  is  brought  to  have 
satisfaction  out  of  the  personal  estate  of  the  late  Mr.  Periam,  for  the 
bond.  The  cross-bill  is  brought  by  the  widow  of  Mr.  Periam,  and  is 
to  be  relieved  against  this  bond,  and  to  have  it  cancelled;  and  the  equity 
is  founded  upon  this,  that  it  was  given  by  Mr.  Periam  to  Mrs.  Clarke, 
"ex  turpi  causa,"  and  that  she  was  a  lewd  woman  of  an  infamous  char- 
acter, and  therefore  it  is  insisted  the  Court  should  relieve  against  it.  .  .  . 
The  question,  upon  which  this  cause  stood  over,  was  whether  the  deposi- 
tion of  one  Rogers,  taken  in  behalf  of  the  defendant  in  the  original  cause, 
ought  to  be  read;  it  is  an  attempt  to  prove  that  Mrs.  Clarke,  before  the 
time  of  Periam 's  giving  the  bond  to  her,  was  kept  by  a  particular  person, 
one  Mr.  Abingdon,  and  had  criminal  conversation  with  him.  The 
objection  is,  that  the  particular  facts  to  which  Rogers  is  examined  should 
have  been  put  in  issue  specially,  and  that  they  are  not  sufficiently  so  in 
this  cause.  As  to  the  nature  of  the  suits,  the  original  bill  is  brought  to 
have  satisfaction  out  of  the  personal  estate  of  the  late  Mr.  Periam,  for 
the  bond.  The  cross-bill  is  brought  by  the  widow  of  Mr.  Periam,  and 
is  to  be  relieved  against  this  bond,  and  to  have  it  cancelled;  and  the 
equity  is  founded  upon  this,  that  it  was  given  by  Mr.  Periam  to  Mrs. 
Clarke,  "ex  turpi  causa,"  and  that  she  was  a  lewd  woman  of  an  infamous 
character,  and  therefore  it  is  insisted  the  Court  should  relieve  against  it. 
The  counsel  for  the  plaintiff  in  the  original  bill  insist,  that  under  this 
allegation  in  the  cross-bill,  the  plaintiff  there  is  not  entitled  to  examine 
to  anything  but  her  character  in  general,  because  it  is  impossible  for 
Mrs.  Clarke  to  be  prepared  to  give  an  answer  to  the  particular  facts 
charged;  for  though  everybody  is  supposed  to  be  ready  to  support  a 
general  character,  yet  not  a  particular  fact. 


98  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  54 

But  I  am  of  opinion  the  present  case  differs  from  all  those  cases  relat- 
ing to  examinations  to  general  characters,  both  as  to  the  reason  of  the 
thing,  and  as  to  the  authorities.  .  .  . 

From  all  the  authorities  may  be  gathered  the  uniform  sense  in  those 
determinations,  that  it  was  sufficient  to  put  in  issue  a  general  charge  of 
lewdness,  and  that  under  this  you  may  give  particular  evidence;  and 
I  think  I  have  heard  it  laid  down  so  by  Sir  Joseph  Jekyll.  .  .  . 

Secondly,  as  to  the  reason  of  the  thing.  The  cases  urged  by  the 
plaintiff's  counsel  in  the  original  cause  relating  to  criminal  prosecutions, 
must  be  allowed  to  be  law;  for  in  examining  to  characters  you  can  only 
enter  into  general  facts.  ...  In  criminal  prosecutions  it  comes  in  only 
collaterally  and  incidentally  and  is  not  the  particular  thing  to  be  tried; 
and  when  that  is  the  case,  they  are  not  supposed  to  be  prepared  with 
evidence.  But  compare  this  wdth  cases  where  the  character  is  the  par- 
ticular issue  to  be  tried;  suppose  in  the  case  of  an  indictment  for  keeping 
a  common  bawdy-house,  without  charging  any  particular  fact;  though 
the  charge  is  general,  yet  at  the  trial  you  may  give  in  evndence  particular 
facts  and  the  particular  time  of  doing  them;  the  same  rule  as  to  keeping 
a  common  gaming-house.  This  is  the  practice  in  all  cases  where  the 
general  behavior  or  quality  or  circumstance  of  the  mind  is  in  issue;  as 
for  instance,  in  "non  compos  mentis,"  it  is  the  experience  of  every  day, 
that  you  give  particular  acts  of  madness  in  evidence,  and  not  general  only, 
that  he  is  insane;  so  where  you  charge  that  a  man  is  addicted  to  drinking, 
and  liable  to  be  imposed  upon,  you  are  not  confined  in  general  to  his  being 
a  drunkard,  but  particular  instances  are  allowed  to  be  given.  .  .  .  Where- 
ever  the  general  life  or  conversation  is  put  in  issue,  it  is  notice  to  the 
person  who  is  charged  that  she  should  be  prepared  to  take  off  the  weight 
of  that  evidence;  but  w^here  it  comes  in  collaterally  you  shall  be  confined 
to  general  evidence.  This  seems  to  me  to  be  the  distinction,  and  the 
grounds  of  it;  and  if  I  was  of  a  different  opinion,  I  should  overtm-n  the 
constant  course  of  this  Court  and  make  the  greatest  confusion.  .  .  . 

The  next  day,  by  the  consent  of  the  parties  in  both  causes,  Lord 
Hardwicke  ordered  that  a  perpetual  injunction  be  awarded  to  stay  the 
proceedings  at  law  of  the  plaintiff  in  the  original  cause  on  the  bond  in 
question. 

55.   MILLER  v.   CURTIS 

Supreme  Judicial  Court  of  Massachusetts.    1893 

158  Mass.  127;  32  N.  E.  1039 

Tort,  for  an  assault  and  battery  on  three  separate  occasions,  the 
first  in  March,  1889,  at  Worcester,  and  the  other  two  in  May,  1889,  at 
Spencer.  Answer,  a  general  denial.  Trial  in  the  Superior  Court,  before 
Corcoran,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  follow^s. 

The  plaintiff's  evidence  showed  that  an  assault  and  battery  was 


No.  55  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  99 

made  by  the  defendant  upon  the  plaintiff,  who  is  a  married  woman,  and 
attempts  by  him  to  have  sexual  intercourse  with  her  without  her  consent, 
at  Worcester  and  at  Spencer.  The  plaintiff  and  her  husband  were  both 
witnesses,  and,  after  they  had  testified,  the  following  evidence  was 
admitted,  against  the  objection  of  the  plaintiff,  all  of  which  related  to 
transactions  unconnected  with  anfl  over  twenty  years  before  the  alleged 
assaults.  .  .  .  Charles  Tenney  of  Westborough,  testified  that  he  was 
eighty  years  of  age,  and  very  deaf;  that  he  worked  for  the  Millers  in 
Westborough  twenty-five  years  ago;  that  on  one  occasion  he  was  called 
down  cellar  by  the  plaintiff  to  do  some  work,  and  soon  after  they  got 
down  she  rushed  up  again  and  complained  to  her  husband  that  she  had 
been  assaulted;  and  that  he  was  obliged  to  leave  his  place  without 
receiving  his  wages.  Patrick  Gately  of  Spencer,  testified  that  he  worked 
for  the  Millers  in  Spencer  sixteen  years  ago.  He  related  a  conversation 
with  the  plaintiff,  the  details  of  which  were  unfit  for  publication;  and 
which  was  to  the  effect  that  the  plaintiff  told  him  that,  when  they  lived 
in  Westborough,  her  husband  got  S18  out  of  a  man  who  assaulted  her, 
and  she  was  so  mad  because  he  did  not  get  more  that  she  threw  the  money 
in  the  fire.  Charles  M.  Fay  of  Westborough,  testified  that,  in  1867,  he 
worked  for  one  W'inslow  in  Westborough,  and  the  Millers  lived  near 
them;  that  the  plaintiff  at  one  time  told  him  that  she  was  going  to  sue 
Winslow  for  insulting  her;  and  that  the  witness  told  that  to  Winslow.  .  .  . 

The  plaintiff  and  her  husband  had  both  been  cross-examined  regarding 
each  of  the  incidents  testified  to  by  these  witnesses,  and  had  denied 
them  wholly.  The  judge,  in  admitting  the  evidence,  instructed  the  jury 
that  it  w^as  to  be  considered  only  on  the  question  of  damages.  The  jury 
returned  a  verdict  for  the  defendant;  and  the  plaintiff  alleged  exceptions. 

The  case  was  argued  at  the  bar  in  October,  1892,  and  afterwards  was 
submitted  on  the  briefs  to  all  the  judges. 

W.  A.  Gilc  (C.  S.  Forbes  with  him),  for  the  plaintiff.  W.  S.  B. 
Hopkins  (F.  B.  Smith  with  him),  for  the  defendant. 

Knowlton,  J.  .  .  .  The  defendant  was  allowed  to  introduce  evidence 
of  several  transactions  and  conversations  with  the  plaintiff,  all  occur- 
ring more  than  twenty  years  ago,  which  tended  to  show  that  she  had 
repeatedly  made  false  charges  of  indecent  assaults  upon  her,  with  a  view 
to  extort  money  from  innocent  men.  The  defendant  denies  the  charge 
made  against  him  in  the  suit,  and  contends  that  the  plaintiff  is  trying 
unjustly  to  obtain  money  from  him.  In  any  case,  where  the  question  is 
whether  the  defendant  has  committed  a  crime,  it  would  naturally  affect 
the  opinion  of  jurors  to  know  that  he  had  often  committed  similar  crimes; 
but  evidence  of  such  facts  is  never  admitted  to  prove  a  defendant's 
guilt.  That  a  person  has  committed  one  crime  has  no  direct  tendency 
to  show  that  he  committed  another  similar  crime  which  had  no  connection 
with  the  first ;  and  a  person  charged  with  one  offense  cannot  be  expected 
to  come  to  Court  prepared  to  meet  a  charge  of  another.  If  the  doing  of 
one  wrongful  act  shoidd  be  deemed  evidence  to  prove  the  doing  of  another 


100  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  55 

of  a  similar  character  which  has  no  connection  with  the  first,  issues  would 
he  multiplied  indefinitely  without  previous  notice  to  the  defendant,  and 
greatly  to  the  distraction  of  the  jury.  It  is  too  clear  for  argument,  under 
the  authorities,  that  most  of  the  evidence  excepted  to  was  not  competent 
on  the  question  of  liability,  and  the  defendant  does  not  seriously  contend 
that  it  was. 

It  is  argued,  however,  that  it  was  competent  on  the  question  of  dam- 
ages, and  the  jury  were  instructed  to  consider  it  only  on  that  question. 
There  is  much  authority  for  the  proposition,  that  in  a  suit  of  this  kind, 
when  a  plaintiff  seeks  damages  for  an  injury  to  her  feelings,  growing  out 
of  the  indecency  of  the  defendant's  conduct,  her  character  in  regard  to 
chastity  is  in  issue,  and  her  damages  depend  somewhat  on  the  question 
whether  she  is  a  virtuous  woman,  who  would  be  greatly  shocked  at  the 
peculiar  nature  of  the  assault,  or  a  woman  who  is  accustomed  to  yield 
herself  to  illicit  intercourse.  If  it  were  permissible  to  show  specific  acts 
of  criminal  intercourse  on  the  part  of  the  plaintiff  to  affect  the  damages 
to  be  awarded  in  actions  for  an  indecent  assault,  it  would  not  follow  that 
the  evidence  excepted  to  in  the  present  case  should  have  been  admitted. 
Most,  if  not  all,  of  this  testimony  tended  to  prove,  not  that  the  plaintiff 
had  had  criminal  intercourse  with  other  men,  but  that  she  had  falsely 
pretended  that  others  had  indecently  assaulted  her,  with  a  view  to  extort 
money  from  them.  The  rule  contended  for  certainly  should  not  be 
extended  so  far  as  to  admit  testimony  of  common  crimes  and  ordinary 
wrongful  acts,  merely  to  show  general  depravity. 

But  we  are  inclined  to  hold  the  evidence  incompetent  on  broader 
grounds.  It  is  a  general  rule,  which  has  been  adhered  to  with  great 
strictness  in  this  Commonwealth,  that  when  character  is  in  issue,  it  may 
be  shown  only  by  evidence  of  general  reputation,  and  not  by  proof  of 
specific  acts.  .  .  .  The  principal  reason  for  this  rule  is  that  a  multiplicity 
of  issues  would  be  raised  if  special  acts,  covering  perhaps  a  lifetime,  could 
be  shown.  It  might  be  necessary  to  go  into  the  circumstances  attending 
each  act  before  it  could  be  determined  what  its  nature  was  and  what 
effect  should  be  given  it.  It  would  be  impossible  for  the  opposing  party 
to  come  prepared  to  meet  evidence  upon  matters  in  regard  to  which  he 
had  no  notice,  and  great  injustice  might  be  done  by  bearing  biased  and 
false  testimony  to  which  no  answer  could  be  made.  .  .  . 

Exceptions  sustained. 

56.  CUNNINGHAM  v.  AUSTIN  &  NORTHWESTERN 
RAILWAY  CO. 

Supreme  Court  of  Texas.    1895 

88  Tex.  534;  31  S.  W.  629 

Certified  question  from  Court  of  Civil  Appeals  for  Third  District, 
in  an  appeal  from  Travis  County. 


No.  56  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  101 

Appellant  sought  to  recover  damages  for  the  death  of  her  husband, 
James  Cunningham,  a  conductor  on  one  of  appellee's  trains,  caused  by  a 
wreck  occasioned  by  the  breaking  of  a  car-wheel  running  from  Llano  to 
Austin  on  the  22nd  day  of  December,  1892.  The  petition  charged  the 
negligence  to  consist  in  the  fact  that  the  wheel  had  a  crack  or  flaw  in  it, 
which  was  known  to  appellee,  or  could  have  been  known  by  the  use  of 
ordinary  care;  and  that  appellee's  car  inspector  (Rownie)  at  Llano, 
whose  duty  it  was  to  carefully  inspect  wheels  before  the  same  left  Llano, 
was  incompetent  to  perform  the  duties  required  of  him,  and  that  on  the 
day  of  Cunningham's  death  he  did  not  inspect  said  wheel,  as  was  his  duty. 

There  was  testimony  tending  to  show  that  there  was  an  old  crack  in 
the  wheel,  and  that  it  could  have  been  discovered  by  an  inspection  made 
by  a  competent  inspector.  The  witness  Rownie,  for  defendant,  testified, 
that  he  inspected  the  wheel  on  the  morning  of  the  accident,  at  Llano,  he 
being  the  only  inspector  on  the  road  outside  of  Austin,  and  during  the 
time  inquired  about  hereafter,  and  it  being  his  duty  to  inspect  the  cars 
at  Llano  on  said  dates,  and  that  at  the  date  of  such  inspection  he  could 
discover  nothing  wrong  with  the  wheel.  On  cross-examination  the 
witness  Rownie  testified,  that  the  reason  he  said  he  inspected  it  on 
December  22nd  was  because  he  understood  the  accident  was  on  that  date, 
and  because  he  inspected  that  car  every  day  it  was  in  Llano,  and  that  he 
did  not  think  there  was  any  other  reason  for  his  remembering  it,  only 
that  he  knew  he  inspected  it  every  day;  that  he  knew  it  was  7  o'clock 
that  he  looked  over  the  coach  on  that  morning,  because  that  was  the  hour 
he  always  went  to  work.  Counsel  for  appellant  thereupon  asked  the 
witness  whether  he  inspected  the  cars  at  Llano  on  the  23rd  and  27th  days 
of  December,  1892;  January  6,  1893;  February  21,  1893;  March  9, 
1893,  and  April  4,  1893,  all  subsequent  to  the  date  of  the  accident; 
counsel  stating,  that  the  object  of  the  question  was  to  prove  by  Rownie 
that  on  said  dates  he  had  not  inspected  the  wheels  of  appellee's  trains  at 
Llano,  and  if  he  stated  that  he  had  inspected  them  on  any  one  or  all  of 
the  above  dates,  then  to  offer  witnesses  who  would  testify  that  he  did  not 
inspect  them  on  either  of  said  dates.  Counsel  for  appellee  objected  to 
this  testimony  as  being  incompetent,  irrelevant,  and  immaterial,  and  not 
tending  to  prove  any  issue  in  the  case,  and  that,  since  appellant  was 
seeking  to  recover  for  an  injury  inflicted  on  the  22nd  of  December,  1892, 
anything  that  Rownie  may  or  may  not  have  done  after  that  date  was 
wholly  irrelevant  and  immaterial,  and  that  on  such  matters  the  witness 
could  not  be  impeached. 

The  Court  sustained  the  objections,  and  refused  to  allow  the  questions. 

J .  L.  Peeler,  for  appellant.  Where  a  person  is  charged  with  negli- 
gently omitting  to  perform  a  certain  duty,  it  is  competent  to  show  that 
he  omitted  such  duty  in  the  same  way  afterwards,  as  tending  to  show 
that  he  omitted  the  duty  at  the  time  in  question.  .  .  . 

Fisher  &  Toicnes,  for  appellee.  The  question  may  be  thus  stated: 
Is  it  permissible,  on  the  cross-examination  of  a  servant  shown  to  be 


102  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  56 

competent  and  efficient,  to  make  inquiry  as  to  his  acts  or  omissions, 
transpiring  subsequently  to  the  act  or  omission  complained  of,  where 
they  are  similar  to,  but  in  nowise  connected  with,  the  act  or  omission, 
or  one  of  the  acts  or  omissions,  relied  upon  as  constituting  the  negligence 
contributing  to  or  causing  the  injury  complained  of?  .  .  .  Similarity  of 
a  fact  in  issue  to  a  disconnected  fact  sought  to  be  proven  will  not  render 
admissible  evidence  of  such  disconnected  fact.  The  relation  between  the 
two  must  be  something  in  addition  to  mere  similarity.  It  must  amount 
to  causal  connection.  There  is  no  such  connection  between  the  fact  in 
issue  in  this  case  and  the  fact  sought  to  be  proven  in  the  testimony 
excluded.  While  it  may  be  true,  in  some  sense,  that  proof  of  neglect  of 
duty  by  the  inspector  on  dates  subsequent  to  the  22nd  of  December, 
1892,  might  have  a  tendency  to  prove  his  neglect  of  duty  on  that  day, 
the  law  does  not  recognize  this  as  a  reason  for  opening  up  the  interminable 
issues  that  would  grow  out  of  the  adoption  of  a  rule  which  would  permit 
such  testimony.  The  relation  between  the  facts  is  merely  one  of  simi- 
larity; that  is,  if  he  neglected  the  duty  on  subsequent  dates,  similar 
neglect  of  duty  might  be  inferred  on  that  date.  This  is  the  extent  to 
which  the  argument  in  favor  of  the  admission  of  the  testimony  could  go, 
and  this  we  see  from  the  authorities  is  not  sufficient.  There  is  no  causal 
connection  between  the  fact  in  issue  and  the  fact  sought  to  be  established 
by  the  offered  proof.  .  .  . 

Denman,  J.  ...  If  there  was  no  issue  in  this  case  as  to  Rownie's 
competency,  we  are  of  the  opinion  that  there  would  be  no  causal  connec- 
tion between  the  negligence  of  Rownie  on  days  subsequent  to  the  injury 
and  the  death  of  Cunningham.  Such  subsequent  neglect  of  duty  to 
inspect  cars  might  raise  a  moral  probability  that  he  failed  to  inspect  the 
car  on  the  morning  of  the  accident,  but  such  probability  alone  would  not 
connect  such  negligence  with  the  chain  of  circumstances  resulting  in  the 
death.  In  order  to  prevent  confusion  and  surprise  in  the  trial  of  causes 
of  this  character,  Courts  have,  as  a  general  rule,  confined  the  e\'idence 
to  circumstances  tending  to  establish  facts  constituting  links  in  the  chain 
of  circumstances  having  a  causal  connection  with  the  injury. 

The  pleadings  and  evidence,  however,  raise  the  issue  as  to  Rownie's 
competency  as  a  car  inspector  which  involves,  first,  his  skill;  and,  second, 
his  attentiveness  to  duty.  If  he  was  lacking  in  either  of  these  qualities, 
he  could  not  be  said  to  be  competent  to  perform  the  important  duties 
required  of  him.  It  is  a  matter  of  common  knowledge  that  some  persons 
are  by  nature  inattentive  or  thoughtless,  and,  as  a  result  thereof,  fre- 
quently neglect  the  performance  of  important  duties,  without  any  inten- 
tion so  to  do.  This  mental  quality  can  only  be  evidenced  by  the  outward 
acts  of  the  person,  and,  where  its  existence  or  non-existence  is  in  issue, 
evidence  of  such  acts  is  admissible.  If  Rownie  was  an  inattentive  or 
thoughtless  person,  such  mental  quality  was  a  relevant  fact  upon  the 
issue  as  to  whether  he  probably  inspected  the  cars  on  the  particular 
morning  of  the  accident.  .  .  .  Thus  it  seems  that  frequent  failures  to 


No.  57  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  103 

perform  this  duty  at  different  times  would  be  competent  evidence  tending 
to  prove  this  mental  condition,  and  we  see  no  reason  why  such  omissions 
subsequent  to  the  time  of  the  accident  would  be  less  competent  than 
similar  omissions  prior  to  the  time  of  the  accident.  The  question  here  is 
the  existence  or  non-existence  of  a  mental  condition  or  quality  of  the 
servant;  inattentiveness  or  thoughtlessness,  rendering  him  incompetent, 
such  incompetency  being  direct  evidence  on  the  main  issue  in  the  case. 
We  see  no  reason  why  specific  acts  cannot  be  given  in  evidence  upon 
such  issue,  just  as  they  could  upou  the  issue  of  testamentary  or  con- 
tractual capacity. 

...  In  the  case  of  Frazier  v.  Railway,  38  Pa.  St.  104,  one  of  the 
issues  being  negligence  of  the  company  in  employing  a  careless  conductor, 
"  the  plaintiff  offered  to  prove  by  the  conductor  that  he  had  had  several 
collisions  on  the  road  before,  for  which  he  was  fined  by  the  company, 
and  that  the  agents,  etc.,  of  the  company  knew  this;  that  the  former 
collisions  were  caused  by  his  carelessness;  that  they  were  known  to  the 
company,  and  were  so  treated  by  them."  Defendants  objected,  on  the 
ground  that  previous  acts  of  negligence  are  not  matters  for  the  jury  as  to 
general  character,  and  the  Court  below  having  admitted  the  exddence 
over  such  objection,  the  Supreme  Court  held  it  error.  .  .  .  We  are  not 
disposed  to  follow  this  case.  .  .  .  The  question  here  is  the  existence  or 
non-existence  of  a  mental  condition  or  quality  of  the  servant,  inattentive- 
ness or  thoughtlessness,  rendering  him  incompetent,  such  incompetency 
being  direct  evidence  on  the  main  issue  in  the  case.  We  see  no  reason 
why  specific  acts  cannot  be  given  in  evidence  upon  such  issue,  just  as 
they  could  upon  the  issue  of  testamentary  or  contractual  capacity. 
Brown  v.  Mitchell,  87  Texas,  140.  We  are  aware  of  the  fact  that  the 
Pennsylvania  case  above  cited  was  referred  to,  unthout  approval  or  dis- 
approval, in  the  case  of  Railway  v.  Scott,  68  Texas,  694,  and  that  such 
reference  was  treated  by  Judge  Marr  as  a  strong  intimation  of  approval 
thereof,  in  Railway  v.  Rowland,  82  Texas,  171.  .  .  . 

It  results,  from  the  principles  expressed  above,  that  we  must  answer 
the  question  propounded  in  the  aflSrmative.  Exception  sustained. 


57.  FONDA  V.   ST.   PAUL  CITY  R.   CO. 

Supreme  Court  of  Minnesota.    1898 

71  Minn.  438;   74  A^  W.  166 

[Printed  ante,  as  No.  20] 


104  BOOK   i:     RULES    OF   ADMISSIBILITY  No.      58 

58.    PITTSBURGH    RAILWAYS    COMPANY   v.    THOMAS 
United  States  Circuit  Court  of  Appeals.     1909 

174  Fed.  591 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Pennsylvania.  Action  by  David  T.  Thomas  against  the 
Pittsburgh  Railways  Company.  From  a  judgment  for  plaintiff,  defend- 
ant brings  error.      Reversed. 

James  C.  Gray,  for  plaintiff  in  error.  Rody  P.  Marshall,  for  defendant 
in  error.    Before  Gray,  Buffington,  and  Lanning,  Circuit  Judges. 

Gray,  Circuit  Judge.  The  defendant  in  error,  David  F.  Thomas 
(hereinafter  called  the  plaintiff),  brought  suit  against  the  Pittsburgh 
Railway  Company,  the  plaintiff  in  error  (hereinafter  called  the  defendant), 
to  recover  damages  for  injuries  to  the  said  plaintiff,  occasioned  by  the 
alleged  negligence  of  the  defendant.  There  was  a  verdict,  and  judgment 
thereon,  in  favor  of  the  plaintiff.  From  the  record  brought  up  by  the 
writ  of  error  sued  out  by  the  defendant,  it  appears  that  the  defendant 
was  a  corporation  of  the  state  of  Pennsylvania,  operating  certain  electric 
street  railways  in  what  was  formerly  called  the  city  of  Allegheny,  but 
what  is  now  a  part  of  the  city  of  Pittsburgh.  On  the  27th  day  of  No- 
vember, 1907,  the  plaintiff  was  a  conductor  on  a  motor  car  on  one  of  the 
lines  in  said  city.  When  he  arrived  at  the  end  of  said  line,  it  became  his 
duty  to  attach  a  trailer  car,  which  was  standing  there,  to  what  was  then 
the  front  of  his  car  but  which  would  be  the  rear  of  his  car  on  the  return 
trip  to  the  city.  The  motorman,  one  Conway,  having  stopped  the  car 
a  distance  of  from  two  and  a  half  to  five  feet  from  the  trailer  car,  the 
plaintiff  went  between  the  two  cars  for  the  purpose  of  coupling  them, 
and,  standing  somewhat  to  one  side  and  holding  the  drawhead  and  pin, 
one  in  each  hand,  made  a  signal  to  the  motorman  to  move  his  car  up  in 
order  to  make  the  coupling.  The  plaintiff  says  that  after  the  signal  was 
given,  the  car  came  so  quickly  that  he  remembered  nothing,  except  that 
it  caught  him  and  crushed  him  between  it  and  the  trailer. 

The  negligence  charged  by  the  plaintiff's  statement  of  claim  is  the 
primary  negligence  of  the  defendant,  as  master,  in  employing  Conway, 
the  motorman,  who,  it  was  alleged,  was  incompetent,  to  the  knowledge 
of  the  defendant,  or  in  retaining  him  in  its  employ  after  it  had,  or  should 
have  had,  knowledge  of  his  incompetence. 

The  third  specification  of  error  raises  the  interesting  question,  whether 
prior  specific  acts  of  alleged  negligence  on  the  part  of  the  motorman  can 
be  submitted  to  the  jury,  in  order  to  establish  his  incompetency  or 
unfitness.  This  question  is  a  difficult  one,  and  the  decisions  of  the 
courts  have  not  been  uniform  in  regard  to  it.  On  the  one  hand,  it  is 
held  that  only  evidence  of  general  reputation  of  incompetency  or  unfit- 
ness, and  not  knowledge  of  specific  acts  of  negligence,  can  be  admitted 


No.  58  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  105 

to  make  a  master  amenable  to  the  charge  of  neghgence  in  selecting  a 
servant.  "Character,"  says  the  Supreme  Court  of  Pennsylvania,  in 
Frazier  v.  P.  R.  R.,  38  Pa.  104,  80  Am.  Dec.  467,  "grows  out  of  special 
acts,  but  is  not  proved  by  them.  Indeed  special  acts  do  very  often  indi- 
cate frailties  or  vices  that  are  altogether  contrary  to  the  character  actually 
established.  .  .  .  Besides  this,  ordinary  care  implies  occasional  acts  of 
carelessness,  for  all  men  are  fallible  in  this  respect,  and  the  law  demands 
only  the  ordinary."  This  is  true,  and  the  Courts  constantly  make  the 
discrimination,  where  the  question  is  as  to  the  veracity  of  a  party  or 
witness,  between  character  or  reputation  and  specific  acts  of  falsehood. 
But  it  would  be  unphilosophical  and  do  violence  to  the  common  sense 
and  experience  of  mankind,  to  say  that  there  may  not  be  repeated  specific 
acts  showing  incompetence  or  unfitness  in  a  particular  employnient,  or 
a  continued  line  of  conduct  amounting  to  a  habit  of  negligence  in  the 
performance  of  a  given  duty,  as  would  render  one,  with  knowledge  of 
such  specific  acts  or  such  a  habit  on  the  part  of  the  person  he  was  about 
to  employ,  negligent  of  his  duty  to  those  who  should  thereafter  come 
within  the  danger  of  such  incompetence  or  negligence.  But  we  have 
no  hesitation,  where  the  question  is  as  to  negligence  of  the  master  in 
retaining  a  servant  in  his  employ  after  he  knows,  or  has  reason  to  know, 
that  he  is  incompetent  or  unfit  for  the  service  for  which  he  is  employed, 
in  holding  that  previous  specific  acts  of  the  servant,  tending  to  show 
incompetence  or  unfitness  on  his  part,  which  were  or  should  have  been 
known  by  the  master,  are  admissible  in  proof  of  the  master's  negligence. 
The  practical  application  of  this  proposition  requires  to  be  guarded  by 
such  instructions  from  the  Court  as  shall  make  clear  the  essential  differ- 
ence between  mere  negligence  and  incompetency.  A  man  perfectly 
competent  in  all  respects  for  the  duty  he  undertakes  to  perform,  may 
occasionally  be  negligent,  so  that  one  or  two  specific  acts  of  negligence  do 
not  prove  incompetence.  It  must  be  either  shown  that  the  so-called 
negligent  acts  were  the  result  of  incompetence,  or  were  of  such  a  character 
and  so  constantly  committed  as  to  constitute  a  habit  of  negligence, 
rendering  the  servant  unfit  to  be  retained  in  his  position,  for  unfitness, 
as  well  as  incompetency,  is  a  disqualification  for  emplo^-ment. 

Keeping  in  mind  these  distinctions,  we  come  to  consider  the  specifica- 
tions of  error  pertinent  thereto.  The  two  specific  accidents  in  which  the 
motorman,  Conway,  was  concerned,  and  which  were  adduced  to  show 
incompetence  on  his  part,  taken  by  themselves,  hardly  present  sufficient 
ground  for  the  inference  sought  to  be  drawn  from  them.  Their  character 
is  principally  proved  by  the  motorman  himself,  and  his  explanation  of 
the  circumstances  under  which  they  occurred  would  seem  to  exonerate 
him  from  responsibility  or  blame.  In  one  case,  he  testifies  that  he  ran 
into  the  rear  of  a  car  which  had  suddenly  stopped  by  reason  of  bumping 
into  another  car  ahead  of  it.  As  it  was  in  the  early  hours  of  a  November 
morning  and  very  foggy,  he  testifies  that  he  could  only  see  ahead  as  far 
as  his  headlight  shone,  about  fifteen  yards,  and  that  the  fog  had  made  the 


106  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  58 

rails  so  slippery  that,  by  reason  thereof,  he  was  unable  to  stop  his  own 
car  in  time  to  avoid  the  collision.  In  the  other  case,  which  happened  in 
the  previous  September,  he  testified  as  follows: 

"  The  Rebecca  Street  car  was  going  ahead  of  me,  up  Preble  avenue, 
and  there  is  a  bridge  there  for  the  people  going  up  California  avenue, 
and  just  as  his  car  was  passing,  an  old  man  got  off  the  bridge  and  signaled 
for  the  motorman  ahead  of  me  to  stop  the  car.  It  was  not  a  regular 
stop,  and  I  was  coming  after  him  about  fifty  yards,  and  before  I  could 
stop  my  car,  I  slightly  touched  him." 

This  is  practically  the  only  evidence  as  to  the  happening  of  the  two 
accidents,  evidence  of  which  was  introduced,  not  to  show  negligence, 
for  that  would  not  have  been  pertinent,  but  to  show  incompetence. 
Standing  alone,  they  do  not  have  probative  force  in  that  respect,  and 
should  have  been  withdrawn  from  the  consideration  of  the  jury. 

There  was,  however,  other  evidence  undoubtedly  pertinent,  as  tending 
to  show  incompetence.  This  was  the  testimony  of  several  of  the  con- 
ductors and  motormen  who  daily  congregated,  to  the  number  of  thirty 
or  forty,  in  the  car  barn  to  the  effect  that  the  reputation  of  Conway, 
for  competence  as  a  motorman,  was  bad.  Undoubtedly,  great  weight 
was  added  to  this  evidence  of  reputation  by  the  admission  of  the  testi- 
mony in  regard  to  the  previous  accidents  to  which  reference  has  been 
made,  and  the  Court,  with  entire  correctness  and  fairness,  submitted 
to  the  jury  the  general  questions  as  to  reputation  and  as  to  the  facts 
surrounding  the  accidents. 

But  our  attention  has  been  called  to  certain  language  used  by  the 
learned  judge  of  the  Court  below,  as  set  forth  in  the  last  four  assignments 
of  error.     .     .     . 

The  use  of  this  language  was  evidently  the  result  of  inadvertence  on 
the  part  of  the  trial  judge,  but  this  inadvertence,  in  the  course  of  the 
delivery  of  an  oral  charge,  could  hardly  fail  to  confuse  in  the  minds  of 
the  jury  the  distinction  that  exists  between  incompetence  and  the  mere 
negligence  of  one  who  is  competent. 

For  reasons  stated,  the  judgment  below  is  reversed,  and  a  venire  de 
novo  ordered. 

Sub-topic  D.     Conduct  as  Evidence  of  Knowledge, 

Intent,  Plan,  Habit,  etc.,  in  Civil  Cases 

59.   DELPHI  V.   LOWERY 

Supreme  Court  of  Indiana,  1881 

74  hid.  520 

From  the  Carroll  Circuit  Court. 

C.  R.  Pollard,  L.  E.  McReynolds,  J.  R.  Coffroth  and  C.  B.  Stuart, 
for  appellant.     J.  Applcgate  and  A^.  0.  Ross,  for  appellee. 


No.  59  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  107 

Elliott,  J.  —  The  questions,  which  the  record  of  this  case  presents, 
arise  upon  the  ruHng  denying  appelhint's  motion  for  a  new  trial.  WiUiam 
A.  Lowery,  the  appellee's  intestate,  lost  his  life  by  drowning  in  the 
Wabash  and  Erie  canal,  at  a  point  within,  or  near,  the  corporate  limits 
of  the  city  of  Delphi.  There  was  evidence  tending  to  prove  that  the 
intestate's  death  was  attributable  to  the  negligence  of  the  appellant  in 
failing  to  place  barricades  about  the  dangerous  place,  or  to  guard  it  by 
signals  or  warnings  of  danger.  There  was  also  evidence  tending  to  show 
that  it  was  the  duty  of  the  city  to  properly  protect  passengers  from 
danger,  inasmuch  as  one  of  the  public  streets  of  the  city  either  ran  up  to 
and  across  the  dangerous  place  or  terminated  in  very  close  and  direct 
proximity  to  that  point.  .  .  .  Evidence  was  given  by  the  appellee,  that 
other  persons  had  received  injuries  at  the  place  where  the  deceased  was 
drowned,  at  times  anterior  to  his  death.  This  the  appellant  contends, 
with  vigor  and  ability,  was  erroneous. 

There  is  some  conflict  in  the  authorities.  In  Collins  v.  The  Inhabi- 
tants of  Dorchester,  6  Cush.  396  [post,  No.  65]  such  evidence  was  declared 
incompetent.  It  was  said  to  be  "  testimony  concerning  collateral  facts, 
which  furnished  no  legal  presumption  as  to  the  principal  facts,  which 
furnished  no  legal  presumption  as  to  the  principal  facts  in  dispute,  and 
which  the  defendants  were  not  bound  to  be  prepared  to  meet."  ...  In 
Darling  v.  Westmoreland,  52  N.  H.  401  [post,  No.  66]  the  doctrine  of 
Collins  V.  Dorchester  is  vigorously  assailed  in  an  unusually  able  and 
elaborate  opinion,  and  the  opposite  doctrine  declared  to  be  correct,  both 
upon  reason  and  authority.  In  the  recent  case  of  Moore  v.  The  City 
of  Burlington,  49  Iowa  136,  the  Court  adopted  in  effect,  although  not 
expressly,  the  rule  declared  in  the  New  Hampshire  case.  The  Supreme. 
Court  of  Illinois  declared,  in  the  case  of  the  City  of  Chicago  v.  Powers, 
42  111.  169,  that  such  evidence  was  competent.     It  was  said  in  that  case: 

"It  is  insisted  that  the  Court  erred  in  admitting  evidence  that  another  person 
had  fallen  through  the  same  bridge.  If  this  evidence  was  admissible  for  any 
purpose,  then  it  was  not  error.  The  action  was  based  upon  the  negligence  of 
the  city  in  failing  to  keep  the  bridge  properly  lighted.  If  another  person  had 
met  with  a  similar  fate,  at  the  same  place,  and  from  a  like  cause,  it  would  tend  to 
show  a  knowledge  on  the  part  of  the  city,  that  there  was  inattention  on  the  part 
of  their  agents  having  charge  of  the  bridge,  and  that  they  had  failed  to  provide 
further  means  for  the  protection  of  persons  crossing  on  the  bridge.  As  it  tended 
to  prove  this  fact,  it  was  admissible;  and,  if  appellants  had  desired  to  guard 
against  its  improper  application  by  the  jury,  they  should  have  asked  an  instruc- 
tion limiting  it  to  its  legitimate  purpose." 

In  Kent  v.  The  Town  of  Lincoln,  32  Vt.  591,  it  was  held  competent  to 
prove  that  other  persons  than  the  complainant  had,  at  previous  times, 
been  injured  by  the  same  defect  in  a  highway.  A  similar  ruling  was 
made  in  the  case  of  Quinlan  v.  The  City  of  Utica,  11  Hun  217.  This 
case  was  affirmed  without  comment  by  the  Court  of  Appeals,  74  N.  Y. 
603.  .  .  .  This  Court  has  adopted  and  enforced  this  doctrine.     In  the 


108  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  59 

case  of  The  Pittsburgh,  etc.,  R.  W.  Co.  v.  Ruby,  38  Ind.  294,  this  question 
was  exhaustively  discussed,  and  the  point  expressly  ruled.  It  was  there 
held  that  evidence  of  specific  facts  was  competent  for  the  purpose  of 
charging  the  corporation  with  notice. 

We  are  unable  to  perceive  any  difference  in  principle  between  the 
case  in  hand  and  the  class  of  cases  of  which  those  last  cited  are  types. 
If  specific  acts  are  proper  for  the  purpose  of  showing  notice  to  the  owners 
of  machinery  or  the  employers  of  servants,  it  must  be  competent  for  the 
purpose  of  showing  notice  to  a  municipal  corporation,  that  there  is  a 
dangerous  place  within  or  very  near  the  limits  of  the  highway.  The 
cases  directly  ruling  the  point  here  under  immediate  mention  outweigh 
the  cases  in  ^lassachusetts,  for  the  latter  are  all  built  upon  a  single  and 
not  very  carefully  considered  case.  ...  It  also  seems  to  us  that  the 
doctrine  of  Collins  v.  Dorchester  cannot  be  harmonized  with  Crosby  v. 
Boston,  118  Mass.  71,  but  we  deem  it  unnecessary  to  prolong  this  opinion 
by  a  discussion  of  the  conflict  between  these  two  cases.     New  trial  denied. 


60.    MORROW   V.    ST.    PAUL   CITY   R.    CO. 

Supreme  Court  of  Minnesota.     1898 
71  AIi7in.  326;  73  N.  W.  973 

Appeal  by  plaintiff  as  administratrix  of  the  estate  of  George  Morrow, 
deceased,  from  an  order  of  the  district  court  for  Ramsey  County,  Bunn, 
J.,  denying  her  motion  for  a  new  trial  after  a  verdict  for  defendant  by 
.direction  of  the  Court.     Reversed. 

C  D.  &  Thomas  D.  O'Brien,  for  appellant.  Munn  &  Thygeson,  for 
respondent. 

Start,  C.  J.  The  plaintiff's  intestate,  George  Morrow,  was  injured 
by  a  collision  between  an  electric  and  cable  car  of  the  defendant  on  March 
22,  1895,  and  died  two  days  thereafter  as  the  result  of  his  injuries.  This 
action  was  brought  to  recover  the  damages  which  the  widow  and  next 
of  kin  sustained  by  his  death.  ...  At  and  prior  to  the  time  Morrow  was 
injured  the  defendant  operated  an  electric  railway,  on  which  Morrow 
was  a  conductor,  from  Merriam  Park  east  to  Milton  street  in  the  city  of 
St.  Paul,  where  it  connected  with  defendant's  cable  railway,  which  ran 
thence  east  to  Broadway  street.  ...  At  the  time  of  the  accident  the 
electric  car  was  being  switched  from  the  south  to  the  north  track,  and 
]Morrow  was  standing  on  the  ground  in  the  act  of  transferring  the  trolley 
from  one  wire  to  the  other,  in  the  discharge  of  his  duty,  when  the  cable 
train,  upon  which  Seth  Colbeth  was  the  gripman,  started  forward,  and 
collided  with  the  electric  car,  and  Morrow  was  caught  between  the 
bumpers,  and  so  injured  as  to  cause  his  death.  There  seems  to  be  no 
controversy  in  this  case  that  Morrow  was  not,  but  that  Colbeth  was, 
guilty  of  negligence,  in  the  premises.     The  complaint  charges  that  the 


No.  60  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  109 

cable  was  defective,  and  that  the  gripman  operating  the  cable  train 
was,  to  the  knowledge  of  the  defendant,  incompetent.  If  the  evidence 
upon  either  of  these  claims  was  such  as  to  take  the  case  to  the  jury, 
the  trial  Court  erred  in  directing  a  verdict  and  in  denying  the  motion 
for  a  new  trial.  .  .  .  The  trial  Court  was  of  the  opinion  "that 
there  was  not  sufficient  evidence  to  go  to  the  jury  on  the  ques- 
tion of  the  knowledge  of  defendant  of  the  incompetency  of  the 
gripman,  Colbeth,  at  the  time  of  the  accident,  if  he  was  incompe- 
tent, as  the  nature  of  the  accident  would  indicate."  We  are  of  the 
opinion  that  there  was.  The  burden  of  showing  the  incompetency 
of  the  gripman  was  clearly  upon  the  plaintiff,  and  we  shall  assume, 
for  the  purposes  of  this  appeal,  that  the  burden  of  showing  notice 
to  the  defendant  of  such  incompetency  was  also,  on  the  plaintiff, 
although  the  evidence  tends  to  show  that  the  gripman  was  incompetent 
not  only  at  the  time  of  the  accident,  but  also  at  the  time  he  was  employed. 
.  .  .  The  evidence  as  to  his  incompetency  was  clearly  such  as  to  require 
the  submission  of  this  issue  to  the  jury.  We  shall  not  refer  particularly 
to  the  evidence  on  this  point,  but  in  a  general  way  only,  in  connection 
with  the  evidence  on  the  question  of  notice  to  the  defendant.  Whether 
the  defendant  had  notice  of  the  incompetency  of  the  gripman  was  a 
matter  peculiarly  within  its  knowledge;  and,  further,  if  such  incompe- 
tency existed  at  the  time  he  was  employed  by  the  defendant,  such  fact 
would  be  an  important  item  of  evidence  on  the  question  of  notice.  These 
suggestions  must  be  kept  in  mind  in  considering  the  evidence. 

The  gripman,  Colbeth,  was,  prior  to  his  employment  by  the  defendant, 
a  farmer,  unused  to  machinery,  and  was  given  instructions  and  examined 
by  the  defendant's,,  foreman,  George  J.  Burns,  as  to  the  duties  of  a  grip- 
man.  It  was  the  duty  of  Burns  so  to  instruct  and  examine  applicants 
for  employment,  and  to  report  as  to  their  qualifications  to  the  superin- 
tendent; and  if,  after  their  employment,  he  had  reason  to  change  his 
opinion,  so  to  report  to  the  superintendent.  On  August  21,  1894,  he 
reported  Colbeth  competent  as  a  gripman,  rating  him  85  per  cent.,  and 
he  was  employed,  and  placed  on  the  extra  list  as  an  extra  man.  Four 
days  after  this  an  accident  occurred,  whereby  the  cable  was  cut  by 
Colbeth's  forgetting  to  open  his  grip  when  he  came  to  the  cut-off  at  the 
power  house.  This  accident  was  reported  to  the  superintendent  by 
Burns,  who  testified  as  follows: 

"Now,  I  notice  that  in  this  slip  or  report  of  yours  to  Mr.  Smith  with  regard 
to  Colbeth,   you   turned   him  in  as,    'Gripman,   O.K.'     A. — Yes,   sir.     Q. — 

' the  bearer  is  O.K?'     A.  —  Yes,  sir.     Q.  —  Did  you  ever  change  your 

opinion  upon  that  point?  A.  — Well,  I  might  have  changed  my  opinion  after 
he  got  to  running  as  a  regular  man,  —  while  he  was  running  as  an  extra  man,  — 
and  still  I  might  change  my  opinion  after  he  got  to  be  a  regular  man.  Q.  —  Did 
you  change  your  opinion?  A.  —  I  did,  after  the  report  was  made  out,  so  far  as 
his  running  on  the  cable  was  concerned,  at  the  time  of  that  accident;  yes,  sir. 
Q.  —  Did  you  notify  Mr.  Smith  of  your  change  of  opinion?     A.  —  Well,  I  made 


110  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  60 

a  written  report  of  that,  —  that  case  that  occurred  at  that  time.  Q.  —  You 
notified  Mr.  Smith?  A. — Yes,  sir.  Q.  —  Mr.  Smith  told  you  that  you  would 
give  him  another  chance,  anyway,  didn't  he?  A.  — Well,  I  think  that  is  cus- 
tomary. Q.  —  Well,  didn't  Mr.  Smith  say  that  'we'll  give  him  another  chance?' 
A.  - —  Well,  I  wouldn't  swear  he  did.  .  .  . 

On  his  re-cross  and  re-direct  examination  he  further  testified  thus: 

"Q.  —  You  discovered  the  fact  that  after  he  had  been  running  [running  after 
this  accident]  he  got  to  be  a  capable  and  competent  man,  —  after  that?  A.  — 
He  was  a  good  man  on  the  extension.  No  question  about  that.  Q.  —  I  mean, 
was  he  a  good  man  on  the  cable  also?  A.  —  I  never  had  any  fault  to  find  with 
him  when  he  was  running  any  trips  afterwards.  Q.  —  He  never  had  any  other 
accidents  with  the  cable  than  this  one,  did  he?  A.  —  No,  sir;  he  did  not.  Q.  — 
You  say  you  found  him  a  good  man  on  the  extension?  A.  —  He  was  a  good 
man.  Q.  —  That  is  on  the  electric  cars?  A.  —  Yes,  sir.  Q.  —  Within  a  few 
days  after  he  started  to  perform  the  duties  of  gripman,  he  cut  the  rope?  A.  — 
Yes,  sir.  Q.  —  Can  that  be  done  except  by  either  negligence  or  incompetency? 
A.  —  Oh,  yes,  we  have  got  good  men  that  do  it.  Old  men  do  it,  too.  Q.  — 
How  did  this  man  do  it?  A.  —  He  forgot  to  open  his  grip.  Q.  —  Forgot  to 
open  his  grip  when  he  came  to  the  cut-off?  A.  —  Yes,  sir;  tliat  is  the  way  it 
happened." 

Colbeth  was  at  no  time  a  regular  gripman,  but  was  employed  most 
of  the  time  as  a  motorman  on  the  extension,  or  electric  line,  and  was 
ordered  to  take  extra  cable  trains,  as  gripman,  as  occasion  might  require. 
The  evidence  tends  to  show  that  he  made  in  all  about  fifty  trips  on  the 
cable  trains  from  the  commencement  of  his  service  to  the  date  of  Morrow's 
injury.  It  also  tends  to  show  that  he  was  nervous,  and  liable  to  lose 
his  presence  of  mind  in  an  emergency;  and,  further,  there  was  evidence 
tending  to  show  that  his  general  reputation  was  that  he  was  incompetent. 
The  evidence  discloses  other  minor  facts  and  circumstances  which, 
standing  alone,  would  be  of  little  probative  force  on  this  question  of 
notice,  but,  in  connection  with  the  rest  of  the  testimony,  they  are  entitled 
to  consideration. 

We  are  of  the  opinion  that  the  evidence  fairly  shifted  the  burden 
as  to  defendant's  notice  of  the  incompetency  of  the  gripman  to  it.  It 
is  true  that  a  single  act  of  negligence  on  the  part  of  a  servant  who  has 
previously  shown  himself  competent  and  careful  is  not  sufficient  per  se 
to  charge  the  master  with  liability  for  retaining  him  in  his  service.  But 
such  is  not  this  case,  for  the  evidence  tends  to  show  that  this  gripman 
never  was  competent,  and  that,  after  the  first  accident,  the  defendant's 
foreman,  in  the  line  of  his  duty,  so  reported  in  effect  to  its  superintendent. 
It  was  upon  the  report  of  this  foreman  that  this  gripman  was  employed, 
and  shortly  thereafter  he  again  reported  that  he  had  changed  his  mind 
as  to  the  gripman's  competency.  Surely,  it  was  a  question  for  the  jury, 
if  they  found  such  to  be  the  facts,  to  determine  whether  the  defendant 
acted   with   reasonable   care   and   caution   in   retaining   Colbeth  in  its 


No.  61  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  111 

employment  as  a  gripman,  in  view  of  the  fact  that  upon  the  competency 
and  fidelity  of  the  gripman  human  lives  depend. 

Order  reversed,  and  a  new  trial  granted. 


61.   SPENCELEY  v.   DE   WILLOTT 

King's  Bench.  1806 

7  East  108 

At  the  trial  of  this  action  for  usury  before  Lord  Ellenborough 
C  J.,  at  the  sittings  after  last  term  at  Westminster  wherein  the  usury 
was  alleged  to  have  been  committed  by  the  defendant  in  a  contract  made 
by  him  with  the  French  Marquis  de  Chambonas,  the  plaintiff's  case 
was  proved  by  the  Marquis,  who  on  his  examination  in  chief  swore,  in 
substance,  that  the  defendant  had  advanced  to  him  the  sums  of  money 
mentioned  in  the  declaration,  at  the  rate  of  about  10  per  cent,  per  month, 
and  not  by  way  of  partnership;  and  there  was  no  question  of  the  usury 
if  the  Marquis  were  believed.  But  the  defendant's  counsel,  intending 
to  discredit  the  witness,  on  cross-examination  proposed  to  ask  him  what 
contract  he  had  made  with  a  Mr.  Schullenburg,  and  with  several  other 
third  persons  from  whom  he  had  also  taken  up  money,  on  the  same  and 
on  other  days  on  which  the  contract  in  question  was  made;  and  this, 
for  the  purpose  of  drawing  from  the  witness  the  confession  that  he  had 
taken  up  sums  of  money  from  those  third  persons  on  terms  of  confidence 
that  he  was  to  employ  the  money  so  raised  according  to  his  own  dis- 
cretion, (which  he  had  suggested  to  them  he  was  enabled  to  do  to  great 
advantage),  and  to  share  with  them  the  profits  whatever  they  might  be; 
the  defendant's  counsel  intending,  if  the  witness  answered  in  the  affirma- 
tive, to  draw  from  thence  a  conclusion  that  he  had  made  the  same  con- 
tract with  the  defendant  (which  was  suggested  to  be  the  fact)  with 
whom  as  with  those  third  persons  he  was  living  at  the  time  in  habits 
of  frequent  communication  and  familiarity.  .  .  .  Lord  Ellenborough, 
however,  refused  to  suffer  the  question  to  be  put  to  the  witness  on  his 
cross-examination,  conceiving  it  to  be  entirely  irrelevant  to  the  issue  in 
the  cause.  .  .  . 

The  plaintiff  having  obtained  a  verdict  for  £25,200,  Erskine  now 
moved  for  a  new  trial,  first,  on  the  ground  of  the  rejection  of  the  evidence 
proposed  to  be  obtained  upon  the  cross-examination  of  the  witness.  .  .  . 

The  Court  were  all  decidedly  of  opinion  that  it  was  not  competent 
to  counsel  on  cross-examination  to  question  the  witness  concerning  a 
fact  wholly  irrelevant  to  the  matter  in  issue,  if  answered  affirmatively, 
for  the  purpose  of  discrediting  him  if  he  answered  in  the  negative  by 
calling  other  witnesses  to  disprove  what  he  said.  That  in  this  case, 
whatever  contracts  the  witness  might  have  entered  into  with  other  per- 
sons for  other  loans,  thev  could  not  be  evidence  of  the  contract  made 


112  BOOK    i:     RULES    OF    ADMISSIBILITY  No.  61 

with  the  defendant,  unless  the  witness  had  first  said  that  he  had  made  the 
same  contract  with  the  defendant  as  he  had  made  with  those  persons- 
which  he  had  not  said.   .   .   . 

And  the  Court  desired  to  have  it  understood,  that  they  rejected  the 
motion  for  a  new  trial  on  the  first  ground,  and  granted  a  rule  nisi  on 
the  second  ground  alone,  i.e.,  upon  the  affidavit  of  the  publication  and 
distribution  of  the  plaintiff's  statement  of  his  case  at  the  trial. 


62.   HOWE   V.   THAYER 

Supreme  Judicial  Court  of  Massachusetts.     1835 

17  Pick.'91 

Assumpsit  against  Thayer  &  Fellows  to  recover  the  value  of  a  quantity 
of  provisions  furnished  to  the  Mount  Pleasant  Institution  in  Amherst, 
between  November,  1831,  and  April  7,  1832.  Fellows  was  defaulted. 
Thayer  pleaded  to  the  action. 

At  the  trial,  before  Putnam,  J.,  the  plaintiff  proved  that  there  had 
existed  a  partnership  between  the  defendants  and  one  Colton,  as  pro- 
prietors and  conductors  of  the  institution,  commencing  in  1827;  that 
his  account  was  kept  with  them  under  the  name  of  the  Mount  Pleasant 
Institution,  to  a  period  after  April  7,  1832;  that  in  October,  1829,  he 
made  a  written  contract  with  them  under  that  name,  to  supply  them  with 
meats;  and  that  this  contract,  which  expired  by  its  terms  in  October, 
1830,  was  renewed  at  that  time,  for  another  year,  by  the  same  agent  of 
the  institution  and  under  the  same  name  as  before.  The  defendant, 
Thayer,  contended  that  the  partnership  was  dissolved  on  June  23,  1830; 
that  at  the  time  of  such  alleged  dissolution.  Fellows  and  one  Newton 
formed  a  copartnership;  and  that  after  that,  they  alone  were  interested 
in  the  concern;  and  that  he  had  given  notice  to  the  plaintiff  of  his  with- 
drawal from  the  firm,  and  of  the  dissolution  of  the  old  partnership,  on 
the  morning  after  it  took  place.  The  witness  who  testified  as  to  such 
notice,  stated  in  chief,  but  not  in  answer  to  any  question  on  the  part  of 
the  defendants,  that  he  was  "confident  all  in  the  neighborhood  were 
notified  in  two  days."  On  the  cross-examination  of  this  witness,  the 
plaintiff's  counsel  inquired  whether  he  gave  the  same  notice  to  the  other 
creditors  of  the  firm  as  he  had  testified  that  he  gave  to  the  plaintiff, 
and  asked  their  names.  To  this  the  witness  replied  affirmatively,  and 
mentioned  the  names  of  some  of  the  persons  to  whom  he  had  given  such 
notice.  The  plaintiff  thereupon  offered  several  of  the  creditors  named 
by  the  witness,  to  prove  that  he  had  not  given  them  any  such  notice 
as  he  had  stated.  The  defendant  objected  to  the  admission  of  this 
evidence;   but  the  objection  was  overruled.  ... 

The  jury  found  a  verdict  for  the  plaintiff.     The  defendant  excepted. 

Forbes  &  Baker,  for  the  defendant.  ...  It  was  not  competent  for 


No.  62  CIRCUMSTANTIAL   EVIDENCE:     CONDUCT  113 

the  plaintiff  to  introduce  other  creditors  to  contradict  the  defendant's 
witness  as  to  the  notice  given  by  the  witness  to  any  other  persons  than 
the  plaintiff  himself.  It  could  make  no  difference,  in  the  present  case, 
whether  other  creditors  had  or  had  not  notice  that  Thayer  had  ceased 
to  be  a  partner.  The  testimony  went  merely  to  prove  a  fact  collateral 
and  irrelevant  to  the  issue.  .  .  . 

/.  C  Bates,  Dewey  and  E.  Dickinson,  for  the  plaintiff.  .  .  .  To  the 
point,  that  under  the  circumstances,  it  was  competent  for  the  plaintiff 
to  introduce  witnesses  to  prove  that  they  had  not  received  from  the 
defendant's  witness  such  a  notice  as  he  had  stated  that  he  gave  to  them. 
Rice  V.  New  England  Mar.  Ins.  Co.,  4  Pick.  439;  Atwood  v.  Welton, 
7  Conn.  R.  GG.  .  .  . 

Shaw,  C.  J.,  drew  up  the  opinion  of  the  Court.  The  object  of  this 
action  is  to  charge  the  defendants  jointly  as  partners,  for  provisions 
furnished  to  the  Mount  Pleasant  Institution.  The  defendant,  Fellows, 
has  admitted  his  liability,  by  a  default;  the  defendant,  Thayer,  denies 
his  liability  as  a  partner,  and  has  pleaded  to  the  action.  .  .  .  The  Court 
are  also  of  opinion,  that  the  direction  in  regard  to  the  burden  of  proof 
Ajvas  right,  which  was,  that  it  was  incumbent  on  the  plaintiff  in  the  first 
instance  to  prove  the  defendant,  Thayer,  a  partner,  and  if  this  were  done, 
he  would  be  liable,  unless  he  could  prove  a  dissolution,  as  it  regarded 
himself,  and  notice  of  it  to  the  plaintiff,  before  the  supplies.  .  .  . 

In  respect  to  the  admission  of  the  evidence,  that  the  witness  had 
given  a  different  notice  to  the  other  creditors,  from  that  which  he  stated 
that  he  had  given  to  the  plaintiff,  we  are  of  opinion,  that  it  was  rightly 
admitted.  ...  It  was  material  to  the  issue,  not  only  to  show  that  the 
witness  had  given  some  notice,  but  the  form,  substance,  and  particulars 
of  that  notice.  It  was  offered  as  proof  of  notice  to  the  plaintiff  as  a 
creditor,  of  the  general  dissolution  of  the  copartnership  carrying  on  the 
business  of  the  Mount  Pleasant  Classical  Institution.  The  plaintiff 
denied  this,  and  insisted  that  it  was  a  notice  of  a  different  character. 
The  witness  stated  that  he  gave  notice  to  all  the  creditors  and 
customers  of  the  institution  at  the  same  time.  We  think  the  effect 
of  his  testimony  was,  that  he  gave  to  them  all,  the  notice  of  a  general 
dissolution  of  the  partnership,  and  that  the  defendant  Thayer  had  ceased 
to  be  concerned.  It  is  then  manifest  that  he  intended  to  give  the  same 
notice  to  all  standing  in  the  same  relation,  and  the  natural  inference 
would  be  that  he  did  so.  When  therefore  it  was  offered  to  show,  that  he 
gave  a  different  notice  in  form,  substance,  and  effect,  to  others  standing 
in  the  same  relation,  it  is  not  merely  to  show  that  the  witness  is  not  to 
be  believed,  because  he  has  made  different  statements  at  different  times, 
indicating  a  want  of  recollection  or  integrity,  but  it  is  a  fact  bearing  upon 
the  issue,  namely,  what  was  the  form  and  substance  of  the  notice  which 
he  in  fact  gave  to  the  plaintiff.  Like  all  inferences  from  circumstances, 
it  is  founded  on  experience.  A  man  goes  forth  to  a  class  of  persons, 
standing  in  the  same  relation,  to  give  them  a  notice  affecting  their  interests 


114  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  62 

alike.  If  there  are  ten,  and  he  gives  a  particular  notice  to  nine,  it  leads 
to  a  probable  inference  that  he  gave  a  like  notice  to  the  tenth,  where 
he  states  that  he  intended  to  make  no  distinction,  and  believes  that  he 
notified  all  alike.  Its  tendency  is  not,  therefore,  merely  to  bear  upon 
the  credit  of  the  witness,  but  upon  a  material  fact  involved  in  the  issue, 
to  be  proved  either  by  the  testimony  of  that  witness,  or  by  any  other  evi- 
dence, positive  or  circumstantial,  which  is  competent  and  relevant.  .  .  . 

Judgment  on  the  verdict. 


63.   AIKEN  V.   KENNISON 

.  Supreme  Court  of  Vermont.     1886 

58  Vt.  665 

Trover  for  the  conversion  of  a  horse.  Trial  by  jury,  Ross,  J., 
presiding.     Verdict  for  the  defendant. 

The  plaintiff's  evidence  tended  to  show  that  on  the  defendant's 
request,  he,  plaintiff,  told  him  he  would  purchase  a  horse  for  him,  and 
that  defendant  might  have  the  horse  when  he  paid  for  it;  that  defendant 
consented,  and  that  thereupon  he  gave  him  the  following  writing  to  take 
to  one  Miller:  "Plin  Miller:  if  you  trade  with  E.  A.  Kennison  for  a 
horse,  I  will  pay  you  for  him  about  the  middle  of  this  month.  (Signed) 
G.  W.  Aiken."  On  the  same  day,  January  9,  1883,  the  defendant  took 
the  writing  to  said  Miller,  traded  for  the  horse,  and  took  it  into  his 
possession.  At  the  same  time  the  plaintiff  made  the  following  entry 
in  his  book  in  his  account  against  defendant:  "January  9.  Horse  of 
Pliny  Miller."  The  plaintiff's  evidence  further  tended  to  show,  that  on 
February  16,  1883,  he  gave  a  written  consent  to  the  defendant  that  he 
might  exchange  this  horse  for  another  horse,  provided  he,  plaintiff,  had 
the  money  paid  in  exchange,  and  also  a  lien  on  the  second  horse;  that 
the  defendant  exchanged  the  horse,  and  soon  after  sold  the  one  received. 
The  defendant  denied  that  plaintiff  ever  had  any  interest  in  or  lien  upon 
either  of  said  horses;  and  his  evidence  tended  to  show  that  he  made 
the  purchase  of  the  horse  from  said  Miller  in  his  own  name  and  right, 
and  took  a  bill  of  sale  from  said  Miller  therefor  at  the  date  of  the  pur- 
chase; that  plaintiff  gave  him  the  writing  before  mentioned  merely  for 
the  purpose  of  assuming  the  pajTnent  of  said  horse,  and  not  for  the 
purpose  of  purchasing  the  said  horse  for  himself,  or  of  acquiring  any  lien 
on  it. 

On  the  trial  the  plaintiff  produced  his  book  showing  his  account  vnth. 
the  defendant,  and  showing  the  entry  in  pencil  above  named,  and  the 
same  were  put  in  evidence  without  objection.  The  plaintiff's  counsel 
then  proposed  to  ask  the  plaintiff,  upon  his  examination  in  chief,  whether 
he  had  had  other  transactions  of  a  similar  nature  with  other  people 
dealing  with  him.     The  evidence  was  excluded.  .  .  . 


No.  63  CIRCUMSTANTIAL  EVIDENCE:     CONDUCT  115 

Crane  &  Alfred,  for  the  plaintiff.  There  was  error  in  excluding  the 
evidence  offered  to  show  that  the  plaintiff  had  had  other  transactions 
with  other  people  of  a  similar  nature.  .  .  . 

L.  H.  Thompson,  for  the  defendant.  The  evidence  excluded  by  the 
Court  related  to  matter  wholly  inter  alios.  It  had  no  tendency  to  prove 
that  plaintiff  had  a  lien  on  the  horse.  .  .  . 

The  opinion  of  the  Court  was  delivered  by 

RowELL,  J. —  Phelps,  Dodge  &  Company  v.  Conant  &  Co.,  30  Vt. 
277,  is  sufficient  authority  against  the  first  exception;  but  as  "frequent 
recurrence  to  fundamental  principles"  is  as  necessary  in  law  as  in 
liberty,  we  will  advert  to  the  general  rule  under  which  such  evidence 
is  excluded.  The  maxim  "res  inter  alios  acta,"  that  a  transaction 
between  two  persons  ought  not  to  operate  to  the  disadvantage  of  a 
third,  though  somewhat  obscure  in  its  application,  because  it  does 
not  show  how  unconnected  transactions  should  be  supposed  to  be 
relevant  to  each  other,  and  though  failing  in  its  literal  sense,  be- 
cause it  is  not  true  that  a  man  cannot  be  affected  by  a  transaction 
to  which  he  is  not  a  party,  is  nevertheless  one  of  the  most  impor- 
tant and  most  practically  useful  maxims  of  the  law  of  evidence.  It 
means,  as  Mr.  Justice  Stephen  says,  that  you  are  not  to  draw  infer- 
ences from  one  transaction  to  another,  that  is  not  specifically  connected 
with  it,  merely  because  the  two  resemble  each  other;  that  they  must  be 
linked  together  by  the  chain  of  cause  and  effect  in  some  assignable  way 
before  you  can  draw  your  inference.  Stephen,  Digest  of  Evidence,  198, 
note  vi.  But  this  rule  has  its  exceptions;  and  one  of  them  is  —  which 
is  claimed  to  be  applicable  here  —  that  where  the  question  is  whether  a 
thing  was  done  or  not,  the  existence  of  any  course  of  office  or  business 
according  to  which  it  naturally  would  or  would  not  have  been  done,  is  a 
relevant  fact. 

But,  as  here  was  no  offer  to  show  any  such  course  of  office  or  business, 
the  case  is  not  brought  within  this  exception;  and  as  there  is  no  other 
exception  to  the  rule  within  which  it  is  brought,  it  is  left  to  stand  on  the 
rule  itself,  which,  as  we  have  seen,  excludes  similar  but  unconnected 
facts.  1  Wharton,  Evidence,  §  29.  Mr.  Phillipps  says  it  is  considered 
in  general  that  no  reasonable  presumption  can  be  drawn  as  to  the  making 
or  the  execution  of  a  contract  by  a  party  with  one  person  in  consequence 
of  the  mode  in  which  he  has  made  or  executed  similar  contracts  with 
other  persons.  1  Phillipps,  Evidence,  748.  A  reference  to  a  few  cases 
will  serve  to  illustrate  the  rule.  In  assumpsit  for  use  and  occupation, 
the  question  being  whether  the  rent  was  payable  quarterly  or  half- 
yearly.  Lord  Kenyon  would  not  allow  the  plaintiff  to  show  that  his 
other  tenants  like  the  defendant  paid  their  rents  quarterly,  and  said  that 
it  had  been  solemnly  determined  in  a  trial  at  the  bar  that  evidence  of 
the  custom  of  one  manor  was  no  evidence  of  the  custom  of  an  adjoining 
manor.  Carter  v.  Pryke,  Peake  95.  So  where  the  question  was  upon 
the  custom  of  tithing  in  the  parish  of  A.,  evidence  that  such  a  custom 


116  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  63 

existed  in  adjoining  parishes  was  excluded,  the  custom  not  being  laid  as 
a  general  custom  of  the  whole  country.  Furneaux  v.  Hutchins,  Cowp. 
807.     And  see  Spenceley  v.  De  Willott,  7  East  108  [a7ite,  No.  61].  .  .  . 

Judgment  affirmed. 

64.   BOCK  V.   WALL 

Supreme  Judicial  Court  of  Massachusetts.     1911 

207  Mass.  506;  93  N.  E.  821 

Petition,  filed  on  August  2,  1906,  under  R.  L.  c.  196,  for  damages 
sustained  by  the  petitioners,  upper  riparian  proprietors  on  the  Stop 
River,  by  reason  of  the  flooding  of  their  land  by  water  set  back  by  the 
respondent's  dam  below  them.  The  respondent  in  her  answer  alleged 
"that  she  and  those  under  whom  she  claims  have  had  peaceable  possession 
and  occupation  of  said  mill  and  water  works  and  dam  and  have  main- 
tained said  dam  at  its  present  height  for  more  than  twenty  years  prior 
to  the  first  day  of  August,  1903."  The  case  was  tried  in  the  Superior 
Court  before  Wait,  J.  The  jury  found  for  the  respondent;  and  the 
petitioners  alleged  exceptions.  The  facts  material  to  these  exceptions 
are  stated  in  the  opinion. 

R.  Clapp,  for  the  petitioners.  H.  E.  Ruggles  {J.  B.  Crawford  with 
him),  for  the  respondent. 

Sheldon,  J.  —  The  question  contested  was  whether  the  respondent's 
dam  had  been  maintained  at  its  present  height  for  more  than  twenty 
years  before  the  bringing  of  the  petition.  The  evidence  was  conflicting. 
There  was  evidence  that  in  1876  one  Campbell  owned  the  respondent's 
premises  and  an  adjacent  piece  of  land  upon  which  a  pond  had  been 
created  by  this  dam.  The  respondent  was  allowed  to  put  in  evidence  a 
deed  of  the  adjacent  land  given  in  March,  1876,  by  Campbell  to  the 
New  York  and  New  England  Railroad  Company,  in  which  deed  Camp- 
bell covenanted  for  himself  and  his  heirs  and  assigns  to  maintain  this 
dam  "to  at  least  its  present  height,"  so  that  the  water  in  the  pond  should 
not  be  drawn  down  below  its  level  then  existing.  The  petitioner  contends 
that  this  was  erroneous. 

In  our  opinion  the  deed  was  rightly  admitted.  It  created,  or  could 
be  found  to  have  created,  an  obligation  upon  Campbell  and  his  suc- 
cessors in  title  to  keep  the  dam  at  the  same  height  that  it  then  was; 
and  there  was  evidence  that  this  was  the  same  height  at  which  it  had 
been  ever  since  maintained.  The  deed  brought  about  a  permanent 
condition  of  affairs  affecting  the  use  of  Campbell's  estate  and  imposing 
a  duty  upon  all  future  owners  thereof.  The  existence  of  such  a  duty 
and  obligation  furnished  a  motive,  perhaps  a  strong  motive,  on  the  part 
of  Campbell  and  his  successors  to  comply  with  its  requirements  and  thus 
avoid  the  liability  under  which  they  otherwise  might  be  placed.  But 
when  it  is  disputed  whether  certain  persons  have  done  a  certain  act,  the 


No.  65        CIRCUMSTANTIAL  EVIDENCE:     INANIMATE   NATURE  117 

existence  of  a  motive  on  their  part  to  do  or  to  refrain  from  doing  that 
act  is  relevant.  Hanson  &  Parker  v.  Wittenberg,  205  Mass.  319,  327. 
This  is  the  underlying  element  in  such  cases  as  Clark  v.  Brown,  120  Mass. 
206,  and  those  cited  in  Conklin  v.  Consolidated  Railway,  196  Mass.  302, 
306.  The  rule  has  been  frequently  applied  in  criminal  cases,  in  which  it 
is  held  that  while  the  prosecution  is  not  obliged  to  show  a  motive  for  the 
commission  of  an  alleged  crime,  evidence  of  the  existence  of  such  a  motive 
is  competent  and  material.  Commonwealth  v.  Richmond,  207  Mass. 
240.  Commonwealth  v.  Jeffries,  7  Allen  548,  566.  The  rule  is  stated 
and  the  authorities  are  collected  in  12  Cyc.  149,  150. 

It  follows  that  this  deed  was  rightly  admitted,  not  as  a  declaration 
of  the  grantor,  but  to  show  that  he  and  his  successors  had  a  motive 
to  do  what  the  respondent  contended  that  they  did  do,  and  thus  to 
corroborate  the  other  evidence  upon  which  she  relied.  .  .  . 

Exceptions  overruled. 


Topic  3.     Specific  Events  or  Acts  as  Evidence  of  a  Condition  or 
Cause,  etc.,  in  External  Inanimate  Nature.' 

65.   COLLINS  V.   DORCHESTER 
Supreme  Judicial  Court  of  Massachusetts.     1850 
6  Cush.  396 

This  action  was  brought  for  an  injury  received  by  the  plaintiff  in 
December,  1847,  by  reason  of  a  defect  in  a  highway,  which  the  defendants 
were  bound  to  keep  in  repair.  The  trial  was  in  the  Court  of  Common 
Pleas,  before  Hoar,  J.,  to  whose  rulings  and  instructions  the  plaintiff 
excepted. 

The  highway  in  question  passed  through  a  marsh,  and  was  made 
smooth  and  passable  for  the  width  of  at  least  thirty-one  feet;  and,  on 
each  side,  at  the  edge  of  and  along  the  road  there  was  a  row  of  posts 
about  six  feet  apart,  extending  on  each  side  for  twenty  rods  or  more, 
which  had  been  standing  for  many  years.  The  plaintiff  drove  his  chaise 
against  one  of  the  posts,  so  that  one  wheel  passed  outside  of  and  locked 
upon  the  post;  and  this  accident  was  the  occasion  of  the  injury  com- 
plained of.  It  appeared  that  two  or  three  of  the  posts,  at  about  the 
place  where  the  accident  occurred,  were  broken  down  or  removed.  The 
alleged  defect  was  the  want  of  a  railing  at  the  place  where  the  accident 
occurred.  .*  .  . 

The  plaintiff,  having  introduced  evidence  of  the  injury,  and  of  the 
circumstances  under  which  it  occurred,  proposed  to  prove,  by  one 
Sprague,  that  before  the  happening  of  the  accident  complained  of,  the 


^  For  the  principles  of  Logic  here  applicable,  see  the  present  Compiler's 
"Principles  of  Judicial  Proof"  (1913),  Nos.  4-13. 


118  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  65 

witness  was  riding  over  the  same  road,  at  or  near  the  same  place,  and 
under  similar  circumstances,  and  that  an  accident  similar  to  the  one  in 
question  then  occurred,  which  was  caused  by  the  same  alleged  defect, 
and  without  any  neglect  or  fault  on  the  part  of  the  witness.  But  the 
plaintiff  stated,  at  the  same  time,  that  he  did  not  expect  to  prove,  that 
the  defendants  had  any  notice  of  this  accident.  The  proposed  evidence 
being  objected  to,  the  presiding  judge  ruled,  that  for  the  purpose  of 
proving  notice  to  the  town,  the  plaintiff  might  show,  that  any  inhabitant 
of  Dorchester  had  known  or  heard  of  accidents  upon  the  highway  in 
question;  but,  that  for  the  purpose  of  proving  the  way  defective,  the 
plaintiff  could  not  be  allowed  to  show  the  circumstances  of  another 
accident  alleged  to  be  similar,  as  that  would  raise  a  collateral  issue,  and 
result  in  testing  one  point  in  dispute  by  another.  The  evidence  was 
accordingly  rejected.  .  .  . 

F.  Hilliard,  for  the  plaintiff.  J.  J.  Clarke  and  N.  F.  Safford,  for  the 
defendants. 

Metcalf,  J. :  The  testimony  of  Sprague,  that  he,  before  the  injury 
complained  of  by  the  plaintiff,  received  a  similar  injury,  at  or  near  the 
same  place,  without  any  negligence  on  his  part,  was  not  competent  for 
the  purpose  of  proving  that  the  road  was  defective  at  the  time  and  in 
the  place  of  the  plaintiff's  injury.  It  was  testimony  concerning  col- 
lateral facts,  which  furnished  no  legal  presumption  as  to  the  principal 
facts  in  dispute,  and  which  the  defendants  were  not  bound  to  be  prepared 
to  meet.  Standish  v.  Washburn,  21  Pick.  237;  2  Stark.  Ev.  381  et  seq.; 
1  Greenl.  on  Ev.,  §§  52,  448.  .  .  .  Exceptions  overruled. 

66.   DARLING  v.  WESTMORELAND 

Supreme  Judicial  Court  of  New"  Hampshire.     1872 

52  N.  H.  401 

Case  by  Charles  Darling  against  the  town  of  Westmoreland,  for  an 
injury  caused  by  defects  in  a  highway.  Verdict  for  the  defendants, 
and  motion  of  the  plaintiff  for  a  new  trial.  The  defects  alleged  by  the 
plaintiff  were,  a  pile  of  lumber  by  the  side  of  the  road  likely  to  frighten 
horses,  and  an  insufficient  railing  of  a  bridge.  His  claim  was,  that  his 
horse  was  frightened  by  the  lumber  as  he  crossed  the  bridge,  and  ran 
back,  and  backed  off  the  bridge.  One  ground  of  defense  was,  that  the 
horse  was  vicious  and  unsafe,  and  much  evidence  was  offered  on  that 
point  on  both  sides.  The  plaintiff  introduced  the  testimony  of  a  Mr. 
Cressy,  who  testified  that  he  rode  past  this  pile  of  lumber  with  a  Mr. 
Fletcher,  and  he  offered  to  prove  by  him  that  Fletcher's  horse  was 
frightened  by  the  lumber;  but  the  Court  rejected  the  evidence,  and  the 
plaintiff  excepted. 

Gushing  &  Lane  &  Healy,  for  the  plaintiff.  The  fact  that  other 
horses  were  frightened  by  the  same  pile  of  lumber,  tends  to  show  that  it 


No.  66        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  119 

was  dangerous,  and  so  an  encumbrance,  and  also  tends  to  rebut  thr 
defendant's  claim  that  the  plaintiff's  horse  was  unsafe.  But  it  is  said, 
on  the  authority  of  Hubbard  v.  Concord,  35  N.  H.  52,  that  this  fact 
cannot  be  shown,  because  the  attempt  to  show  it  raises  a  collateral  issue 
which  the  opposite  party  cannot  be  expected  to  be  prepared  to  try. 
It  seems  to  us  that  this  objection  is  entirely  unfounded,  either  in  principle 
or  practice.  .  .  . 

Wheeler  &  Faulkner,  for  the  defendants.  With  such  respectable 
authorities  to  support  the  decision  in  Hubbard  v.  Concord  as  Green- 
leaf,  Starkie,  Phillipps,.  the  Supreme  Court  of  Massachusetts,  and  the 
uniform  ruling  at  nisi  prius  of  the  Court  of  this  State,  for  a  period 
of  at  least  twenty  years  prior  to  the  decision  in  Hubbard  v.  Concord, 
any  argument  in  support  of  the  ruling  here  excepted  to  would  seem 
superfluous. 

Doe,  J. :  .  .  .  One  question  of  fact  was,  whether  the  pile  of  lumber 
was  likely  to  frighten  horses.  .  .  .  Was  the  fright  of  Fletcher's  horse 
competent  evidence  on  the  question  whether  the  lumber  was  likely  to 
frighten  horses?  .  .  .  On  the  independent  and  general  question  of  the 
horse-frightening  capacity  of  a  certain  pile  of  lumber,  what  rule  of  law 
considers  the  fright  of  [the  plaintiff's]  horse  as  important  and  disregards 
the  fright  of  Mr.  Fletcher's  horse  as  of  no  consequence  at  all?  .  .  .  If 
the  question  were,  whether  the  lumber  was  capable  of  floating  in  water, 
or  making  a  good  fire,  or  being  sawed  or  cut  or  planed  in  a  specific  manner, 
or  supporting  horses  and  wagons  passing  over  a  bridge,  there  could  be  no 
legal  objection  to  the  trial  of  an  appropriate  experiment  upon  it  in  the 
presence  of  the  jury,  or  to  evidence  of  experiments  that  had  been  tried 
elsewhere.  And  there  is  no  reason,  outside  of  the  technical  rules  of  law, 
why  its  ability  to  frighten  horses  should  not  be  tested  out  of  Court,  and 
proved  in  Court  in  the  same  manner.  When  we  want  to  know  whether 
a  certain  horse  is  skittish  or  is  capable  of  a  certain  speed,  whether  a  certain 
substance  is  poisonous  and  destructive  of  animal  or  vegetable  life,  whether 
certain  materials  are  of  a  certain  strength,  whether  a  certain  field  or  a 
certain  kind  of  soil  is  likely  to  produce  a  certain  kind  or  amount  of  crop, 
whether  a  certain  man  or  brute  or  machine  is  likely  to  perform  a  certain 
kind  or  amount  of  work,  or  whether  anything  can  be  done  or  is  likely  to 
be  done,  one  way  is  to  speculate  about  it,  and  another  way  is  to  try  it. 
The  law  is  a  practical  science,  and  when  it  is  appealed  to  to  direct  what 
means  shall  be  used  to  find  out  whether  a  certain  pile  of  lumber  is  likely 
to  frighten  horses,  if  any  one  asserts  that,  on  this  subject,  the  law  pre- 
fers speculation  to  experience,  abhors  actual  experiment  and  delights  in 
guesswork,  the  person  advancing  such  a  proposition  takes  upon  himself 
the  task  of  maintaining  it  upon  some  legal  rule,  distinctly  stated  by  him 
and  well  established  by  the  authorities.  Such  a  proposition  is  not  sus- 
tained by  the  reason  of  the  law.  It  is  sustained  by  nothing  that  can  be 
justly  called  a  principle.  By  what  technical  rule,  at  war  with  reason 
and  principle,  is  it  supported? 


120  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  66 

The  very  few  authorities  tending  to  sustain  the  exclusion  of  the 
fright  of  Fletcher's  horse  in  this  case,  are  based  upon  the  authorit}^  or  the 
reason  of  the  decision  in  Collins  v.  Dorchester,  6  Cush.  396  [ante,  No.  65] 
and  two  other  Massachusetts  cases  which  rest  upon  that  case.  ...  A 
consideration,  substantially  disposing  of  the  very  few  authorities  that 
have  any  considerable  tendency  to  sustain  the  ruling  in  this  case,  is, 
that  Collins  v.  Dorchester,  on  which  the  others  are  based,  is  no  authority 
for  the  exceptional  doctrine  it  has  been  supposed  to  establish.  That 
case  being  no  foundation  for  the  others,  and  they  having  no  other  foun- 
dation, they  all  fall  together. 

In  that  case  the  judge  ruled  that  this  evidence  was  not  competent 
for  the  purpose  of  proving  the  way  defective.  The  whole  of  the  decision 
of  the  question  raised  by  that  ruling  was  this :  "  The  testimony  of  Sprague, 
that  he,  before  the  injury  complained  of  by  the  plaintiff,  received  a  similar 
injury  at  or  near  the  same  place,  without  any  negligence  on  his  part,  was 
not  competent  for  the  purpose  of  proving  that  the  road  was  defective  at 
the  time  and  in  the  place  of  the  plaintiff's  injury.  It  was  testimony 
concerning  collateral  facts,  which  furnished  no  legal  presumption  as  to 
the  principal  facts  in  dispute,  and  which  the  defendants  were  not  bound 
to  be  prepared  to  meet.  Standish  v.  Washburn  (21  Pick.  237).  Even 
a  judgment  recovered  by  Sprague  against  the  defendants  for  damages 
sustained  by  him  by  reason  of  a  defect  in  the  road,  would  not  be  admissi- 
ble in  evidence  in  favor  of  the  plaintiff." 

In  that  case,  a  sufficient  railing  on  the  posts  would  have  prevented 
the  plaintiff's  wheel  going  outside  of  the  post  with  which  his  carriage 
came  in  contact.  The  question  was,  whether,  in  the  undisputed  condi- 
tion of  the  road,  the  absence  of  such  railing,  exposing  travellers  to  the 
danger  of  their  wheels  going  outside  of  and  locking  upon  the  posts,  was 
a  defect.  No  experiment  or  experience  of  the  plaintiff,  or  Sprague,  or 
any  one  else,  was  necessary  to  show  that  the  posts  were  capable  of  being 
run  against.  It  does  not  appear  that  any  such  experiment  or  experience 
would  assist  the  judgment  of  the  jury  on  the  question  whether,  in  the 
undisputed  condition  of  the  road,  the  posts  were  likely  to  be  run  against. 
Such  a  case  is  no  authority  for  holding  that  the  disputed  horse-frightening 
capacity  of  a  certain  pile  of  lumber  cannot  be  shown  by  experience.  .  .  . 

The  only  rule  relied  upon  to  exclude  experimental  knowledge  in  such 
a  case  as  this,  is  the  rule  requiring  the  evidence  to  be  confined  to  the 
issue,  —  that  is  to  the  facts  put  in  controversy  by  the  pleadings,  pro- 
hibiting the  trial  of  collateral  issues,  —  that  is,  of  facts  not  put  in  issue 
by  the  pleadings,  and  excluding  such  evidence  as  tends  solely  to  prove 
facts  not  involved  in  the  issue.  This  rule  merely  requires  evidence  to  be 
relevant.  It  merely  excludes  what  is  irrelevant.  It  is  a  rule  of  reason, 
and  not  an  arbitrary  or  technical  one,  and  it  does  not  exclude  all  experi- 
mental knowledge.  A  fact  as  relevant  and  as  directly  involved  in  the 
issue  of  guilty  or  not  guilty  between  these  parties,  as  any  fact  in  contro- 
versy, was  the  likelihood  or  probability  of  the  lumber  frightening  ordinary 


No.  67        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  121 

horses.     There  was  nothing  collateral  —  that  is,  nothing  irrelevant  — 
in  that.  .  .  . 

When  a  trial  is  likely  to  be  unreasonably  protracted  by  a  great  number 
of  witnesses  impeaching  or  sustaining  the  character  of  other  witnesses, 
the  evil  is  not  remedied  by  any  principle  of  law  prescribing  the  exact 
number.  Many  evils  of  that  kind  must  necessarily  be  avoided  by  the 
judge  determining,  as  a  matter  of  fact,  upon  the  circumstances  of  the 
case,  where  the  line  of  reasonableness  is.  As  to  the  number  of  experi- 
ments or  experiences  on  many  points,  collateral  in  a  certain  sense,  but 
relevant  in  the  legal  sense,  it  is  impossible  in  the  nature  of  the  case  for  a 
limit  to  be  fixed  as  a  matter  of  law.  But  it  does  not  follow  that  the  law 
excludes  all  evidence  of  which  it  cannot  measure  a  reasonable  quantity. 

Exceptions  sustained. 


67.   MORSE  V.  MINNEAPOLIS  &  ST.   LOUIS  R.   CO. 

Supreme  Court  of  Minnesota.     1883 

30  Minn.  465 

Appeal  by  defendant  from  an  order  of  the  District  Court  for  Free- 
born County,  Farmer,  J.,  presiding,  refusing  a  new  trial. 

This  was  an  action  to  recover  damages  for  the  alleged  negligence  of 
defendant,  causing  the  death  of  plaintiff's  intestate  while  employed  as  an 
engineer  on  its  railroad.  One  of  the  acts  of  negligence  alleged  to  have 
contributed  to  the  injury  was  defendant's  allowing  its  track  to  become 
and  remain  out  of  repair;  the  defects  in  that  respect  consisting  of  a 
broken  rail  and  defective  switch,  which  caused  the  engine  upon  which 
the  deceased  was  to  be  thrown  from  the  track  and  upset.  The  rail  and 
switch  referred  to  were  situated  in  the  yard  of  defendant  at  Albert 
Lea,  and  near  the  water-tank,  at  which  point  the  accident  occurred. 

The  Court,  against  defendant's  objection  and  exception,  allowed 
plaintiff  to  show  defects  generally  in  all  the  numerous  tracks  in  defend- 
ant's yard,  from  the  round-house,  whence  the  engine  started,  to  the 
"place  where  the  first  work  was  to  be  performed,"  .  .  .  [i.e.]  the  first 
snow-drift,  situated  a  short  distance  ahead  of  the  point  where  the  accident 
occurred.  The  engine  in  question  did  not  pass  over  any  of  these  tracks 
except  one,  and  there  was  nothing  tending  to  show  that  any  defects, 
except  those  at  or  near  the  place  of  the  accident,  in  any  way  contributed 
to  the  injury  complained  of. 

J.  D.  Springer,  for  appellant.  Gordon  E.  Cole  and  J.  H.  Parker,  for 
respondent. 

Mitchell,  J.  [after  stating  the  facts  as  above].  1.  We  think  the 
admission  of  this  evidence  was  error.  The  evidence,  under  the  circum- 
stances, should  have  been  limited  to  those  defects  which  caused  or 
reasonably  might  have  conduced   to  produce   the   injury.     The  mere 


122  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  67 

existence  of  other  defects  in  other  parts  of  the  road  is  not  evidence  that 
a  similar  defect  existed  at  the  place  of  the  casualty,  and  caused  it.  The 
only  exceptions  to  this  rule  which  now  occur  to  us  are  where  the  other 
defects  M'ere  shown  to  be  the  result  of  a  cause  presumptively  operating 
at  the  place  of  the  casualty,  or  where  such  other  defects  might  have 
caused  the  defect  which  produced  the  injury.  But  there  are  no  facts 
bringing  this  case  within  any  such  exceptions.  Defects  in  other  tracks 
in  the  yard  at  Albert  Lea  had  no  more  to  do  with  producing  this  accident 
than  defects  a  hundred  miles  distant.  The  fact  that  they  were  in  the 
same  vicinity  does  not  alter  the  principle.  If  evidence  of  these  was 
admissible,  we  see  no  reason  why  defects  in  any  part  of  defendant's 
road  might  not  have  been  shown.  The  effect  of  this  evidence  was  to 
raise  false  issues.  The  defendant  was  not  on  trial  for  general  negligence; 
nor  was  it  liable  to  plaintiff  for  any  acts  of  negligence  except  those  which 
caused  the  injury  complained  of.  L.  &  N.  R.  Co.  v.  Fox,  11  Bush  (Ky.) 
495;  Grand  Rapids  &  Ind.  R.  Co.  v.  Huntley,  38  Mich.  537;  Pierce 
on  Railroads,  293.  .  .  . 

2.  There  remains  one  other  point  which  should  be  considered  with 
reference  to  another  trial.  For  the  purpose  of  showing  the  defective 
character  of  the  switch  referred  to,  plaintiff  was  permitted  to  show 
that  other  engines  and  cars  missed  the  track  at  the  same  point,  both 
before  and  after  the  accident  complained  of.  The  competency  of 
such  evidence  under  any  circumstances  is  by  many  Courts  denied. 
This  Court  has  held  it  to  be  competent.  Phelps  v.  City  of  Mankato, 
supra;   Kelly  v.  South.  Minn.  Ry.  Co.,  28  Minn.  98. 

It  is,  of  course,  not  competent  for  the  purpose  of  showing  independent 
acts  of  negligence.  But  we  think  on  principle  it  is  clearly  admissible 
when  it  tends  to  show  that  the  common  cause  of  these  accidents  is  a 
dangerous  or  unsafe  thing.  It  would  be  certainly  competent  to 
prove  by  an  expert  that,  at  a  time  either  before  or  after  the 
accident  when  the  instrument  claimed  to  have  caused  it  was  in 
the  same  condition  as  when  the  accident  complained  of  occurred, 
he  examined  and  experimented  with  it,  and  found  it  capable  of  pro- 
ducing like  results.  Hence  there  seems  no  reason  for  excluding  ordi- 
nary experience,  when  confined  within  the  same  limits  and  for  the 
same  purpose.  These  facts  are  in  the  nature  of  experiments  to  show 
the  actual  condition  of  the  instrument.  Upon  any  issue  as  to  the  con- 
dition or  safety  of  any  work  of  human  construction  designed  for 
practical  use,  evidence  showing  how  it  has  served,  when  put  to  the  use 
for  which  it  was  designed,  would  seem  to  bear  directly  upon  the  issue. 
It  is  sometimes  objected  that  this  presents  new  and  collateral  issues  of 
which  a  defendant  has  no  notice.  In  a  certain  sense  every  item  of  evi- 
dence material  to  the  main  issue  introduces  a  new  issue;  that  is,  it  calls 
for  a  reply.  In  no  other  sense  does  it  make  a  new  issue;  its  only  impor- 
tance is  that  it  bears  on  the  main  issue,  and,  if  it  does,  it  is  competent. 
Evidence  of  similar  accidents  resulting  from  the  same  cause  has  often 


No.  68        CIRCUMSTANTIAL  EVIDENCE:     INANIMATE   NATURE  123 

been  held  competent  for  the  purpose  referred  to.  Kent  v.  Lincoln,  32 
Vt.  591;  Quinlan  v.  Utica,  11  Hun  217;  Willey  v.  Portsmouth,  35  N.  H. 
303;  Chicago  v.  Powers,  42  III.  169;  Piggot  v.  Eastern  Cos.  liy.  Co., 
3  C.  B.  229;  House  v.  Metcalf,  27  Conn.  631;  Hill  v.  Portland  &  R.  R. 
Co.  55  Me.  438;   Darling  v.  Westmoreland,  52  N.  H.  401  [ante,  No.  66]. 

But,  to  render  such  evidence  competent,  it  must  appear,  or  at  least 
the  evidence  must  reasonably  tend  to  show,  that  the  instrument  or 
agency  whose  condition  is  in  issue  was  in  substantially  the  same  condition 
at  such  times  as  it  was  at  the  time  when  the  accident  complained  of 
occurred.  As  the  evidence  upon  another  trial  may  not  be  the  same,  we 
content  ourselves  with  stating  a  general  rule,  without  considering  whether 
all  the  evidence  of  this  kind  introduced  was  competent  within  the  rule 
suggested.  ... 

We  discover  no  other  error,  but  for  those  already  referred  to  a  new 
trial  must  be  granted.  Order  reversed. 


68.   MATTER  OF  THOMPSON 

Court  of  Appeals  of  New  York.  1891 

127  N.  Y.  463;  28  A^.  E.  389 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in  the 
second  judicial  department,  made  May  13,  1889,  ...  to  assess  the 
damages  caused  by  the  diversion  of  the  water  of  the  Bronx  river  from 
certain  lands  of  Charles  Butler.  .  .  . 

William  Allen  Butler,  for  appellant.  .  .  .  The  commission  erred  in 
excluding  the  evidence  offered  by  the  claimant  as  to  the  actual  value 
and  rental  value  and  the  price  paid  by  the  city  for  the  water-power  in 
the  Bronx  river  on  premises  immediately  adjoining  the  claimant.  .  .  . 

Arthur  H.  Hasten,  for  respondent.  ...  It  was  not  error  on  the  part 
of  the  commission  to  reject  evidence  of  what  the  city  had  paid  for  certain 
water-rights  appurtenant  to  a  neighboring  parcel.  .  .  . 

Parker,  J.  —  This  proceeding  was  brought  pursuant  to  the  powers 
conferred  on  the  commissioner  of  public  works  of  the  city  of  New  York, 
by  chapter  445  of  the  Laws  of  1877,  and  the  various  acts  amendatory 
thereof,  to  acquire  the  right  to  divert,  and  keep  diverted  from  the  Bronx 
river,  all  the  water  of  the  river  north  of,  and  above  the  dam  at  Kensico. 

The  commissioners  awarded  to  the  claimant,  who  was  the  owner  of  a 
large  and  valuable  farm  through  which  the  river  ran,  damages  in  the  sum 
of  $7,270.  .  .  .  The  only  exception  to  which  our  attention  is  called, 
relates  to  an  effort,  on  the  part  of  the  owner,  to  prove  what  had  been  paid 
by  the  petitioner  for  water-rights  appurtenant  to  a  neighborhood  parcel, 
on  the  same  river.  At  folio  7467  the  counsel  for  the  owner  offered  to 
prove  that  the  city  of  New  York  purchased  from  Robert  White,  the 
right  to  divert  the  waters  from  one-half  of  the  water-shed  of  the  Bronx 


124  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  68 

river,  and  paying  him  the  sum  of  $21,991.66,  for  such  rights,  and  his 
privileges  in  connection  with  a  certain  mill,  upon  what  is  known  as  the 
Powder  Mill  property  at  Scarsdale.  .  .  .  And  the  question  then  is,  was 
the  rejection  of  the  evidence  as  to  the  amount  paid  by  the  city  for  the 
White  water-power,  error  for  which  a  reversal  should  be  had. 

This  question  has  been  presented  to  the  Courts  of  last  resort  in  several 
of  the  States,  but  not  with  the  same  result.  In  Massachusetts,  New 
Hampshire,  Illinois,  Iowa,  and  Wisconsin,  it  is  held  that  actual  sales  of 
other  similar  land  in  the  vicinity,  made  near  the  time  at  which  the  value 
of  the  land  taken  is  to  be  determined,  are  admissible  as  evidence  for  the 
purpose  of  arriving  at  the  amount  of  compensation.  Gardner  v.  Brook- 
line,  127  Mass.  358;  Culbertson  v.  Blair  Packing  &  Prov.  Co.  v.  City  of 
Chicago,  3  111.  651;  Town  of  Cherokee  v.  S.  C.  &  I.  F.  Town  Lot  & 
Land  Co.,  52  Iowa  279;  Concord  R.  R.  Co.  v.  Greely,  23  N.  H.  242; 
Washburn  v.  Milwaukee  &  Lake  Winnebago  R.  R.  Co.,  59  Wis.  364. 

While  in  some  of  the  other  jurisdictions,  notably  Pennsylvania,  New 
Jersey,  Georgia,  and  California,  it  is  held  that  sales  of  similar  property 
are  not  admissible  for  the  purpose  of  proving  the  value  of  property  about 
to  be  taken.  East  Pa.  R.  R.  Co.  v.  Hiester,  40  Pa.  St.  53;  P.  &  N.  W. 
R.  R.  Co.  V.  Bunnell,  81  ibid.  414;  Pa.  S.  V.  R.  R.  Co.  v.  Ziemer,  124 
560;  Montclair  R.  Co.  v.  Benson,  36  N.  J.  L.  557;  C.  P.  R.  R.  Co.  v. 
Pearson,  35  Cal.  247-262;  Selma  R.  &  D.  R.  R.  Co.  v.  Keith,  53  Ga.  178. 

The  reasons  assigned  for  the  conclusions  reached  in  the  cases  last 
cited  are,  in  the  main,  that  the  test  in  legal  proceedings  is,  what  is  the 
present  market  value  of  the  property  which  is  the  subject  of  controversy? 
It  may  be  shown  by  the  testimony  of  competent  witnesses,  and  on  cross- 
examination,  for  the  purpose  of  testing  their  knowledge  respecting  the 
market  value  of  land  in  that  vicinity,  they  may  be  asked  to  name  such 
sales  of  property,  and  the  prices  paid  therefor,  as  have  come  to  their 
attention.  But  a  party  may  not  establish  the  value  of  his  land  by 
showing  what  was  paid  for  another  parcel  similarly  situated,  because 
it  operates  to  give  to  the  agreement  of  the  grantor  and  grantee  the  effect 
of  evidence  by  them,  that  the  consideration  for  the  conveyance  was  the 
market  value,  without  giving  to  the  opposite  party  the  benefit  of  cross- 
examination  to  show  that  one  or  both  were  mistaken.  If  some  evidence 
of  value,  then  prima  facie  a  case  may  be  made  out  so  far  as  the  question 
of  damages  is  concerned  by  proof  of  a  single  sale,  and  thus  the  agreement 
of  the  parties,  which  may  have  been  the  result  of  necessity  or  caprice, 
would  be  evidence  of  the  market  value  of  land  similarly  situated  and 
become  a  standard  by  which  to  measure  the  value  of  land  in  controversy. 
This  would  lead  to  an  attempt  by  the  opposing  party  to  show,  first,  the 
dissimilarity  of  the  two  parcels  of  land;  and,  second,  the  circumstances 
surrounding  the  parties  which  induced  the  conveyance  (such  as  a  sale 
by  one  in  danger  of  insolvency,  in  order  to  realize  money  to  support  his 
business,  or  a  sale  in  any  other  emergency  which  forbids  a  grantor  to 
wait  a  reasonable  time  for  the  public  to  be  informed  of  the  fact  that  his 


No.  G8        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  125 

property  is  in  the  market).  Or,  on  the  other  hand,  that  the  price  paid 
was  excessive  and  occasioned  by  the  fact  that  the  grantee  was  not  a 
resident  of  the  locahty,  nor  acquainted  with  real  values,  and  was  thus 
readily  induced  to  pay  a  sum  far  exceeding  the  market  value.  Thus 
each  transaction  in  real  estate  claimed  to  be  similarly  situated  might 
present  two  side  issues  which  could  be  made  the  subject  of  as  vigorous 
contention  as  the  main  issue,  and  if  the  transactions  were  numerous  it 
would  result  in  unduly  prolonging  the  trial  and  unnecessarily  confusing 
the  issues,  with  the  added  disadvantage  of  rendering  preparation  for 
trial  difficult. 

Our  attention  has  not  been  called  to  a  case  in  this  court  where  the 
question  has  been  passed  upon  in  the  manner  here  presented;  but  there 
are  a  number  of  decisions  indicating  the  tendency  of  the  Court  to  be 
against  proving  value  by  evidence  of  the  selling  price  of  similar 
property.   ... 

Even  under  the  Massachusetts  rule,  a  reversal  here  would  not  be 
justified  because  of  the  extent  of  the  discretion  vested  in  the  judge  or 
officer  presiding  at  the  trial  to  determine  whether  such  evidence  is  ad- 
missible, depending  of  course  on  various  elements,  such  as  the  nearness 
or  remoteness  of  the  time  of  sale;  whether  the  premises  are  far  separated; 
the  condition  of  the  property  about  the  parcel  sold  and  the  use  made  of 
it,  which  may  have  operated  to  enhance  or  diminish  its  selling  value; 
the  similarity  of  the  property,  not  only  as  to  description,  but  as  to  its 
availability  for  use.  Chandler  v.  Jamaica  Pond  Aqueduct  Co.,  122 
Mass.  305;  Gardner  v.  Brookline,  127  ibid.  358-363,  and  cases  cited. 
In  point  of  time  the  White  sale  was  a  year  and  one-half  prior  to  the  date 
when  the  offer  was  made  to  prove  it.  The  White  water-power  was  in 
actual  use  in  the  operation  of  a  mill,  while  the  water-power  of  Mr.  Butler 
had  not  been  utilized  in  any  degree  whatever.  True,  as  much  water 
will  be  diverted  from  the  Butler  property  as  the  White  property,  but  it 
does  not  follow  that  the  respective  water-powers  are  of  equal  value. 
The  value  of  a  water-power  depends  on  its  availability  for  use.  And  as 
a  matter  of  common  observation,  that  at  certain  points  along  a  stream 
the  water-power  can  be  more  readily  and  cheaply  made  available  for 
industrial  purposes  than  at  others.  So,  if  appellant's  contention  as  to 
the  admissibility  of  evidence  of  that  character  could  be  allowed,  we 
should  necessarily  reach  the  conclusion  that  the  nature  of  the  evidence 
offered  as  to  similarity,  was  not  of  such  a  character  as  to  authorize  a 
Court  to  hold,  as  matter  of  law,  that  the  commission  improperly  exer- 
cised their  discretion  in  refusing  to  admit  proof  of  the  price  paid  for  the 
White  parcel 

The  order  should  be  affirmed.     All  concur.     Order  affirmed. 


126  BOOK    i:     RULES    OF   ADMISSIBILITY  •  No.  G9 

69.   BEMIS  V.   TEMPLE 

Supreme  Judicial  Court  of  Massachusetts.  1894 

IQ2  Mass.  M2;  38  iV.  E.  970 

Tort,  for  injuries  occasioned  to  the  plaintiff's  person  and  property 
by  reason  of  his  horse  becoming  frightened  at  a  flag  suspended  across  a 
street  in  Spencer. 

At  the  trial  in  the  Superior  Court,  before  Aldrich,  J.,  the  plaintiff 
introduced  evidence  tending  to  show  that  the  defendant,  as  one  of  a 
political  committee,  caused  a  campaign  flag  to  be  suspended  and  main- 
tained across  Main  street,  in  Spencer;  that  the  flag  was  raised  in  July, 
1892,  and  continued  to  swing  until  after  the  presidential  election  of  the 
same  year;  that  it  was  suspended  by  a  wire  attached  to  buildings  on 
opposite  sides  of  the  street;  and  it  was  about  thirty-one  feet  in  length 
and  eighteen  feet  in  width,  and  its  lower  edge,  as  suspended  and  when  at 
rest,  was  about  twelve  feet  above  the  central  part  of  the  travelled  way; 
that  on  August  5,  1892,  the  plaintiff  was  driving  from  Maple  street  in 
Spencer  on  to  Main  street,  and  his  horse,  though  a  large  and  spirited 
animal,  was  safe  and  gentle  in  driving;  that  just  as  he  was  turning  from 
Maple  street  into  Main  street,  and  coming  in  sight  of  the  flag,  and  about 
thirty  or  forty  feet  distant  from  it,  his  horse  became  frightened  at  the 
flag,  which  was  being  floated  gently  by  the  breeze,  and  turned  suddenly 
and  ran  a  short  distance,  wrecking  the  plaintiff's  carriage  and  harness, 
and  injuring  his  person.  .  .  .  The  jury  returned  a  verdict  for  the 
defendant;  and  the  plaintiff  alleged  exceptions. 

A.  P.  Rugq,  (J.  R.  Thayer  with  him,)  for  the  plaintiff.  F.  B.  Smith, 
for  the  defendant. 

Knowlton,  J.  To  maintain  his  case  the  plaintiff  was  obliged  to 
show  that  the  flag  hung  across  the  street  was  an  object  which  was  so 
likely  to  frighten  horses  as  to  render  driving  upon  the  street  unsafe,  and 
that  in  its  position  there  it  was  a  public  nuisance.  The  fundamental 
question  in  the  case  was  whether  ordinarily  safe  and  gentle  horses  would 
be  frightened  by  it.  The  inquiry  was  in  regard  to  the  effect  of  an  inani- 
mate object  upon  an  animal  acting  from  instinct.  The  only  way  in 
which  knowledge  on  this  subject  could  ever  be  acquired  is  by  observation 
of  the  effect  of  the  object,  or  of  similar  objects,  upon  the  animal.  Inas- 
much as  no  two  flags  hung  in  difterent  places  with  different  surroundings 
could  ever  present  precisely  the  same  appearance  in  difterent  aspects  to 
an  unreasoning  animal,  the  most  satisfactory  way  of  ascertaining  the 
fact  would  be  by  observing  the  effect  of  this  particular  flag  upon  different 
horses.  In  all  the  observations  and  experiments,  one  factor  in  the  prob- 
lem, the  swinging  flag,  would  always  be  the  same.  The  other  factor,  the 
horse,  would  always  truly  exhibit  his  real  feelings,  and  the  only  possible 
difference  in  the  results  of  different  observations  would  arise  from  the 


No.  69        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  127 

difference  in  the  horses.  The  question  of  fact  whether  a  particular  horse 
comes  within  the  class  of  ordinarily  safe  and  gentle  horses  is  not  diffi- 
cult or  complicated,  and  witnesses  could  easily  give  the  results  of  their 
observations  of  the  conduct  of  horses  which  they  considered  ordinarily 
safe  and  gentle.  We  are  of  opinion  that  the  best  way  to  decide  the  main 
question  in  dispute  is  to  show  whether  ordinary  horses  have  manifested 
fear  of  the  flag  as  it  hung  over  the  street.  The  question  is  not  whether 
the  results  of  experiments  with  other  ordinary  horses  might  be  introduced 
upon  the  question  whether  the  flag  frightened  the  plaintiff's  horse,  — 
although  there  is  much  authority  for  holding  that,  where  the  elements 
entering  into  the  experiments  are  so  nearly  the  same,  the  results  may  be 
shown  to  establish  a  fact  of  this  kind.  But  the  question  is,  how  a  certain 
kind  of  animal  is  commonly  affected  by  the  sight  of  a  particular  object. 

To  ascertain  the  truth,  the  jury  must  either  use  such  knowledge  as  they 
happen  to  have  on  the  subject  without  the  aid  of  testimony,  or  experts 
must  be  called  to  give  their  opinions  if  the  subject  is  one  in  regard  to 
which  experts  can  be  found,  or  witnesses  must  be  permitted  to  state 
particular  facts  which  they  have  observed,  each  one  of  which  is  an  illus- 
tration and  example  of  the  general  fact  in  dispute.  The  only  objection 
to  testimony  of  the  last  kind  in  such  a  case  is  that  in  testing  it  collateral 
issues  may  be  raised.  Such  an  objection  in  many  cases  is  a  sufficient 
reason  for  excluding  the  testimony.  Whenever  a  line  of  inquiry  will 
give  rise  to  collateral  issues  of  such  number  and  difficulty  that  they 
will  be  likely  to  confuse  and  distract  the  jury  and  unreasonably  protract 
the  trial,  it  should  not  be  permitted.  But  the  mere  fact  that  a  collat- 
eral issue  may  be  raised  is  not  of  itself  enough  to  justify  the  exclusion 
of  evidence  which  bears  upon  the  issue  on  trial.  Most  circumstantial 
evidence  introduces  collateral  issues,  and  ordinarily  it  is  a  practical 
question,  depending  upon  its  relations  to  the  other  facts  and  circum- 
stances in  the  case,  whether  it  should  be  received.  It  may  be  remote 
from  the  real  issue  or  closely  connected  with  it,  and  in  many  cases  its 
competency  depends  upon  the  decision  of  questions  of  fact,  affecting 
the  practical  administration  of  justice  in  the  particular  case,  such  that 
a  Court  of  law  will  refuse  to  revise  the  ruling  of  the  presiding  judge, 
but  will  treat  his  ruling  as  a  matter  of  discretion. 

...  In  the  present  case  the  only  collateral  inquiry  which  could  arise 
is  whether  a  horse  called  by  a  witness  an  ordinarily  safe  and  gentle  horse 
comes  within  that  class.  Such  an  inquiry  is  certainly  simple.  We 
think  there  would  be  no  particular  difficulty  in  receiving  and  weighing 
testimony  in  regard  to  the  conduct  of  horses  which  seem  to  be  like  ordi- 
nary horses  in  common  use. 

This  precise  question  has  been  decided  in  favor  of  the  plaintiff's  con- 
tention by  many  courts  of  the  highest  respectability,  and  we  have  been 
referred  to  no  decisions  to  the  contrary.  ...  In  Darling  v.  West- 
moreland, 52  N.  H.  401  [ante,  No.  66],  a  suit  for  damages  caused  by  the 
fright  of  a  horse  at  a  pile  of  lumber,  evidence  was  received  that  other 


128  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  69 

horses  had  been  frightened  by  the  same  pile.  .  .  .  The  Court  of  Appeals 
of  New  York  takes  a  similar  view  of  the  law.  Quinlan  v.  Utica,  11  Hun 
217;  s.  c.  74  N.  Y.  603.  Wolley  v.  Grand  Street  &  Newton  Railroad, 
83  N.  Y.  121. 

The  defendant  relies  upon  a  line  of  cases  in  this  Commonwealth, 
brought  against  cities  or  towns  to  recover  for  accidents  received  while 
travelling  on  highways,  in  which  it  has  been  held  that  a  plaintiff 
cannot  introduce  evidence  of  other  similar  accidents  occurring  at  the 
place  where  he  was  hurt  for  the  purpose  of  proving  that  the  way  was 
defective.  Collins  v.  Dorchester,  6  Cush.  396  [ante,  No.  69].  Hall  v. 
Lowell,  10  Cush.  260.  Aldrich  v.  Pelham,  1  Gray  510;  Kidder  v.  Dun- 
stable, 11  Gray  342.  Hinckley  v.  Barnstable,  109  Mass.  126.  Schoon- 
maker  v.  Wilbraham,  110  Mass.  134.  Merrill  v.  Bradford,  110  Mass. 
505.  The  ground  on  which  these  cases  were  decided  is,  that  such  collat- 
eral-inquiries would  be  opened  (before  the  evidence  could  be  properly 
received)  as  would  multiply  issues  for  the  trial  of  which  the  parties  had 
had  no  opportunity  to  prepare,  and  would  lead  away  from  the  main 
issue  and  tend  to  confuse  the  jury.  In  most  of  these  cases  the  facts  and 
circumstances  of  other  accidents  were  so  diverse  and  complicated  that 
the  decisions  rest  on  grounds  which  are  generally  deemed  satisfactory. 
In  others,  if  they  were  to  be  considered  apart  from  authority,  it  may  be 
that  an  effect  of  an  attempt  to  pass  on  another  occasion  was  so  closely 
connected  with  the  alleged  defects,  and  so  free  from  other  possible  con- 
tributing causes,  that,  as  a  simple  experiment,  it  might  well  have  been 
proved.  Such  evidence  has  sometimes  been  received  in  other  jurisdic- 
tions. District  of  Columbia  v.  Armes,  107  U.  S.  519,  524.  Morse  v. 
Richmond,  41  Vt.  435.  Darling  v.  Westmoreland,  52  N.  H.  401  [a7ite, 
No.  66].  Calkins  v.  Hartford,  33  Conn.  57.  Quinlan  v.  Utica,  11  Hun 
217;  S.  C.  74  N.  Y.  603.  Delphi  v.  Lowery,  74  Ind.  520  [ante,  No.  59]. 
Chicago  V.  Powers,  42  111.  169.  Moore  v.  Burlington,  49  Iowa  136. 
Augusta  V.  Hafers,  61  Ga.  48.  .  .  .  This  Court  has  established  prece- 
dents in  favor  of  the  plaintiff's  contention  that  accord  with  those 
which  we  have  already  cited  from  other  Courts.  In  Reeve  v.  Dennett, 
145  Mass.  23,  upon  the  question  of  the  effect  of  the  use  of  a  certain 
medicine  in  dentistry,  evidence  was  received  that  dental  operations 
performed  by  a  certain  dentist  who  used  the  medicine  were  less  painful 
than  those  performed  by  other  dentists  who  did  not  use  it.  In  Brierly 
V.  Da  vol  Mills,  128  Mass.  291,  to  prove  that  an  attachment  would  be 
effective  on  a  certain  loom,  it  was  held  competent  to  show  that  it  worked 
successfully  on  another  loom  of  similar  construction.  See  also  Gahagan 
V.  Boston  &  Lowell  Railroad,  1  Allen  187;  Hunt  v.  Lowell  Gas  Light  Co., 
8  Allen  169.  ..  . 

A  majority  of  the  Court  are  of  opinion  that  the  evidence  offered 
should  have  been  admitted.  Exceptions  sustained. 


No.  70       CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  129 

70.    CENTRAL  VERMONT  R.   CO.   v.   SOPER 

United  States  Circuit  Court  of  Appeals.  1894 

59  Fed.  879;  8  C.  C.  A.  341 

In  error  to  the  Circuit  Court  of  the  Ignited  States  for  the  District  of 
Massachusetts.  At  Law.  Action  by  John  E.  Soper  and  others  against 
the  Central  Vermont  Railroad  Company  for  the  loss  of  3,600  bushels  of 
grain,  in  the  burning  of  a  grain  elevator  owned  by  the  defendant.  Ver- 
dict and  judgment  for  plaintiffs.     Defendant  brings  error.     Reversed. 

The  plaintiffs  claimed,  in  the  opening  of  their  case,  that  the  fire  origi- 
nated at  the  foot  of  what  was  known  as  the  "lofting  leg."  This  loft- 
ing leg  wa|  a  piece  of  machinery  by  which  the  grain  was  carried  from  the 
bottom  to  the  top  of  the  elevator.  The  pulley  at  the  bottom  of  the 
lofting  leg  made  about  ninety-six  revolutions  per  minute;  and  the  claim 
of  the  plaintiffs  was  that  the  bearings  at  the  sides  of  this  pulley  had 
become  heated,  and  thereby  ignited  the  dust  which  had  accumulated 
upon  them,  from  which  the  fire  was  communicated  to  the  building. — 
The  plaintiffs  introduced  as  a  witness  one  Aaron  Linton,  who  testified 
that  he  was  for  many  years  foreman  in  this  elevator,  and  well  acquainted 
with  its  construction  and  method  of  operation.  The  witness  testified 
among  other  things,  that  the  bearings  of  this  pulley  at  the  foot  of  the 
lofting  leg  were  beneath  the  elevator  floor,  and  were  oiled  by  pouring 
oil  into  two  pieces  of  pipe,  about  two  feet  long,  which  led  from  above 
the  floor  down  into  the  bearings.  He  was  allowed  to  testify,  against 
the  objection  and  exception  of  the  defendant,  that  while  he  was  foreman 
of  the  elevator  these  bearings  frequently  became  heated,  that  there  was 
a  tendency  for  dust  to  accumulate  at  that  point,  and  that  there  was 
also  a  tendency  for  the  pipes  to  l)ecome  clogged  and  filled  with  dust 
and  grease.  —  Against  the  objection  and  exception  of  the  defendant, 
a  witness,  O'Connor,  was  allowed  to  testify  as  follows: 

"Q.  —  Did  you  ever  know  the  bearings  at  the  foot  of  the  lofting  leg 
to  become  heated?    A.  —  I  do. 

"Q.  —  You  have  known  it?    A.  —  Yes,  sir. 

"Q.  —  How  long  prior  to  this  time  had  you  noticed  it?  A.  —  I  do 
not  remember. 

" Q.  —  About  how  long  before?    A.  —  I  do  not  remember. 

"Q.  —  Was  it  a  month?    A.  —  It  might  have  been  less. 

"Q.  —  You  say  it  might  have  been  a  month.  Would  you  say  two 
weeks?    A.  —  I  do  not  remember. 

"Q.  —  All  I  want  to  get  at  is  your  best  understanding.  A.  —  I  will 
say  a  month. 

"Q.  —  These  bearings,  you  say,  would  become  heated  at  this  point? 
A.  —  Yes,  sir. 


130  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  70 

"  Q.  —  Would  they  ignite  any  dust  or  accumulations  there?  A.  — 
Yes,  sir. 

"  Q.  —  Have  you  ever  known  the  dust  to  become  ignited?  A.  —  Yes, 
sir. 

" Q.  —  Many  times?    A.  —  Once. 

"Q.  —  Was  this  the  time  you  were  speaking  of?    A.  —  No,  sir."  .  .  . 

There  was  no  direct  evidence  in  the  case  tending  to  show  that  any 
shaft  in  the  defendant's  elevator  was  out  of  line,  or  that  the  oil  tubes  to 
the  bearings  at  the  foot  of  the  lofting  leg,  or  to  any  other  bearings  in 
the  defendant's  elevator,  had  become  clogged.  All  the  foregoing  testi- 
mony was  introduced  by  the  plaintiffs  in  the  opening  of  their  case.  .  .  . 
The  defendant  claimed  that,  from  all  the  circumstances  in  the  case,  it 
w^as  evident  that  the  fire  was  of  incendiary  origin.  In  reference  to  this 
aspect  of  the  case,  the  Court  instructed  the  jury:  "Now,  gentlemen, 
if  you  should  find  that  this  fire  did  not  result  from  the  defective  appli- 
ances, or  from  the  gathering  debris,  but  was  the  result  of  incendiarism, 
the  defendant  will  not  be  liable,  provided  the  defendant  furnished 
reasonable  watchmen,  and  other  reasonable  protection  against  such 
hazard.  ..." 

C.  A.  Prouty  and  Sigourney  Butler,  for  plaintiff  in  error.  The  testi- 
mony of  Mr.  Linton,  who  was  foreman  at  the  elevator  previous  to  1887, 
that  the  bearings  at  the  foot  of  the  lofting  leg  frequently  became  heated, 
was  inadmissible.  The  time  referred  to  was  more  than  three  years 
before  the  happening  of  the  fire.  .  .  .  That  the  employees,  whose  busi- 
ness it  was  to  oil  these  bearings  when  Mr.  Linton  was  foreman,  in  1887, 
neglected  their  duty  on  some  occasions,  had  no  possible  tendency  to 
show  that  the  employees  of  the  defendant  also  neglected  their  duty  at 
the  time  in  question.  It  is  not  permissible  to  show  that  a  person  is 
habitually  careless,  as  bearing  upon  the  question  whether  he  has  been 
careless  upon  a  particular  occasion.  Gahagan  v.  Railroad  Co.,  1  Allen 
187;  Maguire  v.  Railroad  Co.,  115  Mass.  239;  Whitney  v.  Gross,  140 
Mass.  232;   Propsom  v.  Leathem  (Wis.),  50  N.  W.  586.  .  .  . 

Robert  M.  Morse  {William  M.  Richardson  and  Charles  E.  Hellier,  on 
the  brief),  for  defendants  in  error.  Linton's  testimony  was  properly 
admitted.  .  .  .  The  testimony  is  admissible  as  showing,  and  affecting 
the  defendant  with  knowledge  of,  a  dangerous  condition  of  things  at  the 
particular  place  and  as  showing  the  possibility  or  probability  of  fire 
from  the  causes  described.  Railroad  Co.  v.  Richardson,  91  U.  S.  454; 
Piggot  V.  Railway  Co.,  3  Man.  G.  &  S.  229;  Sheldon  v.  Railroad  Co., 
14  N.  Y.  218. 

.  .  .  Before  Colt  and  Putnam,  Circuit  Judges,  and  Nelson,  District 
Judge. 

Putnam,  Circuit  Judge.  .  .  .  Those  portions  of  the  evidence  of 
Linton  and  Jenkins  which  were  objected  to  relate  entirely  to  the  ten- 
dency of  things,  —  inanimate  objects,  —  being,  in  this  case,  the  machin- 


No.  71        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  131 

ery.  The  plaintiff  in  error  has  argued  as  though  they  related  to  the 
peculiar  habits  of  certain  specified  human  beings.  The  distinction  is 
a  broad  one;  and,  if  it  is  kept  in  mind,  the  evidence  was  clearly  admis- 
sible, for  the  purpose,  not  of  showing  that  the  employees  of  the  defendant 
below  were  negligent,  but  of  showing  facts,  some  of  which  the  jury  might, 
perhaps,  have  assumed  without  evidence;  namely,  that  it  is  the  tendency 
of  certain  parts  of  rapidly  running  machinery  to  get  heated,  and  of  dust 
in  mills  where  grain  is  ground  or  stored  to  be  of  a  highly  inflammable 
character.  These  facts  might  ha\'e  been  properly  brought  to  the  atten- 
tion of  the  jury,  both  for  the  purpose  of  showing  a  point  where  the  fire 
might  have  originated,  and  also  of  showing  the  necessity  of  care  to  guard 
that  point.  Maguire  v.  Railroad  Co.,  115  Mass.  239,  cited  by  the 
plaintiff  in  error,  which  related  to  the  negligent  acts  on  other  occasions 
of  the  defendant's  driver,  for  whose  unskilfulness  he  was  sued,  is  not  in 
point.  The  fact  that  the  tendency  to  get  heated,  and  the  inflammable 
character  of  the  dust,  were  explained  by  witnesses,  even  if  the  jury  might 
have  assumed  a  part  thereof  as  true  without  proof,  cannot  prejudice 
either  part}'. 

The  testimony  of  O'Connor,  objected  to,  goes  a  little  further.  He 
stated,  in  substance,  that  he  had  known  of  instances  when  the  bearings 
at  the  foot  of  the  lofting  leg  became  heated,  and  that  he  had  also  known 
the  dust  to  become  ignited  at  this  point.  This  evidence  is  clearly  within 
the  rule  established  in  Railroad  Co.  v.  Richardson,  91  U.  S.  454,  and 
in  the  other  cases  referred  to  in  Railway  Co.  v.  Johnson,  10  U.  S. 
App.  629,  4  C.  C.  A.  447,  54  Fed.  474.  .  .  .- 

As  the  case  stands,  the  plaintiff  in  error  must  prevail,  on  its  exception 
to  the  refusal  of  the  learned  judge  to  direct  a  verdict  for  it  on  the  ground 
that  it  appeared  that  the  plaintiffs  below  did  not  bring  their  action  for 
the  loss  within  three  months  after  it  occurred. 

Judgment  reversed.     New  trial  ordered. 


71.    FISHMAN  V.   CONSUMERS'  BREWING   COMPANY 

Supreme  Court  of  New  Jersey.  1909 

78  N.  J.  L.  300;  73  All.  231 

On  appeal  from  the  District  Court  of  the  city  of  Newark.  Before 
Justices  Reed,  Trenchard,  and  Minturn. 

For  the  appellant.  Child  &  Carter  {Riker  &  Riker,  of  counsel).  For 
the  appellee,  Philip  J.  Schotland.  The  opinion  of  the  Court  was 
delivered  by 

Minturn,  J.  The  plaintiff's  horse,  top  buggy,  and  other  chattels 
incident  thereto  were  destroyed  by  a  fire,  which,  as  plaintiff  alleges, 
originated  in  a  heap  of  ashes  adjoining  the  stable  of  Nicholl  &  Company, 
where   the   property  in  question   was   kept.     The  ash  heap  was  upon 


132  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  71 

defendant's  premises  close  to  the  stable,  and  the  fire  took  place  about 
half-past  three  o'clock  of  the  morning  of  February  19,  1908.  The  plain- 
tiff, over  continuous  objections,  deemed  it  necessary  for  the  purpose  of 
his  case,  to  ask  the  witness  Martin  these  questions: 

"Q.  —  To  your  knowledge  was  there  a  fire  at  the  same  place  before 
this?      A.  —  Yes,  sir. 

"Q.  —  When  was  that?    A.  —  On  the  14th  of  December,  1901. 

"(^.  —  And  did  you  make  an  investigation  at  that  time?  A.  —  Yes, 
sir. 

" Q.  —  What  did  you  find  at  that  time  might  cause  the  fire?  A.  — 
Hot  ashes  against  the  weather  boards. 

"Q.  —  What  burned  at  that  time?    A.  —  Weather  boards. 

"  Q.  —  Did  you  make  an  investigation  of  the  cause  of  those  weather 
boards  burning  at  that  time?    A.  —  Yes. 

"  Q.  —  Where  were  those  weather  boards  you  speak  of?  A.  —  About 
the  same  location  as  the  last  fire. 

It  further  appeared  from  the  testimony  of  this  witness  that  after  the 
1901  fire  a  sheet-iron  plate  had  been  placed  between  the  ash  heap  and 
the  stable,  and  that  when  this  witness  reached  the  scene  of  the  fire 
shortly  after  it  started,  that  iron  plate  was  not  hot,  but  cool  enough, 
indeed,  to  enable  him  to  handle  it.  It  will  be  perceived,  therefore,  that 
the  conditions  preceding  the  two  fires  were  essentially  different. 

The  only  purpose,  apparently,  which  could  actuate  the  plaintiff  in 
introducing  this  character  of  testimony  as  material  to  his  cause,  is  the 
specious  reasoning  included  in  the  proposition,  post  hoc,  the  fire  of  1901 
originated;  ergo  propter  hoc,  the  fire  in  question  must  have  so  originated, 
and  it  requires  no  elaboration  of  argument  to  expose  the  fallacy  of  such 
a  syllogism  both  in  logic  and  in  law.  Relevancy  of  testimony,  as 
defined  by  Stephen,  is  "  that  any  two  facts  to  which  it  is  applied  are  so 
related  to  each  other  that,  according  to  the  common  course  of  events, 
one,  either  taken  by  itself  or  in  connection  with  other  facts,  proves  or 
renders  possible  the  past,  present,  or  future  existence  or  non-existence 
of  the  other."  Steph.  Dig.  Ev.  art.  I.  The  testimony  in  the  case  made 
it  quite  manifest  that,  since  the  fire  of  1901,  conditions  had  changed,  and 
precautions  against  fire  had  been  taken  by  defendant,  so  that  under  no 
reasonable  construction  of  the  physical  principle  of  cause  and  effect 
could  this  testimony  be  applicable.  It  is  inadmissible  because  of  its 
remoteness  in  point  of  time,  during  which  interim  changed  conditions 
resulted ;  but,  primarily,  as  is  said  in  one  case,  "  upon  grounds  of  public 
policy  to  prevent  the  multiplication  of  issues  in  a  case"  without  apparent 
connection.  Costello  v.  Crowell,  129  Mass.  588;  State  v.  Raymond,  24 
Vroom  260;  Collins  v.  New  York  Central  Railroad  Company,  109  N.  Y. 
243. 

For  this  reason  the  judgment  is  reversed  and  a  venire  de  novo  is 
awarded. 


No.  72        CIRCUMSTANTIAL  EVIDENCE:     INANIMATE   NATURE  133 

72.    ALCOTT  v.   PUBLIC  SERVICE  CORPORATION 

Court  of  Errors  and  Appeals  of  New  Jersey.  1909 

78  A^  ./.  L.  482;  74:  Atl.  499 

On  error  to  the  Supreme  Court,  whose  opinion  is  reported  in  48 
Vroom  110. 

For  the  plaintiff  in  error,  John  JV.  Wescott.  For  the  defendant  in 
error,  Edward  Ambler  Armstrong.  The  opinion  of  the  Court  was  deliv- 
ered by 

Parker,  J.  Judgment  in  favor  of  the  plaintiff  in  error  was 
reversed  in  the  Supreme  Court  on  the  ground  that  the  proof  showed 
without  contradiction  that  the  switching  device  in  which  plaintiff's 
wagon  wheel  seems  to  have  caught  was  of  standard  pattern,  in  common 
use,  and  had  been  properly  laid  and  inspected.  The  propriety  of  that 
determination  is  now  before  us  for  review.  The  circumstances  of  the 
accident  are  set  forth  in  the  opinion  of  the  Supreme  Court  and  need  not 
be  here  repeated  in  detail.  .  .  . 

There  was  evidence  tending  to  show  that  the  switch  was  out  of  order 
some  days  prior  to  the  accident  in  question.  This  evidence  was  objected 
to  by  defendant,  and  an  exception  that  was  taken  to  its  admission  will 
be  dealt  with  presently.  Taken  with  the  other  evidence,  a  jury  question 
was  presented  whether  the  switch  was  out  of  order  and  had  been  allowed 
to  become  so  by  negligence  of  the  defendant,  notwithstanding  testimony 
on  the  part  of  the  defendant  that  inspections  were  regularly  made  and 
that  it  was  found  in  good  condition. 

The  judgment  of  the  Supreme  Court,  reversing  the  trial  Court,  should 
therefore  be  reversed  unless  justified  by  some  error  at  the  trial  that 
would  vitiate  the  judgment  in  the  trial  Court.  Two  points  are  urged  by 
defendant  in  error:  That  the  trial  Court  admitted  testimony  of  other 
accidents  at  this  same  switch  shortly  before  and  shortly  after  the  acci- 
dent to  plaintiff;  and  that  the  Court  charged,  in  effect,  that  this  testi- 
mony might  be  considered  as  throwing  light  on  the  question  whether 
the  switch  was  out  of  order  at  the  time  of  the  plaintiff's  accident.  It  is 
claimed,  on  the  authority  of  Bobbink  v.  Erie  R.  R.,  75  N.  J.  Law  913, 
decided  by  this  Court,  that  the  testimony  was  improper,  and  that  the 
Court  should  not  have  alluded  to  it  in  the  charge.  We  think  that 
the  weight  of  later  authority  and  the  better  reasoning  favor  the  view 
that  the  action  of  the  trial  Court  was  proper.  One  witness  testified 
that  his  wagon  was  stopped  in  a  similar  manner,  by  the  wheel  catching 
in  the  switch,  some  thirteen  days  before  plaintiff  had  that  experience. 
Another  witness  testified  that  three  days  after  the  accident,  as  a  result 
of  his  own  wagon  catching  in  the  switch,  he  examined  it,  and  his  descrip- 
tion of  it  at  that  time  corresponded  closely  with  plaintiff's  description 
of  it  at  the  time  of  the  accident  in  question. 


134  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  72 

Professor  Wigmore,  in  the  sixteenth  edition  of  "  Greenleaf  on  Evi- 
dence" (volume  1,  p.  81),  lays  down  the  doctrine  that:   .  .   . 

"In  evidencing  a  quality,  tendency,  capacity,  etc.,  by  instances  of  its  effects 
or  exhibitions  or  operations  on  other  occasions,  the  natural  and  logical  limitation 
is  that  the  evidential  instances  should  have  occurred  under  substantially  the 
same  circumstances  or  conditions  as  at  the  time  in  question,  because  otherwise 
they  might  well  be  attributed  to  the  influences  of  some  other  element  introduced 
by  the  differing  circumstances." 

He  concedes  that  the  logical  objection  to  this  sort  of  evidence  is  the 
tendency  to  unfair  surprise  and  confusion  of  issues;  that,  in  addition, 
the  tendency  of  the  Courts  has  been  to  exclude  this  class  of  evidence 
in  cases  of  deliberate  experiment  to  test  the  particular  quality,  and  in 
cases  where  it  has  been  sought  to  show,  in  defense,  that  the  place,  or 
appliance,  or  what  not,  had  long  been  in  use  without  accident,  and  ergo 
must  be  safe.  Experimental  evidence  was  excluded  in  Libby,  McNeill 
&  Libby  v.  Scherman,  146  111.  540;  and  the  plan  of  showing  safety  by 
previous  absence  of  accident  was  condemned  by  our  Supreme  Court  in 
Temperance  Hall  Association  v.  Giles,  33  N.  J.  Law  260;  and  outside 
of  this  State,  in  such  cases  as  Baltimore,  etc..  Turnpike  v.  Leonhardt, 
66  Md.  70,  Hodges  v.  Bearse,  129  111.  87,  Lewis  v.  Smith,  107  Mass. 
334,  and  Beverly  v.  Boston,  136  Mass.  366,  although  countenance  is 
given  to  it  in  Dougan  v.  Champlain  Transportation  Co.,  56  N.  Y.  1. 

The  learned  author  continues  (page  87) : 

"The  use  that  has  come  most  into  controversy  is  that  of  other  injuries  at  a 
highway,  track,  or  machine,  as  evidence  of  its  dangerous  character.  .  .  .  The 
doctrines  of  vmfair  surprise  and  confusion  of  issues  .  .  .  have  been  thought  to 
have  an  especial  bearing  here;  and  for  some  time  .  .  .  much  distrust  of  this 
sort  of  evidence  was  shown.  The  almost  universal  attitude  of  the  Courts  at 
the  present  time,  however,  apart  from  minor  peculiarities,  is  to  admit  such  evi- 
dence, subject  to  the  limitations  already  described.  .  .  .  The  other  instances  of 
injuries  thus  offered  in  evidence  may  concern  defects  in  highways  or  defects  in 
raihoad  tracks,  machines,  premises,  and  the  like." 

In  Collins  v.  Dorchester  [ante,  No.  65],  decided  in  1850,  it  was 
held  that  the  existence  of  a  defect  in  a  highway  claimed  to  have  caused 
injury  to  plaintiff  could  not  be  shown  by  evidence  of  a  similar  injury  to 
another  person  at  the  same  place.  The  doctrine  of  this  case  is  said  by 
Professor  Wigmore  to  be  in  effect  repudiated  in  Massachusetts,  and  the 
remarks  of  the  Court  in  Bemis  v.  Temple,  [ante,  No.  69],  seem  to 
point  that  way.  At  all  events,  the  admission  of  evidence  of  this  class  is 
supported  by  such  cases  as:  District  of  Columbia  v.  Amies,  107  U.  S. 
519,  decided  in  1883,  a  suit  for  injury  resulting  from  a  defective  sidewalk, 
in  which  evidence  of  other  accidents  at  the  same  place  was  held  proper 
as  showing  both  the  danger  of  the  place  and  notice  thereof  to  the  defend- 


No.  72        CIRCUMSTANTIAL   EVIDENCE:     INANIMATE   NATURE  135 

ant;  .  .  .  and  City  of  Bloomington  v.  Legg,  151  111.  9,  a  highway  case,  in 
which  evidence  of  similar  accidents  was  permitted  both  as  to  notice  and 
to  show  the  dangerous  character  of  the  place  in  question.    .   .   . 

The  case  of  Darling  v.  Westmoreland,  [ante,  No.  66],  is  cited  by  Profes- 
sor Wigmore  as  a  leading  case.  It  was  a  suit  against  the  municipality  for 
defect  in  the  highway.  The  defect  alleged  was  a  pile  of  lumber  that 
was  likely  to  frighten  horses,  and  plaintiff's  claim  was  that  his  horse 
was  frightened  by  the  lumber  and  backed  off  a  bridge  in  consequence. 
Evidence  that  another  horse  had  been  similarly  frightened  by  the 
same  lumber  was  excluded.  The  Court,  in  a  long  opinion  by  Doe, 
J.,  held  that  the  exclusion  was  erroneous  and  reversed  the  judgment, 
incidentally  criticising  the  rule  in  Collins  v.  Dorchester  as  not  called 
for  by  the  facts  in  that  case. 

Temperance  Hall  Association  v.  Giles  has  been  cited  in  a  number  of 
our  later  decisions,  but  only  twice  on  the  admissibility  of  evidence  as 
to  the  occurrence  or  non-occurrence  of  other  accidents  under  similar 
circumstances.  .  .  .  The  precise  point  decided  in  Temperance  Hall 
Association  v.  Giles  is  not  now  in  question,  and  we  are  not  required  to 
decide  whether  it  was  rightly  decided  in  that  aspect.  Bobbink  v.  Erie 
R.  R.  is  also  clearly  distinguishable,  as  there  was  no  claim  in  that  case 
that  there  was  any  defect  in  the  crossing  frog,  but  only  that  it  might  be 
improved  upon,  and  the  rejection  of  the  evidence  offered  to  show  this 
was  based  on  the  ground  that  the  rule  of  law,  under  the  circumstances, 
required  no  more  than  the  adoption  of  an  appliance  in  general  use,  which 
the  frog  in  question  was  conclusively  shown  to  be. 

Reverting  to  the  case  at  bar,  we  are  of  opinion  that  the  evidence  of 
a  similar  accident  at  the  same  place  some  few  days  before  was  proper 
as  supporting  the  plaintiff's  evidence  as  to  the  condition  of  the  switch 
at  the  time  of  his  accident,  and  as  tending  to  show  that  that  condition 
had  persisted  so  long  that  with  proper  care  and  inspection  it  should 
have  been  remedied  before  the  plaintiff  sustained  his  injury,  and 
that,  as  to  the  evidence  of  its  similar  condition  two  or  three  days 
afterwards,  this  was  justified  as  corroborative  of  the  plaintiff's  testi- 
mony relative  to  that  condition.  .  .  .  There  was  no  error  therefore  in 
the  admission  of  this  testimony;  and,  as  it  was  properly  admitted, 
it  follows  as  of  course  that  comment  on  it  by  the  Court  in  the 
aspects  we  have  noted  was  also  proper.  The  charge  of  the  Court  on 
this  point  was  as  follows: 

"It  has  appeared  from  the  testimony  in  this  case  that  other  accidents  have 
occurred  at  this  place.  That  testimony  was  introduced  not  for  the  purpose  of 
showing  any  liability  on  the  part  of  the  company  beyond  this  case,  but  simply 
as  it  might  throw  light  upon  the  question  of  whether  this  track,  this  mate,  was  out 
of  order  at  the  time  when  this  accident  occurred;  because  the  jury  might  infer 
that,  if  an  accident  occurred  just  before  or  just  after  this  occurred,  there  must 
be  something  wrong  with  the  track." 


136  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  72 

In  view  of  the  propriety  of  this  evidence,  this  was  unexceptionable. 

There  was  therefore  no  error  at  the  trial  in  any  of  the  aspects  we  have 
discussed,  and  no  other  point  has  been  brought  before  us  for  review. 

It  follows  therefore  that  the  judgment  of  the  Supreme  Court  must 
be  reversed,  and  that  of  the  Circuit  Court  affirmed. 


No.  77  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  137 


SUB-TITLE.     RULES   EXCLUDING   TESTIMONIAL   EVIDENCE 

Topic  1.  Rules  defining  Qualifications  of  Witnesses ' 

75.  Simon  Greenleaf.  Evidence.  (1S42.  §327).  In  determining  what  evi- 
dence shall  be  admitted  and  weighed  by  the  jury,  and  what  shall  not  be  received 
at  all,  or,  in  other  words,  in  distinguishing  between  competent  and  incompetent 
witnesses,  a  principle  seems  to  have  been  applied  similar  to  that  which  distin- 
guishes between  conclusive  and  disputable  presumptions  of  law,  namely,  the 
experienced  connection  between  the  situation  of  the  witness  and  the  truth  or 
falsity  of  his  testimony.  Thus,  the  law  excludes  as  incompetent  those  persons 
whose  evidence,  in  general,  is  found  more  likely  than  otherwise  to  mislead  juries; 
receiving  and  weighing  the  testimony  of  others,  and  giving  to  it  that  degree  of 
credit  which  it  is  found  on  examination  to  deserve.  It  is  obviously  impossible 
that  any  test  of  credibility  can  be  infallible.  All  that  can  be  done  is  to  approxi- 
mate to  such  a  degree  of  certainty  as  will  ordinarily  meet  the  justice  of  the  case. 
The  question  is  not,  whether  any  rule  of  exclusion  may  not  sometimes  shut  out 
credible  testimony;  but  whether  it  is  expedient  that  there  should  be  any  rule 
of  exclusion  at  all.  If  the  purposes  of  justice  require  that  the  decision  of  causes 
should  not  be  embarrassed  by  statements  generally  found  to  be  deceptive,  or 
totally  false,  there  must  be  some  rule  designating  the  class  of  evidence  to  be 
excluded;  and  in  this  case,  as  in  determining  the  ages  of  discretion,  and  of  ma- 
jority, and  in  deciding  as  to  the  liability  of  the  wife  for  crimes  committed  in 
company  with  the  husband,  and  in  numerous  other  instances,  the  common  law 
has  merely  followed  the  common  experience  of  mankind.  It  rejects  the  testi- 
mony of  parties;  of  persons  deficient  in  understanding;  of  persons  insensible 
to  the  obligations  of  an  oath;  and  of  p":rsons  whose  pecuniary  interest  is  directly 
involved  in  the  matter  in  issue. 

76.  Sir  Edward  Coke.  Commentary  upon  Littleton  (1627).  6  a.  [As  to 
witnesses  to  a  deed]  sometimes,  though  rarely  [objections  were  allowed],  which 
being  found  true,  they  were  not  to  be  sworne  at  all,  neither  to  be  joined  to  the 
jury  nor  as  witnesses;  as,  if  the  witness  were  infamous,  ...  or  if  the  witnesse 
be  an  infidell,  or  of  non-sane  memory,  or  not  of  discretion,  or  a  partie  interested, 
or  the  like. 

77.  Statutes.2 

United  States.  Revised  Statutes  (1878),  §  858.  In  the  courts  of  the  United 
States  no  witness  shall  be  excluded  in  any  action  on  account  of  color,  or  in  any- 
civil  action  because  he  is  a  party  to  or  interested  in  the  issue  tried;  provided, 
that  in  actions  by  or  against  executors,  administrators,  or  guardians,  in  which 
judgment  may  be  rendered  for  or  against  them,  neither  party  shall  be  allowed 


^  For  the  general  principles  of  Logic  and  Psychology  applicable  to  the  classi- 
fication of  witnesses,  see  the  present  Compiler's  "Principles  of  Judicial  Proof" 
(1913),  Nos.  163-252. 

*  These  statutes  cover  sundry  rules  scattered  through  the  ensuing  topics. 
Cross-references  will  be  found  at  various  points. 


138  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  77 

to  testify  against  the  other,  as  to  any  transaction  with  or  statement  by  the  tes- 
tator, intestate,  or  ward,  unless  called  to  testify  thereto  by  the  opposite  party, 
or  required  to  testify  thereto  by  the  Court.  In  all  other  respects,  the  laws  of 
the  State  in  which  the  Court  is  held  shall  be  the  rules  of  decision  as  to  the  com- 
petency of  witnesses  in  the  courts  of  the  United  States  in  trials  at  common  law 
and  in  equity  and  admiralty. 

California.^  Code  of  Civil  Procedure  (1872),  §  1879.  All  persons,  with- 
out exception,  otherwise  than  is  specified  in  the  next  two  sections,  who,  having 
organs  of  sense,  can  perceive,  and,  perceiving,  can  make  known  their  perceptions 
to  others,  may  be  witnesses.  Therefore,  neither  parties  nor  other  persons  who 
have  an  interest  in  the  event  of  an  action  or  proceeding  are  excluded;  nor  those 
who  have  been  convicted  of  crime;  nor  persons  on  account  of  their  opinions  on 
matters  of  religious  belief;  although  in  every  case  the  credibility  of  the  witness 
may  be  drawn  in  question,  as  provided  in  section  1847. 

lb.,  §  1880.  The  following  persons  cannot  be  witnesses:  1.  Those  who  are  of 
unsound  mind  at  the  time  of  their  production  for  examination.  2.  Children 
under  ten  years  of  age,  who  appear  incapable  of  receiving  just  impressions  of  the 
facts  respecting  which  they  are  examined,  or  of  relating  them  truly.  3.  Parties 
or  assignors  of  parties  to  an  action  or  proceeding,  or  persons  on  behalf  of  whom 
an  action  or  proceeding  is  prosecuted,  against  an  executor  or  administrator  upon 
a  claim  or  demand  against  the  estate  of  a  deceased  person,  as  to  any  matter  of 
fact  occurring  before  the  death  of  such  deceased  person. 

lb.,  §  1881.  There  are  particular  relations  in  which  it  is  the  policy  of  the  law 
to  encourage  confidence  and  to  preserve  it  inviolate;  therefore,  a  person  cannot 
be  examined  as  a  witness  in  the  following  cases:  1.  A  husband  cannot  be  exam- 
ined for  or  against  his  wife,  without  her  consent,  nor  a  wife  for  or  against  her 
husband,  without  his  consent;  nor  can  either,  during  the  marriage  or  afterwards, 
be,  without  the  consent  of  the  other,  examined  as  to  any  communication  made 
by  one  to  the  other  during  the  marriage;  but  this  exception  does  not  apply  to  a 
civil  action  or  proceeding  by  one  against  the  other,  nor  to  a  criminal  action  or 
proceeding  for  a  crime  committed  by  one  against  the  other. 

lb.,  §  1102.  The  rules  of  evidence  in  civil  actions  are  applicable  also  to  crim- 
inal actions,  except  as  other^vise  provided  in  this  Code. 

lb.,  §  1322.  Except  wdth  the  consent  of  both,  or  in  cases  of  criminal  violence 
upon  one  by  the  other,  neither  husband  nor  wife  is  a  competent  Tvitness  for  or 
against  the  other  in  a  criminal  action  or  proceeding  to  which  one  or  both  are 
parties. 

lb.,  §  1323.  [If  the  accused]  offer  himself  as  a  witness,  he  may  be  cross- 
examined  by  the  counsel  for  the  people  as  to  all  matters  about  which  he  was 
examined  in  chief;  ...  his  neglect  or  refusal  to  be  a  witness  cannot  in  any 
manner  prejudice  him  nor  be  used  against  him  on  the  trial  or  proceeding. 

Illinois.  .  Revised  Statutes  (1874),  c.  38,  §  426.  No  person  shall  be  disquali- 
fied as  a  witness  in  any  criminal  case  or  proceeding  by  reason  of  his  interest  in 
the  event  of  the  same,  as  a  party  or  otherwise,  or  by  reason  of  his  having  been 
convicted  of  any  crime,  but  such  interest  or  conviction  may  be  shown  for  the 
purpose  of  affecting  his  credibility;  provided,  however,  that  a  defendant  in  any 
criminal  case  or  proceeding  shall  only  at  his  own  request  be  deemed  a  competent 


^  The  Code  Commissioners'  amendments  of  1901  were  held  unconstitutional 
and  vend  (on  formal  grounds  affecting  the  Commissioners'  authority),  in  Lewis 
V.  Dunne,  134  Cal.  291,  66  Pac.  478;  and  have  not  been  inserted  here. 


No.  77  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  139 

witness,  and  his  neglect  to  testify  shall  not  create  any  presumption  against  him, 
nor  shall  the  Court  permit  any  reference  or  comment  to  be  made  to  or  upon 
such  neglect. 

lb.,  c.  38,  §  491,  St.  1S93,  June  17  and  St.  1901,  May  11,  §  3.  [The  wife  or 
husband  is  to  be  competent  in  any  case  against  the  other  under  the  statute 
punishing  abandonment  of  family]  as  to  any  and  all  matters  relevant  thereto, 
including  the  fact  of  such  marriage  and  the  parentage  of  such  children. 

lb.,  c.  51,  §  1.  No  person  shall  be  disqualified  as  a  witness  in  any  civil  action, 
suit,  or  proceeding,  except  as  hereinafter  stated,  by  reason  of  his  or  her  interest 
in  the  event  thereof,  as  a  party  or  otherwise,  or  by  reason  of  his  or  her  conviction 
of  any  crime;  but  such  interest  or  conviction  may  be  shown  for  the  purpose  of 
affecting  the  credibility  of  such  witness;  and  the  fact  of  such  conviction  may  be 
proven  like  any  fact  not  of  record,  either  by  the  witness  himself  (who  shall  be 
compelled  to  testify  thereto)  or  by  any  other  witness  cognizant  of  such  con- 
viction, as  impeaching  testimony,  or  by  any  other  competent  evidence. 

lb.,  §  2.  No  party  to  any  civil  action,  suit,  or  proceeding,  or  person  directly 
interested  in  the  event  thereof,  shall  be  allowed  to  testify  therein  of  his  own  motion, 
or  in  his  own  behalf,  by  virtue  of  the  foregoing  section,  when  any  adverse  party 
sues  or  defends  as  the  trustee  or  conservator  of  any  idiot,  habitual  drunkard, 
lunatic,  or  distracted  person,  or  as  the  executor,  administrator,  heir,  legatee,  or 
devisee  of  any  deceased  person,  or  as  guardian  or  trustee  of  any  such  heir,  legatee, 
or  devisee,  unless  when  called  as  a  witness  by  such  adverse  party  so  suing  or  defend- 
ing, and  also  except  in  the  following  cases,  namely :  —  First.  In  any  such  event, 
suit,  or  proceeding,  a  party  or  interested  person  may  testify  to  facts  occurring 
after  the  death  of  such  deceased  person,  or  after  the  ward,  heir,  legatee,  or  devisee 
shall  have  attained  his  or  her  majority.  Second.  When,  in  such  action,  suit, 
or  proceeding,  any  agent  of  any  deceased  person  shall,  in  behalf  of  any  person  or 
persons  suing  or  being  sued,  in  either  of  the  capacities  above  named,  testify  to 
any  conversation  or  transaction  between  such  agent  and  the  opposite  party  or 
party  in  interest,  such  opposite  party  or  party  in  interest  may  testify  concerning 
the  same  conversation  or  traijsaction.  Third.  Where,  in  any  such  action,  suit, 
or  proceeding,  any  such  party  suing  or  defending,  as  aforesaid,  or  any  person 
having  a  direct  interest  in  the  event  of  such  action,  suit,  or  proceeding,  shall 
testify  in  behalf  of  such  party  so  suing  or  defending,  to  any  conversation  or 
transaction  with  the  opposite  party  or  party  in  interest,  then  such  opposite  party 
or  party  in  interest  shall  also  be  permitted  to  testify  as  to  the  same  conversation 
or  transaction.  Fourth.  Where,  in  any  such  action,  suit,  or  proceeding,  any 
witness,  not  a  party  to  the  record,  or  not  a  party  in  interest,  or  not  an  agent  of 
such  deceased  person,  shall,  in  behalf  of  any  party  to  such  action,  suit,  or  pro- 
ceeding, testify  to  any  conversation  or  admission  by  any  adverse  party  or  party 
in  interest,  occurring  before  the  death  and  in  the  absence  of  such  deceased  person, 
such  adverse  party  or  party  in  interest  may  also  testify  as  to  the  same  admission 
or  conversation.  Fifth.  Where,  in  any  such  action,  suit,  or  proceeding,  the 
deposition  of  such  deceased  person  shall  be  read  in  evidence  at  the  trial,  any 
adverse  party  or  party  in  interest  may  testify  as  to  all  matters  and  things  testified 
to  in  such  deposition  by  such  deceased  person,  and  not  excluded  for  irrelevancy 
or  incompetency. 

lb.,  §  4.  In  any  action,  suit,  or  proceeding,  by  or  against  any  surviving  part- 
ner or  partners,  joint  contractor  or  contractors,  no  adverse  party,  or  party  ad- 
versely interested  in  the  event  thereof,  shall,  by  virtue  of  section  1  of  this  Act, 


140  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  77 

be  rendered  a  competent  witness,  to  testify  to  any  admission  or  conversation,  by 
any  deceased  partner  or  joint  contractor,  unless  some  one  or  more  of  the  sur- 
viving partners  or  joint  contractors  were  also  present  at  the  time  of  such  admission 
or  conversation;  and  in  every  action,  suit,  or  proceeding,  a  party  to  the  same, 
who  has  contracted  with  an  agent  of  the  adverse  party,  the  agent  having  since 
died,  shall  not  be  a  competent  witness,  as  to  any  conversation  or  transaction 
between  himself  and  such  agent,  except  where  the  conditions  are  such,  that  under 
the  provisions  of  sections  2  and  3  of  this  Act,  he  would  have  been  permitted  to 
testify,  if  the  deceased  person  had  been  a  principal  and  not  an  agent;  amended 
by  St.  1899,  April  24,  by  inserting  after  "such  agent,  the  words,"  "unless  such 
admission  or  conversation  with  the  said  deceased  agent  was  had  or  made  in  the 
presence  of  a  surviving  agent  or  agents  of  such  adverse  party,  and  then  only." 

Ih.,  §  5.  No  husband  or  wife  shall,  by  virtue  of  section  1  of  this  Act,  be  ren- 
dered competent  to  testify  for  or  against  each  other  as  to  any  transaction  or  con- 
versation, occurring  during  the  marriage,  whether  called  as  a  witness  during 
the  existence  of  the  marriage,  or  after  its  dissolution,  except  in  cases  where  the 
wife  would,  if  unmarried,  be  plaintiff  or  defendant,  or  where  the  cause  of  action 
grows  out  of  a  personal  wrong  or  injury  done  by  one  to  the  other  or  grows  out  of 
the  neglect  of  the  husband  to  furnish  the  wife  with  suitable  support ;  and  except 
in  cases  where  the  litigation  shall  be  concerning  the  separate  property  of  the 
wife,  and  suits  for  divorce;  and  except  also  in  actions  upon  policies  of  insurance 
of  property,  so  far  as  relates  to  the  amount  and  value  of  the  property  alleged  to 
be  injured  or  destroyed,  or  in  actions  against  carriers,  so  far  as  relates  to  the  loss 
of  property  and  the  amount  and  value  thereof,  or  in  all  matters  of  business 
transactions  where  the  transaction  was  had  and  conducted  by  such  married 
woman  as  the  agent  of  her  husband,  in  all  of  which  cases  the  husband  and  wife 
may  testify  for  or  against  each  other,  in  the  same  manner  as  other  parties  may, 
under  the  provisions  of  this  act.  Provided,  that  nothing  in  this  section  contained 
shall  be  construed  to  authorize  or  permit  any  such  husband  or  wife  to  testify 
to  any  admissions  or  conversations  of  the  other,  whether  made  by  him  to  her 
or  by  her  to  him,  or  by  either  to  third  persons,  except  in  suits  or  causes  between 
such  husband  and  w'ife. 

Massachusetts.  Revised  Laws  (1902),  c.  175,  §  20.  No  person  of  sufficient 
understanding,  whether  a  party  or  otherwise,  shall  be  excluded  from  giving 
evidence  in  any  proceeding,  civil  or  criminal,  in  court,  or  before  a  person  having 
authority  to  receive  evidence,  except  in  the  following  cases:  First,  neither  hus- 
band nor  wife  shall  be  allowed  to  testify  as  to  private  conversations  with  each 
other;  Second,  neither  husband  nor  wife  shall  be  compelled  to  be  a  witness  on 
any  trial  upon  an  indictment,  complaint,  or  other  criminal  proceeding,  against 
the  other;  Third,  in  the  trial  of  all  indictments,  complaints,  and  other  proceed- 
ings against  persons  charged  with  the  commission  of  crimes  or  offences,  a  person 
so  charged  shall  at  his  own  request,  but  not  otherwise,  be  deemed  a  competent 
witness;  and  his  neglect  or  refusal  to  testify  shall  not  create  any  presumption 
against  him. 

Ih.,  §  21.  The  conviction  of  a  witness  of  crime  may  be  shown  to  affect  his 
credibility. 

New  York.  Code  of  Civil  Procedure  (1877),  §  828.  Except  as  otherwise 
specially  prescribed  in  this  title,  a  person  shall  not  be  excluded  or  excused  from 
being  a  witness,  by  reason  of  his  or  her  interest  in  the  event  of  an  action  or  special 
proceeding;   or  because  he  or  she  is  a  party  thereto;  or  the  husband  or  wife  of  a 


No.  77  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  141 

party  thereto,  or  of  a  person  in  whose  behalf  an  action  or  special  proceeding  is 
brought,  opposed,  prosecuted,  or  defended. 

lb.,  §  829.  Upon  the  trial  of  an  action,  or  the  hearing  upon  the  merits  of  a 
special  proceeding,  a  party  or  a  person  interested  in  the  event,  or  a  person  from, 
through,  or  under  whom  such  a  party  or  interested  person  derives  his  interest  or 
title  by  assignment  or  otherwise,  shall  not  be  examined  as  a  witness  in  his  own 
behalf  or  interest,  or  in  behalf  of  the  party  succeeding  to  his  title  or  interest, 
against  the  executor,  administrator,  or  survivor  of  a  deceased  person,  or  the 
committee  of  a  lunatic,  or  a  person  deriving  his  title  or  interest  from,  through, 
or  under  a  deceased  person  or  lunatic,  by  assignment  or  otherwise,  concerning 
a  personal  transaction  or  communication  between  the  witness  and  the  deceased 
person  or  lunatic,  except  where  the  executor,  a<lministrator,  survivor,  committee, 
or  person  so  deriving  title  or  interest  is  examined  in  his  own  behalf,  or  the  testi- 
mony of  the  lunatic  or  deceased  person  is  given  in  evidence  concerning  the  same 
transaction  or  communication.  A  person  shall  not  be  deemed  interested  for  the 
purposes  of  this  section  by  reason  of  being  a  stockholder  or  officer  of  any  bank- 
ing coiporation  which  is  a  party  to  the  proceeding  or  interested  in  the  result 
thereof. 

lb.,  §  831.  A  husband  or  wife  is  not  competent  to  testify  against  the  other, 
upon  the  trial  of  an  action,  or  the  hearing  upon  the  merits  of  a  special  proceeding, 
founded  upon  an  allegation  of  adultery,  except  to  prove  the  marriage  or  disprove 
the  allegation  of  adultery.  A  husband  or  wife  shall  not  be  compelled,  or,  with- 
out the  consent  of  the  other  if  living,  allowed  to  disclose  a  confidential  communi- 
cation made  by  one  to  the  other  diu-ing  marriage.  In  an  action  for  criminal 
conversation,  the  plaintiff's  wnfe  is  not  a  competent  witness  for  the  plaintiff,  but 
she  is  a  competent  witness  for  the  defendant,  as  to  any  matter  in  controversy; 
except  that  she  cannot,  without  the  plaintiff's  consent,  disclose  any  confidential 
commimication  had  or  made  between  herself  and  the  plaintiff. 

lb.,  §  832.  A  person,  who  has  been  convicted  of  a  crime  or  misdemeanor,  is, 
notwithstanding,  a  competent  witness  in  a  civil  or  criminal  action  or  special 
proceeding;  but  the  conviction  may  be  proved  for  the  purpose  of  affecting  the 
weight  of  his  testimony,  either  by  the  record  or  by  his  cross-examination,  upon 
which  he  must  answer  any  question  relevant  to  that  inquiry;  and  the  party 
cross-examining  him  is  not  includefl  by  that  inquiry. 

lb.,  §  850.  The  Court  or  officer  may  examine  an  infant,  or  a  person  apparently 
of  weak  intellect,  produced  before  it  or  him  as  a  witness,  to  ascertain  his  capacity 
and  the  extent  of  his  knowledge. 

Penal  Code  (1881),  §  715.  The  husband  or  wife  of  a  person  indicted  or 
accused  of  a  crime  is  in  all  cases  a  competent  witness,  on  the  examination  or  trial 
of  such  person;  but  neither  husband  nor  wife  can  be  compelled  to  disclose  a 
confidential  communication,  made  by  one  to  the  other  during  marriage. 

Code  of  Criminal  Procedure  (1881),  §  393.  The  defendant  in  all  [criminal] 
cases  may  testify  as  a  witness  in  his  own  behalf,  but  his  neglect  or  refusal  to. 
testify  does  not  create  any  presumption  against  him. 

Laws  (1876),  c.  182,  §  1.  All  persons  jointly  indicted  shall,  upon  the  trial 
of  either,  be  competent  witnesses  for  each  other  the  same  as  if  not  included  in 
the  indictment. 


142  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  78 


Sub-topic  A.  Mental  and  Moral  Incapacity 

78.1  Simon  Greenleaf.  Evidence.  (1842,  §  365).  [Insanity].  It  makes  no 
difference  from  which  cause  this  defect  of  understanding  may  have  arisen;  nor 
whether  it  be  temporary  and  curable,  or  permanent;  whether  the  party  be 
hopelessly  an  idiot  or  maniac,  or  only  occasionally  insane,  as  a  lunatic;  or  be 
intoxicated;  or  whether  the  defect  arises  from  mere  immaturity  of  intellect,  as 
in  the  case  of  children.  While  the  deficiency  of  understanding  exists,  be  the 
cause  of  what  nature  soever,  the  person  is  not  admissible  to  be  sworn  as  a 
witness. 

79.   REGINA  v.  HILL 
Crown  Cases  Reserved.  1851 
2  Den.  &  P.  256 

This  prisoner  was  tried  before  Coleridge,  J.,  assisted  by  Cresswell, 
J.,  at  tlie  February  sittings  of  the  Central  Criminal  Court,  1851,  for  the 
manslaughter  of  Moses  James  Barnes;  he  was  convicted,  but  a  question 
was  reserved  for  the  opinion  of  this  Court,  as  to  the  propriety  of  having 
admitted  a  witness  of, the  name  of  Richard  Donelly,  on  the  part  of  the 
prosecution. 

The  deceased  and  the  witness  were  both  lunatic  patients  in  a  Mr. 
Armstrong's  Asylum,  at  Camberwell,  at  the  time  of  the  supposed  injury, 
and  they  were,  at  that  time,  placed  in  a  ward  called  the  Infirmary.  It 
appeared  that  a  single  sane  attendant  (the  prisoner)  had  the  charge  of 
this  ward,  in  which  as  many  as  nine  patients  slept,  and  that  he  was 
assisted  by  three  of  the  patients,  of  whom  the  witness  Donelly  was  one.* 
.  .  .  The  question  for  the  opinion  of  this  Court  was.  Whether  Richard 
Donelly  was  a  competent  witness?  This  case  was  argued  on  the  3rd 
May,  1851.  Collier  appeared  for  the  prisoner;  Sir  F.  Thesiger,  Bodkin 
and  Clarkson  for  the  Crown. 

Collier.  —  The  witness,  Donelly,  was  non  compos  mentis  in  point  of 
fact,  according  to  the  medical  and  legal  authorities  on  that  subject.  It 
is  a  rule,  that  no  person  who  is  non  compos  mentis  is  admissible  as  a 
witness.  There  are  reasons  of  public  policy,  as  well  as  of  convenience, 
against  qualifying  this  rule.  Even  should  the  above  rule  be  qualified, 
this  case  could  not  be  brought  within  such  qualification.  .  .  .  The 
authorities  show  that  a  non  compos  is  inadmissible.  (Com.  Dig.  tit. 
"Testmoigne  —  Witness,  A  I).  There  are  two  heads  of  incompetency, 
to  which  all  others  may  be  referred:    First,  Want  of  sufficient  under- 


^  For  the  principles  of  Logic  and  Psychology  as  applicable  to  Insanity  of  a 
witness,  see  the  present  Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos. 
191-195. 

*  The  delusion  of  this  witness  is  fully  stated  in  the  extract  from  this  case  in 
No.  194  of  the  present  Compiler's  "Principles  of  Judicial  Proof "  (1913).  —  ed. 


No.  79  TESTIMONIAL  evidence:    qualifications  143 

standing  to  tell  the  truth;  Secondly,  Want  of  trustworthiness  in  a 
person  of  sufficient  understanding.  A  non  compos  comes  under  the  first 
head.  Infidels,  infamous  persons,  parties  to  the  suit,  etc.,  under  the 
second.  .  .  .  Neither  Comyn  nor  Duller  [see  N.  P.  283  (a),  293]  mention 
any  qualification  of  the  general  proposition  than  an  insane  person  is 
inadmissible,  except  "in  lucidis  intervallis,"  i.e.,  when  he  is  not  insane  at 
all;  for  in  the  matter  of  evidence  no  degrees  of  lunacy  are  recognized 
by  the  law.  [Co.  Lit.  6  (a) ;  Ibid.  247  (a)].  ...  If  it  be  said  that  this  rule 
is  too  general,  and  that  as  the  law  recognizes  degrees  of  lunacy  with 
reference  to  other  subjects,  it  should  also  recognize  degrees  in  the  matter 
of  testimony;  this  broad  distinction  seems  to  exist  in  the  very  nature  of 
things;  viz.,  that  it  is  comparatively  easy  to  test  madness  with  reference 
to  a  past  act,  but  not  so  with  reference  to  a  future  act.  How  can  a 
Judge  say  whether  a  witness's  whole  evidence  may  not  be  based  on 
delusion,  or  that  the  delusion  will  not  come  on  while  he  is  giving  his 
evidence?  Is  every  insane  witness  to  be  admissible,  and  his  credit  left 
to  the  jury?  That  is  contrary  to  all  the  authorities.  If  not,  what  classes 
of  insane  persons  are  to  be  admitted?  Monomaniacs  only?  What  is 
monomania?  Its  existence  is  denied  by  some  medical  writers.  It  seems, 
therefore,  that  as  soon  as  the  unsoundness  of  mind  is  manifested,  the 
inquiry  should  stop,  otherwise  the  Judge  would  have  to  perform  the 
almost  impossible  task  of  determining  the  precise  nature  and  extent  of 
the  insanity,  and  whether  it  will  affect  the  evidence  of  the  witness  at 
any  period  of  the  trial,  and  under  any  circumstances  that  may  take  place 
during  its  progress. 

Lord  Campbell,  C.  J.  —  You  admit  that  it  is  for  the  Judge  to  decide. 
You  must,  therefore,  go  the  length  of  saying,  that  the  Judge  is  bound 
to  disallow  the  testimony  of  any  person  who  is  under  any  insane  delusion. 
In  a  case  tried  before  Parke,  B.,  it  was  held  that  it  was  for  the  Judge 
to  decide  the  question  of  competency,  and  for  the  jury  to  decide  the 
question  of  credibility.  .  .  . 

Sir  F.  Thcsiger  was  not  called  upon. 

Lord  Campbell,  C.  J.  —  The  question  is  important,  and  has  not  yet 
been  solemnly  decided  after  argument.  But  I  have  no  doubt  that  the 
rule  was  properly  laid  down  by  Parke,  B.,  in  the  case  which  was  tried 
before  him,  and  that  it  is  for  the  Judge  to  say  whether  the  insane  person 
has  the  sense  of  religion  in  his  mind,  and  whether  he  understands  the 
nature  and  sanction  of  an  oath;  and  then  the  jury  are  to  decide  on  the 
credibility  and  weight  of  his  evidence.  ...  It  has  been  argued  that 
any  particular  delusion,  commonly  called  monomania,  makes  a  man 
inadmissible.  This  would  be  extremely  inconvenient  in  many  cases 
in  the  proof  either  of  guilt  or  innocence:  it  might  also  cause  serious 
difficulties  in  the  management  of  lunatic  asylums.  I  am,  therefore,  of 
opinion  that  the  Judge  must,  in  all  such  cases,  determine  the  compe- 
tency, and  the  jury  the  credibility.  Before  he  is  sworn,  the  insane 
person  may  be  cross-examined,  and  witnesses  called  to  prove  circum- 


144  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  79 

stances  which  might  show  him  inadmissible.  But,  in  the  absence  of 
such  proof,  he  is  prima  facie  admissible,  and  the  jury  must  attach  what 
weight  they  think  fit  to  his  testimony.  .  .  . 

Coleridge,  J.  —  Mr.  Collier  has  referred  to  several  dicta  in  which 
the  rule  is  stated  without  any  qualification;  but  in  those  cases  no  qualifi- 
cation was  needed.  In  old  times,  too,  the  rules  of  evidence  were  much 
narrower  than  at  present,  and  more  in  accordance  with  those  of  the 
Civil  and  Canon  Laws.  In  this  case  the  evidence  showed  that  the 
insane  person  had  only  a  single  delusion;  as  to  memory  he  was  like 
other  people;  and  with  regard  to  the  obligation  of  an  oath,  he  was 
unusually  well  instructed.  Prima  facie,  therefore,  he  was  quite  fit  to  be 
sworn.  If,  however,  in  the  course  of  the  trial,  he  showed  his  evidence 
to  be  tainted  with  insanity,  then  the  jury  should  have  attached  no 
weight  to  it. 

Platt,  B.,  concurred. 

Talfourd,  J.  —  It  would  be  very  disastrous  if  mere  delusions  were 
held  to  exclude  a  witness.  Some  of  the  greatest  and  wisest  of  mankind 
have  had  particular  delusions. 

Lord  Campbell,  C.  J. — The  rule  which,  has  been  contended  for 
would  have  excluded  the  testimony  of  Socrates,  for  he  had  one  spirit 
always  prompting  him. 

80.  WoRTHiNGTON  V.  Mercer  (1892.  Alabama.  96  Ala.  310,  11  So.  72 ). 
Walker,  J.  One's  infirmity  may  be  such  as  to  render  it  expedient  to  place  him 
under  guardianship,  and  even  to  subject  him  to  personal  restraints,  and  yet  he 
may  be  fully  competent  to  vmderstand  the  nature  of  an  oath,  to  observe  facts 
correctly,  and  to  relate  them  intelligently  and  truly.  A  sweeping  rule  of  dis- 
qualification which  excludes  such  a  person  as  a  witness  would  be  arbitrary  and 
vmsupported  by  sound  reason.  The  true  reason  for  not  admitting  the  testimony 
of  a  person  non  comjMs  mentis  in  any  case  is  because  his  malady  involves  such  a 
want  or  impairment  of  faculty  that  events  are  not  correctly  impressed  on  his 
mind,  or  are  not  retained  in  his  memory,  or  that  he  does  not  understand  his  re- 
sponsibility as  a  witness.  When  the  reason  for  the  exclusion  of  the  witness  does 
not  exist,  he  should  be  permitted  to  testify. 

8L     Statutes.     [Printed  ante,  as  No.  77] 


82.   REX  V.  BRASIER 

Crown  Cases  Reserved.  1779 

1  Leach  Cr.  L.  ^h  ed.,  199 

This  was  a  case  reserved  for  the  opinion  of  the  twelve  Judges  by  Mr. 
Justice  BuLLER,  at  the  Spring  Assizes  for  Reading,  in  the  year  1779,  on 
the  trial  of  an  indictment  for  an  assault  with  intent  to  commit  a  rape  on 
the  body  of  Mary  Harris,  an  infant  under  seven  years  of  age.  .  .  . 


No.  85  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  145 

The  judges  assembled  at  Serjeants'-Inn  Hall,  29th  April,  1779,  were 
unanimously  of  opinion,  that  no  testimony  whatever  can  be  legally 
received  except  upon  oath;  and  that  an  infant,  though  under  the  age  of 
seven  years,  may  be  sworn  in  a  criminal  prosecution,  provided  such  infant 
appears,  on  strict  examination  by  the  Court,  to  possess  a  sufficient 
knowledge  of  the  nature  and  consequences  of  an  oath,  for  there  is  no  pre- 
cise or  fixed  rule  as  to  the  time  within  which  infants  are  excluded  from 
giving  evidence;  but  their  admissibility  depends  upon  the  sense  and 
reason  they  entertain  of  the  danger  and  impiety  of  falsehood,  which  is 
to  be  collected  from  their  answers  to  questions  propounded  to  them  by 
the  Court;  but  if  they  are  found  incompetent  to  take  an  oath,  their 
testimony  cannot  be  received.^ 


83.     HUGHES  r.   R.   CO. 
Supreme  Court  of  Michigan,  1887 

65  Mich.  10 
.     [Printed  post,  under  Oath,  No.  482] 


84.  Wheeler  v.  United  States.  (1895.  Federal  Supreme  Court.  159  U. 
S.  523,  16  Sup.  93).  Brewer,  J.  The  decision  of  this  question  [of  a  child's 
competency]  rests  primarily  with  the  trial  judge,  who  sees  the  proposed  witness, 
notices  his  manner,  his  apparent  possession  or  lack  of  intelligence,  and  may 
resort  to  any  examination  which  will  tend  to  disclose  his  capacity  and  intelli- 
gence, as  well  as  his  understanding  of  the  obligations  of  an  oath.  As  many  of 
these  matters  cannot  be  photographed  into  the  record,  the  decision  of  the  trial 
judge  will  not  be  disturbed  on  review,  unless  from  that  which  is  preserved  it  is 
clear  that  it  was  erroneous. 


85.     BROWN  V.   CRASHAW 

King's  Bench,  1614 

2  Bulstr.  154 

In  a  prohibition,  upon  a  supposed  modus  decimandi,  Yelverton, 
Solicitor,  moved  the  Court,  for  a  consultation  to  be  granted,  for  that 
the  plaintiff  in  the  prohibition,  had  not  sufficiently  proved  his  sugges- 
tion, the  same  being  only  proved  by  him,  by  two  persons,  which  were 
both  of  them  attainted  of  felony,  and  so  could  be  no  good  and  sufficient 
witnesses  in  law. 


1  For  the  principles  of  Psychology  applicable  to  the  testimony  of  a  Child, 
see  the  present  Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos.  174-181. 


146  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  85 

Coke,  Chief  Justice.  —  It  appears  by  11  H.  IV,  fol.  41b,  that  if  one 
be  attainted  of  felony,  and  pardoned,  he  shall  not  afterwards  be  sworn 
of  a  jury,  for  that  he  is  not  "probus  et  legalis  homo,"  for  "poena 
mori  potest,  culpa  perennis  erit,"  and  therefore  such  an  one  shall  not 
be  sworn  of  an  inquest;  and  this  is  a  good  challenge  to  a  juror  returned 
to  serve,  that  he  hath  been  before  attainted  of  felony,  and  though 
pardoned  for  the  same,  yet  he  is  not  a  fit  person  to  serve  of  a  jury,  nor 
yet  to  be  an  indifferent  witness.  .  .  .  And  in  this  principal  case,  upon 
examination,  it  was  found,  that  the  two  witnesses,  which  proved  the 
suggestion  for  the  prohibition,  had  been  attainted  of  felony,  and  there- 
fore, by  the  rule  of  the  Court,  the  prohibition  was  disallowed  (the  sug- 
gestion being  unduly  proved),  and  a  consultation  was  granted.^ 

86.  Chief  Baron  Gilbert.  Evidence,  {ante  1727.  p.  139).  The  second  sort  of 
persons  excluded  from  testimony  for  want  of  integrity  are  such  as  are  stigmatized. 
Now  there  are  several  crimes  that  so  blemish  that  the  party  is  ever  afterwards 
unfit  to  be  a  witness.  .  .  .  And  the  reason  is  very  plain,  because  every  plain 
and  honest  man  affirming  the  truth  of  any  matter  under  the  sanction  and 
solemnity  of  an  oath  is  entitled  to  faith  and  credit,  .  .  .  but  where  a  man  is  con- 
victed of  falsehood  and  other  crimes  against  the  common  principles  of  honesty 
and  humanity,  his  oath  is  of  no  weight,  because  he  hath  not  the  "credit  of  a  witness, 
.  .  .  and  he  is  rather  to  be  intended  as  a  man  profligate  and  abandoned  than  one 
under  the  sentiments  and  convictions  of  those  principles  that  teach  probity  and 
veracity. 

87.  Simon  Greenleaf.  Emdence.  (1842.  §§  373-378).  It  is  a  point  of  no 
small  difficulty  to  determine  precisely  the  crimes  which  require  the  perpetrator 
thus  infamous.  The  rule  is  justly  stated  to  require,  that  the  "publicum  judi- 
cium" must  be  upon  an  offence,  implying  such  a  dereliction  of  moral  principles, 
as  carries  with  it  a  conclusion  of  a  total  disregard  to  the  obligation  of  an  oath.' 
But  the  difficulty  lies  in  the  specification  of  those  offences.  The  usual  and  more 
general  enumeration  is,  treason,  felony,  and  the  crimen  falsi.  In  regard  to  the 
two  former,  as  all  treasons,  and  almost  all  felonies  were  punishable  with  death, 
it  was  very  natural  that  crimes,  deemed  of  so  grave  a  character  as  to  render  the 
offender  unworthy  to  live,  should  be  considered  as  rendering  him  unworthy  of 
belief  in  a  Court  of  Justice.  But  the  extent  and  meaning  of  the  term,  "crimen 
falsi,"  in  oiu-  law,  is  nowhere  laid  down  with  precision.  In  the  Roman  Law, 
from  which  we  have  borrowed  the  term,  it  included  not  only  forgery,  but  every 
species  of  fraud  and  deceit.  If  the  offence  did  not  fall  under  any  other  head 
it  was  called  "stellionatus,"  which  included  "all  kinds  of  cozenage  and  knavish 
practice  in  bargaining."  But  it  is  clear,  that  the  Common  Law  has  not  em- 
ployed the  term  in  this  extensive  sense,  when  applying  it  to  the  disqualification 
of  witnesses;  because  convictions  for  many  offences,  clearly  belonging  to  the 
crimen  falsi  of  the  civilians,  have  not  this  effect.  Of  this  sort  are  deceits  in  the 
quality  of  provisions,   deceits    by  false  weights  and  measures,  conspiracy  to 


*  For  the  principles  of  Psychology  applicable  to  the  Infamxms  Moral  Character 
of  a  witness,  see  the  present  Compiler's  "Principles  of  Judicial  Proof"  (1913), 
Nos.  196-202. 


No.  88  TESTIMONIAL  evidence:    qualifications    •  147 

defraud  by  spreading  false  news,  and  several  others.  On  the  other  hand,  it  has 
been  adjudged,  that  persons  are  rendered  infamous,  and  therefore  incompetent 
to  testify,  by  having  been  convicted  of  forgery,  perjury,  subornation  of  perjury, 
suppression  of  testimony  by  bribery,  or  conspiracy  to  procure  the  absence  of  a 
witness,  or  other  conspiracy,  to  accuse  one  of  a  crime  and  barratry.  And  from 
these  decisions  it  may  be  deduced,  that  the  "crimen  falsi"  of  the  Common  Law  not 
only  involves  the  charge  of  falsehood,  but  also  is  one  which  may  injuriously  affect 
the  administration  of  justice,  by  the  introduction  of  falsehood  and  fraud.  .  .  . 

We  have  already  remarked,  that  no  person  is  deemed  infamous  in  law,  until 
he  has  been  legally  found  guilty  of  an  infamous  crime.  But  the  mere  verdict 
of  a  Jury  is  not  sufficient  for  this  purpose;  for  it  may  be  set  aside,  or  the  judg- 
ment may  be  arrested,  on  motion  for  that  purpose.  It  is  the  judgment,  and  that 
only,  W'hich  is  received  as  the  legal  and  conclusive  evidence  o/  the  party's  guilt, 
for  the  purpose  of  rendering  him  incompetent  to  testify.  And  it  must  appear 
that  the  judgment  was  rendered  by  a  Court  of  competent  jurisdiction.  Judg- 
ment of  outlawry  for  treason  or  felony  will  have  the  same  effect;  for  the  party, 
in  submitting  to  an  outlawTy,  virtually  confesses  his  guilt;  and  so  the  record  is 
equivalent  to  a  judgment  upon  confession.  If  the  guilt  of  the  party  should  be 
shown  by  oral  evidence,  and  even  by  his  own  admission  (though  in  neither  of 
these  modes  can  it  be  proved,  if  the  evidence  be  objected  to),  or,  by  his  plea  of 
guilty,  which  has  not  been  followed  by  a  judgment,  the  proof  does  not  go  to  the 
competency  of  the  witness,  however  it  may  affect  his  credibility. 

The  disability  thus  arising  from  infamy  may,  in  general,  be  removed  in  two 
modes;  (1)  by  reversal  of  the  judgment;  (2)  by  a  pardon;  [and  (3)  by  serving 
the   sentence  ]. 

88.    SIMS  V.   SIMS 

Court  of  Appeals  of  New  York.     1878 

75  N.  Y.  466 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  fourth  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict.  (Reported  below,  12  Hun  231.) 
This  action  was  brought  upon  a  contract  for  the  sale  of  a  steam  tug. 
The  facts  material  to  the  point  discussed  appear  sufficiently  in  the 
opinion. 

A.  G.  Rice,  for  appellant.  The  defendant  could  not  be  rendered 
incompetent  to  testify  by  proof  of  a  record  of  conviction  of  a  felony  in 
another  State.  . 

John  C.  Strong,  for  respondent. 

Rapallo,  J.  The  only  exception  necessary  to  be  considered,  is 
that  taken  to  the  exclusion  of  the  question  to  the  defendant  while  on 
the  stand,  whether  he  was  guilty  of  the  offense  of  which  he  had  been 
convicted  in  the  State  of  Ohio  thirty-five  years  previously.  .  .  .  The 
plaintiff,  after  having  given  oral  evidence,  by  the  cross-examination 
of  the  defendant,  of  his  conviction  in  Ohio  in  1839  of  the  offense  of 
having  counterfeit  money  in  his  possession,  put  in  evidence  the  record 
of  conviction. 


148  *  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  88 

...  1.  The  first  point  of  inquiry  is  whether  this  conviction  in  Ohio 
rendered  the  defendant  incompetent  to  be  a  witness  in  the  courts  of 
this  State.  .  .  .  The  Revised  Statutes  provide  (2  R.  S.  701,  §  23)  that 
no  person  sentenced  upon  a  conviction  for  felony  shall  be  competent 
to  testify  in  any  cause,  etc.,  unless  pardoned  by  the  Governor  or  Legisla- 
ture, except  in  the  cases  specially  provided  by  law;  but  that  no  sentence 
upon  a  conviction  for  any  offense  other  than  a  felony,  shall  disqualify 
or  render  any  person  incompetent  to  be  sworn  or  to  testify,  etc.  The 
same  statute  in  a  subsequent  section  (p.  702,  §  30)  defines  the  term 
felony,  when  used  in  that  act  or  in  any  other  statute,  to  mean  an  offense 
for  which  the  con\act  is  liable,  by  law  to  be  punished  by  death  or 
by  imprisonment  in  a  State  prison.  I  think  it  quite  clear  that  the 
disqualification  created  by  this  statute  is  consequent  only  upon  a  con- 
viction in  this  State.  It  is  found  in  that  part  of  the  Revised  Statutes 
which  relates  to  crimes  and  their  punishment,  and  is  in  the  nature  of  an 
additional  penalty  consequent  upon  the  sentence..  Although  the  dis- 
qualification incidentally  affects  parties  in  civil  litigations  wherein  the 
testimony  of  the  convict  may  be  material,  and  serves  as  a  protection  to 
those  against  whom  his  testimony  may  be  sought  to  be  used,  yet  the 
provisions  which  inflict  it  must  be  regarded  as  a  part  of  the  criminal  law 
of  this  State.  Furthermore,  the  provisions  requiring  that  the  offense 
be  a  felony,  and  defining  the  term  felony  as  used  in  that  act,  indicate 
that  the  conviction  referred  to,  is  a  conviction  had  within  this  State. 
Though  petty  larceny  was  a  felony  at  common  law,  it  has  been  held  that 
a  conviction  of  that  offense  does  not  constitute  a  disqualification  in  this 
State,  but  the  offense  must  be  a  felony  as  defined  in  the  statute  above 
cited.  (Carpenter  v.  Nixon,  5  Hill  260;  Shay  v.  The  People,  22  N.  Y. 
317.)  Crimes  might  be  felonies  in  other  States,  which  did  not  fall  within 
our  statutory  definition. 

It  was  not  shown  that  according  to  the  laws  of  the  State  of  Ohio, 
a  person  convicted  of  the  offense  of  which  this  party  was  convicted, 
was  incompetent  to  be  a  witness.  But  if  this  fact  had  been  shown,  or 
could  be  presumed,  it  could  make  no  difference.  There  is  some  con- 
flict of  authority  on  this  point.  In  Chase  v.  Blodgett,  10  N.  H.  24, 
and  State  v.  Chandler,  3  Hawks  393,  it  was  held  that  one  con\acted  in 
another  State  of  an  offense  conviction  of  which  rendered  him  incom- 
petent in  the  State  where  convicted,  and  would  have  had  the  same 
effect  in  the  State  where  he  was  offered  as  a  witness  had  he  been  convicted 
there,  was  also  disqualified  in  the  latter  State.  But  in  Commonwealth 
V.  Green,  17  Mass.  515,  the  contrary  was  held.  The  case  last  referred 
to  rests  upon  the  ground  that  the  disqualification  is  in  the  nature  of 
an  additional  penalty,  following  and  resulting  from  the  conviction,  and 
cannot  extend  be\-ond  the  territorial  limits  of  the  State  where  the  judg- 
ment was  pronounced;  that  the  constitutional  pro\'ision  requiring  that 
full  faith  and  credit  be  given  to  the  records,  etc.,  of  other  States  does 
not  require  that  the  same  effect  be  given  to  them  as  in  the  State  where 


No.  90  TESTIMONIAL  evidence:     QUALIFICATIONS  149 

rendered,  as  it  was  left  to  Congress  to  prescribe  their  effect,  and  also 
that  this  constitutional  provision  does  not  apply,  and  is  not  in  its  nature 
applicable,  to  criminal  proceedings. 

In  the  New  Hampshire  and  North  Carolina  cases  referred  to  (10 
N.  H.  22,  and  3  Hawks  393),  this  argument  is  met  by  the  contention 
that  it  is  the  crime  and  not  the  judgment  which  incapacitates  the  witness, 
and  that  the  incapacity  is  not  prescribed  as  a  punishment  for  the  crime, 
but  because  by  the  commission  of  it  the  criminal  has  shown  himself  a 
person  unfit  to  be  trusted  to  give  testimony  affecting  the  rights  of  others; 
that  the  judgment  is  required  only  for  the  purpose  of  establishing  the 
fact  of  the  crime  by  conclusive  evidence,  and  that  the  constitutional 
provision  requires  that  the  same  credit  be  given  in  every  State  to  the 
judgment  of  a  sister  State  to  which  it  is  entitled  in  the  State  where 
rendered.  Assuming  that  this  constitutional  provision  applies  to  convic- 
tions for  crimes  (which  is  denied  in  the  Massachusetts  case)  the  answer 
to  the  position  stated  is  twofold.  First,  that  whatever  reason  may  He 
at  the  foundation  of  the  law,  the  law  is  that  the  sentence,  and  not  merely 
the  commission  of  the  crime,  disqualifies  the  witness.  The  crime  may 
be  admitted  or  proved  ever  so  conclusively,  even  by  record,  without 
having  that  effect.  A  judgment  rendered  in  a  civil  action  to  which 
plaintiif,  defendant,  and  witness  were  all  parties,  finding  the  witness 
guilty  of  forgery,  grand  larceny,  or  any  other  felony,  would  not  dis- 
qualify. Such  a  record  might  exist,  as  in  cases  of  justification  of  libel, 
actions  to  cancel  forged  instruments,  etc.  The  disability  to  testify 
can  only  follow  conviction  and  sentence  in  a  prosecution  for  the  crime. 
Secondly,  a  record  of  conviction  for  a  crime,  is  not  conclusive  evidence 
in  a  civil  action,  of  the  facts  upon  which  it  was  based.  .  .  . 

2.  This  brings  us  to  the  second  branch  of  the  case.  .  .  .  Error 
has  occurred  in  the  present  case.  The  judgment  should  be  reversed 
and  a  new  trial  ordered,  costs  to  abide  the  event. 

All  concur  except  Miller  and  Earl,  JJ.,  absent. 

Judgment  reversed. 

89.  Statutes.    [Printed  ante,  as  No.  77] 

90.  Vance  v.  State.  (1902.  Arkansas.  70  Ark.  272,  68  S.  W.  37).  Riddick,  J. 
We  take  this  occasion  to  call  attention  to  the  backward  state  of  the  law  in  this 
State  in  reference  to  the  competency  of  witnesses  convicted  of  felony.  The 
statutes  which  render  such  witnesses  incompetent  belong  to  a  class  of  antiquated 
laws  which  suppress  evidence,  and  which  the  wisdom  of  modern  ages  has  dis- 
credited and  shown  to  be  unreasonable  and  injurious.  They  are  of  the  same 
class  as  the  laws  which  formerly  forbade  the  parties  to  the  suit  from  testifying, 
and  closed  the  mouth  of  the  defendant  on  trial  for  his  life,  and  should  be  repealed, 
as  these  laws  have  been  repealed,  for  such  matters  should  go  only  to  the  credit 
or  impeachment  of  the  witness,  not  to  the  exclusion  of  his  testimony.  There  is 
no  valid  reason  why  a  person  who  knows  anything  material  to  the  decision  of  a 
case  on  trial  should  not  be  permitted  to  tell  it,  whatever  may  his  character,  the 
jury  being  allowed  to  weigh  his  testimony  in  connection  with  his  character  and 


150  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  90 

antecedents.  These  statutes  not  only  suppress  evidence,  but  the  appHcation 
of  them  often  presents  difficult  and  doubtful  questions,  which,  being  decided  in 
the  hurry  of  trial,  frequently  results  on  appeal  in  reversals,  and  in  this  way 
justice  is  often  thwarted.  There  are  very  few  States  that  now  retain  such  laws 
and  we  think  our  legislators  might  well  consider  whether  they  should  not  be 
repealed  in  this  State  also. 


Sub-topic  B.     Emotional  Incapacity  ^ 
(1)    Interest  in  Litigation 

91.  Sir  Edward  Coke.  Commentary  upon  Litilcton.  (1629.  fol.  6  h).  It  was 
also  agreed,  by  the  whole  Court,  that  in  an  information  upon  the  statute  of  usury, 
the  party  to  the  usurious  contract  shall  not  be  admitted  to  be  a  witness  against 
the  usurer,  for  in  effect  he  should  be  "testis  in  propria  causa,"  and  should  avoid 
his  own  bonds  and  assurances,  and  discharge  himself  of  the  money  borrowed.  .  .  . 
And  herewith  in  effect  agreeth  Britton,  that  he  that  challengeth  a  right  in  the 
thing  in  demand  cannot  be  a  witness,  for  that  he  is  a  party  in  interest. 

92.  Simon  Greenleaf.  Evidence,  §§  3286,  3336;  Addenda  by  John  H. 
WiGMORE  (16th  ed.,  1899).  Interest,  in  general,  as  a  Disqualification.  At  com- 
mon law,  the  most  important,  because  most  extensive,  ground  of  incapacity  was 
that  supposed  inclination  to  falsify  which  arose  from  the  prospect  of  gaining  or 
losing  by  the  issue  of  the  proceedings.  The  circumstance  creating  this  incapac- 
ity was  known  as  Interest;  and  the  theory  was  that  "from  the  nature  of  human 
passions  and  actions  there  is  more  reason  to  distrust  such  a  biased  testimony 
than  to  believe  it."  (Gilbert,  Evidence,  119.)  This  theory  and  policy  was, 
up  to  the  latter  part  of  the  eighteenth  century,  not  at  all  out  of  harmony  with  the 
moral  and  emotional  notions  of  the  time;  and  in  certain  regions  of  our  own  coun- 
try it  is  perhaps  still  not  thought  unnatural.  It  is  consistent  with  any  state  of 
society  in  which  violent  partisanship  colors  the  whole  mental  and  moral  attitude 
of  the  man.  But  with  the  social  changes  of  the  eighteenth  century,  this  policy 
gradually  became  incongruous,  and  by  the  beginning  of  the  nineteenth  century, 
the  Courts  had  already  shown  disfavor  to  it,  and  the  community  was  ready  to 
perceive  this  incongruity.  The  rigors  of  its  application  had  already  been  miti- 
gated by  numerous  exceptions  and  evasions;  but  these  only  served  to  illustrate 
the  general  unsoundness  and  impolicy  of  the  principle  as  a  whole.  The  powerful 
sarcasm  of  Jeremy  Bentham  mercilessly  exposed  its  inconsistencies  and  its  fal- 
lacies (Rationale  of  Judicial  Evidence,  B.  ix,  pt.  iii,  c.  iii,  Bowring's  ed.,  vol.  vii, 
393).  Bentham's  doctrines  were  given  currency  in  this  country  by  the  work  on 
Evidence  of  Chief  Justice  Appleton,  of  Maine  (see  cc.  i  and  iv  therein);  and  by 
his  works,  during  the  first  quarter  of  the  nineteenth  century,  an  opinion  was 
created  which  before  long,  under  the  efforts  of  Lord  Brougham  and  others,  took 
shape  in  legislation.  In  1843  (St.  6-7  Vict.,  c.  85.)  the  general  rule  of  disquali- 
fication by  reason  of  interest  was  abolished  in  England;  and  the  first  statute 
(Rev.  St.'  1846,  c.  102,  Sec.  99.)  of  the  same  sort  seems  to  have  been  enacted  in 
this  country  in  Michigan  in  1846;    to  be  followed  within  two  or  three  decades 


^  For  the  principles  of  Psychology  here  applicable,  see  the  present  Compiler's 
"Principles  of  Judicial  Proof"  (1913),  Nos.  203-216. 


No.  94  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  151 

by  the  remaining  jurisdictions.  The  mass  of  detailed  rules  and  exceptions 
depending  upon  this  principle  have  therefore  ceased  to  he  law;  and  in  spite  of 
the  continued  existence  of  remnants  of  the  old  policy  (now  to  be  mentioned), 
the  decisions  dealing  with  interest  in  general  have  ceased  to  be  of  direct  bearing, 
except  in  a  few  respects,  and  are  even  for  that  purpose  rarely  referred  to  by  the 
Courts  of  to-day. 

But  the  abolition  of  this  source  of  incompetency  was  not  completed  at  once; 
nor  has  complete  abolition  yet  been  reached,  except  in  a  few  jurisdictions.  .  .  . 
There  still  remains  the  disqualification  for  survivors  of  a  transaction  with  a  de- 
ceased person.  In  almost  every  jurisdiction  in  this  country,  by  statutes  enacted 
in  connection  with  or  shortly  after  the  statute  removing  the  disqualification  of 
parties  and  of  interested  persons  in  general,  an  exception  was  carved  out  of  the 
old  disqualification  and  allowed  to  perpetuate  its  principle  within  a  limited  scope. 
The  theory  of  the  original  disqualification  was  that  persons  interested  were 
likely  to  bear  false  witness;  the  reasons  for  abolition  were  in  brief  (1)  that  this 
was  true  to  a  limited  extent  only,  (2)  that,  even  if  true,  yet,  so  far  as  they  did  not 
testify  falsely,  the  hardship  of  exclusion  was  intolerable,  (3)  that,  in  any  case, 
the  test  of  cross-examination  and  the  other  processes  of  investigation  would  with 
fair  certainty  expose  falsehood;  (4)  that  no  exclusion  could  be  so  defined  as  to 
be  simple,  consistent,  and  workable.  The  reformers  in  this  country  did  not 
accept  these  arguments  to  their  fullest  extent;  and  they  preferred  to  maintain 
the  disqualification  for  the  situation  in  wdiich  it  seemed  to  them  that  the  means 
of  refuting  a  false  claim  would  be  wanting,  i.e.,  a  claim  by  one  whose  adversary 
was  deceased;  since,  in  the  vague  metaphor  often  invoked  by  way  of  a  reason, 
"if  death  has  closed  the  lips  of  the  one  party,  the  policy  of  the  law  is  to  close  the 
lips  of  the  other." 

This  exception  is  wholly  a  creation  of  statute;  for  as  all  interested  persons 
were  excluded  at  common  law,  the  whole  embraced  a  part,  and  there  was  no 
occasion  to  define  the  terms  of  any  such  partial  exclusion.  ...  It  is  enough 
here  to  note  two  lines  of  distinction  between  the  various  statutes,  viz.,  (a)  some 
exclude  only  parties  to  the  cause,  while  the  others  exclude  any  person  interested 
in  the  issue;  {h)  some  exclude  only  testimony  to  a  specific  transaction  or  com- 
munication with  the  deceased  person,  while  the  others  exclude  the  disqualified 
persons  from  testifying  at  all  in  the  cause. 

As  a  matter  of  policy,  this  survival  of  the  now  discarded  interest-disquali- 
fication is  deplorable  in  every  respect;  for  it  is  based  on  a  fallacious  and  exploded 
principle,  it  leads  to  as  much  or  more  injustice  than  it  prevents,  and  it  encum- 
bers the  profession  with  a  mass  of  barren  quibbles  over  the  interpretation  of  mere 
words. 

93.     Statutes.     [Printed  ante,  in  No.  77] 


94.   LOUIS'  ADMINISTRATOR  v.   EASTON 

Supreme  Court  of  Alabama.    1874 

50  Ala.  470 

Appeal  from  the  Circuit  Court  of  Greene.     Tried  before  the  Hon. 
L.  R.  Smith.     This  action  was  brought  by  William  C.  Easton,  against 


152  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  94 

Thomas  C.  Clark,  as  the  administrator  of  the  estate  of  John  Louis, 
deceased;  and  was  founded  on  an  account  for  goods  sold  and  delivered 
to  said  John  Louis  in  his  lifetime  by  the  firm  of  Paschal  &  Foster,  who 
transferred  said  account  to  the  firm  of  Easton,  Wymans  &  Co.,  by  whom 
it  was  transferred  to  the  plaintiff.  The  account  was  contracted  between, 
the  30th  July,  1866,  and  the  29th  March,  1867;  and  the  action  was 
commenced  on  the  4th  February,  1870.  The  defendant  pleaded,  "in 
short  by  consent  —  1st,  that  he  denies  that  the  money  claimed  is  the 
property  of  the  plaintiff;  2d,  that  the  said  John  Louis  owed  the  money 
at  the  time  of  his  death;  3d,  the  statute  of  limitations  of  three  years^ 
which  is  a  bar  to  open  accounts";   and  issue  was  joined  on  these  pleas. 

On  the  trial,  as  the  bill  of  exceptions  states,  the  plaintiff  offered  W.  M. 
Paschal  as  a  witness,  "to  prove  the  correctness  of  the  account  sued  on^ 
and  that  the  same  was  just  and  unpaid."  Objection  being  made  as 
to  the  competency  of  this  witness,  he  testified,  on  his  voir  dire,  "as  to 
his  interest  in  said  account,  that  he,  for  the  firm  of  Paschal  &  Foster, 
transferred  said  account  to  Messrs.  Morgan  &  Jolly,  as  attorneys  of 
Easton,  Wymans  &  Co.,  in  the  lifetime  of  said  John  Louis,  in  payment 
of  a  claim  which  Paschal  &  Foster  owed  to  them,  and  which  had  been 
sent  to  said  attorneys  for  collection;  and  that  he  now  had  no  interest 
in  said  account."  The  Court  thereupon  overruled  the  objection  to  the 
competency  of  said  witness,  and  allowed  him  to  testify,  as  proposed,  to 
the  sale  of  the  goods,  the  correctness  of  the  account,  its  transfer  by 
delivery,  during  the  lifetime  of  said  John  Louis,  to  said  Morgan  &  Jolly 
as  attorneys  for  Easton,  Wymans  &  Co.;  and  further,  that  said  Louis 
acknowledged  the  correctness  of  the  account  to  him,  and  offered  to  give 
his  note  for  the  amount.  The  defendant  reserved  an  exception  to  the 
overruling  of  his  objection  to  the  competency  of  said  witness,  and  also 
to  the  admission  of  his  testimony;  and  he  now  assigns  these  matters  as 
error. 

J.  B.  &  T.  C.  Clark,  for  appellant.     Morgan  &  Jolly,  contra. 

Brickell,  J.  The  only  objection  to  the  competency  of  witnesses^ 
in  civil  proceedings,  allowed  by  the  statute,  is,  "that  in  suits  or  pro- 
ceedings by  or  against  executors  or  administrators  (as  to  which  a  dif- 
ferent rule  is  not  made  by  the  laws  of  this  State),  neither  party  shall 
be  allowed  to  testify  against  the  other,  as  to  any  transaction  with,  or 
statement  by  the  testator  or  intestate,  unless  called  to  testify  thereto 
by  the  opposite  party."  R.  C.  §  2704.  At  common  law,  the  trans- 
ferror of  a  chose  in  action  was  not  a  competent  witness  for  his  transferee 
to  support  the  claim  transferred.  This  rule  of  exclusion  was  not  founded 
on  the  ground  that  the  transferror  had  an  interest  in  the  event  of  the 
suit,  but  on  reasons  of  public  policy;  and  no  release  could  remove  the 
objection.  Houston  v.  Prewitt,  8  Ala.  846;  Clifton  v.  Sharpe,  15  Ala. 
618.  This  rule  of  the  common  law  was  carried  into  and  formed  section 
2290  of  the  Code  of  1852.  The  reason  assigned  for  the  rule  was,  that  it 
would  let  in  the  evils  of  champerty  and  maintenance,  and  would  operate 


No.  94  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  153 

as  an  evasion  of  the  rule  excluding  as  witnesses  those  having  a  direct 
and  immediate  interest  in  the  suit.  A  party  to  a  contract,  finding 
he  had  not  legal  evidence  to  sustain  an  action  on  it,  could  render  him- 
self competent  by  a  transfer  to  another,  while  the  lips  of  his  adversary 
were  sealed  by  an  inflexible  rule  of  law.  The  law  can  never  permit 
indirection,  or  evasion,  to  accomplish  that  which  is  not  capable  of  being 
accomplished  directly.  It  was  not  material  that,  in  the  particular  case, 
the  transfer  was  made  in  good  faith,  and  for  a  valuable  consideration; 
the  evils  to  be  avoided  were  in  some  degree  the  same,  and  the  rule  was 
applied. 

The  same  reasons  induce  us  to  hold,  that  the  transferror  of  a  chose 
in  action,  on  which,  if  no  transfer  had  been  made,  suit  must  have  been 
brought  in  his  name,  cannot  render  himself  a  competent  witness  against 
an  executor  or  administrator  under  the  statute  of  this  State.  He  may 
not  be  within  the  letter,  but  he  is  within  the  spirit  and  policy  of  the 
statute.  The  object  of  the  statute  is  to  extend  to  each  party  the  right 
and  privilege  of  testifying.  This  right  and  privilege  must  be  mutual. 
It  cannot  exist  in  the  one  party,  and  not  in  the  other.  If  death  has 
closed  the  lips  of  the  one  party,  the  policy  of  the  law  is  to  close  the  lips 
of  the  other.  In  all  actions  on  contracts  for  the  payment  of  money, 
whether  express  or  implied,  which  must,  under  our  system,  be  instituted 
in  the  name  of  the  party  having  the  beneficial  interest,  the  policy  of  the 
statute  would  be  defeated,  if,  by  the  machinery  of  a  transfer,  the  party 
with  whom  the  contract  was  made  could  render  himself  a  competent 
witness  against  his  deceased  adversary.  Nor  can  we  think  the  fact  that 
the  transfer  was  made  before  the  death  of  the  party  supposed  to  be  bound 
by  the  contract  varies  the  rule.  His  death  destroys  the  mutuality  the 
statute  intends  to  preserve,  and  an  advantage  would  thereby  accrue 
to  the  party  suing  on  the  contract,  which  the  statute  guards  against. 
.  .  .  The  witness  Paschal  was  one  of  the  transferrors,  from  whom  the 
appellee  derived  his  right  of  suit.  He  was  called  to  testify  as  to  the 
intestate's  admission  of  the  correctness  of  the  account,  and  as  to  his 
purchases  of  the  goods  charged  in  the  account.  He  was  not  a  competent 
witness  for  this  purpose,  and  the  objection  of  appellant  to  his  admission 
as  a  witness  and  to  his  evidence  should  have  been  sustained.  The 
judgment  is  reversed,  and  the  cause  remanded. 

Peters,  C.  J.  (dissenting).  —  I  am  compelled  respectfully  to  dissent 
from  the  opinion  of  a  majority  of  the  Court  in  this  case,  and  its  judgment. 
I  think  that  the  construction  of  the  statute  brought  in  question  is  incor- 
rectly made.  The  enactment  referred  to  is  very  clearly  intended  to 
remove  all  objection  to  a  witness  on  account  of  interest  merely.  This 
overturns  the  old  rule  of  exclusion  on  account  of  interest,  in  every  case, 
except  one  only.  The  language  of  the  Code  is  this :  "  In  suits  and  pro- 
ceedings before  any  Court  or  officer,  other  than  criminal  cases,  there 
must  he  no  exclusion  of  any  witness,  because  he  is  a  party  or  interested 
in  the  issue  to  be  tried."     Rev.  Code,  §  2704.     This  is  the  new  rule. 


154  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  94 

To  this  there  is  one  exception,  and  only  one.  This  is  expressed  in  definite 
and  precise  words.  O'Neal  v.  Reynolds,  42  Ala.  197.  It  is  precisely 
defined;  and  expressed  with  equal  clearness,  as  the  general  rule.  It  is 
thus  stated:  "Except  that,  in  suits  or  proceedings  by  or  against  executors 
or  administrators,  neither  party  shall  be  allowed  to  testify  against  the 
other,  as  to  any  transaction  with,  or  statement  by  the  testator  or  intestate, 
unless  called  to  testify  thereto  by  the  opposite  party."  Rev.  Code, 
§  2704;  Jeffries  v.  Avary,  at  the  January  Term,  1873.  The  witness 
excluded  under  the  exception  is  only  the  "party  to  the  suit."  This 
description  does  not  include  a  transferror  or  assignor  of  a  promissory 
note,  or  verbal  contract,  or  an  account.  .  .  .  The  Legislature  made 
but  one  single  exception,  which  could  not  have  been  marked  out  by 
language  of  greater  clearness.  .  .  .  To  extend  the  particular  identifica- 
tion of  the  person  named,  and  thus  let  in  others  not  named,  seems  to  me 
against  principle,  and  an  unauthorized  judicial  interference  with  clear 
legislative  expression.  The  law,  before  the  statute,  allowed  a  trans- 
ferror or  assignor  to  be  made  competent  by  a  release.  1  Greenleaf, 
Evidence,  §  426;  but  see  Houston  v.  Prewitt,  8  Ala.  846;  Brown  v. 
Brown,  5  Ala.  508.  .  .  .  The  witness  offered  in  this  case,  being  a  mere 
transferror  of  the  claim  in  suit,  and  not  a  party  to  the  record,  is  not  such 
a  person  as  is  excluded  by  the  exception  named  in  the  Code.  He  was, 
therefore,  properly  allowed  to  testify  for  the  plaintiff.  .  .  .  The  judg- 
ment of  the  Court  below  should  be  afiirmed. 


95.     ST.   JOHN  V.  LOFLAND 

Supreme  Court  of  North  Dakota.     1895 

5  N.  D.  140;  64  N.  W.  730 

Appeal  from  District  Court,  Steele  County;  McConnell,  J. 
Action  by  Sidney  S.  St.  John,  administrator  of  Albert  C.  St.  John, 
against  John  F.  Lofland.  Judgment  for  defendant,  and  plaintiff  appeals. 
AflBrmed.  The  action  was  to  foreclose  a  mortgage  given  to  secure  a 
promissory  note.  The  note  and  mortgage  were  executed  by  defendant. 
The  consideration  for  the  note  was  the  sale  to  defendant  by  Lydia  B. 
St.  John,  as  administratrix  of  the  estate  of  Albert  C.  St.  John,  of  certain 
personal  property,  constituting  a  portion  of  the  assets  of  such  estate. 
The  note  and  mortgage  were  both  executed  to  such  administratrix. 
Subsequently  she  died,  and  the  plaintiff  was  appointed  administrator 
of  the  estate  in  her  place.  The  defense  to  the  action  is  payment.  To 
prove  it,  the  defendant  himself  testified  that  he  paid  the  note  and  mort- 
gage to  Lydia  B.  St.  John,  as  administratrix  during  her  lifetime.  This 
evidence  was  objected  to  as  incompetent,  under  the  provisions  of  Comp. 
Laws,  §  5260.  The  objection  was  overruled,  and  the  plaintiff  excepted. 
The  Court  having  found  on  this  evidence  that  the  debt  had  been  paid. 


No.  95  TflSTIMONIAL   EVIDENCE:    QUALIFICATIONS  155 

judgment  was  rendered  for  the  defendant.  From  this  judgment  the 
plaintiff  appealed. 

George  Murray,  for  appellant,  contended  that  §  5260,  Comp.  Laws, 
extended  its  operation  to  transactions  with  the  deceased  as  adminis- 
tratrix. .  ,  . 

F.  W.  Ames,  for  respondent.  .  .  . 

Corliss,  J.  (after  stating  the  case  as  above).  The  decision  of  this 
case  will  turn  upon  the  construction  of  Comp.  Laws,  §  5260.  We 
think  that  the  evidence  was  competent.  The  section  referred  to  (5260) 
reads  as  follows: 

"No  person  offered  as  a  witness  in  any  action  or  special  proceeding,  in  any 
court,  or  before  any  officer  or  person  having  authority  to  examine  witnesses,  or 
hear  evidence,  shall  be  excluded  or  excused,  by  reason  of  such  person's  interest 
in  the  event  of  the  action  or  special  proceeding;  or  because  such  person  is  a  party 
thereto;  or  because  such  person  is  a  husband  or  wife  of  a  party  thereto,  or  of  any 
person  in  whose  behalf  such  action  or  special  proceeding  is  brought,  opposed  or 
defended,  except  as  hereinafter  provided:  ...  (2)  In  civil  actions  or  proceed- 
ings by  or  against  executors,  administrators,  heirs  at  law,  or  next  of  kin,  in  which 
judgment  may  be  rendered  or  ordered  entered,  for  or  against  them,  neither  party 
shall  be  allowed  to  testify  against  the  other,  as  to  any  transactions  whatever 
with,  or  statement  by,  the  testator  or  intestate,  unless  called  to  testify  thereto 
by  the  opposite  party.  But  if  the  testimony  of  a  party  to  the  action  or  proceed- 
ing has  been  taken,  and  he  shall  afterwards  die,  and  after  his  death  the  testimony 
so  taken  shall  be  used  upon  any  trial  or  hearing  in  behalf  of  his  executors,  ad- 
ministrators, heirs  at  law,  or  next  of  kin,  then  the  other  party  shall  be  a  competent 
witness,  as  to  any  and  all  matters  to  '^'hich  the  testimony  so  taken  relates." 

The  extent  to  which  this  statute  seals  the  lips  of  a  party  is  with 
regard  to  "any  transaction  with  or  statement  by  the  testator  or  intes- 
tate." The  definite  article  "the"  makes  it  certain  that  the  testator  or 
intestate  referred  to  is  the  one  whose  executor  or  administrator  is  the 
party  to  the  suit,  and  not  any  testator  or  intestate  with  whom  the  trans- 
action has  been  had  or  by  whom  the  statement  has  been  made.  But 
we  are  urged  to  broaden  this  statute  by  interpretation,  on  the  theory 
that  its  true  spirit  demands  an  expansion  of  its  literal  meaning.  If  we 
were  to  do  this,  we  must,  if  we  would  be  logical  and  consistent,  continue 
in  the  same  line;  and  hence  we  would  be  compelled  to  hold  that  a  trans- 
action with  a  deceased  agent  was  within  the  statute,  for  in  that  case, 
as  in  this,  the  surviving  party  would  have  the  advantage  of  testifying 
without  the  possibility  of  his  evidence  being  contradicted.  So,  where 
one  of  two  partners  had  died,  and  the  survivor,  who,  so  far  as  the  partner- 
ship assets  are  concerned,  occupies  a  position  very  similar  to  that  occu- 
pied by  an  administrator,  should  sue  on  a  partnership  claim,  we  would 
have  to  hold  that  a  debtor  of  the  firm  could  not  in  such  action  by  the 
surviving  partner  swear  to  a  payment  made  by  him  to  the  deceased 
partner  in  his  lifetime.  This  so-called  "spirit"  of  the  statute  would 
embrace  such  a  case  also.     So  far  as  a  transaction  with  a  deceased  agent 


156  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  95 

is  concerned,  there  is  express  authority  for  the  doctrine  that,  under 
such  a  statute  as  ours,  the  transaction  may  be  proved  by  the  testimony 
of  the  debtor.     Voss  v.  King  (W.  Va.),  10  S.  E.  402. 

This  whole  argument  that  the  letter  of  this  law  should  be  expanded 
to  the  dimensions  of  the  spirit  of  the  statute  rests  on  a  false  assumption 
as  to  the  spirit  of  this  legislation.  The  general  policy  of  the  section  is 
to  make  all  persons  competent  witnesses.  So  far  as  the  question  of  the 
extent  of  the  limitations  of  that  policy  is  concerned,  the  only  way  we 
can  ascertain  the  scope  of  this  limitation  is  by  looking  to  the  language 
in  which  that  limitation  is  expressed.  We  carmot  look  beyond  the 
language.  We  cannot  say  that  it  was  the  purpose  of  the  Legislature  to 
exclude  all  evidence  merely  because  the  witness  from  whose  lips  it  might 
fall  would  enjoy  the  advantage  of  testifying  to  a  transaction  with  a 
deceased  person,  who  on  that  account  could  not  confront  and  contradict 
him.  Statutes  which  exclude  testimony  on  this  ground  are  of  doubtful 
expediency.  There  are  more  honest  claims  defeated  by  them,  by 
destroying  the  evidence  to  prove  such  claim,  than  there  would  be  fictitious 
claims  established  if  all  such  enactments  were  swept  away  and  all  persons 
rendered  competent  witnesses.  To  assume  that  in  that  event  many 
false  claims  would  be  established  by  perjury  is  to  place  an  extremely 
low  estimate  on  human  nature,  and  a  very  high  estimate  on  human 
ingenuity  and  adroitness.  He  who  possesses  no  evidence  to  prove  his 
case  save  that  which  such  a  statute  declares  incompetent  is  remediless. 
But  those  against  whom  a  dishonest  demand  is  made  are  not  left  utterly 
unprotected  because  death  has  sealed  the  lips  of  the  only  person  who  can 
contradict  the  survivor,  who  supports  his  claim  with  his  oath.  In  the 
legal  armory,  there  is  a  weapon  whose  repeated  thrusts  he  will  find  is 
difficult,  and  in  many  cases  impossible,  to  parry  if  his  testimony  is  a 
tissue  of  falsehoods,  —  the  sword  of  cross-examination.  For  these 
reasons,  which  lie  on  the  very  surface  of  this  question  of  policy,  we  regard 
it  as  a  sound  rule  to  be  applied  in  the  construction  of  statutes  of  the 
character  of  the  one  whose  interpretation  is  here  involved,  that  they 
should  not  be  extended  beyond  their  letter  when  the  effect  of  such 
extension  will  be  to  add  to  the  list  of  those  whom  the  act  renders  incom- 
petent as  witnesses. 

There  is  ample  authority  for  our  ruling  in  the  case.  The  decision 
of  the  Court  in  Palmateer  v.  Tilton  (N.  J.  Err.  &  App.),  5  Atl.  105,  is 
directly  in  point.  ...  In  fact  practically  the  whole  drift  of  the  adjudi- 
cations is  along  the  line  of  construction  which  we  follow.  .  .  .  The 
case  of  Waldman  v.  Crommelin,  46  Ala.  580,  is  undoubtedly  an  authority 
for  plaintiff,  but  we  do  not  regard  it  as  sound,  and  it  stands  alone.  The 
Illinois  cases  cannot  be  classed  with  it,  as  they  were  decided  under  a 
statute  radically  different  from  §  5260,  —  a  statute  so  broad  as  to  render 
a  party  incompetent  from  testifying  in  his  own  behalf  as  to  any  fact 
in  a  suit  in  which  the  adverse  party  is  an  executor,  administrator,  etc. 
Under  such  a  statute,  no  question  relating  to  a  personal  transaction  could 


No.  96  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  157 

possibly  arise.  See  Boynton  v.  Phelps,  52  111.  210;  Whitner  v.  Rucker, 
71  III.  410;  Redden  v.  Inman,  6  III.  App.  55.  Even  if  these  cases  sup- 
ported the  plaintiff's  contention,  we  should  adhere  to  the  views  we  have 
expressed. 

The  judgment  of  the  District  Court  is  affirmed.     All  concur. 


96.   ROSS  V.   DEMOSS 

Supreme  Court  of  Illinois.     1867 

45  ///.  447 

Writ  of  Error  to  the  Circuit  Court  of  Livingston  County;  the 
Hon.  Charles  R.  Starr,  Judge,  presiding.  This  was  a  suit  in  equity, 
brought  by  Alexander  Demoss,  in  the  Livingston  Circuit  Court,  against 
Riley  Ross,  Margaret  Wood,  Daniel  J.  Wood,  and  Benjamin  W.  Gray, 
to  have  a  mortgage  satisfied,  and  the  lands  reconveyed  to  complainant. 
It  appeared  that  defendant  in  error,  "in  April,  1858,  executed  a  mortgage 
with  a  power  of  sale,  to  secure  to  William  Ross  $68,  on  forty  acres  of 
land.  That  subsequently,  in  September  of  the  same  year,  to  secure 
the  further  sum  of  $300,  defendant  in  error  executed  a  mortgage  on 
another  tract  of  land,  containing  seventy-five  acres,  to  William  Ross, 
with  power  of  sale.  That  in  the  month  of  October,  1859,  Ross  adver- 
tised and  sold  the  land,  and  Riley  Ross,  his  son,  became  the  purchaser; 
that  in  the  following  January,  Riley  Ross  reconveyed  the  lands  to  his 
father,  for  the  expressed  consideration  of  $365,  and  a  few  cents;  that 
William  Ross  died  in  the  month  of  September,  1860,  intestate,  leaving 
Riley  Ross  and  Margaret  Wood,  who  was  the  wife  of  Daniel  J.  Wood, 
his  heirs;  and  that  Gray  subsequently  became  the  administrator  of  his 
estate.  It  was  alleged  in  the  bill,  that  the  sale  by  Ross  was  not  intended 
to  be  a  foreclosure  of  these  mortgages,  but  that  it  was  at  the  time  agreed 
that  defendant  in  error  should  have  further  time  to  pay  and  redeem  the 
lands;  and  that  all  of  the  money  for  which  the  mortgages  were  given 
had  been  fully  paid. 

Mr.  Charles  J.  Beattie,  and  Messrs.  Dickey  &  Rice,  for  the  plain- 
tiffs in  error.      Messrs.  Fleming '&  Pillshury,  for  the  defendant  in  error. 

Mr.  Justice  Lawrence  (after  stating  the  case  as  above).  On  the 
trial  below,  the  evidence  was  conflicting,  but  it  seems  to  preponderate 
in  favor  of  the  decree. 

The  weight  of  the  evidence  of  Garner  is  somewhat  impaired  from  the 
fact,  that  he  was  proved  to  have  been  one  of  the  attorneys  in  the  case, 
and  had  a  conditional  fee,  dependent  on  the  result  of  the  suit.  It  is 
of  doubtful  professional  propriety  for  an  attorney  to  become  a  witness 
for  his  client,  without  first  entirely  withdrawing  from  any  further  con- 
nection with  the  case;  and  an  attorney  occupying  the  attitude  of  both 
witness  and  attorney  for  his  client  subjects  his  testimony  to  criticism 


158  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  96 

if  not  suspicion ;  but  where  the  half  of  a  valuable  farm  depends  upon  his 
evidence,  he  places  himself  in  an  unprofessional  position,  and  must  not 
be  surprised  if  his  evidence  is  impaired.  While  the  profession  is  an 
honorable  one,  its  members  should  not  forget  that  even  they  may  so  act 
as  to  lose  public  confidence  and  general  respect. 

In  so  much  conflict  in  testimony,  it  is  hard  to  determine  with  absolute 
certainty  as  to  what  is  proved.  But,  upon  a  careful  examination  of  all 
that  is  in  the  record,  we  are  strongly  impressed  with  the  belief  that  the 
weight  is  decidedly  in  favor  of  the  continuance  of  the  mortgage  and  its 
ultimate  payment  by  defendant  in  error.  ...  In  such  a  conflict  the 
only  course  is  to  reject  such  portion  as  seems  to  be  unworthy  of  belief. 
The  circuit  judge  has  better  means  of  determining  which  class  of  wit- 
nesses are  the  most  worthy  of  credit,  than  we  possess.  In  this  case 
he  has  given  credit  to  the  testimony  of  the  witnesses  of  defendant  in 
error,  and  we  are  unable  to  see  that  he  erred  in  that  conclusion.  The 
decree  of  the  court  below  must  be  affirmed.  Decree  affirmed. 

97.  Anon.  (1848.  5  Western  Law  Journal  457).  The  Attorney  as  a  Witness. 
The  attorney's  exclusion  should  rest  on  peculiar  grounds.  He  should  be  rejected, 
not  for  the  protection  of  the  opposite  party,  but  for  his  own;  not  because  his 
integrity  may  be  exposed  to  temptation,  but  because  it  will  be  exposed  to  sus- 
picion. Let  us  consider  for  a  moment  the  relation  which  he  appears  to  sustain 
toward  the  party  he  represents.  .  .  .  He  is  paid  for  the  knowledge,  industry, 
talent,  and  zeal  he  may  exert  in  the  cause.  Though  his  compensation  depends 
on  no  contingency  of  success  or  failure,  yet  he  feels  entitled  to  charge,  and  his 
client  feels  disposed  to  pay,  a  higher  fee  when  the  cause  terminates  successfully. 
His  sympathy  for  a  losing  client  induces  him  to  abate  the  amount  of  his  charge, 
and  he  feels  that  a  fortunate  litigant  can  compensate  him  more  liberally.  There 
are  cases,  too,  in  which,  from  the  inability  of  his  client,  he  must  receive  nothing, 
if  the  case  is  determined  against  him.  .  .  .  He  is  perhaps  ardent  to  prevail  for 
the  sake  of  victory.  Reputation  is  greatly  enhanced  by  success.  The  vulgar 
generally  applaud  the  winning  lawyer,  as  the  winning  horse,  and  have  no  better 
criterion  of  ability  than  the  event  of  a  suit.  The  successful  termination  of  a 
case,  especially  a  doubtful  one,  often  attracts  other  business.  In  whatever  degree 
some  minds  may  be  influenced  by  such  motives,  there  is  no  advocate  wholly 
indifferent  to  the  prestige  which  attends  victory.  The  lawyer  who  approaches 
a  jury  to  sustain  a  case  by  his  testimony,  and  to  advocate  it  by  his  eloquence, 
places  himself  in  an  indecent  position.  Paid  for  the  ability  he  may  exert  in 
obtaining  success,  deceived  by  a  partial  knowledge  of  the  facts,  and  ardent  to 
win,  his  testimony  must  be  viewed  with  distrust.  His  statement,  though  per- 
fectly reliable  under  other  circumstances,  is  received  with  suspicion  by  the  jury, 
generally  consisting  of  men  whose  limited  education  and  position  in  life  give 
them  no  enlarged  views  of  things,  and  no  elevated  opinion  of  human  nature. 
The  incompetency  of  the  attorney,  therefore,  need  not  be  placed  on  the  prob- 
ability of  the  falsehood  of  his  testimony.  He  should  not  be  suffered  by  the 
Court  to  place  himself  in  a  position  that  may  lessen  his  character,  or  diminish 
the  confidence  of  men  in  the  purity  of  the  administration  of  justice. 


No.  100  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  159 


(2)    Marital  Relationship 

98.  Sir  Edward  Coke.  Comvientary  ujmn  Littleton.  (1628.  fol.  6  b).  It  hath 
been  resolved  by  the  justices  that  a  wife  cannot  be  produced  either  for  or  against 
her  husband,  "quia  sunt  duse  anima?  in  came  una." 

99.  Chief  Baron  Gilbert.  Evidence,  (ante  1727.  p.  133).  The  second  corol- 
lary to  this  general  rule  [of  exclusion  from  interest]  is  that  husband  and  wife 
cannot  be  admitted  to  be  witnesses  for  or  against  each  other;  for  if  they  swear 
for  the  benefit  of  each  other,  they  are  not  to  be  believed,  because  their  interests 
are  absolutely  the  same,  and  therefore  they  can  gain  no  more  credit  when  they 
attest  for  each  other  than  when  any  man  attests  for  himself. 


100.    CORNELL  v.   VANARTSDALEN 

Supreme  Court  of  Pennsylvania.      1846 

4  Pa.  St.  364 

In  error  from  the  Common  Pleas  of  Bucks  County.  December  31 
Assumpsit  against  the  executor  of  Adrian  Cornell,  who  was  the  father- 
in-law  of  plaintiff.  The  plaintiff  declared  for  goods  sold,  money  laid 
out  and  expended,  for  work  and  labor  done,  and  for  goods  sold  on  a 
quantum  meruit.  .  .  .  The  defendant  pleaded  non-assumpsit,  and  the 
statutes  of  limitations.  .  .  .  The  plaintiff,  then,  under  exception  (fourth) 
gave  evidence  of  the  .  .  .  will  of  Adrian  Cornell,  dated  in  1833,  and 
proved  in  1841.  By  this,  after  making  sundry  devises  to  his  sons,  he 
gave  the  farm  on  which  plaintiff  resides,  to  the  children  of  Jane  (the  wife 
of  plaintiff),  subject  to  a  charge  of  $2000  at  5  per  cent,  interest  from  the 
time  of  his  decease,  and  subject  to  the  maintenance  of  their  mother 
during  her  life.  .  .  .  The  defendant  called  Rachel  Cornell,  the  widow 
of  testator,  and  showed  that  her  legacy  was  paid,  leaving  an  unpaid 
annuity  under  the  will  of  $300.  The  rejection  of  the  witness  consti- 
tutes the  fifth  bill  of  exceptions.  Having  shown  a  release  and  assign- 
ment of  all  her  interest  under  the  will,  he  again  offered  her  to  prove, 
(1)  That  every  year  during  A.  Cornell's  life,  when  plaintiff  was  to  pay 
rent,  all  previous  matters  were  settled.  (2)  That  Cornell  told  plaintiff 
not  to  make  these  improvements.  (3)  That  in  January,  before  Cornell's 
death,  plaintiff  claimed  a  balance  of  $72,  which  it  was  agreed  should 
be  paid  out  of  the  rent.  The  witness  was  rejected  as  incompetent 
(sixth  exception).  The  seventh  bill  was  to  the  rejection  of  the  same 
witness  as  incompetent  to  prove  enmity  existing  on  the  part  of  plain- 
tiff's witness  to  testator  and  his  family.  .  .  . 

Fox,  for  plaintiff  in  error.  The  competency  of  Rachel  Cornell 
depends  on  the  subject-matter  of  her  proposed  testimony,  as  she  had 
received  her  legacy  and  released  all  claim  under  her  annuity,  the  estate 
being  otherwise  amply  sufficient  to  cover  that.     There  is  no  case  exclud- 


160  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   100 

ing  the  widow  in  a  suit  between  the  personal  representatives  of  her 
husband  and  a  stranger,  though  I  admit  she  is  not  competent  if  con- 
fidence is  abused.  Monroe  v.  Twisselton,  43  Geo.  3,  in  Norris'  Peake, 
App.  29,  is  the  leading  case,  and  is  cited  by  Phillips  and  Starkie.  In 
Aveson  v.  Lord  Kinnaird,  6  East  192,  the  ground  of  her  incompetency 
is  stated  to  be,  where  there  would  be  a  violation  of  confidence  reposed 
in  her  by  her  husband.  In  Beveridge  v.  Minter,  1  Carr.  &  Payne  364, 
the  objection,  that  she  is  incompetent  to  do  that,  after  dissolution  of  the 
marriage,  which  she  cannot  do  while  it  exists,  is  overruled.  So  in 
Coffin  V.  Jones,  13  Pick.  445,  she  is  said  to  be  competent  to  prove  facts 
coming  to  her  knowledge  from  other  sources.  .  .  . 

Chapman,  contra.  .  .  .  The  witness  was  interested,  for  her  legacy 
could  be  levied  on,  and  a  creditor  could  compel  her  to  refund.  1  Vern. 
94,  2  Vern.  205,  1  Ch.  Ca.  136.  .  .  . 

Rogers,  J.  (after  stating  the  pleadings  and  the  evidence  excepted 
to)  ...  It  remains  only  to  consider  the  rejection  of  Rachel  Cornell, 
the  widow  of  Adrian  Cornell,  as  a  witness.  That  she  cannot  be  excluded 
on  the  ground  of  interest,  is  too  plain  to  admit  of  argument.  If  she 
has  any  interest,  it  is  in  the  question  which  never  renders  a  witness 
incompetent.  Under  the  will  she  is  but  a  legatee,  and  can  have  no 
interest  excepting  the  estate  be  insolvent,  which  is  not  pretended  here. 
That  a  legatee  may  be  admitted  in  a  suit  for  or  against  the  estate  will 
not  admit  of  doubt,  for  if  the  estate  is  solvent,  which  is  always  presumed, 
his  interest  cannot  be  affected.  It  is  a  contingent  interest  which  has 
never  been  held  a  disqualification.  Besides,  the  witness  executed  an 
assignment,  and  although  it  may  have  been  colorable,  and  probably  was, 
yet  that  is  a  matter  of  which  the  Court,  except  in  the  case  of  a  party 
to  the  record,  do  not  undertake  to  judge.  The  evidence,  under  proper 
directions,  is  always  referred  to  the  decision  of  the  jury. 

But  it  is  said  to  be  against  the  policy  of  the  law,  to  permit  a  wife  to 
testify  for  or  against  the  estate  of  her  deceased  husband;  that  parties 
are  excluded  from  being  witnesses  for  themselves,  and  that  the  same 
rule  applies  to  husband  and  wife,  neither  of  them  being  admissible  as 
a  witness  in  a  cause,  civil  or  criminal,  in  which  the  other  is  a  party.  The 
exclusion  is  founded  partly  upon  the  identity  of  their  legal  rights  and 
interests,  and  partly  on  the  principles  of  public  policy.  And,  neither 
is  it  material,  in  some  cases,  that  this  relation  no  longer  exists.  The 
great  object  of  these  rules  being  to  secure  domestic  happiness  by  prohibit- 
ing confidential  communications  from  being  divulged,  the  rule  is  the  same 
to  that  extent,  even  though  the  other  party  is  no  longer  in  being,  or  has 
even  been  divorced  and  married  to  another  person.  The  rule  is  the  same 
in  its  spirit  and  extent,  as  that  which  excludes  confidential  communica- 
tions made  by  a  client  to  an  attorney.  And  in  analogy  to  this  rule,  it 
is  held,  that  the  wife,  after  the  death  of  the  husband,  is  competent  to 
prove  facts,  coming  to  her  knowledge  from  other  sources  not  by  means  of 
her  situation  as  wife,  notwithstanding  they  relate  to  the  transactions 


No.   101  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  161 

of  her  husband.  The  prohibition,  where  she  is  a  competent  witness, 
being  divested  of  all  interest,  extends  to  confidential  communications 
alone,  or  such  as  come  to  her  knowledge  from  her  domestic  relation. 
Coffin  V.  Jones,  13  Pick.  445;  Williams  v.  Baldwin,  7  Vermont,  506, 
and  Wells  v.  Tucker,  3  Binn.  366. 

In  the  case  in  hand,  it  is  difficult  to  imagine  in  what  respect  any 
confidential  communication  is  divulged,  or  any  domestic  confidence 
abused.  She  is  brought  forward  to  testify  for  the  estate,  so  that  a  con- 
fidential communication,  merely,  would  not  be  evidence  on  other 
grounds,  although  it  might  be  evidence  if  permitted  against  the  estate. 
In  every  case  where  the  question  has  arisen,  the  wife  has  been  offered 
to  charge  her  former  husband  or  his  estate.  Indeed,  it  is  somewhat 
difficult  to  understand  how  the  point  can  arise,  when  her  testimony  is 
offered  in  favor  either  of  the  former  husband  or  of  his  estate  after  his 
death.  She  may  have  a  strong  bias  it  is  true,  but  that  goes  to  her  credit 
and  not  to  her  competency;  but  in  what  respect  public  policy  arising 
from  the  domestic  relation  forbids  her  to  testify,  is  not  apparent  to  my 
mind.  In  the  evidence  offered,  there  is  nothing  either  confidential  or 
improper  to  be  disclosed.  It  is  testimony  to  facts  which  must  have 
necessarily  come  to  her  knowledge  from  other  sources  than  confidential 
communications  from  her  deceased  husband.  The  defendants  offer 
to  prove,  that  every  year  during  the  lifetime  of  her  husband,  when 
plaintiff  was  to  pay  rent,  all  previous  matters  were  settled;  that  Cornell 
told  him  not  to  make  those  improvements,  and  that  in  January  before 
Cornell's  death,  plaintiff  claimed  a  balance  of  $72  which  it  was  agreed 
should  be  paid  out  of  the  rent ;  and  also  to  prove  as  rebutting  testimony 
to  the  evidence  of  plaintiff's  witness,  that  he,  the  witness,  had  enmity  to 
her  husband  and  all  her  family.  .  .  . 

As  then  the  reception  of  the  evidence  would  contravene  no  prin- 
ciple of  domestic  or  public  policy,  we  are  of  opinion  the  testimony  was 
improperly  rejected. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


101.   WILLIAM  AND  MARY  COLLEGE  v.   POWELL 

Court  of  Appeals  of  Virginia.     1855 

12  Gratt.  372 

Thomas  J.  Powell  being  indebted  to  W^illiam  and  Mary  College, 
he  executed  his  bond,  bearing  date  the  25th  day  of  April,  1836,  with 
George  N.  Powell  as  his  surety,  to  the  college,  for  $1500,  payable  on 
demand;  and  on  the  same  day  he  executed  a  deed  by  which  he  con- 
veyed to  Edmund  Christian,  who  was  the  bursar  of  the  college,  a  tract 
of  land  in  the  county  of  King  William,  described  as  containing  390 
acres,  in  trust  to  secure  the  payment  of  said  debt.     One  moiety  of  this 


162  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   101 

land  in  quantity,  and  that  part  of  it  on  which  was  the  dweUing-house, 
was  the  property  of  Powell's  wife,  of  which  he  was  tenant  by  the  curtesy; 
the  other  moiety  Powell  had  purchased  of  one  of  the  heirs  of  Mrs. 
Powell's  father.  Her  moiety  was  much  the  most  valuable.  By  deed 
bearing  date  the  1st  of  April,  1841,  Thomas  J.  Powell  and  Mary  E.  his 
wife,  in  consideration  of  the  sum  of  $500  in  cash,  and  for  the  further 
consideration  that  George  N.  Powell  should  pay  Christian,  agent  of 
William  and  Mary  College,  the  debt  aforesaid  of  $1500,  with  its  accru- 
ing interest,  conveyed  to  said  George  N.  Powell  the  said  tract  of  land, 
described  as  containing  303  acres.  .  .  .  By  deed  bearing  date  the  1st 
day  of  January,  1839,  Thomas  J.  Powell  conveyed  to  James  Bosher  a 
tract  of  between  eighteen  and  nineteen  acres  of  land  lying  in  the  county 
of  Henrico  near  the  city  of  Richmond,  four  slaves  and  some  household 
furniture,  in  trust  for  the  separate  use  of  his  wife  Mary  E.  Powell  during 
her  life,  with  a  general  power  of  appointment;  and  if  she  should  make 
no  appointment,  to  her  heirs.  And  Mrs.  Powell  was  authorized  to 
direct  a  sale  and  reinvestment  of  any  part  of  the  trust  property.  .  .  . 
The  land  conveyed  in  the  deed  of  January,  1839,  was  sold  by  the  direc- 
tion of  Mrs.  Powell  and  the  proceeds  were  invested  in  a  lot  in  the  city 
of  Richmond.  Mrs.  Powell  died  prior  to  1850,  leaving  ten  children, 
and  without  having  exercised  her  power  of  appointment;  and  in  Novem- 
ber, 1850,  Bosher,  the  trustee,  conveyed  the  trust  property  to  her  chil- 
dren. He  afterwards  purchased  three  of  the  interests  of  the  children 
in  the  property.  In  1851,  the  parties  interested  in  this  property  insti- 
tuted a  suit  in  the  County  Court  of  Henrico  for  the  purpose  of  having 
it  sold  and  divided;  and  a  decree  was  made  appointing  Herbert  A. 
Claiborne  a  commissioner  to  sell  and  distribute  the  proceeds.  In  Febru- 
ary, 1853,  the  cause  came  on  to  be  heard,  when  the  Court  directed  one 
of  its  commissioners  to  ascertain  and  report  the  nature  and  extent 
of  the  consideration  paid  and  surrendered  by  Mary  E.  Powell  for  the 
settlement  made  upon  her  by  the  deed  of  the  1st  day  of  January,  1839, 
from  Thomas  J.  Powell  to  James  Bosher. 

The  defendants  introduced  before  the  commissioner  Thomas  J. 
Powell  as  a  witness,  and  he  was  objected  to  as  incompetent  by  the 
plaintiffs,  on  the  ground  that  he  was  the  husband  of  Mary  E.  Powell 
as  well  as  grantor  in  the  deed.  He  stated  that  previous  to  the  execu- 
tion of  that  deed,  there  was  an  agreement  between  himself  and  his  wife. 
That  having  purchased  the  tract  of  eighteen  acres  of  land  conveyed  in 
the  deed  for  $1600,  and  finding  he  could  not  pay  for  it  by  $600,  and  still 
owing  the  college  a  debt,  Mrs.  Powell  told  him  that  she  had  about  $600, 
which  she  had  made  from  the  sale  of  turkeys,  and  work,  and  other 
savings,  which  she  had  been  laying  up  for  several  years,  and  that  if  he 
would  make  her  a  right  to  this  tract  of  land,  she  would  pay  the  $600, 
and  convey  her  interest  in  the  land  she  had  inherited  from  her  father, 
and  in  some  other  lands  he  had  bought  adjoining  the  same,  for  the 
express  benefit  of  the  college.     And  he  stated  that  the  deed  afterwards 


No.  101  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  163 

executed  by  himself  and  his  wife  to  George  N.  Powell  was  intended  to 
carry  out  this  agreement.  .  .  .  The  cause  came  on  to  be  finally  heard 
on  the  26th  of  March,  1853,  when  the  Court  held,  that  the  deed  of 
January  1,  1839,  from  Thomas  J.  Powell  to  Bosher,  having  been  made 
when  Powell  was  indebted  to  the  plaintiffs,  was,  as  to  them,  null  and 
void,  except  to  the  extent  of  the  interests  surrendered  by  Mrs.  Powell 
in  relinqiiishing  her  right  of  dower  in  the  lands  of  her  husband,  and  her 
right  to  her  own  land.  And  the  Court  further  held  that  the  deed  of 
the  1st  of  April,  1841,  from  Thomas  J.  Powell  and  wife  to  George  N. 
Powell,  was  not  fraudulent  and  void.  .  .  .  From  this  decree  the  college 
applied  to  this  court  for  an  appeal  which  was  allowed. 

Daniel,  for  the  appellants.     Gnswold  &  Claiborne,  for  the  appellees. 

Lee,  J.  —  The  settlement  of  Thomas  J.  Powell  upon  his  wife  of  the 
1st  of  January,  1839,  having  been  made  when  he  was  hea\'ily  indebted 
to  the  appellants,  and  as  it  would  seem,  insolvent,  being  of  his  whole 
estate,  except  perhaps  his  interest  in  the  King  William  land,  which  was 
already  incumbered  beyond  its  value  by  the  deed  of  trust  of  1836,  and 
being  upon  a  consideration  not  at  all  adequate  in  value  to  the  property 
settled,  must  be  held  fraudulent  and  void  as  to  creditors,  except  so  far 
as  it  may  be  sustained  for  the  purpose  of  rendering  to  the  estate  of  Mrs. 
Powell  a  just  equivalent  for  any  interests  which  she  may  have  surren- 
dered on  faith  of  it.  We  are  therefore  to  inquire  what  were  the  inter- 
ests, if  any,  so  surrendered,  and  whether  to  the  extent  of  those  interests 
the  settlement  can  be  held  good.  And  on  making  this  inquiry  we  are  at 
once  met  by  the  objection  to  the  testimony  of  Thomas  J.  Powell. 

Now  it  is  a  pervading  principle  of  the  law  of  evidence,  that  a  husband 
or  wife  cannot  be  a  witness  in  a  cause,  civil  or  criminal,  in  which  the 
other  is  a  party;  not  for  that  other,  because  the  law  considers  them 
as  one  person,  and  their  interests  as  identical;  nor  against  that  other, 
on  grounds  of  public  policy;  because  of  the  mutual  confidence  subsist- 
ing between  them,  and  for  fear  of  sowing  distrust  and  dissensions  and 
of  giving  occasion  to  perjury.  Co.  Litt.  6b.  .  .  .  And  if  an  estate  be 
settled  upon  a  wife,  for  her  sole  and  separate  use,  exempt  from  the 
debts  or  control  of  the  husband,  the  legal  identity  of  interests  is  regarded 
as  still  subsisting,  and  the  husband  will  not  be  admitted  to  testify  touch- 
ing such  separate  estate,  though  there  may  be  other  parties  in  respect 
of  whom  he  would  be  a  competent  witness.  Windham  v.  Chetwynd, 
1  Burr.  R.  424;  Davis  x.  Dinwoody,  4  T.  R.  678;  Langley  v.  Fisher, 
5  Beav.  R.  443;  Snyder  v.  Snyder,  6  Binn.  R.  483.  So  a  husband  is 
not  a  competent  witness  to  prove  the  execution  of  a  deed  conveying 
property  for  the  benefit  of  his  wife,  for  the  purpose  of  registration. 
Johnston  v.  Slater,  11  Gratt.  321.  Nor  is  it  material  that  the  relation 
of  husband  and  wife  no  longer  exists  when  the  party  is  offered  as  a  wit- 
ness, for  the  incompetency  still  remains  though  the  marriage  have  been 
dissolved  by  death  or  a  divorce  a  vinculo  matrimonii.  Aveson  v.  Lord 
Kinnaird,  6  East's  R.  188.  ... 


164  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   101 

This  case  falls  clearly  within  the  rule  ascertained  by  the  cases  cited. 
Thomas  J.  Powell  is  oflFered  as  a  witness  in  support  of  the  settlement 
made  by  him  upon  his  wife.  By  his  testimony  it  is  sought  to  make  out 
the  consideration  in  favor  of  those  now  claiming  under  the  wife.  For 
this  purpose  he  was  clearly  incompetent,  nor  was  his  competency  restored 
(as  we  have  seen)  by  the  death  of  his  wife.  That  he  was  not  himself 
personally  interested  because  he  was  bound  for  the  college  debt  in  any 
event,  or  that  his  interest  was  the  same  either  way,  does  not  vary  the 
case.  The  authorities  cited  show  that  his  incompetency  does  not  rest 
upon  the  narrow  ground  of  a  personal  and  direct  interest  in  himself, 
but  upon  other  and  different  principles.  Indeed  the  incompetency 
has  been  maintained  even  in  cases  in  which  the  husband's  interest  was 
the  other  way.  Thus  in  an  action  by  the  trustee  for  a  wife  against  the 
sheriff  for  taking  goods  which  were  separate  property,  under  an  execu- 
tion against  the  husband,  the  husband  was  held  to  be  an  incompetent 
witness  for  the  plaintiff  (the  wife  being  regarded  as  the  real  plaintiff), 
although  he  had  an  interest  on  the  other  side,  in  having  his  debt  satis- 
fied by  the  levy  of  the  execution.     Davis  v.  Dinwoody,  4  T.  R.  678.  .  .  . 

Rejecting  then  the  testimony  of  Thomas  J.  Powell,  there  is  no  evi- 
dence supporting  or  explaining  the  item  of  $600  claimed  as  part  of  the 
consideration  of  the  settlement.  .  .  .  But  although  the  claim  to  this 
$600  must  be  abandoned,  I  am  of  opinion  that  the  settlement  of  the 
1st  of  January,  1839,  may  and  should  be  sustained  to  the  extent  of  secur- 
ing to  the  estate  of  ]Mrs.  Powell  a  just  and  reasonable  compensation 
for  the  interests  in  the  real  property  belonging  to  her,  which  were  sur- 
rendered by  the  deed  of  the  1st  of  April,  1841.  ...  I  am  of  opinion  to 
affirm  so  much  of  the  decree  as  declares  the  deed  of  settlement  of  the 
1st  of  January,  1839,  void  as  to  the  appellants,  except  to  the  extent  of 
the  just  value  of  the  interests  surrendered  by  Mary  E.  Powell,  in  con- 
veying her  maiden  land  and  relinquishing  her  right  of  dower  in  the  lands 
of  her  husband ;  and  also  so  much  of  the  same  as  declares  the  deed  from 
Thomas  J.  Powell  and  wife  to  George  N.  Powell,  of  the  1st  of  April,  1841, 
to  be  not  fraudulent  nor  void ;  but  in  all  other  respects  to  reverse  the 
same,  with  costs  to  the  appellants.  .  .  . 

The  other  judges  concurred  in  the  opinion  of  Lee,  J. 

Decree  reversed. 

102.  Common  Law  Practice  Commissioners.  Second  Report.  (England. 
1853.  p.  11).  The  highly  satisfactory  results  of  these  more  enlarged  views 
[  represented  by  the  abolition  of  disqualification  by  interest  in  general  ]  induces 
us  to  consider  whether  an  exception  preserved  by  the  late  statute,  namely,  the 
exclusion  of  husband  and  wife  as  witnesses  for  or  against  each  other,  may  not  be 
abolished. 

The  incompetency  of  husband  and  wife  to  be  witnesses  for  one  another  is 
said  to  rest  on  three  grounds:  1st,  Identity  of  interest;  2d,  the  consequent 
danger  of  perjury;  3d,  the  policy  of  the  law,  which,  as  it  is  said,  "deems  it  neces- 
sary to  guard  the  security  and  confidence  of  private  life,  even  at  the  risk  of  an 


No.  103  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  165 

occasional  failure  of  justice,"  and  which  rejects  such  evidence,  because  its  ad- 
mission would  lead  to  domestic  disunion  and  unhappiness.  The  first  two  grounds 
are  manifestly  no  longer  tenable,  since  the  parties  to  suits  have  been  themselves 
made  competent  to  give  evidence.  It  remains  to  be  considered  how  far  the 
third  ground  should  be  allowed  to  exclude  testimony  which  may  be  essential  to 
justice.  In  the  first  place,  it  seems  clear  that  no  disturbance  of  domestic  happi- 
ness need  be  apprehended  from  permitting  husband  and  wife  to  call  one  another 
as  witnesses.  The  evidence  may  in  many  cases  be  indispensable  A  wife  often 
keeps  her  husband's  books,  conducts  his  business  in  his  absence,  pays  or  receives 
money  for  him.  Even  in  matters  in  which  she  may  take  a  less  active  part,  her 
testimony  may  be  the  only  one  to  prove  facts  essential  to  the  vindication  of  her 
husband's  rights,  or  it  may  be  valuable  as  confirmatory  of  the  evidence  of  other 
witnesses;  so,  the  testimony  of  the  husband  may  be  material  to  the  wife  in  matters 
relating  to  her  separate  estate,  to  the  proof  of  her  coverture,  if  sued  as  a  feme  sole, 
and  the  like.  It  seems  difficult  to  assign  any  reason  why  the  law  should  be  more 
tender  of  the  domestic  happiness  of  married  persons  than  they  are  themselves 
disposed  to  be;  the  only  danger  that  can  be  suggested  is,  that  evidence  might 
be  extracted  from  the  witness,  by  the  adverse  party,  prejudicial  to  the  interest 
of  the  married  plaintiff  or  defendant,  and  that  some  bitterness  of  feeling  might 
arise  in  consequence;  but  of  the  probability  of  such  a  result  the  married  couple 
are  themselves  the  best  judges.  Should  any  fact  be  thus  brought  to  light  which 
would  otherwise  have  remained  unproved,  the  interests  of  truth  will  be  thereby 
promoted,  and  any  transient  interruption  of  conjugal  harmony  from  such  a  cir- 
cumstance or  from  disappointment  occasioned  by  the  evidence  falling  short  of 
what  was  expected,  would  be  a  trifling  evil  compared  to  the  mischief  which  must 
result  from  the  exclusion  of  testimony  essential  to  the  ends  of  justice  and  truth. 

103.     Statutes.     [Printed  ante,  as  No.  77] 


Sub-topic  C.     Experiential  Capacity  ^ 

The  rulings  of  Courts  applying  the  requirements  of  experiential  capacity 
are  broadly  of  two  general  sorts,  answering  the  questions: 

1.  On  what  matters  is  that  general  experience,  common  to  every  member  of 
the  community,   a  sufficient  qualification? 

2.  When  something  more  than  this  general  experience  is  necessary,  what 
shall  the  requirements  be,  as  to  such  special  experience,  for  the  particular  matter 
to  be  testified  to? 

More  briefly  put:  1.  On  a  particular  topic,  is  general  experience  sufficient  f 
2.   If  not,  what  sort  of  special  experience  is  necessary  f 

The  rules  of  law  under  these  tw^o  topics  form  the  legitimate  subject  of  the 
present   principle. 

In  the  application  of  the  second  inquiry,  a  third  question  arises:  3.  Has  the 
witness,  now  offered,  the  special  experience  required  by  the  rule  for  that  topic  f 


^  For  the  principles  of  Psychology  applicable  to  this  topic,  see  the  present 
Compiler's  "Principles  of  Judicial  Proof"  (1913),  Nos.  220-232. 


166  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   104 

104.  VANDER  DONCKT  v.   THELLUSSON 

Common  Bench.     1849 

8  C.  B.  812 

Debt,  on  two  foreign  promissory  notes.  The  first  count  stated 
that  the  defendant,  theretofore,  to  wit,  on  the  25th  of  March,  1843, 
in  parts  beyond  the  seas,  to  wit,  at  Brussels,  in  the  kingdom  of  Belgium, 
according  to  the  law  of  the  said  kingdom  of  Belgium  in  that  behalf, 
made  his  promissory  note  in  writing,  and  delivered  the  same  to  the 
plaintiff,  and  thereby  promised  to  pay  to  the  plaintiff  the  sum  of  2000 
francs  at  the  end  of  the  month  of  July,  1843,  for  value  received,  —  which 
period  had  elapsed  before  the  commencement  of  the  suit.  .  .  . 

The  case  was  tried  before  Parke,  B.,  at  the  spring  assizes  at  Kings- 
ton, in  1849.  .  .  .  On  the  part  of  the  defendant,  it  was  objected,  that 
there  was  a  variance  between  the  declaration  and  the  proof,  —  the 
declaration  describing  the  notes  as  payable  generally,  and  the  notes 
themselves,  when  produced,  appearing  to  be  payable  at  a  particular 
place,  viz.,  the  house  of  M.  Legrelle;  and  that  there  was  no  averment 
or  proof  of  presentment  of  the  notes  there.  The  plaintiff  called  a  wit- 
ness named  De  Keyser,  who  stated  that  he  was  a  native  of  Belgium ;  that 
he  had  formerly  carried  on  the  business  of  a  merchant  and  commis- 
sioner in  stocks  and  bills  of  exchange  at  Brussels,  but  was  now  an  hotel- 
keeper  in  London;  and  that  he  was  well  acquainted  with  the  Belgian 
law  upon  the  subject  of  bills  and  notes.  On  the  part  of  the  defendant, 
it  was  objected  that  M.  De  Keyser  was  not  an  admissible  witness  to 
prove  the  foreign  law,  he  neither  being  a  lawyer,  nor  a  person  who  was 
bound,  by  reason  of  his  holding  any  office,  to  have  a  knowledge  of  the 
law  of  Belgium.     The  learned  judge,  however,  overruled  the  objection. 

The  witness  then  stated,  that,  by  the  law  of  Belgium,  it  is  not  neces- 
sary, even  though  a  bill  or  note  is  made  payable  at  a  particular  place, 
that  it  should  be  presented  there  for  payment.  Under  the  direction 
of  the  learned  judge,  —  who  told  them,  that,  if  they  believed  the  law 
of  Belgium  to  be  as  stated  by  De  Keyser,  they  must  find  for  the  plain- 
tiff, —  the  jury  returned  a  verdict  for  the  plaintiff. 

Willes,  in  Easter  term  last,  moved  for  a  new  trial,  on  the  ground  of 
improper  reception  of  evidence,  and  misdirection.  In  order  to  qualify 
a  person  to  give  evidence  of  the  law  of  a  foreign  country,  it  is  essential 
either  that  he  be  a  professional  man,  or  that  he  hold  some  office  which 
makes  it  his  duty  to  have  a  knowledge  of  such  law.  In  the  case  of  The 
Queen  v.  Dent,  1  Carr.  &  K.  97,  it  was  ruled  by  Wightman,  J.,  on  an 
indictment  for  bigamy,  that  it  is  not  essential  that  a  witness  who  is 
called  to  prove  the  law  of  Scotland  as  to  marriage,  should  be  at  all  con- 
nected with  the  legal  profession.  But,  in  the  Sussex  Peerage  case, 
11  Clark  &  Fin.  85,  134,  Lord  Lyndhurst,  C,  in  deciding  upon  the 


No.  104  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  167 

admissibility  of  the  evidence  of  Dr.  Wiseman,  as  to  the  law  of  Rome 
regarding  marriage,  says:  "He  comes  within  the  description  of  a  person 
peritus  virtute  officii.  I  ought  to  say  at  once  that  it  is  the  universal 
opinion  both  of  the  judges  and  the  lords,  that  the  case  (The  Queen 
V.  Dent),  as  represented  to  have  been  decided  by  Mr.  Justice  Wightman, 
is  not  law."  .  .  . 

A  rule  nisi  having  been  granted  accordingly,  Lush  now  showed  cause. 
.  .  .  Lush.  The  witness  De  Keyser  was  clearly  competent.  It  was 
not  necessary  that  he  should  be  a  lawyer.  .  .  .  This  was  simply  a  ques- 
tion of  commercial  usage.  The  witness  had  been  a  merchant  and  stock- 
broker at  Brussels,  —  a  person  who  must  be  conversant  with  money 
securities:  and  he  proves  the  custom  of  merchants  as  to  bills  and  notes. 
...  In  no  case  has  it  ever  been  held  that  a  lawyer  must  necessarily  be 
called  to  speak  to  foreign  law. 

Willes,  in  support  of  his  rule.  The  simple  question  is,  whether  this 
hotel-keeper  is  a  competent  witness  to  prove  the  Belgian  law.  .  .  .  The 
line  must  be  drawn  somewhere:  and  it  would  be  safer  to  draw  it  so  as 
to  exclude  all  except  professional  men,  and  persons  who,  by  virtue  of 
their  office,  may  be  said  to  be  peritos.  (Cresswell,  J.  Would  Baron 
Rothschild  be  supposed  to  know  anything  about  the  law  of  England  as 
to  bills  of  exchange?)    As  a  matter  of  fact,  probably  he  is  peritus.  .  .  . 

Maule,  J.  We  must  take  it  to  be  the  law  of  England,  that,  in 
order  to  prove  the  law  of  a  foreign  country,  there  must  be  some  special 
ground  for  believing  that  the  person  who  is  offered  is  more  than  ordi- 
narily capable  of  speaking  upon  the  subject.  In  the  case  of  The  Queen 
V.  Dent,  a  witness  was  called  who  stated  that  he  was  acquainted  with 
the  law  of  Scotland,  but  it  did  not  appear  that  he  was,  or  ever  had  been, 
connected  with  the  law,  or  in  any  situation  which  made  it  necessary 
that  he  should  have  made  himself  acquainted  with  the  Scotch  law. 
The  members  of  the  Committee  of  Privileges  in  the  House  of  Lords,  in 
the  Sussex  Peerage  case,  thought  that  the  ruling  of  my  brother  Wight- 
man  in  that  case  was  erroneous.     W^e  bow  to  that  decision. 

The  question,  then,  is,  whether  the  witness  who  gave  evidence  of 
the  Belgian  law  in  this  case,  falls  within  the  principle  of  exclusion  which 
is  implied  in  the  opinion  of  the  lords  and  the  judges  in  the  Sussex  Peerage 
case.  Unless  he  does,  he  was  clearly  admissible;  for,  it  is  upon  that 
ground  only  that  he  is  said  to  be  inadmissible.  The  ground  of  exclusion 
relied  on,  is,  as  in  The  Queen  v.  Dent,  that  there  is  a  total  absence  of 
any  peculiar  means  of  information  in  the  witness  on  the  subject  upon 
which  he  is  called  to  speak.  It  appeared  that  he  is  now  carrying  on  the 
business  of  an  hotel-keeper,  but  that  he  had  formerly  been  a  merchant 
and  stock-broker  at  Brussels.  Whatever  the  line  of  business  he  now 
follows,  if  he  was  an  expert  before,  he  can  hardly  be  said  to  be  less  so 
now.  The  question  is,  whether  he  is  a  person  having  special  and  peculiar 
means  of  knowledge  of  the  law  of  Belgium  with  regard  to  bills  of  exchange 
and  promissory  notes,  —  one  whose  business  it  was  to  attend  to,  and 


168  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   104 

make  himself  acquainted  with,  the  subject.  I  think,  that,  inasmuch 
as  he  had  been  carrying  on  a  business  which  made  it  his  interest  to  take 
cognizance  of  the  foreign  law,  he  does  fall  within  the  description  of  an 
expert.  Applying  one's  common  sense  to  the  matter,  why  should  not 
persons  who  may  be  reasonably  supposed  to  be  acquainted  with  the 
subject,  —  though  they  have  not  filled  any  official  appointment,  such 
as  judge,  or  advocate,  or  solicitor,  —  be  deemed  competent  to  speak  upon 
it?  Persons  who  have  practiced  as  physicians  are  frequently  examined, 
and  no  inquiry  is  ever  made  as  to  whether  or  not  they  have  a  regular 
diploma.  All  persons,  I  think,  who  practice  a  business  or  profession 
which  requires  them  to  possess  a  certain  knowledge  of  the  matter  in 
hand,  are  experts,  so  far  as  expertness  is  required. 

For  these  reasons,  I  am  of  opinion  that  this  rule  must  be  discharged. 

Cresswell,  J.  —  I  am  of  the  same  opinion.  .  .  . 

V.  Williams.  —  I  am  of  the  same  opinion.  It  must  be  taken,  upon 
the  evidence  of  this  witness,  that  it  was  part  of  his  business  as  a  mer- 
chant and  broker  in  Belgium,  to  acquire  a  correct  notion  of  the  law  of 
that  country  regarding  bills  of  exchange.  He  was,  therefore,  an  admis- 
sible witness,  —  though  it  might  turn  out  that  his  evidence,  like  that  of 
many  experts  and  scientific  persons,  was  of  very  little  worth. 


105.   JONES  V.  TUCKER 

Supreme  Judicial  Court  of  New  Hampshire.    1860 

41  A^  H.  54 

Case,  for  injuring,  by  immoderately  driving,  a  horse,  hired  of  the 
plaintiff  by  the  defendant.  A  witness  for  the  plaintiff,  whose  com- 
petency to  testify  as  an  expert  in  the  matter  was  proved  to  the  satis- 
faction of  the  Court,  was  allowed  to  testify  as  to  the  cause,  nature,  and 
remedy  of  the  disease  of  horses  called  founder,  and  that  the  plaintiff's 
horse  was  foundered.  To  the  ruling  of  the  Court,  admitting  this  evi- 
dence, the  defendant  excepted,  on  the  ground  that  the  witness  was 
not  an  expert.  A  verdict  was  returned  for  the  plaintiff,  which  the 
defendant  moved  to  set  aside. 

Towle  and  Bell,  for  defendant.     Hatch  &  Webster,  for  the  plaintiff. 

Doe,  J.  —  When  a  witness  is  offered  as  an  expert,  three  questions 
necessarily  arise:  (1)  Is  the  subject  concerning  which  he  is  to  testify, 
one  upon  which  the  opinion  of  an  expert  can  be  received?  (2)  WTiat 
are  the  qualifications  necessary  to  entitle  a  witness  to  testify  as  an 
expert?      (3)  Has  the  witness  those  qualifications? 

1.  Experts  may  give  their  opinions  upon  questions  of  science,  skill, 
or  trade,  or  others  of  the  like  kind,  or  when  the  subject-matter  of  inquiry 
is  such  that  inexperienced  persons  are  unlikely  to  prove  capable  of  form- 
ing a  correct  judgment  upon  it  without  such  assistance,  or  when  it  so 


No.  105  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  169 

far  partakes  of  the  nature  of  a  science  as  to  require  a  course  of  previous 
habit,  or  study,  in  order  to  the  attainment  of  a  knowledge  of  it;  and  the 
opinions  of  experts  are  not  admissible,  when  the  inquiry  is  into  a  subject- 
matter,  the  nature  of  which  is  not  such  as  to  require  any  peculiar  habits 
or  study,  in  order  to  qualify  a  man  to  understand  it.  1  Greenleaf,  Evi- 
dence, §  440;  1  Smith,  L.  C.  286;  Rochester  v.  Chester,  3.  N.  H.  349; 
Petersborough  v.  Jaffrey,  6  N.  H.  462;  Whipple  v.  Walpole,  10  N.  H. 
130;  Beard  v.  Kirk,  11  N.  H.  397;  Robertson  v.  Stark,  15  N.  H.  109; 
Marshall  v.  Ins.  Co.,  27  N.  H.  157.  Upon  subjects  of  general  knowl- 
edge, which  are  understood  by  men  in  general,  and  which  a  jury  are 
presumed  to  be  familiar  with,  witnesses  must  testify  as  to  facts  alone, 
and  the  testimony  of  witnesses  as  experts  merely  is  not  admissible. 
Concord  Railroad  v.  Greely,  23  N.  H.  237,  243. 

2.  Experts  have  been  described  as  "men  of  science,"  Folkes  v. 
Chadd,  3  Doug.  157;  "persons  professionally  acquainted  with  the 
science  of  practice,"  Strickland  on  Ev.  408;  "  conversant  with  the  subject- 
matter,"  Best's  Principles  of  Evidence,  §  346;  "persons  of  skill,"  Roches- 
ter V.  Chester,  3  N.  H.  349,  365;  "experienced  persons,"  Peterborough 
V.  Jaffrey,  6  N.  H.  462,  464;  "possessed  of  some  particular  science  or 
skill  respecting  the  matter  in  question,"  Beard  v.  Kirk,  11  N.  H.  397. 
In  Barron  v.  Cobleigh,  11  N.  H.  557,  certain  lots  of  land  had  been  sur- 
veyed, about  fifty  years  before  the  trial,  by  one  Snow,  a  surveyor.  The 
defendants  offered  one  McDuffie  as  a  witness,  who  testified  that  he  had 
for  many  years  been  a  surveyor,  and  had  often  run  out  the  lines  of  the 
lots  surveyed  by  Snow;  and  it  was  said  that  if  the  witness  had  been 
called  to  give  his  opinion,  as  an  expert,  whether  the  marks  upon  the 
corners,  about  which  he  testified,  were  ancient  marks,  he  would  have 
been  admissible  for  that  purpose.  Greater  opportunities  for  observa- 
tion, and  greater  study  respecting  certain  subjects,  may  give  the  wit- 
ness superior  skill  in  relation  to  those  subjects,  and  entitle  his  opinions 
to  be  received  as  those  of  an  expert.  Thus,  witnesses  who  have  made  it 
a  subject  of  study  and  observation,  may  be  admitted  to  give  their  opinion 
respecting  handwriting.  Robertson  v.  Stark,  15  N.  H.  109,  113.  In 
Marshall  v.  Ins.  Co.,  27  N.  H.  157,  163,  a  witness  testified  that  he  was 
a  house-joiner,  and  had  always  been  engaged  in  that  as  his  business; 
that  he  had  worked  at  it  himself  for  many  years,  and  had  built  a  great 
many  houses  by  contract,  employing  a  great  many  hands  in  the  prosecu- 
tion of  that  business ;  that  during  the  three  preceding  years  he  had  built 
not  less  than  twenty-five  houses  by  contract,  and  that  he  considered 
himself  to  be  well  acquainted  with  the  business;  and  it  was  remarked 
by  the  Court  that  the  witness  appeared  to  have  had  sufficient  experi- 
ence to  entitle  him  to  the  character  of  an  expert  in  his  business.  An 
expert  must  have  made  the  subject  upon  which  he  gives  his  opinion  a 
matter  of  particular  study,  practice,  or  observation,  and  he  must  have 
particular  and  special  knowledge  on  the  subject. 

3.  The  rule  determining  the  subjects  upon  which  experts  may  testify, 


170  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  105 

and  the  rule  prescribing  the  quah'fications  of  experts,  are  matters  of  law, 
but  whether  a  witness,  offered  as  an  expert,  has  those  qualifications,  is 
a  question  of  fact,  to  be  decided  by  the  Court  at  the  trial.  The  various 
disqualifications  which  render  a  person  incompetent  to  be  sworn  and  to 
give  any  testimony,  are  fixed  by  law,  but  whether  the  disabilities  exist 
in  a  particular  case  is  a  question  of  fact.  And  whether  a  disability  is 
such  that  a  person  cannot  testify  at  all,  or  only  such  that  he  cannot 
testify  as  an  expert,  the  existence  of  the  disability  is  equally  a  matter 
of  fact,  most  conveniently  and  satisfactorily  determined  at  the  trial. 
That  an  expert  must  have  sjiecial  and  peculiar  knowledge  or  skill,  is 
as  definite  a  rule  as  that  the  search  for  a  lost  paper,  or  subscribing  wit- 
ness, must  be  diligent  and  thorough;  and  whether  a  witness  has  special 
and  peculiar  knowledge,  is  as  much  a  question  of  fact  as  the  question 
whether  a  search  is  diligent  and  thorough.  Upon  a  question  of  fact, 
the  whole  Court  will  not  revise  the  decision  of  a  presiding  justice,  unless 
it  is  specially  reserved  by  him  for  revision,  and  his  decision  is  not  subject 
to  exception. 

In  the  present  case,  it  does  not  appear  that  the  rule  of  law,  prescrib- 
ing the  qualifications  of  an  expert,  was  disregarded,  and  the  judgment 
of  the  presiding  justice,  as  to  what  the  qualifications  of  the  witness  were, 
was  conclusive  and  final.     Judgment  on  the  verdict. 


106.  EVANS  V.  PEOPLE 

Supreme  Court  of  Michigan.     1858 

12  Mich.  27 

Error  to  Kent  Circuit.  The  plaintiff  in  error  was  informed  against 
for  murder.  ...  On  this  information  defendant  was  convicted  of  man- 
slaughter and  sentenced  to  the  State  prison  for  two  years  and  six  months. 
The  case  was  removed  to  this  court  for  review,  on  wo-it  of  error  and  bill 
of  exceptions.  The  question  raised  by  the  exceptions  sufficiently  appear 
by  the  opinion. 

Ashley  &  Chipman,  J.  T.  Holmes  and  G.  V.  N.  Lothrop,  for  plaintiff 
in  error.  .  .  .  Upon  the  question  as  to  the  prevalence  of  erysipelas  in 
the  neighborhood  of  the  residence  of  the  deceased,  physicians  alone 
were  competent  to  testify.  ... 

A.  Williams,  Attorney-General,  for  the  People.  .  .  .  The  w^itness 
residing  near  the  deceased  in  his  lifetime,  could  testify  whether  or  not 
there  was  sickness,  but  perhaps  not,  there  being  sickness,  as  to  the  type 
of  it  —  a  point,  however,  not  conceded. 

Campbell,  J. :  Evans,  the  plaintiff  in  error,  was  convicted  of  man- 
slaughter in  killing  one  Coban  Balch.  .  .  .  The  remaining  ground  of 
error  alleged  is,  that  one  John  Hendershot,  not  being  shown  to  possess 
any  special  qualifications,  was  allowed  to  answer  a  question  involving 


No.  106  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  171 

an  inquiry  of  medical  science,  having  an  important  bearing  upon  the 
cause  of  Balch's  death.  It  had  been  shown  that  he  died  of  erysipelas, 
claimed  by  the  prosecution  to  have  resulted  from  the  injuries  inflicted 
by  Evans.  The  defense  had  introduced  medical  witnesses,  whose  evi- 
dence tended  to  prove  the  existence  of  that  disease  in  an  epidemic  form 
in  Balch's  neighborhood,  previous  to  his  visit  to  Grand  Rapids,  where 
he  died  two  days  after  the  assault  upon  him.  Hendershot  was  called 
as  a  rebutting  witness,  and  was  asked,  under  objection,  whether  there 
was  "any  case  of  erysipelas  about  the  neighborhood  of  the  residence  of 
the  deceased,  before  his  coming  to  Grand  Rapids,  in  February  last"; 
the  witness  answered,  "No,  sir;  neither  before  nor  since;  no  sickness 
within  five  or  six  miles  of  Coban  Balch's  residence  during  the  month  of 
February,  nor  until  after  that  time."  There  can  be  no  doubt  of  the 
importance  of  these  various  inquiries,  inasmuch  as  they  were  aimed  at 
explaining  the  causes  of  the  death  of  Balch,  and  showing  how  far  Evans 
was  responsible  for  it.  It  becomes  essential,  therefore,  to  consider 
whether  this  question  was  admissible  under  the  circumstances,  and  also 
how  far  the  form  of  the  answer  may  affect  the  legality  of  its  reception. 

If  the  question  was  improper,  it  is  because  it  is  supposed  to  involve 
obtaining  an  opinion  which  no  one  has  a  right  to  give  in  evidence  without 
an  especial  knowledge  of  diseases  in  general,  or  of  the  particular  disease 
named,  not  supposed  to  be  possessed  except  by  those  whose  study  or 
attention  has  been  turned  in  that  direction.  It  is  not  always  easy  to  deter- 
mine the  propriety  of  receiving  or  rejecting  testimony  concerning  matters 
involving,  apparently,  to  a  greater  or  less  extent,  medical  or  other  scien- 
tific investigation.  There  are  many  cases  where  it  is  difficult  to  deter- 
mine whether  the  facts  to  be  examined  are  to  be  considered  beyond  the 
range  of  ordinary  intelligence.  And  the  decisions  are  by  no  means  clear 
or  satisfactory  upon  the  distinctions.  The  principles  on  which  the 
authorities  rest  are  more  consistent  than  the  attempts  to  apply  them. 

The  primary  rule,  concerning  all  evidence,  is,  that  personal  knowl- 
edge of  such  facts  as  a  court  or  jury  may  be  called  upon  to  consider, 
should  be  required  of  all  witnesses,  where  it  is  attainable.  .  .  .  And  it 
also  follows,  that  no  witness  can  be  permitted  to  offer  such  testimony, 
unless  he  appears  to  be  qualified,  in  some  degree,  at  least,  to  furnish  the 
means  of  aiding  the  jury  in  arriving  at  a  true  result.  The  greatest 
difficulty  encountered  in  determining  questions  of  competency  of  testi- 
mony, on  subjects  connected  more  or  less  with  medical  science,  is  in 
ascertaining  how  far  it  is  safe  to  suppose  unprofessional  observers  are 
able  to  form  a  reliable  judgment.  There  are  some  simple  disorders, 
which  all  persons  are  familiar  with.  Others  require  the  very  highest 
degree  of  medical  skill  to  distinguish  them  from  disorders  having  some 
resembling  appearances  or  symptoms.  In  some  cases,  too,  although 
inquiries  arise  concerning  the  existence  of  health  or  disease,  it  does  not 
become  important  to  have  accurate  information  as  to  the  precise  char- 
acter of  such  disorders  as  may  exist.  .  .  .  Thus,  when  it  was  held  by 


172  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   106 

some  authorities  that,  upon  questions  touching  the  mental  capacity  of  a 
particular  person,  only  physicians  and  subscribing  witnesses  could  give 
their  opinion,  the  injury  was  not  made  one  of  science  merely,  and  the 
scientific  expert  was  put  on  the  same  footing,  on  questions  not  purely 
medical,  with  ordinary  witnesses  having  no  scientific  knowledge,  and 
whose  powers  of  observation  were  those  possessed  by  any  one  in  like 
circumstances.  .  .  . 

What  is  thus  true  of  mental  capacity  may  become  equally  true  in 
regard  to  other  matters  involving  some  questions  of  skill.  Circum- 
stances may  make  whole  communities  familiar  with  diseases  not  generally 
known  elsewhere,  and  reasonably  competent  to  manage  ordinary  cases 
of  such  diseases,  and  to  recognize  their  symptoms.  Such  is  often  the 
case  from  necessity  in  new  countries;  and  the  same  necessity  leads  to  a 
more  general  knowledge  of  the  extent  to  which  a  neighborhood  has 
suffered  from  any  prevailing  sickness  than  is  usual  in  populous  towns. 
And  it  often  happens  that  some  persons  having  no  general  skill  become 
very  familiar  with  particular  subjects.  It  would  be  ver}'  unwise  to 
exclude  such  evidence,  merely  because  the  range  of  the  witness's  knowl- 
edge is  limited.  There  are  as  many  grades  of  knowledge  and  ignorance 
in  the  professions  as  out  of  them.  The  only  safe  rule  in  any  of  these 
cases  is,  to  ascertain  the  extent  of  the  witness's  qualifications,  and,  within 
their  range,  to  permit  him  to  speak.  Cross-examinations,  and  the  tes- 
timony of  others,  will  here,  as  in  all  other  cases,  furnish  the  best  means 
of  testing  his  value. 

The  circumstances  of  the  case,  therefore,  must  be  looked  at  to  deter- 
mine the  admissibility,  not  only  of  the  question  put  to  Hendershot,  but 
also  of  his  answer.  As  he  was  not  examined  concerning  his  knowledge 
of  erysipelas,  or  of  diseases  generally,  he  could  not  be  asked  such  a  ques- 
tion, if  the  issue  materially  required  from  the  witness  any  such  knowl- 
edge. The  inquiry  before  the  jury  was  whether  the  erysipelas,  of  which 
Balch  died,  was  dependent  on  a  wound,  or  was  wholly  or  in  part  derived 
from  other  causes.  It  was  attributed  by  the  defense  to  his  previous 
exposure  to  an  epidemic.  The  exact  nature,  as  well  as  the  existence  of 
such  epidemic  was  thus  directly  in  controversy.  This  question,  there- 
fore, could  not  properly  be  put  to  any  one  not  having  some  knowledge 
of  the  disease;  and,  as  the  record  stands,  was  erroneously  allowed.  But 
Hendershot's  answer,  denying  the  existence  of  any  disease  whatever 
in  that  vicinity,  stands  on  a  different  footing.  The  difference  between 
health  and  any  sickness  whatever  can  hardly  be  regarded  as  open  only 
to  medical  knowledge;  and  his  contradiction  of  the  medical  testimony 
is  a  contradiction  of  common  facts,  and  not  of  science.  The  value  of 
such  a  sweeping  assertion  is  not  to  be  determined  in  this  Court.  The 
testimony  was  not  incompetent.  There  was  no  error  in  the  proceedings, 
and  the  judgment  must  be  affirmed. 

The  other  justices  concurred. 


No.  107  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  173 

107.   SIEBERT  v.   PEOPLE 

Supreme  Court  of  Illinois.     1892 

143///.  571;32iV.  £.431 

Writ  of  Error  to  the  Circuit  Court  of  Kane  County ;  the  Hon.  Henry 

B.  Willis,  Judge,  presiding. 

Messrs.  Alschuler  d'  Mtirphy,  and  Mr.  ./.  A.  Russell,  for  the  plain- 
tiffs in  error.  .  .  .  The  Court  erred  in  admitting  improper  expert  evi- 
dence.    Boyle  V.  State,  57  Wis.  472.  .  .  . 

Mr.  George  Hunt,  Attorney  General,  Mr.  FranJc  G.  Hanchett,  State's 
Attorney,  and  Messrs.  Hopkins,  Aklrich  &  Thatcher,  for  the  People:  .  .  . 
A  practicing  physician,  being  a  graduate  of  a  medical  college,  may  give 
his  opinion  founded  upon  his  reading  alone.  .  .  . 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court:  ...  It  is 
next  claimed  that  the  Court  erred  in  allowing  Dr.  S.  C.  Gillett  and  Dr. 

C.  L.  Smith  to  testify  as  experts  on  the  subject  of  arsenical  poisoning. 
Dr.  Gillett,  as  to  his  qualifications  as  an  expert,  testified  that  his  pro- 
fession was  that  of  physician  and  surgeon;  that  he  was  a  graduate  of 
Rush  Medical  College  of  Chicago;  that  he  had  been  a  practicing  physician 
in  Aurora  for  thirty-four  years,  and  that  he  was  a  licensed  practitioner 
under  the  laws  of  the  State  of  Illinois.  An  hypothetical  question 
was  then  put  to  him  by  the  prosecution,  setting  forth  the  symptoms 
of  the  deceased,  and  he  was  asked  from  what  cause,  in  his  opinion,  the 
deceased  came  to  his  death.  This  was  objected  to  by  both  of  the  defend- 
ants, on  the  ground,  among  others,  that  the  witness  did  not  properly 
qualify  as  an  expert,  which  objection  was  overruled,  the  defendants 
excepting.  The  witness  then  testified,  in  substance:  " If  I  found  arsenic, 
then  I  should  expect  he  died  from  the  effects  of  arsenic."  The  testi- 
mony of  the  other  witness  did  not  differ  materially  from  the  evidence 
of  Gillett,  except  that  he  had  been  in  practice  but  twelve  years.  It  will 
be  observed  that  the  two  witnesses  were  both  graduates  of  medical  col- 
leges, and  that  they  were  engaged  in  general  practice  and  had  been  for 
a  number  of  years.  Whether  they  had  ever  had  any  experience  in  a 
case  of  poisoning  in  the  practice  does  not  appear  from  their  examination. 

It  is  insisted  that  it  devolved  on  the  prosecution  to  show  that  the 
witnesses  had,  in  their  practice,  had  a  case  of  arsenical  poisoning  before 
they  could  testify.  This  is  a  question  upon  which  the  authorities  are 
not  entirely  harmonious.  In  the  State  v.  Terrell,  12  Rich.  (S.  C.)  321, 
on  an  indictment  for  murder  produced  by  poison,  the  same  objection 
was  interposed  to  certain  witnesses  called  by  the  prosecution  as  has 
been  raised  in  this  case,  but  the  Court  held  that  medical  witnesses, 
in  giving  their  opinions  as  experts,  are  not  confined  to  opinions  derived 
from  their  own  observation  and  experience,  but  may  give  opinions  based 
upon  information  derived  from  the  books.     In  Mitchell  v.  The  State, 


174  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   107 

58  Ala.  417,  which  was  an  indictment  for  murder  by  poisoning  by 
arsenic,  a  physician  was  allowed  to  give  his  opinion  as  to  the  cause  of 
death,  although  it  did  not  appear  that  he  had  ever  attended  cases  of 
that  character,  and  in  passing  on  the  admissibility  of  the  evidence  the 
Court  held  that  a  physician  who  has  had  long  experience  in  the  practice 
of  his  profession,  and  knowledge  of  the  symptoms  of  the  malady  of  the 
deceased,  is  competent  to  testify  as  an  expert.  .  .  .  The  case  differs 
in  its  facts  so  widely  from  the  case  under  consideration  that  we  do  not 
regard  it  as  an  authority  here.  .  .  .  Emerson  v.  Lowell  Gas  Light  Co., 
6  Allen  146,  has  also  been  cited  as  an  authority.  The  action  was  one 
brought  to  recover  damages  for  an  injury  to  plaintiff's  health,  caused 
by  an  accidental  escape  of  gas.  On  the  trial  a  witness  was  called  as  an 
expert,  but  it  appeared  that  he  had  no  experience  as  to  the  effects  upon 
the  health  of  breathing  illuminating  gas.  He  was  merely  a  physician 
who  had  been  in  practice  several  years,  and  the  Court  held  that  he  was 
not  qualified  to  testify  as  an  expert,  and  this  ruling  was  affirmed  in  the 
Supreme  Court.  In  the  decision  it  is  said :  "  The  mere  fact  that  he  was 
a  physician  would  not  prove  that  he  had  any  knowledge  of  gas,  without 
further  proof  as  to  his  experience,  for  it  is  notorious  that  many  persons 
practice  medicine  who  are  without  learning,  and  a  physician  may  have 
much  professional  knowledge  without  being  acquainted  with  the  proper- 
ties of  gas  or  its  effect  on  health."  What  was  said  in  the  case  cited 
cannot  apply  to  a  case  of  this  character.  An  ordinary  physician  might 
not  be  acquainted  with  the  properties  of  gas  or  its  effect  on  health,  but 
a  physician  of  but  slight  experience  would  have  no  difficulty  in  telling 
the  effect  likely  to  result  from  taking  into  the  stomach  a  deadly  poison. 

Without,  however,  extending  the  discussion  of  the  question  any 
further,  we  are  inclined  to  hold  that  the  opinions  of  the  witnesses,  founded 
on  their  practice,  were  competent  evidence.  What  weight,  however, 
should  be  given  to  the  evidence  was  a  question  for  the  jury.  .  .  . 

After  a  careful  consideration  of  the  entire  record  we  find  no  substan- 
tial error,  and  the  judgment  will  have  to  be  affirmed.     Judgment  affirmed. 

Bailey,  C.  J.,  and  Baker,  J.,  dissenting. 


Sub-topic  D.     Perception  (Observation,  Knowledge)  ^ 

(1)    In  General 

108.  John  Ayliffe.  Parergon.  (1726.  p.  540).  Testimony  or  evi^lence  ought 
first  of  all  to  be  given  and  founded  on  some  principal  corporeal  sense  of  their  own, 
according  to  the  nature  and  quality  of  the  fact,  as  on  their  sight,  hearing,  touch- 
ing, tasting,  or  smelling;  and  not  on  the  corporeal  sense  of  another  person.  .  .  . 
And  thus  witnesses  ought  to  depose  appositely  "de  proprio  suo  sensu,"  and  not 
"de  sensu  alieno." 


*  For  the  principles  of  Psychology  here  applicable,  see  the  present  Com- 
piler's "Principles  of  Judicial  Proof"  (1913),  Nos.  234-238. 


No.  112  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  175 

109.  Bushel's  Case.  (1670.  Vaughan,  135).  Vaughan,  C.  J.  (noting  the 
difference  between  a  juryman  and  a  witness) :  A  witness  swears  but  to  what  he 
hath  heard  or  seen,  —  generally  or  more  largely,  to  what  hath  fallen  under  his 
senses. 

110.  Thomas  Starkie.  Evidence.  (1824.  p.  79,  127).  To  render  the  com- 
munication of  facts  perfect,  the  witnesses  .  .  .  should  possess,  in  the  first  place, 
the  means  and  opportunity  of  acquiring  a  knowledge  of  the  facts.  ...  A  witness 
who  states  facts  ought  to  state  those  only  of  which  he  has  personal  knowledge; 
and  such  knowledge  is  supposed,  if  not  expressly  stated,  upon  the  examina- 
tion in  chief;  and  upon  cross-examination  his  means  of  knowledge  may  be  fully 
investigated,  and  if  he  has  not  sufficient  and  adequate  means  of  knowledge,  his 
evidence  will  be  struck  out. 

111.  Evans  v.  People,  12  Mich.  35,  and  Elliott  v.  Van  Buren,  33  id.,  52 
(1863,  1875).  Campbell,  J.  The  primary  rule  concerning  all  evidence  is  that 
personal  knowledge  of  such  facts  as  a  Court  or  jury  may  be  called  upon  to  con- 
sider should  be  required  of  all  witnesses,  where  it  is  attainable.  .  .  .  No  one  can 
be  allowed  to  prove  what  he  has  never  learned,  whether  it  be  ordinary  or  scien- 
tific facts. 

112.  Walter  Bushnell's  Trial.  (Wiltshire,  1656.  Howell's  State  Trials, 
V,  633).  [The  Wiltshire  Commissioners  summoned  IVIr.  Walter  Bushnell,  Vicar 
of  Box,  near  Malmsbury,  before  them,  to  answer  to  a  charge  of  drunkenness, 
profanation  of  the  Sabbath,  gaming,  and  disaffection  to  the  government;  and 
after  a  full  hearing,  and  proof  upon  oath,  they  ejected  him.  The  Vicar  prepared 
for  the  press  a  narrative  of  the  proceedings  of  the  Commissioners.  .  .  .  He  is 
now  impeaching  the  testimony  of  William  Pinchin,  one  of  the  chief  witnesses 
against  him.]  William  Pinchin  goes  on  in  these  words:  "That  about  eight  years 
since,  when  jNIr.  Bushnell  came  first  to  Box,  he  feasted  his  friends  on  the  Lord's 
day,  and  having  drank  liberally  that  day  there,  Thrift,  one  of  the  guests,  was 
killed  in  the  Tower  there,  but  by  what  means  this  deponent  knoweth  not.  And 
said  farther.  That  he  knoweth,  that  Mr.  Bushnell  have  usually  till  within  this 
two  years  frequented  ale-houses  in  parish  business,  and  have  there  drank  hard 
in  Mr.  Speke's  and  Mr.  Long's  company;  and  have  seen  him  sit  there  drinking 
after  they  have  been  gone,  but  cannot  say  that  ever  he  saw  him  drunk."  .  .  . 

And  first  I  shall  tell  thee  that  whatsoever  William  Pinchin  deposeth  touch- 
ing my  feasting  on  the  Lord's  day,  or  drinking  liberally  on  that  daj',  or  of  the 
death  of  John  Thrift,  he  hath  only  upon  conjecture,  or  else  upon  hearsay.  For 
he  then  upon  oath  acknowledged  before  the  Commissioners,  that  he  was  not  that 
day  at  Box,  but  at  Broughton,  which  is  four  or  five  miles  distant  from  Box,  and  it 
is  like  enough  he  was  there  at  the  Revel,  that  being  their  Revel  day.  .  .  .  W^illiam 
Pinchin  acknowledgeth  liimself  to  be  absent,  and  yet  he  swears  as  if  he  had  been 
at  Box.  I  am  not  so  much  a  lawyer  as  to  know  how  far  an  oath  will  extend,  or 
to  what  it  will  amount,  if  a  man  depose  nothing  but  what  he  hath  received  by 
hearsay.  .  .  .  "He  is  a  false  witness,  not  only  he  who  tells  a  lie,  but  he  also  who 
testifies  a  truth  whereof  he  hath  not  a  certain  and  undoubted  knowledge,"  that 
is,  if  he  testify  that  which  he  hath  neither  seen  nor  heard,  nor  hath  had  any 
experience  of.  .  .  .  Proportionably  say  I,  If  William  Pinchin  were  then  at 
Broughton,  it  is  impossible  that  he  should  see  it.  And  if  he  saw  it  not,  how  could 
he  be  a  witness? 


176  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  113 

113.  R.  V.  Dewhurst.  (1820.  1  State  Tr.  n.  s.  529,  590).  Mr.  Raines  (cross- 
examining).  —  Upon  your  oath,  did  you  not  see  something  very  Uke  that  which 
I  have  read  to  you? 

Witness.  —  I  cannot  recollect. 

Mr.  Raines.  —  Will  you  swear  you  do  not  believe  what  I  have  read  to  you? 

Baylky,  J.  —  It  must  be  belief  from  recollection. 

Mr.  Raines.  —  I  should  have  thought  it  was  a  legitimate  question  capable 
of  being  answered. 

Bayley,  J.  —  If  it  admits  of  a  legitimate  answer.  It  may  not;  because  he 
might  say  "I  believe  it,  because  I  have  heard  people  say  so." 

114.  Parnell  Commission's  Proceedings.  (1888.  36th  day,  Times'  Rep. 
pt.  10,  p.  18).  [The  Irish  Land  League  and  its  leaders  being  charged  with  com- 
plicity in  certain  crimes,  particularly  in  the  Phoenix  Park  assassination  of  1882, 
certain  of  the  known  criminals  testified  that  their  body,  the  Invincibles,  had 
received  assistance-money  from  the  League.  It  had  turned  out,  on  cross-examin- 
ing one  of  them,  that  his  testimony  to  the  receipt  of  this  money  from  the  League 
officers  was  not  based  on  his  own  knowledge  at  all,  but  merely  on  what  he  had 
heard  from  others.  Another  of  these  persons  was  now  asked  on  direct  exam- 
ination  as  follows:] 

Sir  H.  James.  —  Tell  me  of  your  own  knowledge  whether  you  know  of  his 
receiving  any  money  from  the  Land  League. 

Sir  C.  Russell.  —  My  Lords,  I  would  ask  my  learned  friend  to  be  particular 
as  to  that  question  "of  his  own  knowledge,"  after  the  experience  we  had  of  De- 
laney's  evidence.     "Did  he  see  any  one  pay  him?"  is  the  proper  form  of  question. 

Sir  //.  James.  —  I  think  not. 

Sir  C.  Russell.  —  With  great  deference,  my  Lords,  it  is.  We  had  a  deliberate 
statement  the  other  day  in  answer  to  a  similar  question  put  to  a  witness,  "Did 
you  know  this?"  and  "Did  you  know  that?"  and,  afterwards  in  cross-examina- 
tion, it  turned  out  that  he  did  not  know  it  of  his  own  knowledge,  but  it  was  what 
had  been  told  him.  I  want  to  guard  against  a  repetition  of  that.  The  proper 
form  of  question  as  I  submit  is,  "Did  he  see  any  money  paid?" 

Sir  H.  James  (to  the  witness). — You  understand  what  I  mean  —  do  you 
know  this  of  your  own  knowledge? 

Sir  C  Russell.  —  I  am  objecting  to  the  form  of  the  question. 

President  Hannen.  —  It  is  a  very  usual  form  of  question. 

Sir  C.  Russell.  —  I  respectfully  say,  in  view  of  the  reasons  I  have  given,  that 
the  proper  question  is,  "Did  he  see  any  money  paid?" 

President  Hannen.  —  I  shall  not  interfere  with  the  discretion  of  counsel  in 
asking  a  question  in  a  manner  which  is  quite  usual. 

Sir  C.  Russell.  —  I  have  pointed  out  the  danger  —  the  great  danger  —  of 
putting  the  question  in  the  form  in  which  my  learned  friend  is  putting  it. 

President  Hannen.  —  Precisely  so;  and  you  have  also  shown  where  the 
safeguard  lies,  namely,  in  cross-examination. 


No.  115  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  177 

115.   STATE  V.  FLANDERS 
Supreme  Judicial  Court  of  New  Hampshire.    1859 

38  N.  H.  324 

Indictment,  charging  the  respondent  with  the  crime  of  forgery, 
in  having  altered,  at  Manchester,  in  said  county,  on  the  fourth  day  of 
August,  1857,  a  bond  of  that  date,  in  the  penal  sum  of  forty  thousand 
dollars,  signed  by  himself  as  principal,  and  by  Samuel  Andrews  and 
Luther  Aiken  as  sureties,  given  and  payable  to  Thomas  P.  Webber. 
The  bond  was  originally  written  with  a  condition  to  indemnify  Webber 
against  the  attachments  made  by  Asa  T.  Barron,  or  by  his  procurement, 
on  a  house  at  the  corner  of  Union  and  Concord  streets,  in  Manchester, 
which  the  respondent  had  bargained  to  sell  to  Webber  for  about  the  sum 
of  $6,000.  The  alteration,  whereby  the  forgery  was  charged  to  have  been 
committed,  consisted  in  adding  to  the  condition  of  the  bond,  after  the 
provision  to  save  Webber  harmless  from  the  attachments  on  the  house 
made  by  Barron,  or  his  procurement,  the  words,  "  or  from  ariy  and  every 
claim  whatsoever."  ...  It  was  also  admitted  that  the  respondent  altered 
the  bond  in  this  material  manner,  after  it  was  signed  by  Andrews,  with- 
out authority  first  obtained  from  him. 

The  principal  questions  before  the  jury  were,  whether  the  signature 
of  Aiken  was  upon  the  bond  when  the  respondent  made  the  alteration; 
the  evidence  being  clear  that  Aiken  never  saw  the  bond  before  it  was 
passed  to  Webber,  except  when  he  signed  it,  and  never  assented  to  any 
alteration  afterwards,  and  whether  Andrews  assented  to  the  alteration 
after  it  was  made  and  before  the  respondent  passed  or  attempted  to 
pass  the  bond  to  Webber  as  genuine.  Upon  the  first  question  Webber 
testified  positively  that  Aiken's  signature  was  upon  the  bond  before 
the  alteration  was  made.  Aiken  testified  that  he  read  the  bond  hastily 
when  he  signed  it,  and  could  not  say  whether  it  had  then  been  altered 
or  not,  although  he  had  an  impression  in  regard  to  it.  The  Court 
thereupon  permitted  the  counsel  for  the  government  to  ask  him,  against 
the  respondent's  objection,  what  his  impression  was,  and  he  testified 
that  his  impression  was,  that  it  had  not  then  been  altered,  but  con- 
tained an  indemnity  against  the  Barron  attachment  only  as  originally 
written.   .  .  . 

Joel  Parker  (of  Massachusetts),  for  the  respondent.  The  evidence 
of  Aiken  respecting  his  impression  was  inadmissible.  .  . 

A.  F.  Stevens  (Solicitor  for  Hillsborough  County),  for  the  State. 
The  testimony  of  Aiken,  as  to  his  impression,  was  properly  admitted.  .  .  . 

Sawyer,  J.  .  .  .  Another  question  in  the  case  is,  whether  the  tes- 
timony of  Aiken,  as  to  his  impression,  was  properly  received.  He 
testified  that  he  read  the  bond  hastily  when  he  signed  it,  and  could  not 
say  whether  it  had  then  been  altered  or  not,  but  that  he  had  an  impres- 


178  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  115 

sion  in  regard  to  it.     The  government  then  asked  what  the  impression 
was,  to  which  the  respondent  objected. 

The  objection  has  several  aspects.  An  impression  as  to  a  past  fact 
may  mean  personal  knowledge  of  the  fact  as  it  rests  in  the  memory, 
though  the  remembrance  is  so  faint  that  it  cannot  be  characterized  as 
an  undoubting  recollection,  and  is  therefore  spoken  of  as  an  impression. 
This,  perhaps,  is  the  sense  in  which  the  word  is  most  commonly  used 
by  witnesses,  in  giving  their  testimony.  In  this  sense  the  impression 
of  a  witness  is  evidence,  however  indistinct  and  unreliable  the  recollec- 
tion may  be.  No  line  can  be  drawn  for  the  exclusion  of  any  record  left 
upon  the  memory,  as  the  impress  of  personal  knowledge,  because  of 
the  dimness  of  the  inscription.  If,  therefore,  the  objection  is  to  be 
considered  as  one  taken  to  the  general  competency  of  such  testimony, 
it  is  clear  that  it  was  properly  overruled. 

An  impression,  however,  may  mean  an  understanding  or  belief  of 
the  fact,  derived  from  some  other  source  than  personal  observation, 
as  the  information  of  others ;  or  it  may  mean  an  inference  or  conclusion 
of  the  mind  as  to  the  existence  of  the  fact,  drawn  from  a  knowledge  of 
other  facts.  When  used  in  these  senses,  it  is  not  evidence;  and  the 
objection  may  be  understood  to  be  that  enough  appears  in  the  other 
statements  of  the  witness,  when  considered  in  connection  with  the  sub- 
ject of  his  testimony,  to  show  that  he  intended  to  use  the  word  in  one 
of  these  senses  as  his  understanding  and  belief,  or  his  inference  and 
conclusion,  and  not  as  his  recollection. 

It  has  been  urged  in  the  argument,  that  when  the  witness  stated 
that  he  read  the  bond  hastily,  and  could  not  say  whether  it  had  then  been 
altered  or  not,  he  was  fairly  to  be  understood  as  meaning  that  he  had  no 
such  recollection,  founded  on  his  personal  observation,  as  would  enable 
him  to  testify  from  memory;  and  that,  consequently,  by  the  word  impres- 
sion, he  must  have  meant  an  understanding  or  inference,  resulting  from 
the  information  of  others,  or  the  operations  of  his  own  mind,  instead 
of  his  personal  knowledge  of  the  fact.  If  it  was  apparent  to  the  Court 
that  the  word  was  thus  used,  the  objection  is  well  taken.  We  think, 
however,  that,  taking  the  whole  testimony  together,  it  may  be  under- 
stood to  mean  that,  although,  from  the  slight  attention  which  he  gave 
to  the  bond  in  his  hasty  reading,  he  cannot  say  positively  whether  the 
alteration  had  been  made  or  not,  he  nevertheless  had  an  impression  upon 
his  memory,  derived  from  reading  it,  that  it  had  not.  At  least,  it  may 
be  said  that  the  jury  might  so  understand  him,  without  doing  violence 
to  any  fact  or  statement  contained  in  his  testimony.  If  it  was  sus- 
ceptible of  that  construction,  it  could  not  be  excluded  by  the  Court 
merely  because  a  different  interpretation  might  be  put  upon  it,  which 
would  render  it  incompetent.  If  the  parties  choose  to  leave  the  testi- 
mony of  a  witness  doubtful,  by  refraining  to  draw^  from  him  an  explicit 
declaration  of  his  meaning,  when  it  is  susceptible  of  two  interpretations, 
one  of  which  renders  it  competent  and  the  other  incompetent,  it  must 


No.  116  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  179 

be  submitted  to  the  jury,  with  proper  instructions,  of  course,  as  to  how 
they  are  to  regard  it,  when  they  have  ascertained  what  his  meaning 
really  was.  .  .  . 

The  jury  should  have  been  instructed  that,  ...  if  the  respondent 
subsequently  procured  his  assent  to  the  alteration  before  delivering 
the  bond  to  Webber,  the  respondent  should  be  acquitted,  unless,  upon 
other  evidence  in  the  case,  they  found  the  existence  of  the  fraudulent 
intent  prior  to  the  time  of  procuring  the  assent.  For  this  cause  a  new 
trial  must  be  granted.  The  other  questions  presented  by  the  case  may 
not  be  material  on  the  new  trial,  and  have  not,  therefore,  been  con- 
sidered.    Verdict  set  aside,  and  new  trial  granted. 


116.     PERRY  V.   BURTON 

Supreme  Court  of  Illinois.    1884 

3  ///.  138 

Appeal  from  the  Superior  Court  of  Cook  County;  the  Hon.  John 
A.  Jameson,  Judge,  presiding. 

Mr.  Edmund  S.  Holbrook,  for  the  appellants.  Messrs.  Moore  & 
Browning,  for  the  appellees.  Messrs.  G.  &.  W.  Garnett,  for  the  Louis- 
ville Banking  Company. 

Mr.  Chief  Justice  Scholfield  delivered  the  opinion  of  the  Court: 
This  was  a  bill  for  the  partition,  as  first  drawn,  of  a  tract  of  eighty  acres 
of  land  in  Cook  County,  and  to  quiet  the  title  thereto.  By  an  amend- 
ment to  the  bill,  the  north  forty  acres  of  the  tract  were  taken  out  of  the 
controversy,  and  the  allegations  and  prayer  of  the  bill  were  limited  to 
the  south  forty  acres.  ...  It  is  contended  on  behalf  of  the  appellees 
that  the  deed  of  Judd,  and  the  sheriff's  tax  deed  to  Cook,  constituted 
color  of  title  in  him,  obtained  in  good  faith,  and  that  the  evidence  shows 
that  he  paid  taxes  thereunder  for  seven  successive  years.  Appellants 
deny  both  that  those  deeds  constituted  color  of  title  in  Cook  and  that 
the  evidence  shows  that  he  paid  taxes  thereunder  for  any  period  of 
seven  years  successively.  .  .  .  The  title  to  one  undivided  half  was  in 
the  heirs  at  law  of  John  Gibson,  deceased,  and  the  title  to  the  other 
undivided  half  was  in  Chambers  and  Benedict.  If  it  be  conceded  that 
a  tax  title  could,  under  the  law  then  in  force,  be  acquired  to  an  undivided 
interest  in  a  tract  of  land,  it  is  obvious  there  being  default  in  the  pay- 
ment of  taxes  on  either  undivided  half  would  have  justified  the  descrip- 
tion of  the  land  as  it  was  described  in  the  tax  sale  and  the  tax  deed.  The 
difficult  question  is  to  ascertain  whether  that  undivided  half  was  that 
held  by  Chambers  and  Benedict,  or  that  held  by  the  heirs  at  law  of 
Gibson.  .  .  . 

The  evidence  of  Cook,  as  we  understand  it,  shows  that  he  paid  taxes 
on  the  undivided  half  belonging  to  Chambers  and  Benedict,  under  a 


180  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  116 

claim  and  belief  of  ownership,  and  consequently  that  the  delinquency 
must  have  been  that  of  Gibson's  heirs  at  law.  He  says:  "After  I 
received  that  deed  I  paid  taxes.  I  paid  on  the  whole,  or  both  undivided 
halves.  I  paid  taxes  on  it  before  I  purchased  it  for  taxes.  Yes,  sir; 
on  the  whole  of  it,  I  think."  Question  14 :  "  And  was  you  certain  you  paid 
on  your  own  individual  half?"  Answer:  "Yes,  sir."  .  .  .  The  evidence 
of  the  payment  of  taxes  for  seven  successive  years  is  confined  to  Cook's 
statements.  In  his  direct  examination  he  is  quite  full  and  positive  as 
to  the  payment,  but  in  his  cross-examination  he  shows  that  in  fact  he 
knows  nothing  about  it.  All  that  he  proves  is  that  he  instructed  his 
agent  to  pay,  not  these  particular  taxes,  but  all  his  taxes.  Thus,  he 
is  asked:  "Do  you  remember  it"  (i.e.,  the  payment  of  taxes  on  this 
property)  "clearly?"  And  he  answers:  "Well,  I  judge  so  from  the 
fact  if  it  had  been  sold  I  would  have  had  to  redeem  it,  as  I  paid  taxes 
right  along."  Then  he  is  asked:  "So  your  remembrance  is  one  of 
inference?"  To  which  he  replied:  "Well,  yes.  It  is  a  good  many  years 
ago.  I  can't  swear  to  any  particular  point.  That  is  my  general  idea 
of  it,  to  the  best  of  my  recollection."  He  was  then  asked:  "Can  you 
swear  positively  that  you  paid  any  one  certain  year  —  say  1850?" 
He  answered:  "Well,  my  impression  is  that  the  taxes  were  paid  every 
year,  except  by  some  mishap  my  agent  did  not  pay  it.  He  was  author- 
ized and  directed  to  pay  the  taxes  on  my  property."  Again  he  says: 
"W^ell,  I  know  they  were  paid,  as  I  had  an  agent  to  pay  my  taxes.  I 
could  not  say  my  agent  paid  every  year.  It  was  his  business  to  do  it." 
And  again:  "I  presume  it  was  paid  every  year."  And  still  again, 
in  speaking  of  their  payment,  he  says :  "  It  is  the  presumption.  I  would 
not  swear  positively  to  anything." 

We  said  in  Hurlbut  v.  Bradford,  109  111.  397,  where  the  same  kind  of 
question  was  before  us:  "Inasmuch  as  the  payment  of  taxes  under 
color  of  title  operates  to  defeat  the  paramount  and  all  other  titles,  when 
relied  on,  the  proof  must  be  clear  and  convincing.  Such  titles  should 
not  be  overcome  by  loose  and  uncertain  testimony,  or  upon  mere  conjec- 
ture or  violent  presumptions."  This  evidence  utterly  fails  to  come  up 
to  this  standard.  For  the  reasons  given,  the  decree  below  is  reversed 
and  the  cause  remanded.     Decree  reversed. 

Mr.  Justice  Scott,  dissenting. 


117.   KILLEN  V.  LIDE'S  ADM'R 

Supreme  Court  of  Alabama.     1880 

65  Ala.  505 

Appeal  from  the  Circuit  Court  of  Montgomery.     Tried  before  the 
Hon.  James  Q.  Smith. 

This  action  was  brought  by  the  administratrix  of  the  estate  of  Charles 


No.  117  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  181 

W,  A.  Lide,  deceased,  against  William  J.  Killen,  to  recover  damages  for 
the  alleged  conversion  of  several  bales  of  cotton;  and  was  commenced 
on  the  26th  September,  1876.  "On  the  trial,"  as  the  bill  of  exceptions 
states,  "there  was  evidence  tending  to  show  that  plaintiff's  intestate 
and  defendant  cropped  together  in  1870  and  1871,  under  an  agreement  by 
which  the  defendant  was  to  furnish  the  land  and  teams,  and  plaintiff's 
intestate  was  to  furnish  and  feed  the  laborers,  and  share  equally  the  crops 
made.  .  .  .  There  was  evidence  tending  to  show,  on  the  part  of  the 
defendant,  various  advances  in  money  and  supplies  to  the  plaintiff's 
intestate,  on  his  individual  account,  during  the  years  1870  and  1871. 
There  was  evidence  tending  to  show  that  there  had  never  been  a  settle- 
ment between  them;  and  there  was  other  evidence  tending  to  show  a  full 
and  complete  settlement  between  them  in  the  spring  of  1872."  .  .  .  The 
plaintiff  introduced  one  Lide  as  a  witness,  who  was  a  nephew  of  her 
intestate,  and,  with  his  father,  had  lived  and  worked  on  the  same  planta- 
tion with  the  intestate  during  the  year  1870,  and  on  an  adjoining  place 
during  the  year  1871.  "  This  witness,  while  being  examined  by  plaintiff's 
counsel,  and  not  in  response  to  any  question  propounded  by  defendant, 
stated  that,  if  plaintiff's  intestate  had  any  money  while  he  lived  with 
defendant,  he  (witness)  would  have  been  apt  to  know  it,  and  that  he  did 
not  think  he  had  any.  The  defendant  moved  to  exclude  this  statement 
from  the  jury;  and  the  Court  said,  it  would  not  exclude  the  evidence, 
if  the  witness  had  an  opportunity  of  knowing.  The  witness  then  stated : 
*  I  was  about  there  a  good  deal,  and  if  he  had  any  money,  I  would  have 
known  it.  He  had  none.  I  had  a  good  opportunity  of  knowing.'  The 
defendant  moved  to  exclude  this  evidence  from  the  jury,"  and  he  reserved 
an  exception  to  the  overruling  of  his  objection.  .  .  . 

Watts  &  Sons,  for  appellant.     Clopton,  Herbert  &  Ghambers,  contra. 

Stone,  J.  .  .  .  The  testimony  of  the  witness  Lide,  to  the  effect  that, 
if  intestate  had  any  money,  he,  witness,  would  have  been  apt  to  know 
it,  and  that  he  did  not  believe  he  had  any  money;  and  further,  that  if 
deceased  had  money,  he,  witness,  would  have  known  it,  and  that  deceased 
had  no  money,  was  all  illegal.  Having  money  or  not,  is  not  one  of  the 
patent  facts,  which  is  open  to  general  observation.  Money  is  not 
usually  carried  in  sight.  That  witness  was  about  there  (intestate's 
residence)  a  great  deal,  would  not  tend  to  show  that  he  would  know 
intestate  had,  or  had  not  money.  Want  of  knowledge  of  things  open  to 
the  senses,  in  a  person  who  had  the  opportunity  of  knowing  such  fact  if 
it  existed,  is  some  evidence,  though  slight,  that  the  thing  did  not  exist. 
The  present  case  is  not  brought  within  this  rule.  .  .  .  Reversed  and 
remanded. 


182  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   118 

118.  PITTSBURGH,  VIRGINIA  &  CHARLESTON  R.  CO.  v.  VANCE 

Supreme  Court  of  Pennsylvania.     1886 

115  Pa.  326;  8  Ail.  764 

February  1,  1887.  Before  Mercur,  Ch.  J.,  Gordon,  Paxson, 
Sterrett,  Green,  and  Clark,  JJ.  Trunkey,  J.,  absent.  Error  to  the 
Court  of  Common  Pleas  of  Fayette  County":  Of  January  Term,  1887, 
No.  123. 

On  May  8,  1882,  Thomas  Vance  presented  his  petition  to  the  Court 
of  Common  Pleas  of  Fayette  County  for  the  appointment  of  viewers  to 
assess  damages  sustained  by  him  by  reason  of  the  location  and  construc- 
tion of  the  Pittsburgh,  Virginia  &  Charleston  Railway  Company  over 
his  land.  The  Court  thereupon,  on  the  nomination  of  the  parties, 
appointed  viewers  under  the  Act  of  February  19,  1849.  The  railway 
company  took  a  strip  of  the  land  of  Thomas  Vance,  sixty  feet  wide  and 
twenty-three  hundred  feet  long.  This  was  a  part  of  a  tract  of  land  of  90 
acres,  used  as  a  farm,  and  upon  which,  in  addition  to  the  farm  buildings, 
were  a  grist  mill  and  a  saw  mill  operated  by  him.  The  viewers  entered 
upon  the  discharge  of  their  duties  and,  on  June  21,  1882,  filed  their 
report,  awarding  Thomas  Vance  SI,  100  damages.  From  this  he  ap- 
pealed; the  issue  was  made  up  and  tried  before  a  Court,  Inghram,  P.  J., 
and  a  jury.  Verdict  for  the  plaintiff,  Thomas  Vance,  for  $4,532.50,  and 
judgment  thereon.  The  defendant,  the  Pittsburgh,  Virginia  &  Charles- 
ton Railway  Company,  thereupon  took  this  writ  and  filed  inter  alia  the 
following  assignments  of  error:  1.  The  Court  erred  in  not  sustaining  the 
objection  of  the  defendant  to  the  qualification  of  witness  John  Brownfield 
to  give  an  estimate  of  plaintiff's  damages,  the  offer  and  objection  and 
ruling  being  as  follows,  viz.:  Witness  John  Brownfield,  havnng  testified 
that  he  is  "not  much  acquainted"  with  plaintiff's  farm,  "only  the  lower 
part,  I  was  never  over  it,  only  on  it  about  the  house  and  railroad  and 
mill,"  was  asked  by  plaintiff: 

Q.  —  Well,  sir,  state  what  you  consider,  if  any,  the  difference  in  the 
market  value  of  that  tract  of  land  of  about  eighty-eight  acres,  as  affected 
by  the  location  and  construction  of  the  railroad  upon  it?"  The  defend- 
ant objects  that  the  witness  has  disclosed  facts  which  show  that  he  is 
not  competent  to  give  an  estimate.  By  the  Court:  "He  has  answered 
that  he  was  acquainted  with  the  land  before  and  since  the  construction 
of  the  railroad,  and,  if  the  witness  is  able  to  answer  the  question,  it  is 
a  proper  question."  Objection  overruled,  and  exception  sealed  for  the 
defendant.  .  .  . 

Nathaniel  Ewing,  for  plaintiff  in  error.  —  A  perusal  of  the  testimony 
of  each  of  the  witnesses  named  in  the  assignments  of  error  will  disclose 
how  completely  lacking  they  are  in  all  essential  requirements  to  give 
estimates  of  the  damages  for  the  guidance  of  the  jury.     Such  an  estimate 


No.  118  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  183 

is,  as  Justice  Strong  said,  in  Watson  v.  P.  &  C.  R.  R.  Co.,  1  Wright 
481,  "but  a  mere  guess,  with  no  substantial  foundation  upon  which  to 
rest."  .  .  . 

R.  H.  Lindsey  {A.  D.  Boyd  with  him),  for  defendant  in  error. 

Mr.  Justice  Clark  dehvered  the  opinion  of  the  Court  February  21, 
1887.  .  .  .  The  general  selling  price  of  lands  in  the  neighborhood  cannot 
be  shown  by  evidence  of  particular  sales  of  alleged  similar  properties; 
it  is  a  price  fixed  in  the  mind  of  the  witness  from  a  knowledge  of  what 
lands  are  generally  held  at  for  sale,  and  at  which  they  are  sometimes 
actually  sold,  bona  fide,  in  the  neighborhood.  ...  In  order,  therefore, 
that  a  witness  may  be  competent  to  testify  intelligently  as  to  the  market 
value  of  land,  he  should  have  some  special  opportunity  for  observation; 
he  should,  in  a  general  way,  and  to  a  reasonable  extent,  have  in  his  mind 
the  data  from  which  a  proper  estimate  of  value  ought  to  be  made;  if 
interrogated,  he  should  be  able  to  disclose  sufficient  actual  knowledge 
of  the  subject  to  indicate  that  he  is  in  condition  to  know  what  he  proposes 
to  state,  and  to  enable  the  jury  to  judge  of  the  probable  proximate 
accuracy  of  his  conclusions.  .  .  . 

In  the  case  now  under  consideration,  John  Brownfield  was  called  as  a 
witness  on  part  of  the  plaintiff;  he  stated,  in  the  most  unequivocal  man- 
ner, that  he  was  not  much  acquainted  with  the  land  in  question;  that  he 
had  been  on  the  lower  part  of  it,  but  that  he  knew  nothing  at  all  about 
the  upper  part;  that  he  had  seen  the  lower  part  a  couple  of  times,  seven 
or  eight  years  ago,  but  had  not  seen  it  for  four  or  five  years  before  the 
railroad  was  built;  that  he  knew  nothing  whatever  of  the  quality  of  the 
upper  part,  which  was  the  greater  part  of  the  tract,  and  that  his  estimate 
was  made  with  reference  solely  to  the  lower  part,  which  he  knew.  It 
certainly  does  not  require  much  argument  to  show  that  Brownfield  was 
an  incompetent  witness  to  testify  on  this  question;  he  had  not  sufficient 
knowledge  of  the  requisite  facts  upon  which  to  base  an  opinion.  In  the 
assessment  of  damages,  regard  was  to  be  had  to  the  tract  of  land,  taken 
as  a  whole,  and  yet  the  greater  part  of  it,  he  freely  confessed,  he  knew 
nothing  about.  He  did  not  pretend  to  know  the  general  selling  price  of 
land  in  the  neighborhood,  and  admits  that  he  did  not  know  enough  about 
the  premises  injured  to  make  any  estimate  whatever. 

The  first  assignment  of  error  is,  therefore,  sustained.  It  is  unneces- 
sary to  refer,  in  detail,  to  the  testimony  of  the  witnesses  mentioned  in 
the  second  and  third  assignments;  what  has  been  said  with  reference 
to  the  testimony  of  Brownfield,  indicates  the  course  of  examination 
which  should  be  pursued,  and,  as  the  cause  must  go  back  for  a  second 
trial,  the  same  rule  of  examination  will  be  applicable  to  all  the  witnesses 
named.  .  .   . 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded. 


184  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   119 

119.   STATE  V.   LYTLE 

Supreme  Court  of  North  Carolina.     1895 

117  N.  C.  799;  23  S.  E.  476 

Indictment  for  barn  burning,  tried  before  Ewart,  J.,  at  the  July, 
1895,  Term  of  the  Criminal  Circuit  Court  for  Buncombe  County.  The 
defendant  was  convicted  and  appealed.  The  facts  appear  in  the  opinion 
of  Associate  Justice  Furches. 

The  Attorney-General  and  Locke  Craig,  for  the  State.  Messrs.  Adams 
&  Parker,  for  defendant  (appellant). 

Furches,  J.:  The  exceptions  not  appearing  very  plainly  from  the 
record,  it  was  agreed  by  the  Attorney-General  and  Mr.  Adams,  who 
represented  the  defendant,  to  submit  the  case  on  three  exceptions.  .  .  . 

(3)  The  Court  erroneously  allowed  the  evidence  of  Doskins  as  to 
seeing  defendant  the  night  of  the  fire.  .  .  .  The  third  exception  cannot 
be  sustained.  John  Dawkins,  among  other  things,  testified:  " I  recollect 
the  night  when  the  barn  was  burnt.  I  met  a  man  whom  I  took  to  be 
Lytle;  I  was  in  seven  steps  of  him,  the  man  whom  I  took  to  be  Lytle,  in 
the  road  near  my  house.  He  was  a  low,  chunky  man.  It  was  too  dark 
to  see  whether  he  was  white  or  black.  He  had  his  back  to  me,  had  on  a 
dark  sack  coat.  I  have  known  Lytle  ten  years,  have  seen  him  often. 
Had  I  spoken  to  him,  I  would  have  called  him  Lytle.  This  was  almost 
7:30  on  the  Howard  Gap  road.  This  was  the  night  the  barn  was  burnt." 
This  evidence  was  objected  to,  allowed,  and  defendant  excepted,  and  State 
V.  Thorp,  72  N.  C.  186,  is  cited  to  sustain  the  exception.  But  it  will  be 
seen  that  this  case  is  easily  distinguished  from  Thorp's  case.  That  case 
holds  that  a  witness  should  not  be  allowed  to  give  his  "  impression  as  to 
the  matters  of  which  he  has  no  personal  knowledge,"  that  is,  he  should 
not  be  allowed  to  give  the  results  of  his  mind,  his  reasoning,  as  evidence, 
but  only  the  results  produced  on  his  senses,  as  seeing,  hearing,  etc.  In 
fact,  the  case  of  State  v.  Thorp,  sustains  the  ruling  of  the  Court  as  does 
also  that  of  State  v.  Rhodes,  supra. 

It  is  true  that  it  appears  from  the  evidence  sent  up  that  upon  cross- 
examination  by  defendant,  the  witness  Dawkins  said,  "I  only  judged 
it  was  Lytle  from  his  chunky  build  and  the  fact  that  I  had  heard  he  had 
gone  up  the  road  that  day."  If  this  had  been  the  e\ndence  called  out 
by  the  State  under  the  objection  of  defendant,  we  would  have  held  that 
the  latter  part  of  the  sentence  ("and  the  fact  that  I  had  heard  he  had 
gone  up  the  road  that  da^^")  was  improper  as  a  means  of  identifying 
Lytle.  This  would  have  fallen  within  the  criticism  of  Judge  Reade  in 
delivering  the  opinion  in  State  v.  Thorp,  supra.  But  there  are  two  reasons 
why  it  cannot  avail  the  defendant  here:  it  was  called  out  by  him  on  cross- 
examination,  and  it  was  not  objected  nor  excepted  to.  Affirmed. 


No.  120  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  185 

120.   GRAYSON  v.   LYNCH 

Supreme  Court  of  the  United  States.     1895 

163  U.  S.  468;  16  Sup.  1064 

This  was  an  action  originally  begun  in  the  District  Court  for  the 
Third  Judicial  District,  for  the  county  of  Dona  Ana,  New  Mexico,  by 
the  appellees,  constituting  the  firm  of  Lynch  Bros.,  against  the  appel- 
lants, who  are  members  of  the  firm  of  Grayson  &  Co.,  for  loss  and  damage 
to  a  herd  of  cattle  by  a  disease  known  as  "Texas  cattle  fever,"  claimed 
to  have  been  communicated  to  them  by  certain  cattle  owned  by  defend- 
ants, which  had  been  shipped  from  infected  districts  in  Texas,  and  per- 
mitted to  roam  over  plaintiiTs'  range.  .  .  .  The  case  was  tried  by  the 
District  Court,  which,  having  heard  the  evidence  and  arguments  of 
counsel,  found  the  issue  in  favor  of  the  plaintiff's,  and  entered  a  judgment 
against  the  defendants  for  the  sum  of  .S5,200  damages,  together  with  their 
costs.  .  .  .  Upon  this  finding,  the  Court  ordered  a  judgment  to  be 
entered  affirming  the  judgment  of  the  Court  below,  and  allowed  an  appeal 
to  this  Court. 

Mr.  T.  B.  Catron,  for  appellants.  Mr.  Samuel  M.  Arnel  and  Mr.  S.  B. 
Newcombe,  for  appellees. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  Court. 

Fourteen  assignments  of  error  are  addressed  to  the  admission  of  the 
depositions  of  Salmon  and  Detmers,  who  testified  as  experts  to  the  nature 
and  symptoms  of  the  disease,  and  to  the  fact  that  there  were  certain 
districts  infected  with  the  fever.  Salmon  resided  in  Washington,  was  a 
professor  of  veterinary  medicine,  chief  of  the  United  States  Bureau  of 
Animal  Industry,  and  at  the  time  in  the  service  of  the  United  States 
government.  He  had  held  this  position  for  more  than  ten  years;  had 
been  chief  of  the  veterinary  division  of  the  Department  of  Agriculture; 
had  been  in  the  employ  of  the  Department  of  Agriculture,  investigating 
the  diseases  of  animals,  for  over  fifteen  years,  and  was  called  to  Washing- 
ton about  1883  in  the  discharge  of  his  duties.  '  He  had  investigated  the 
disease  known  as  the  Texas  fever.  Detmers  resided  in  Illinois,  was  a 
veterinary  surgeon,  and  had  been  in  the  employ  of  the  Department  of 
Agriculture  for  the  purpose  of  investigating  contagious,  infectious,  and 
epizootic  diseases  of  horses,  cattle,  and  swine,  and  had  investigated  the 
disease  known  as  Texas  fever,  and  was  acquainted  with  its  symptoms  and 
diagnosis;  had  made  a  good  many  post  mortem  examinations  of  cattle 
that  had  died  with  it,  and  was  familiar  with  the  disease.  If  these  gentle- 
men, who  were  connected  with  the  Department  of  Agriculture  and  made 
a  specialty  of  investigating  animal  diseases,  were  not  competent  to  speak 
upon  the  subject  as  experts,  it  would  probably  be  impossible  to  obtain 
the  testimony  of  witnesses  who  were. 

The  fact  that  they  spoke  of  certain  districts  of  Texas  as  being  infected 


186  BOOK   i:     RULES   OF   ADMISSIBILITY  No.   120 

with  that  disease  was  perfectly  competent,  though  they  may  never  have 
visited  those  districts  in  person.  In  the  nature  of  their  business,  in  the 
correspondence  of  the  department,  and  in  the  investigation  of  such  dis- 
eases, they  would  naturally  become  much  better  acquainted  with  the 
districts  where  such  diseases  originated  or  were  prevalent,  than  if  they 
had  been  merely  local  physicians  and  testified  as  to  what  came  under 
their  personal  observation.  The  knowledge  thus  gained  cannot  prop- 
erly be  spoken  of  as  hearsay,  since  it  was  a  part  of  their  official  duty 
to  obtain  such  knowledge,  and  learn  where  such  diseases  originated  or 
were  prevalent,  and  how  they  became  disseminated  throughout  the 
country.  Spring  Co.  v.  Edgar,  99  U.  S.  645;  State  v.  Wood,  53  N.  H. 
484;  Dole  v.  Johnson,  50  N.  H.  452;  Emerson  v.  Lowell  Gas  Light 
Co.,  6  Allen  148.  ...  As  one  of  these  witnesses  testified  that  Oak  and 
Bee  Counties  in  Texas  were  known  to  be  permanently  infected  with 
the  fever,  and  as  the  Court  found  that  these  counties  were  a  part  of 
the  infected  district;  and  also  found  that  the  cattle  in  question  were 
shipped  from  those  counties  into  the  Territory  of  New  Mexico,  and 
that  the  defendants  were  notified  by  the  plaintiffs  of  the  existence  of 
such  disease  in  these  counties  at  the  time  they  drove  their  cattle 
across  plaintiffs'  range;  ...  we  see  no  reason  for  attacking  the  find- 
ings of  the  Court  in  this  connection.  .  .  . 

There  is  no  error  in  this  case  of  which  the  defendants  are  entitled 
to  complain,  and  the  judgment  of  the  Court  below  is  accordingly  affirmed. 

Mr.  Justice  Field  dissented. 


(2)    Handwriting  ^ 

121.  LORD  FERRERS  v.   SHIRLEY 

King's  Bench.     1731 

Fitzgihhon  195 

Upon  a  feigned  issue  out  of  Chancery,  directed  to  be  tried  at  Bar, 
whether  a  deed  pretended  to  have  been  executed  by  Robert  Earl  Ferrers, 
in  the  year  1683,  was  his  deed,  or  not,  several  witnesses  were  called  to 
swear  to  the  handwriting  of  the  subscribing  witnesses,  now  dead;  and 
amongst  others  one  J.  J.,  who  would  have  swore  to  the  handwriting  of 
one  J.  Cottington,  whose  name  was  to  the  deed  as  a  witness,  because  he 
had  seen  several  letters  wrote  by  J.  Cottington.  Thereupon  he  was 
asked,  whether  he  had  ever  seen  the  said  Cottington  write;  to  which  he 
answered,  that  he  never  did,  nor  never  saw  the  person  that  wrote  the 
said  letters;  but  that  his  master,  to  whom  the  said  letters  were  wrote 
for  the  rent  of  a  part  of  the  estate  of  the  late  Earl  Robert  Ferrers,  which 


^  For  the  history  of  the  rules  for  handwriting-witnesses,  see  post,  No.  181. 


No.  122  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  187 

his  said  master  held,  informed  him,  they  were  the  letters  of  J.  Cottington, 
the  Lord  Ferrer's  steward,  who  was  the  person  pretended  to  have  attested 
the  deed  in  question.  Hereupon  it  was  objected  to  his  testimony, 
because  he  could  not  say  with  any  certainty,  whether  or  no  the  writer 
of  the  letters  was  the  same  person  that  attested  the  deed;  for  that  the 
J.  Cottington  that  was  supposed  to  write  the  letters,  might  get  some  other 
person  to  write  those  very  letters  for  him;  and  the  counsel  insisted,  that 
in  all  cases,  where  a  witness  would  swear  to  the  handwriting,  he  must  be 
able  to  say,  that  he  saw  such  person  write. 

The  Court  rejected  the  said  J.  J.  because  he  could  not  ascertain  the 
identity  of  the  person. 

But  my  Lord  Raymond  said,  that  it  is  not  necessary  in  all  cases  that 
the  witness  have  seen  the  person  write,  to  whose  hand  he  swears;  for 
where  there  has  been  a  fixed  correspondence  by  letters,  and  that  it  can 
be  made  out  that  the  party  writing  such  letters  is  the  same  man,  that 
attested  a  deed,  that  will  entitle  a  witness  to  swear  to  that  person's 
hand,  though  he  never  saw  him  write. 

Page,  Justice,  said:  If  a  subscribing  witness  to  a  deed  lives  in  the 
West  Indies,  whose  handwriting  is  to  be  proved  in  England;  a  witness 
here  may  swear  to  his  hand,  by  having  seen  the  letters  of  such  person 
wrote  by  him  to  his  correspondent  in  England,  because  under  the  special 
circumstances  of  that  case,  there  is  no  other  way,  or  at  least,  the  difficulty 
will  be  great,  to  prove  the  handwriting  of  such  subscribing  witness. 
But  my  Lord  Raymond  differed,  and  said,  that  those  special  circum- 
stances could  not  vary  the  reason  of  the  thing. 

It  was  further  objected  to  the  said  witness,  that  he  should  produce 
the  letters,  that  the  Court  and  the  jury  might  be  able  to  judge  of  the 
resemblance  between  the  hand  to  the  letters,  and  that  to  the  deed;  but 
this  was  overruled  by  the  Court,  because  the  witness  might  well  have 
acquired  a  knowledge  of  Cottington's  character,  by  having  seen  several 
letters  wrote  by  liim. 

122.  Eagleton  v.  Kingston.  (1803.  Chancery.  8  Ves.  Jr.  473).  Eldon, 
L.  C.  When  I  first  came  into  the  profession,  the  rule  as  to  handwriting  in 
Westminster  Hall  in  all  the  Courts  was  this:  You  called  a  witness,  and  asked 
whether  he  had  ever  seen  the  party  WTite.  If  he  said  he  had,  whether  more  or 
less  frequently,  that  was  enough  to  introduce  the  further  question,  whether  he 
believed  the  paper  to  be  his  handwriting.  ...  Or  you  might  ask  a  witness  who 
had  not  seen  him  WTite  for  a  length  of  time,  if  you  could  not  get  a  witness  of  a 
subsequent  date.  .  .  .  This  rule  was  laid  down  with  so  much  clearness  that  till 
very  lately  I  never  heard  of  evidence  in  Westminster  Hall  of  comparison  of  hand- 
wTiting  by  those  who  had  never  seen  the  party  WTite.  [The  same  judge,  in  1814, 
in  Wade  v.  Broughton,  3  Ves.  &  B.  172].  .  .  .  Where  there  has  been  correspond- 
ence by  letters,  the  contents  of  which  are  such  as  to  render  it  probable  that  they 
were  received  [by  the  genuine  person],  perhaps  impossible  to  suppose  the  con- 
trary, that  course  of  correspondence  will  do;  and  that  has  grown  up  in  modern 
times. 


188  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  123 

123.  Rowt's  Ad.m'x  r.  Kile's  Adm'r.  (1829.  Virginia.  Leigh  225).  Coalter, 
J.  The  reason  why  a  witness  must  see  another  write  in  order  to  form  an  opinion 
of  the  character  of  his  handwriting,  is  not,  I  apprehend,  because  seeing  the  party 
WTite  gives  you  a  knowledge  of  the  character  of  his  hand;  he  must  see  the  hand- 
writing itself,  after  the  act  of  writing  is  performed,  in  order  to  acquire  that  knowl- 
edge. But  when  he  sees,  the  manual  operation  himself,  he  knows  that  the 
handwriting,  which  he  at  the  same  time  or  afterwards  inspects,  is  the  handwriting 
of  the  party.  He  thus  acquires  a  knowledge  (more  or  less  perfect,  according  to 
frequency  and  opportunity,  and  his  skill  in  such  matters)  of  a  handwriting,  which 
he  knows  to  be  that  of  a  certain  individual;  and  having  this  knowledge  within 
his  mind,  as  he  has  of  the  human  countenance,  he  compares  with  it  a  writing, 
alleged  to  be  the  act  of  the  same  individual  but  w^hich  he  has  not  seen  him  write, 
in  order  to  decide,  whether  it  does  or  does  not  possess  the  same  characteristic 
marks.  .  .  . 

But  the  characfer  of  a  handwriting,  may  be  as  well  or  even  better  known,  by 
one  who  never  saw  another  write,  as  by  one  who  has.  Cases  of  this  kind  occur 
in  a  course  of  a  long  correspondence,  on  business,  between  parties  W'ho  never 
saw  each  other  write.  The  perfect  knowledge  of  handwriting  arises  from  fre- 
quently seeing  the  writing  itself,  not  the  manual  operation  —  from  which,  with- 
out looking  at  the  writing  itself,  you  can  form  no  opinion.  Being  accustomed 
to  see  the  operation,  is  only  full  evidence  that  the  writing  which  you  have  thus 
seen,  and  the  character  of  which  is  more  or  less  distinctly  impressed  on  your 
mind,  according  to  circumstances,  is  the  character  of  the  manual  writing  of  that 
individual.  In  the  coiu-se  of  business  and  correspondence,  you  acquire  an  equally 
perfect  knowledge  of  the  handwriting  of  the  individual;  you  equally  recognize 
it  as  an  individual  hand,  w'hich  you  can  distinguish  (as  you  can  the  human  coun- 
tenance) from  any  other  hand,  with  as  much  certainty  as  you  would  the  hand- 
writing of  one  you  are  accustomed  to  see  write;  and  yet,  if  you  should  meet  your 
correspondent  in  the  street,  you  would  not  know  him.  This  writing  may  have 
been  performed  by  the  clerk  of  the  person  in  whose  name  it  is,  and  if  so,  you 
have  no  knowledge  of  the  handwriting  of  that  person,  though  you  have  of  that  of 
his  clerk;  yet  all  the  correspondence  being  in  one  hand,  and  it  being  usual  for 
the  party  himself  to  carry  it  on,  such  witness  has  been  admitted  to  prove  the 
handwriting  to  be  his.  This  would  be  entirely  defeated  by  proof  that  the  letters 
were  written  by  the  clerk;  and  is  weakened  in  proportion  to  any  doubts  that 
may  exist,  whether  the  party,  whose  handwriting  is  to  be  proved,  wrote  the  letters 
or  not. 

124.  State  t.  Allen.  (1820.  North  Carolina.  1  Hawks  6).  Taylor,  C.  J. 
.  .  .  The  only  methods  of  proving  the  handwriting  of  a  person,  sanctioned  by 
law,  are, 

First,  By  a  witness  who  saw'  him  sign  the  very  paper  in  dispute; 

Secondly,  By  one  who  has  seen  him  write,  and  has  thereby  fixed  a  standard 
in  his  own  mind,  by  which  he  ascertains  the  genuineness  of  any  other  writing 
imputed    to    him; 

Thirdly,  By  a  witness  who  has  received  letters  from  the  supposed  writer,  of 
such  a  nature  as  renders  it  probable  that  they  were  written  by  the  person  from 
whom  they  purport  to  come.  Such  evidence  is  only  admissible  where  there  is 
good  reason  to  believe  that  the  letters,  from  which  the  witness  has  derived  his 
knowledge,  were  really  written  by  the  supposed  writer  of  the  paper  in  question. 

Fourthly,  When  a  witness  has  become  acquainted  with  his  manner  of  signing 


No.  125  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  189 

his  name,  by  inspecting  other  ancient  writings  bearing  the  same  signature,  and 
which  have  been  regarded  and  jjreserved  as  authentic  documents.  This  mode 
of  proof  is  confined  to  ancient  writings,  and  is  admitted  as  being  the  best  the 
nature  of  the  case  will  allow. 

Other  modes  of  proving  handwriting,  not  yet  sanctioned  by  adjudged  cases, 
may  possibly  come  within  the  reason  of  the  cases  enumerated;  but  I  think  they 
ought  to  appear  clearly  to  do  so,  before  they  are  admitted. 


125.   STATE  V.   GOLDSTEIN 

Supreme  Court  of  New  Jersey.  1905 

72  N.  J.  L.  336;  62  Atl  1006 

On  writ  of  error  to  the  Morris  Quarter  Sessions.  Before  Gummere, 
Chief  Justice,  and  Justices  Fort,  Garretson,  and  Pitney. 

The  defendant  was  indicted  for  and  convicted  of  the  crime  of  inde- 
cently exposing  his  person  in  a  public  place.  The  exposure  was  made 
in  the  grocery  store  of  the  defendant,  in  the  town  of  Butler,  on  the  29th 
day  of  August,  1903,  in  the  presence  of  one  E.  B.,  a  girl  about  fifteen 
years  old,  who  had  gone  there  to  purchase  goods.  .  .  .  The  defendant, 
being  called  as  a  witness  in  his  ow-n  behalf,  denied  having  committed 
the  offense  charged  against  him,  and  for  the  purpose  of  substantiating 
that  denial  testifies  that  during  the  latter  part  of  August,  1903,  and 
particularly  on  the  29th  day  of  that  month,  he  was  engaged  in  removing 
his  business  from  a  store  occupied  b}'  him  in  a  building  in  Butler,  belong- 
ing to  the  "Noble  estate,"  into  the  store  in  which  the  indecent  exposure 
was  said  to  have  taken  place,  and  that  during  all  of  that  time,  whether  he 
was  at  the  one  place  or  the  other,  he  was  never  alone,  some  of  his  em- 
ployees being  always  present  at  each  of  the  two  stores.  In  order  to  break 
the  force  of  this  testimony  the  prosecutor  of  the  pleas,  on  cross-examina- 
tion of  the  defendant,  exhibited  to  him  a  letter  addressed  to  the  executor 
of  the  "Noble  estate,"  and  signed  "Max  Goldstein"  —  the  body  of 
which  contained  a  statement  that  his  (Goldstein's)  tenancy  had  expired 
on  the  1st  of  August,  and  referred  to  the  fact  that  a  check  was  enclosed 
in  settlement  of  the  rent  due  to  that  date  —  and  asked  him  if  the  signa- 
ture to  the  letter  was  not  in  his  handwriting.  The  defendant  denied 
that  it  was,  or  that  the  letter  had  been  written  by  his  authority. 

After  the  close  of  the  defendant's  case  the  State  called  Mr.  Hinchman, 
the  executor  of  the  "  Noble  estate,"  as  a  witness,  and  he  testified  that  the 
defendant  had  been  a  tenant  of  the  estate  for  nearly  three  years,  and  that 
during  all  of  that  period  a  business  correspondence  had  been  carried  on 
between  himself  and  the  defendant,  letters  passing  between  at  least  as 
frequently  as  once  a  month,  on  the  average.  The  letter  which  had 
been  exhibited  to  the  defendant,  being  then  shown  the  witness,  he  ex- 
pressed the  opinion  that  it  was  in  the  latter's  handwriting.  Counsel  for 
the  defendant  interposed  an  objection  to  the  witness  being  permitted  to 


190  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   125 

express  an  opinion  as  to  the  authenticity  of  the  letter,  on  the  ground 
that  his  testimony  failed  to  show  that  he  had  ever  seen  the  defendant 
write,  or  that  he  knew  that  the  letters  which  he  had  received  during 
Goldstein's  tenancy  were  written  by  him,  and  error  is  assigned  upon  the 
overruling  of  the  objection. 

For  the  plaintiff  in  error,  Willard  W.  Cutler.  For  the  defendant  in 
error,  Charles  A.  Rathhun,  prosecutor  of  the  pleas.  The  opinion  of  the 
Court  was  delivered  by 

GuMMERE,  C.  J.  (after  stating  the  facts  as  above).  Except  for 
the  fact  that  counsel  has  earnestly  contended  before  us  that  this 
testimony  was  improperly  admitted,  we  should  consider  the  assign- 
ment so  frivolous  as  not  to  be  entitled  to  specific  mention.  A  reference 
to  any  text-book  in  which  this  subject  is  discussed  will  disclose  that  it  is 
universally  admitted  that  a  witness  who  has  a  proper  knowledge  of  a 
party's  handwriting  may  declare  his  belief  in  regard  to  the  genuineness 
of  a  writing  which  is  in  question,  and  that  such  knowledge  may  be 
acquired,  not  only  by  having  seen  him  write,  but  also  by  having  had 
correspondence  with  him  concerning  business  or  other  matters  transacted 
between  them.  In  West  v.  State,  2  Zab.  212,  the  rule  is  thus  tersely 
stated:  "To  prove  handwriting,  in  general,  a  witness  must  know  it  by 
having  seen  the  person  write  or  by  having  corresponded  with  him."  .  .  . 

The  conviction  under  review  should  be  affirmed. 

Sub-topic  E.     Memory  (Recollection)  ^ 

126.  Scroop's  Trial.  (1660.  Howell's  State  Trials,  V,  1034,  1039).  [Murder 
of  King  Charles  I,  the  defendant  being  charged  as  one  of  the  judges  sitting  to 
condemn    him.] 

Carr  (testifying  for  the  Crown).  — Amongst  others  that  were  judges  of  that 
Court,  as  was  printed  in  a  paper  which  I  then  had  in  my  hand,  I  found  the  name 
of  Mr.  A.  Scroop,  who  I  saw  did  there  sit  and  appear.  (Mr.  Carr  looked  in  that 
paper  when  he  gave  his  evidence). 

Scroop.  —  I  hope  you  will  not  take  any  evidence  from  a  printed  list. 

Counsel.  —  The  manner  of  his  evidence  is,  he  saith,  this:  that  he  had  this 
printed  paper  in  his  hand  when  the  names  of  that  Covirt  were  called,  and  mark- 
ing the  persons  in  that  paper  who  were  present,  and  that  you  were  one  of  them 
who  did  appear. 

Scroop.  — ...  By  your  favour,  I  do  suppose  there  is  no  witness  ought  to 
use  any  paper  or  look  vipon  any  paper  when  he  gives  evidence. 

Sol.  Gen.  —  Ask  him  the  question  without  the  paper;  yet  nothing  is  more 
usual  than  for  a  witness  to  make  use  of  a  paper  to  help  his  memory. 

127.  Knox's  ajstd  Lane's  Trial.  (1679.  King's  Bench.  Howell's  State 
Trials,  VII,  763,  779).  [Libel.  The  prosecution  is  trying  to  prove  Knox 
confession.]    .    .    . 


^  For  the  principles  of  Psychology  here  applicable,  see  the  present  Compiler's 
"Principles  of  Judicial  Proof"  (191.3),  Nos.  239-243. 


No.  131  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  191 

Serjeant  Maynard.  —  My  lord,  now  we  will  call  another  justice  of  peace, 
that  took  their  examinations,  and  we  shall  then  particularly  apply  ourselves  to 
Mr.  Knox,  that  seems  to  make  these  excuses  for  himself.  Call  Mr.  Justice 
Warcup.     (Who  was  sworn.) 

Wurcup.  —  I  must  beg  the  favor  of  the  Court,  because  my  memory  is  bad, 
that  I  may  refer  to  the  informations  that  were  taken  before  me. 

Justice  Pejibektun.  —  You  may  look  upon  them  for  the  refreshment  of  your 
memory. 

Warcup.  —  I  answer  to  every  part  of  this  that  hath  my  hand  to  it,  I  desire 
it  may  be  read. 

Recorder.  —  No,  that  can't  be,  you  must  not  read  them,  but  only  refresh 
your  memory  by  them. 

128.  Sir  John  Friend's  Trial.  (1696.  Howell's  State  Trials,  XIII,  1,  21). 
Witness.  —  All  that  I  can  say  to  this  business  is  written  in  my  paper,  and  I  refer 
to  my  paper. 

AtVy-Genl.  —  You  must  not  refer  to  your  paper.  Sir,  you  must  tell  all 
what  you  know. 

L.  C.  J.  Holt.  —  He  may  look  upon  any  paper  to  refresh  his  memory. 

129.  Duchess  of  Kingston's  Trial.  (1776.  Howell's  State  Trials,  XX,  355 
619).  [Bigamy;  a  witness  was  offered  to  testify  to  the  advice  given  by  a  lawyer 
to  the  accused  as  to  her  right  to  re-marry.] 

Mr.  Mansfield.  —  The  witness  now  intended  to  be  produced  to  your  lordships 
is  Mr.  Laroche.  The  purpose  for  which  he  is  to  be  produced  is  to  tell  your 
lordships,  that  he  saw  Dr.  Collier  frequently  with  the  lady  at  the  bar  and  the 
late  Duke  of  Kingston,  during  the  suit  in  the  Ecclesiastical  Court;  that  he  has 
himself  heard  Dr.  Collier  assure  both  the  parties,  the  late  Duke  of  Kingston  and 
the  lady  at  the  bar,  after  that  sentence  in  the  Spiritual  Court,  that  they  were 
perfectly  free  to  marry,  and  might  marry  any  one  they  pleased. 

Mr.  Laroche  sworn. 

Mr.  Laroche.  —  My  lords,  I  did  not  know,  until  within  these  few  minutes, 
that  it  would  be  necessary  to  call  me.  I  will  endeavor  to  recollect  to  the  best  of 
my  knowledge.  I  have  got  some  memorandums  in  my  pocket,  and  I  hope  I  may 
be  at  liberty  to  refer  to  them. 

Lord  High  Steward.  —  Are  they  in  your  own  wTiting? 

Laroche.  —  A  copy  of  it,  and  it  has  been  in  my  possession  ever  since  it  was 
copied. 

A  Lord.  —  Copied  by  his  desire? 

Laroche.  —  Yes,  from  my  own  notes,  and  in  my  presence,  and  has  been  in 
my  own  custody  ever  since. 

[The  witness  proceeded  to  testify.] 

130.  Anon.  (1754.  1  Ambl.  252).  L.  C.  Hardwicke,  said:  There  is  no  certain 
rule  how  far  evidence  may  be  admitted  from  notes;  some  judges  had  thought, 
and  he  was  inclined  the  same  way,  that  the  witness  might  speak  from  notes  which 
were  taken  at  the  time  of  the  transaction  in  question,  but  not  if  they  were  WTote 
afterwards. 

131.  Davis  v.  Field.  (1884.  Vermont.  56  Vt.  426).  Rowell,  J.  The  old 
notion  that  the  witness  must  be  able  to  swear  from  memory  is  pretty  much 


192  BOOK    l:     RULES    OF   ADMISSIBILITY  No.   131 

exploded.  .  .  .  There  seem  to  be  two  classes  of  cases  on  this  subject:  1.  Where 
the  witness  by  referring  to  the  memorandum  has  his  memory  quickened  and 
refreshed  thereby,  so  that  he  is  enabled  to  swear  to  an  actual  recollection;  2. 
Where  the  witness  after  referring  to  the  memorandum  undertakes  to  swear  to 
the  fact,  yet  not  because  he  remembers  it,  but  because  of  his  confidence  in  the 
correctness  of  his  memorandum.  In  both  cases  the  oath  of  the  witness  is  the 
primary,  substantive  evidence  relied  upon;  in  the  former  the  oath  being  grounded 
on  actual  recollection,  and  in  the  latter  on  the  faith  reposed  in  the  verity  of 
the  memorandum.  

(1)   Present  Recollection  Revived 

132.   HENRY  v.   LEE 

Nisi  Prius.     1810 

2  Chitty  124 

Topping  moved,  on  behalf  of  the  defendant,  for  a  rule  to  show  cause 
why  a  new  trial  should  not  be  Jiad,  under  the  following  circumstances. 
The  plaintiff  was  a  jeweler  at  Liverpool,  and  the  indorsee  of  a  bill  of  ex- 
change, drawn  and  indorsed  by  the  defendant,  and  accepted,  payable 
at  a  banker's,  London.  The  defendant  pleaded  the  general  issue  and 
bankruptcy,  and  a  verdict  was  found  for  the  plaintiff.  At  the  time  of 
the  trial,  a  material  witness  said  he  did  not  recollect  a  fact;  but  having 
looked  at  a  paper  which  he  himself  had  not  written,  he  said  that  he 
distinctly  recollected  the  circumstances,  though  he  had  before  said  that 
he  did  not  know  whether  he  should  recollect  the  circumstances  after 
looking  at  the  paper;  and  Topping  contended,  that  this  was  neither 
sufficient,  nor  the  best  evidence. 

Lord  Ellenborough,  C.  J.  —  It  is  sufficient  if  a  man  can  positively 
swear  that  he  recollects  the  fact,  though  he  had  totally  forgotten  the 
circumstance  before  he  came  into  court;  and  if  upon  looking  at  any 
document  he  can  so  far  refresh  his  memory  as  to  recollect  a  circumstance, 
it  is  sufficient.  And  it  makes  no  difference,  that  the  memorandum  was 
not  written  by  himself;  for  it  is  not  the  memorandum  that  is  the  evidence, 
but  the  recollection  of  the  witness.  .  .  .  Rule  refused. 

133.  Sir  G.  A.  Lewin.  Note  to  Lawes  v.  Reed.  (1835.  2  Lew.  Cr.  C.  152). 
Wliere  the  object  is  to  revive  in  the  mind  of  the  \\-itness  the  recollection  of  the  facts 
of  which  he  once  had  knowledge,  it  is  difficult  to  understand  why  any  means 
should  be  excepted  to  whereby  that  object  may  be  attained.  WTiether  in  any 
particular  case  the  witness'  memory  has  been  refreshed  by  the  document  referred 
to,  or  he  speaks  from  what  the  document  tells  him,  is  a  question  of  fact  open  to 
observation,  more  or  less  according  to  the  circumstances.  If  in  truth  the  memory 
has  been  refreshed,  and  he  is  enabled  in  consequence  to  speak  to  facts  with  which 
he  was  once  familiar,  but  which  afterwards  escaped  him,  it  cannot  signify,  in 
effect,  in  what  manner  or  by  what  means  these  facts  were  recalled  to  his  recol- 
lection. Common  experience  tells  every  man  that  a  very  slight  circumstance, 
and  one  not  in  point  to  the  existing  inquiry,  will  sometimes  revive  the  history  of 


No.   134  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  193 

a  transaction  made  up  of  many  circumstances.  .  .  .  Why,  then,  if  a  man  may 
refresh  his  memory  by  such  means  out  of  court,  should  he  be  precluded  from  doing 
so  when  he  is  under  examination  in  court? 


134.   HUFF  V.   BENNETT 

Court  of  Appeals  of  New  York.      1852 

6  A' .  F.  336 

This  was  an  action,  by  the  plaintiflF,  an  attorney  of  the  Superior 
Court,  against  Bennett,  the  publisher  and  editor  of  the  New  York 
Herald,  for  certain  alleged  libels  upon  the  plaintiff's  character  as  an 
attorney,  published  in  that  paper. 

The  libels  consisted  of  alleged  reports  of  proceedings  before  the 
Recorder  of  New  York,  Avho  had  discharged  two  persons  committed  to 
prison  by  another  magistrate,  on  the  entry  of  bail  for  their  appearance; 
with  comments  thereon,  assuming  that  the  Recorder  acted  by  the  advice 
of  the  plaintiff,  who  was  the  prisoner's  counsel,  with  a  sketch  of  the 
plaintiff's  history.  Also,  a  report  of  the  proceedings  in  a  case  before 
the  Court  of  Special  Sessions,  with  allusions  to  the  plaintiff's  conduct 
in  connection  therewith.  The  defendant  justified  the  publications,  on 
the  ground  that  they  were  correct  reports  of  public  legal  proceedings, 
with  fair  comments  thereon;  and  that  the  facts  stated  in  relation  to  the 
plaintiff  were  true. 

On  the  trial,  before  Oakley,  J.,  after  proof  of  publication,  and  in 
reply  to  testimony  on  the  part  of  the  defendant,  as  to  the  correctness  of 
the  published  reports,  the  plaintiff  called  the  Recorder  as  a  witness,  and 
having  placed  in  his  hands  a  copy  of  the  alleged  libelous  report  of  the 
proceedings  before  him,  asked  the  following  question :  "  Wherein,  as  you 
now  remember,  is  that  report  incorrect?"  The  defendant's  counsel 
objected  to  the  question,  as  incompetent,  but  the  objection  was  overruled, 
and  an  exception  taken.  .  .  .  The  plaintiff  had  a  verdict  for  S150 
damages;  and  a  motion  for  a  new  trial,  made  on  a  bill  of  exceptions, 
having  been  denied,  and  judgment  perfected  in  favor  of  the  plaintiff, 
the  defendant  took  this  appeal. 

Sandford,  for  the  appellant.     Huff,  respondent,  in  propria  persona. 

Jewett,  J.  —  On  the  trial  several  exceptions  were  taken  by  the 
counsel  for  the  defendant  to  the  decision  of  the  judge  in  respect  to  the 
admission  and  rejection  of  evidence ;  some  of  which  were  not  attempted 
to  be  sustained,  on  the  argument  here.  I  shall,  therefore,  notice  only 
such  as  the  counsel  relied  on  upon  the  argument  in  this  Court. 

The  first  was  the  exception  to  the  decision  of  the  judge,  holding  that  it 
was  admissible  for  the  counsel  for  the  plaintiff,  to  put  into  the  hands  of  the 
witness,  Scott,  a  paper,  and  to  ask  him  wherein,  as  he  then  remembered 
it,  was  the  report  contained  therein  incorrect.  The  objection  was 
placed  upon  the  ground  that  the  question  was  incompetent,  but  the 


194  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   134 

case  does  not  show  the  particular  ground  of  the  supposed  incompetency. 
On  the  argument,  the  ground  assumed  was,  that  it  called  for  the  testimony 
of  the  witness  of  facts,  after  having  refreshed  his  memory,  by  looking  at 
memoranda  not  made  at  the  time,  either  by  himself,  or  in  his  presence. 
It  was  insisted,  that  the  rule  was,  that  a  witness  could  only  testify  to 
such  facts  as  were  within  his  knowledge,  and  that  his  recollection  of 
the  facts  could  only  be  refreshed  by  examining  memoranda,  either  made 
by  himself,  or  in  his  presence.  Although  the  rule  is,  that  a  witness,  in 
general,  can  testify  only  to  such  facts  as  are  within  his  own  knowledge 
and  recollection,  yet  it  is  well  settled,  that  he  is  permitted  to  assist  his 
memory  by  the  use  of  any  written  instrument,  memorandum,  or  entry 
in  a  book,  and  it  is  not  necessary  that  such  writing  should  have  been  made 
by  the  witness  himself,  or  that  it  should  be  an  original  writing,  provided, 
after  inspecting  it,  he  can  speak  to  the  facts  from  his  own  recollection. 
Doe  V.  Perkins,  3  T.  R.  749;  Henry  v.  Lee,  2  Chit.  124  [ante,  No.  132]; 
Lawes  v.  Read,  2  Lew.  Crown  Cas.  152  [ante,  No.  133];  1  Greenleaf, 
Evidence,  §436;  1  Phillipps,  Evidence,  289,  Cowen  &  Hill's  Notes,  750; 
Lawrence  v.  Baker,  5  Wend.  301.  .  .  .  The  judgment  should  be 
affirmed.  .  .  .  Judgment  affirmed. 


(2)   Past  Recollection  Recorded 

135.  Lord  Talbot  v.  Cusack.  (1864.  Ireland.  17  Ir.  C.  L.  213).  Hayes,  J. 
['To  refresh  the  memory  of  the  witness'],  that  is  a  very  inaccurate  expression: 
because  in  nine  cases  out  of  ten  the  witness'  memory  is  not  at  all  refreshed;  he 
looks  at  it  again  and  again,  and  he  recollects  nothing  of  the  transaction;  but, 
seeing  that  it  is  in  his  own  handwriting,  he  gives  credit  to  the  truth  and  accuracy 
of  his  habits,  and,  though  his  memory  is  a  perfect  blank,  he  nevertheless  under- 
takes to  swear  to  the  accuracy  of  his  notes. 

136.    DOE  DEM.  CHURCH  &  PHILLIPS  v.  PERKINS 

King's  Bench.  1790 

3  T.  R.    749 

This  was  an  ejectment  to  recover  some  premises  at  Wendover,  Bucks. 
At  the  trial  before  Lord  Loughborough  at  the  last  Spring  Assizes  for 
Bucks,  a  verdict  was  given  for  the  plaintiff  against  twenty-two  of  the 
defendants.  ...  It  appeared  from  the  report  that  the  title  of  the  lessors 
of  the  plaintiff  to  the  several  premises  for  which  the  ejectment  was 
brought  was  not  in  dispute ;  but  that  the  only  question  was  at  what  time 
of  the  year  the  annual  holdings  of  the  several  tenants  expired.  That 
Aldridge,  the  witness,  whose  testimony  was  objected  to,  went  round  with 
the  receiver  of  the  rents  to  the  different  tenants,  whose  declarations 
respecting  the  times  when  they  severally  became  tenants  were  minuted 
down  in  a  book  at  the  time;  some  of  the  entries  therein  being  made  by 
Aldridge,  and  some  by  the  receiver.     When  Aldridge  was  examined  the 


No.  136  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  195 

original  book  was  not  in  (x)urt;  but  he  spoke  concerning  the  dates  of 
the  several  tenancies  from  extracts  made  by  himself  out  of  that  book, 
confessing  upon  cross-examinations  that  he  had  no  memory  of  his  own 
of  those  specific  facts;  but  that  the  evidence  he  was  giving  as  to  those 
facts  was  founded  altogether  upon  the  extracts  which  he  had  made  from 
the  above  mentioned  book.  This  evidence  was  objected  to  at  the  time 
on  the  part  of  the  defendants,  upon  the  ground  that,  as  the  witness  did 
not  pretend  to  speak  to  those  facts  from  his  own  recollection,  he  ought 
not  to  be  permitted  to  give  evidence  from  any  extracts,  but  that  the 
original  book  from  which  they  were  taken  ought  to  be  produced.  The 
learned  judge  however  being  of  a  different  opinion,  the  evidence  was 
admitted,  and  the  plaintiff  had  a  verdict. 

Erskine,  Partridge,  Bower,  Adair,  and  Wilson  showed  cause  against 
the  rule.  Although  neither  the  original  book  itself,  any  more  than  the 
extracts,  could  be  produced  as  evidence  in  themselves,  yet  the  witness, 
who  heard  the  declarations  of  the  tenants,  and  either  wrote  the  entries 
with  his  own  hand,  or  saw  them  written  by  the  receiver,  might  be  per- 
mitted to  refresh  his  own  memory  by  referring  to  either.  .  .  . 

Law  and  Lowndes,  contra,  insisted  on  the  known  distinction  between 
cases  where  the  witness  swears  from  his  own  knowledge  of  the  fact,  though 
his  memory  may  be  assisted  by  memoranda,  and  where  he  does  not  speak 
from  any  recollection  which  he  has,  but  merely  from  such  memoranda; 
in  the  latter  case  it  has  always  been  required  that  the  original  minutes 
should  be  produced,  because  of  the  great  door  which  might  otherwise  be 
opened  to  fraud  and  concealment.  For  it  might  happen  in  a  variety  of 
instances  that  something  would  appear  upon  the  original  paper  itself, 
which  would  do  away  the  effect  of  the  evidence,  but  which  might  be 
suppressed  in  a  copy,  and  still  more  easily  in  an  extract. 

The  Court  did  not  appear  to  entertain  much  doubt  as  to  the  inad- 
missibility of  the  evidence,  but  they  said  that  as  it  was  a  matter  of  such 
general  practice,  they  would  consider  of  it,  that  the  rule  might  be  finally 
settled  for  the  future.  .  .  . 

On  the  following  day  Mr.  Justice  Duller  read  another  MS.  note  of 
Tanner  v.  Taylor,  Hereford  Spring  Assizes,  1756.  "In  an  action  for 
goods  sold,  the  witness  who  proved  the  delivery  took  it  from  an  account 
book  which  he  had  in  his  hand,  being  a  copy,  as  he  said,  of  the  day  book, 
which  he  had  left  at  home ;  and  it  being  objected  that  the  original  ought 
to  have  been  produced,  Mr.  Baron  Legge  said,  that  if  he  would  swear 
•positively  to  the  delivery  from  recollection,  and  the  paper  was  only  to 
refresh  his  memory,  he  might  make  use  of  it.  But  if  he  could  not  from 
recollection  swear  to  the  delivery  any  further  than  as  finding  them  entered 
in  his  book,  then  the  original  should  have  been  produced;  and  the  witness 
saying  he  could  not  swear  from  recollection,  the  plaintiff  was  non-suited." 
And 

Lord  Ken  YON,  Ch.  J.,  said,  that  the  rule  appeared  to  have  been  clearly 
settled,  and  that  every  day's  practice  agreed  with  it.     And  comparing 


196  BOOK    i:     RULES    OF   ADMISSIBILITY  Xo.   136 

this  case  with  the  general  rule,  the  Court  were  clearly  of  opinion  that 
Aldridge,  the  witness,  ought  not  to  have  been  permitted  to  speak  facts 
from  the  extracts  which  he  made  use  of  at  the  trial. 
Per  Curiam.     Rule  absolute  for  a  new  trial. 


137.  BURROUGH  v.  MARTIN 

Nisi  Prius.      1809 
2  Camp.  112 

Action  on  a  charter-party;  a  witness  was  called  to  give  an  account 
of  the  voyage,  and  the  log-book  was  laid  before  him  for  the  purpose  of 
refreshing  his  memory.  Being  asked  whether  he  had  written  it  himself, 
he  said,  that  he  had  not,  but  that  from  time  to  time  he  examined  the 
entries  in  it  while  the  events  recorded  were  fresh  in  his  recollection,  and 
that  he  always  found  the  entries  accurate. 

The  Attorney-General  contended,  that  the  witness  could  make  no 
use  of  the  log-book  during  his  examination,  notwithstanding  his  former 
inspection  of  it,  and  that  the  only  case  where  a  witness  could  refer  to  a 
written  paper  for  the  purpose  of  giving  evidence,  was  where  he  had 
actually  written  it- himself,  and  had  thus  the  surest  means  of  knowing 
the  truth  of  its  contents. 

Ellenborough,  L.  C.  J.  If  the  witness  looked  at  the  log-book 
from  time  to  time,  while  the  occurrences  mentioned  in  it  were  recent, 
and  fresh  in  his  recollection,  it  is  as  good  as  if  he  had  written  the  whole 
with  his  own  hand.  This  collation  gave  him  an  ample  opportunity  to 
ascertain  the  correctness  of  the  entries,  and  he  may  therefore  refer  to  * 
these,  on  the  same  principle  that  witnesses  are  allowed  to  refresh  their 
memory  by  reading  letters  and  other  documents  which  they  themselves 
have  written. 

138.  BURTON  v.  PLUMMER 
King's  Bench.  1834 

2  A.  &  E.  341 

Assumpsit  for  goods  sold  and  delivered.  Plea,  the  general  issue. 
On  the  trial  before  the  secondary  of  the  city  of  London,  on  the  31st  of 
October,  1834,  a  clerk  of  the  plaintiff  was  called  to  prove  the  order  and 
sending  out  of  the  goods ;  and  it  was  proposed,  on  the  part  of  the  plaintiff, 
that  this  witness  should  refresh  his  memory  by  the  entries  in  a  ledger 
which  he  produced.  According  to  the  statement  of  the  witness,  these 
entries  had  been  copied  by  the  plaintiff  from  a  waste-book  into  the 
ledger :  the  waste-book  was  kept  by  the  witness  himself,  and  entries  were 
made  in  the  waste-book  by  him  as  the  transactions  occurred,  from  his 


No.  138  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  197 

own  knowledge:  the  entries  were  regularly  copied  from  thence  into  the 
ledger,  day  by  day,  by  the  plaintiff,  in  the  presence  of  the  witness,  who 
checked  them  at  the  time  of  such  copying,  and  ascertained  their  cor- 
rectness. The  waste-book  itself  not  being  produced,  nor  its  absence 
accounted  for,  the  defendant  objected  that  the  ledger  was  only  a  copy, 
and  could  not  be  used  to  refresh  the  witness's  memory.  The  secondary 
allowed  the  objection;  and,  the  witness  being  unable  to  recollect  the 
transactions  without  the  assistance  of  the  entries,  the  plaintiff  elected 
to  be  non-suHed.  Eric,  obtained  a  rule  in  this  term  (Nov.  6th)  to  show 
cause  why  the  non-suit  should  not  be  set  aside,  and  a  new  trial  had. 

W.  H.  Watson,  now  showed  cause.  The  witness  could  not  look  at 
this  document.  The  absence  of  the  waste-book  was  not  accounted  for: 
and  the  ledger  was  only  a  copy  of  the  waste-book.  .  .  .  In  Doe  dem. 
Church  V.  Perkins,  3  T.  R.  749  [ante.  No.  136],  a  witness  was  not  allowed 
to  use  extracts  made  by  himself  from  a  book,  the  entries  in  which  were 
all  made  either  by  him  or  in  his  presence. 

Erie,  in  support  of  the  rule.  There  can  be  no  doubt  that  the  witness 
might  have  referred  to  this  paper,  if  he  had  made  the  entries  in  it  himself, 
while  the  facts  were  fresh  in  his  memory.  But  a  memorandum  made 
by  another  person,  under  the  witness's  eye,  while  the  latter  has  the  facts 
fresh  in  his  memory,  and  has  an  opportunity  of  correcting  the  entry  if 
erroneous,  must  fall  under  the  same  rule ;  for  such  a  paper  is  not,  properly 
speaking,  a  copy,  but  is  in  the  nature  of  an  original  memorandum  made 
by  the  witness  himself,  though  not  with  his  own  hand,  which  last  cir- 
cumstance has  never  been  held  to  be  essential;  this  was  decided  in 
Burrough  v.  Martin,  2  Campb.  112  [ante.  No.  137].  So  in  Henry  v.  Lee, 
2  Chitt.  124  [ante.  No.  132],  a  witness  was  allowed  to  look  at  a  paper 
not  written  by  himself.  In  Rex  v.  Duchess  of  Kingston,  20  How.  St.  Tr. 
619  [ante.  No.  129],  a  witness  was  allowed,  by  the  House  of  Lords,  to 
use  a  copy  of  his  own  memorandum,  made  by  another  person  in  his 
presence.  And  in  Tanner  v.  Taylor,  3  T.  R.  754,  given  from  the  notes  of 
BuLLER,  J.,  in  Doe  dem.  Church  v.  Perkins,  a  witness,  who  produced  a 
copy  of  a  day-book,  would  have  been  allowed  to  use  such  a  copy,  if  it 
had  been  required  merely  for  the  purpose  of  refreshing  his  memory. 
Doe  dem.  Church  v.  Perkins,  3  T.  R.  749  [ante.  No.  136],  itself  is  not  in 
point;  for  there  the  witness  said  that,  even  after  looking  at  the  paper, 
he  had  no  memory  of  his  own  as  to  the  specific  facts. 

Lord  Denman,  C.  J.  We  are  agreed  that  the  secondary  was  wrong 
in  refusing  this  evidence.  The  paper,  though  called  a  copy,  is  not  so; 
for  when  it  was  taken  from  that  which  is  called  the  original,  the  witness 
checked  it,  and  saw  that  it  was  correct.  And  as  this  was  done  when  the 
transactions  could  not  but  be  fresh  in  his  memory,  so  that  he  must  have 
been  able  to  verify  the  correctness  of  the  entry,  he  might  afterwards 
look  at  the  paper  for  the  purpose  of  having  the  facts  brought  to  his 
mind. 

Taunton,  J.     The  witness   proved  that  these  entries,  like  all  the 


198  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   138 

others,  were  shown  to  him,  and  that  he  cheeked  the  entries  himself. 
The  entries  so  made  by  the  master  stand  upon  the  same  footing  as  if  they 
had  been  made  by  the  witness  himself.  .  .  .  Rule  absolute. 


139.   ACKLEN'S  EXECUTOR  v.  HICKMAN 

Supreme  Court  of  Alabama.    1879 

63  Ala.  494' 

Action  by  James  Hickman  for  the  amount  due  on  an  account  for 
services  rendered  to  Acklen  as  agent,  money  paid,  etc. 

On  the  trial,  as  appears  from  the  bill  of  exceptions,  the  plaintiff  read 
in  evidence  an  account  in  his  favor  against  said  William  Acklen,  which 
contained,  under  date  of  March  21,  1864,  the  following  items:  "Paid 
hauling  24  B.  C.  to  Beirne's,  $182.70";  "Bailing,  rope,  and  twine,  for 
24  B.  C,  $108.39";  together  amounting  to  $291.09,  with  interest  added, 
"3  years,  4  mos.,  $83.77";  making  a  sum  total  of  $374.53.  Indorsed 
on  this  account  were  two  memoranda,  one  signed  by  J.  V.  A.  Hinds,  and 
the  other  by  said  James  Hickman;  the  first  being  in  these  words:  "The 
above  is  correct,  by  the  books  of  James  Hickman,  as  kept  by  me,  October 
30,  1867";  and  the  other:  "Huntsville,  Alabama,  twenty  dollars  on  the 
within  account."  .  .  . 

The  plaintiff  introduced  James  V.  A.  Hinds  as  a  witness. 

1.  He  testified  that,  in  the  year  1864,  he  was  the  plaintiff's  book- 
keeper and  agent ;  that  .  .  .  said  account  was  in  the  handwriting  of  wit- 
ness, and  was  taken  by  him  from  the  books  of  said  Hickman;  .  .  . 
that  the  first  indorsement  on  said  account  was  in  his  handwriting;  that, 
having  refreshed  his  memory  by  reading  said  memorandum,  he  could 
now  testify  from  memory  that  said  statement  was  true,  and  that  the  same 
was  correctly  dated  October  30,  1867,  and  that  he  drew  off  said  account 
from  the  books  of  the  day  of  the  date  of  said  memorandum;  that  on  or 
about  the  30th  of  October,  1867,  he  presented  said  account,  with  said 
indorsement  on  it,  to  said  Acklen,  at  his  residence  in  Huntsville;  and 
that  said  Acklen  admitted  that  he  owed  the  account,  and  that  said 
account  was  correct.  Thereupon,  plaintiff  ofl^ered  to  read  in  evidence 
the  said  memorandum,  or  indorsement,  dated  October  30,  1867.  To 
this  the  defendant  objected,  because  said  memorandum  was  not  legal 
evidence;  admitting  that  the  witness  could  refer  to  said  memorandum 
to  refresh  his  memory,  but  insisting  that  the  same  could  not  be  properly 
received  as  evidence,  because  it  was  an  ex  parte  statement  of  the  witness. 
The  Court  overruled  the  objection,  and  admitted  the  memorandum; 
to  which  the  defendant  excepted. 

2.  The  witness  further  testified  that  several  years  afterwards,  some 
four  or  five  years,  the  plaintiff  came  to  Huntsville,  from  Nashville,  and, 
at  his  request,  witness  went  with  him  to  the  residence  of  said  Acklen  in 


No.  139  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  199 

Huntsville;  that  the  account  was  the  subject  of  conversation  between 
Hickman  and  said  Acklen;  that  Hickman  told  Acklen,  he  must  have 
some  money  to  go  home  on,  and  did  not  have  money  to  pay  his  expenses; 
that  Acklen  thereupon  handed  something  to  Hickman,  but  he  (witness) 
cannot  say  whether  it  was  a  bank-bill,  or  the  account  sued  on,  or  both; 
that  he  does  not  remember  what  it  was ;  and  that  Acklen,  when  he  handed 
this  something  to  plaintiff,  said,  "  I  will,  pay  you  the  balance  soon." 
The  witness  said,  that  he  could  not  remember  the  day,  the  month,  or 
the  year,  when  he  went  with  Hickman  to  see  Acklen ;  and  that  the  second 
indorsement  on  said  account  (the  credit  of  $20)  was  in  the  handwriting 
of  said  Hickman.  The  Court  allowed  the  witness,  against  the  objection 
of  the  defendant,  to  testify  that  he  saw  Hickman  make  said  indorsement 
on  said  account,  in  Huntsville,  on  the  same  day,  and  soon  after  he  and 
Hickman  left  Acklen's  house,  and  went  up  town  on  the  public  square; 
to  which  ruling  the  defendant  excepted.  The  Court  also  allowed  the 
witness,  against  the  objection  of  the  defendant,  in  the  presence  of  the 
Court  and  jury,  to  look  at  said  indorsement  in  the  handwriting  of  Hick- 
man, and  refresh  his  memory  by  the  use  of  said  memorandum,  and  then 
to  testify,  against  the  objection  of  the  defendant,  that  the  said  visit  of 
witness  and  Hickman  to  said  Acklen  was  made  on  the  10th  November, 
1869.  The  defendant  objected  to  this  evidence  of  the  date  of  said  visit, 
and  his  reference  to  said  indorsement  to  refresh  his  memory;  because  the 
effect  was,  indirectly,  to  get  said  indorsement  before  the  jury;  and 
because  no  memorandum,  made  by  said  Hickman,  could  be  properly 
referred  to  by  said  witness ;  and  because  it  was  not  shown  that  the  witness 
knew  said  indorsement  was  true.  These  objections  were  overruled,  and 
the  defendant  excepted. 

After  the  argument  of  counsel  was  concluded,  the  Court  charged  the 
jury,  that  said  indorsement  on  the  account,  dated  November  10,  1869, 
was  not  evidence.  .  .  . 

The  rulings  of  the  Court  on  the  evidence,  to  which  exceptions  were 
reserved,  as  above,  and  the  charge  to  the  jury,  are  now  assigned  as  error. 

Walker  &  Shelby,  for  the  appellant.  ...  ^ 

Humes  &  Gordon,  contra. 

Stone,  J.  The  law  recognizes  the  right  of  a  witness  to  consult 
memoranda  in  aid  of  his  recollection  under  two  conditions. 

First,  when  after  examining  a  memorandum  made  by  himself,  or 
known  and  recognized  by  him  as  stating  the  facts  truly,  his  memory  is 
thereby  so  refreshed  that  he  can  testify,  as  matter  of  independent  recollec- 
tion, to  facts  pertinent  to  the  issue.  In  cases  of  this  class  the  witness 
testifies  to  what  he  asserts  are  facts  within  his  own  knowledge,  and  the 
only  distinguishing  difference  between  testimony  thus  given,  and  ordinary 
evidence  of  facts,  is  that  the  witness,  by  invoking  the  assistance  of  the 
memorandum,  admits  that  without  such  assistance  his  recollection  of  the 
transaction  he  testifies  to  had  become  more  or  less  obscured.  In  cases 
falling  within  this  class,  the  memorandum  is  not  thereby  made  evidence 


200  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  139 

in  the  cause,  and  its  contents  are  not  made  known  to  the  jury,  unless 
opposing  counsel  call  out  the  same  on  cross-examination.  This  he  may 
do,  for  the  purpose  of  testing  its  sufficiency  to  revive  a  faded  or  fading 
recollection,  if  for  no  other  reason. 

In  the  second  class  are  embraced  cases  in  which  the  witness  after 
examining  the  memorandum  cannot  testify  to  an  existing  knowledge  of 
the  fact,  independent  of  the  memorandum,  —  in  other  words,  cases  in 
which  the  memorandum  fails  to  refresh  and  revive  the  recollection  and 
thus  constitute  it  present  knowledge.  If  the  evidence  of  knowledge 
proceed  no  further  than  this,  neither  the  memorandum,  nor  the  testi- 
mony of  the  witness,  can  go  before  the  jury.  If,  however,  the  witness 
go  further,  and  testify  that,  at  or  about  the  time  the  memorandum  was 
made  he  knew  its  contents  and  knew  them  to  be  true,  this  legalizes  and 
lets  in  both  the  testimony  of  the  witness  and  the  memorandum.  The 
two  are  the  equivalent  of  a  present,  positive  statement  of  the  witness, 
affirming  the  truth  of  the  contents  of  the  memorandum. 

1.  Under  these  rules,  the  Circuit  Court  erred  in  allowing  the  memo- 
randum to  be  given  in  evidence  to  the  jury. 

2.  The  Court  erred,  also,  in  allowing  the  witness  to  refresh  his  recol- 
lection by  the  credit  indorsed  in  the  handwriting  of  Hickman.  True, 
he  stated  he  saw  the  indorsement  made;  but  he  did  not  testify  that  he 
knew,  or  ever  had  known,  it  contained  a  true  statement  of  the  facts. 
If  he  had  testified  that  he  saw  the  indorsement  made,  and  observed  its 
contents,  and  knew  at  the  time  that  they  were  true,  this  would  have 
brought  the  testimony  within  the  second  of  the  rules  stated  above  and 
would  have  let  in  both  the  testimony  and  the  memorandum,  notwith- 
standing the  witness,  at  the  time  of  the  trial,  had  no  independent  recol- 
lection of  the  facts  shown  by  the  indorsement. 

Reversed  and  remanded. 


140.  NORWALK  v.   IRELAND 

Supreme  Court  of  Errors  of  Connecticut.     1896 

68  Co7in.  1 ;  35  Ail.  807 

Action  upon  the  official  bond  of  a  constable  to  recover  damages  for 
an  alleged  trespass,  brought  to  the  Court  of  Common  Pleas  in  Fairfield 
County  and  tried  to  the  Court,  Curtis,  J.,  upon  the  defendants'  demurrer 
to  the  complaint.  The  Court  overruled  the  demurrer,  and  thereafter 
the  case  was  tried,  upon  the  defendants'  denial,  to  the  Court,  Dow^NS,  J., 
who  found  the  facts  and  rendered  judgment  for  the  plaintiff,  and  the 
defendants  appealed  for  alleged  errors  in  the  rulings  of  the  Court.  No 
error.  .  .  . 

At  the  time  of  the  attachment  Louisa  Fawcett,  the  plaintiff's  wife, 
was  engaged  in  conducting  a  millinery  store  with  a  miscellaneous  stock 


No.  140  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  201 

of  millinery  goods  therein.  The  defendant  officer,  with  a  writ  of  attach- 
ment against  said  Louisa,  entered  said  store  and  attached  the  goods 
therein,  including  the  goods  belonging  to  the  plaintiff,  and  carried  the 
same  away.  .  .  .  During  the  attachment  the  plaintiff  came  in  and 
informed  the  officer  that  some  of  the  goods  in  the  store  belonged  to 
him,  and  asked  that  he  might  be  allowed  to  see  what  he  (the  defendant) 
was  taking,  and  make  a  list  of  the  same.  The  request  was  denied.  .  .  . 
Said  Louisa  Fawcett  and  the  plaintiff  both  testified  as  to  the  value  of  the 
plaintiff's  said  goods,  and  the  value  of  said  Louisa  Fawcett's  goods. 
Concerning  the  ruling  now  in  question,  the  finding  in  full  is  as  follows : 

"Said  defendant,  while  testifying  in  his  own  behalf,  identified  a 
written  memorandum,  which  he  testified  was  an  inventory  of  all  the  goods 
attached,  made  by  him  at  the  time  of  said  attachment,  partly  from  his 
own  inspection  of  the  goods  and  the  tags  or  tickets  thereon,  and  partly 
from  information  given  him  at  the  time  by  John  Lockwood  and  Wilbur 
F.  Young,  who  had  been  employed  by  him  to  assist  in  attaching  and 
removing  said  goods.  He  testified  that  he  could  not  specify  any  particu- 
lar article  in  said  inventory  as  one  upon  which  he  had  seen  a  price  mark, 
and  could  not  say  as  to  any  particular  item  in  said  inventory,  whether 
he  had  written  it  from  his  own  examination  of  the  article,  or  from  infor- 
mation furnished  him  by  one  of  his  said  assistants.  He  also  testified 
that  nearly  all  of  the  goods  attached  were  marked,  and  that  he  used 
said  inventory  in  making  out  his  return  on  the  writ.  The  defendants 
counsel,  for  the  purpose  of  further  showing  the  manner  in  which  said 
inventory  was  made,  then  read  a  portion  of  the  deposition  of  said  Wilbur 
F.  Young,  as  follows: 

"  Q.  —  Did  you  and  Mr.  Ireland  take  an  inventory  of  the  stock 
attached?     A.  —  We  did. 

"  Q.  —  Did  you  attach  to  this  inventory  any  value  of  the  stock? 
A.  —  Yes. 

"Q.  —  Upon  what  was  this  value  based?  A.  —  Upon  the  amount  it 
would  bring  at  forced  sale. 

"Q.  —  Were,  or  were  there  not,  any  tags  with  prices  marked  upon 
them  affixed  to  the  goods  attached?     A.  —  There  were. 

"  Q.  —  Were  or  were  not  these  prices  so  affixed  taken  by  you  and 
Mr.  Ireland  in  making  up  the  value  in  the  inventory?  A.  —  They 
were.  ...  As  descriptive  of  the  property  attached.  As  tending  to 
prove  the  value  of  the  property." 

To  the  admission  in  evidence  of  said  inventory  the  plaintiff  objected; 
and  the  Court  excluded  the  same,  but  ruled  that  the  witness  (said 
defendant)  might  use  said  inventory  to  refresh  his  recollection  as  to  the 
number  and  description  of  the  articles  attached,  and  the  prices  marked 
thereon.  The  defendants  duly  excepted  to  the  Court's  ruling  in  refusing 
to  admit  said  inventory  in  evidence.  The  witness  did  use  said  inventory 
to  refresh   his  recollection,   and  having  so   refreshed  his   recollection, 


202  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  140 

testified  as  to  the  prices  marked  on  17  hats,  7  rolls  of  ribbon,  and  4  pieces 
of  velvet  trimmings. 

On  cross-examination  he  testified  that  he  had  selected  and  testified 
concerning  said  17  hats  because,  to  the  best  of  his  belief,  he  had  per- 
sonally seen  the  price  marks  on  one-half  of  the  whole  number  of  hats 
named  in  said  inventory,  and,  therefore,  had  selected  from  said  inventory 
alternate  hats  to  the  number  of  17;  and  again  stated  that  he  could 
not  select  from  said  inventory  any  specific  article  as  one  he  had  per- 
sonally seen  a  price  mark  on  at  the  time  of  the  attachment.  There- 
upon the  defendant  again  offered  said  inventory  in  evidence,  but  the 
Court  refused  to  admit  the  same,  to  which  ruling  the  defendant  duly 
excepted.  .  .  . 

John  H.  Light,  for  the  appellants  (defendants).  .  .  .  The  inventory 
or  memorandum  of  goods  attached,  was  admissible  in  evidence.  .  .  . 

John  C.  Chamberlain  and  Joseph  A.  Gray,  for  the  appellee  (plaintiff). 
.  .  .  The  inventory  was  properly  rejected.  Curtis  v.  Bradley,  65  Conn. 
114.  .  .  . 

Fenn,  J.  ...  It  is  claimed  that  the  Court  erred  ...  in  refusing  to 
admit  in  evidence  a  certain  written  inventory.  .  .  . 

The  inventory  in  question  fails  in  one,  and  that  the  most  vital  particu- 
lar, to  be  admissible.  The  memorandum  was  not  proved  to  have  been 
made  under  such  circumstances  as  to  make  a  correct  statement  of  details 
as  they  were  then  known  to  the  witness  who  made  the  memorandum. 
It  testifies  to  matters  to  which  the  witness  is  unable  himself  to  testify, 
not  from  lack  of  recollection,  but  from  want  of  personal  knowledge.  .  .  . 
It  has  never,  so  far  as  we  know,  been  seriously  claimed  that  such  papers 
could  even  be  used  at  all,  by  a  witness  under  examination,  except  to 
refresh  his  memory,  or  to  assist  him  to  testify  to  something  which  he 
once  knew  to  be  true.  .  .  .  The  trouble  was,  the  inventory,  before  us 
as  an  exhibit,  does  not  show  which  of  the  goods  were  marked.  The 
defendant  could  not  specify  any  article  in  said  inventory  as  one  on  which 
he  had  seen  a  price  mark,  and  could  not  say  as  to  any  item  whether  he 
had  written  it  from  his  own  examination,  or  from  information  furnished 
Mm  by  one  of  his  assistants.  One  of  these  assistants  only  was  called. 
...  It  is  true  this  witness  also  stated  that  some  of  the  goods  had  tags 
with  price  marks  affixed,  and  that  these  were  taken  in  making  up  the 
value  of  the  inventory.  But  this  was  all.  Finally,  the  inventory  was 
claimed  as  descriptive  of  the  property  attached.  But  the  same  want  of 
knowledge  on  the  part  of  the  witness  is  evident  here  throughout.  The 
Court  in  its  above  ruling  committed  no  error  prejudicial  to  the  defend- 
ants. .  .  . 

There  is  no  error  in  the  judgment  complained  of. 

In  this  opinion  the  other  judges  concurred. 


I 

No.  141  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  203 


141.   VOLUSIA  COUNTY  BANK  v.   BIGELOW 

Superior  Court  of  Florida.     1903 

45  Fla.  G38;  33  So.  704 

Writ  of  Error  to  the  Circuit  Court  for  Volusia  County.  .  .  . 

It  appears  from  the  abstract  in  this  case  that  the  defendant  in  error 
filed  a  claim  affidavit  asserting  that  certain  personal  property  levied 
upon  under  execution  against  her  husband,  J.  E.  Bigelow,  belonged  to 
her  as  her  separate  property,  and  upon  trial  the  jury  found  in  her 
favor.  .  .  . 

The  third  assignment  of  error  is  that  "the  Court  erred  in  permitting 
the  claimant's  witness,  Marion  L.  Bigelow,  to  read  to  the  jury  memo- 
randa of  sums  of  money  claimed  by  witnesses  to  have  been  advanced 
by  her  to  her  husband,  J.  E.  Bigelow."  The  bill  of  exceptions  recites 
that  claimant  claimed  to  have  advanced  various  sums  to  her  husband 
during  the  years  from  1891  to  1897,  inclusive,  and  to  have  made  memo- 
randa of  those  sums ;  that  a  memorandum  in  her  hand  was  made  the  day 
before  from  memoranda  she  had  previously  made,  none  of  which  were 
made  from  memory.  When  asked  to  give  the  amount  advanced  in  each 
year,  witness  "commenced  to  read  from  memorandum  in  her  hand." 
Plaintiff  in  execution  thereupon  objected  to  witness's  reading  said 
memorandum  on  the  grounds  that  it  was  not  of  itself  competent  evidence, 
and  that  it  was  made  the  day  preceding  her  testif^ang  and  not  at  the 
time  of  the  transaction.  The  bill  of  exceptions  states  that  "these  objec- 
tions were  overruled  and  witness  permitted  to  read  from  said  memo- 
randum, to  which  rule  plaintiff  in  execution  excepted." 

Isaac  A.  Steivari  (with  whom  was  Egford  Bly  on  the  brief),  for  plain- 
tiff in  error.     Beggs  &  Palmer,  for  defendant  in  error. 

James  F.  Glen,  Commissioner  (after  stating  the  case  as  above). 
We  think  this  record  sufficiently  shows  that  the  memorandum  was  not 
used  by  the  witness  for  the  mere  purpose  of  refreshing  her  independent 
recollection,  but  that  she  relied  on  the  memorandum  as  the  basis  of  her 
testimony.  There  is  a  clear  and  obvious  distinction  between  the  use  of 
a  memorandum  for  the  purpose  of  stimulating  the  memory,  and  its  use 
as  a  basis  for  testimony  regarding  transactions  as  to  which  there  is 
no  independent  recollection.  In  the  former  case  it  is  immaterial  what 
constitutes  the  spur  to  memory,  as  the  testimony  when  given  rests  solely 
upon  the  independent  recollection  of  the  witness.  In  the  latter  case, 
the  memorandum  furnishes  no  mental  stimulus,  and  the  testimony  of 
a  witness  by  reference  thereto  derives  whatever  force  it  possesses  from 
the  fact  that  the  memorandum  is  the  record  of  a  past  recollection,  reduced 
to  writing  while  there  was  an  existing  independent  recollection.  It  is 
for  that  reason  that  a  memorandum,  to  be  available  in  such  cases,  must 
have  been  made  at  or  about  the  time  of  the  happening  of  the  transaction. 


204  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  141 

SO  that  it  may  safely  be  assumed  that  the  recollection  was  then  sufficiently 
fresh  to  correctly  express  it.  The  assumed  reliability  of  the  memorandum 
as  a  contemporaneous  record  is  the  sole  justification  of  its  use  by  the 
witness;  and  hence  it  is  essential  in  such  cases  that  the  witness  should 
produce  and  testify  by  reference  to  the  original  memorandum,  or  satis- 
factorily account  for  its  absence,  before  resort  can  be  had  to  a  copy. 
Doe  ex  dem.  Church  v.  Perkins,  3    Term  Rep.  749  [ajite,  No.  136].  .  .  , 

It  follows  that  the  Court  erred  in  permitting  the  claimant  to  testify 
from  the  copy  in  question  as  to  the  sums  alleged  to  have  been  advanced 
by  her  to  her  husband.  ... 

The  judgment  should  be  reversed  and  a  new  trial  had. 


142.   MURRAY  &  PEPPERS  v.   DICKENS 

Supreme  Court  of  Alabama.     1906 

149  Ala.  240;  42  -So.  1031 

Appeal  from  Mobile  Circuit  Court.  Heard  before  Hon.  Samuel  B. 
Browne.  Action  by  Murray  &  Peppers  against  Charles  C.  Dickens 
From  a  judgment  for  defendant,  plaintiff's  appeal.  Reversed  and 
remanded. 

This  was  an  action  by  the  appellants  (plaintiffs)  against  appellee 
(defendant)  on  the  common  counts,  to  wit:  (1)  Open  account;  (2) 
account  stated;  (3)  work  and  labor  done;  (4)  merchandise,  goods,  etc., 
sold;  (5)  money  paid  for  defendant;  (6)  money  received  by  defendant 
for  the  use  of  plaintiffs.  And  the  pleas  were  the  general  issue  and  pay- 
ment. The  matter  for  which  plaintiffs  claimed  that  defendant  owed 
them  the  amount  sued  for  was  for  the  use  of  a  "steam  hoister,"  which 
it  is  claimed  did  service  for  defendant  under  an  agreement  by  which  he 
was  to  pay  SIO  per  day. 

A  witness  for  plaintiffs,  Edward  Peppers,  who  was  a  member  of  the 
plaintiff's  firm,  testified  that  plaintiffs  did  in  September,  1903,  rent  the 
"steam  hoister"  to  defendant;  that  defendant  was  to  pay  $10  per  day; 
that  defendant,  Dickens,  was  to  give  plaintiffs  a  statement  each  Saturday 
night  as  to  how  much  the  "hoister"  had  worked  during  the  week;  that 
defendant  had  been  asked  frequently  for  the  statement,  but  had  never 
given  any,  except  a  little  slip,  once,  with  no  date  on  it;  that  witness  did 
not  see  the  hoister  worked,  as  it  was  10  or  12  miles  from  Mobile;  that 
plaintiff  became  dissatisfied  because  of  Dickens'  failure  to  furnish  the 
statement,  and  changed  the  terms  to  a  regular  renting  agreement,  but 
this  suit  is  for  the  amount  due  before  this  change  was  made;  that  the 
hoister  was  a  barge,  with  a  steam  engine  on  it,  and  was  used  for  pulling 
logs  out  of  the  woods;  that  plaintiff's  engineer.  Bill  Steadham,  had 
charge  of  the  hoister;  that  he  left  Mobile  with  it  every  Sunday  evening 
or  Monday  morning  and  returned  Saturday  evening,  at  which  time  he 


No.  142  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  205 

would  report  to  witness  verbally  the  number  of  days  that  the  hoister 
had  been  worked  during  that  week,  and  witness  would  set  the  amount 
down  in  the  book  (which  is  offered  in  evidence);  that  plaintiffs  were 
paying  said  Steadhani  according  to  the  time  he  worked,  and  they  paid 
him  according  to  the  amounts  so  set  down  in  said  book,  and  they  allowed 
a  half  day  each  week  for  going  to  and  returning  from  defendant's  place  — 
thus,  if  he  reported  5  days'  work  they  paid  him  for  5}/2  days.  He  also 
stated  that  the  boat  remained  through  the  week  at  defendant's  place, 
subject  to  his  orders.  Bill  Steadham  testified  to  the  same  arrangement; 
that  he  made  true  reports  every  Saturday  night  to  Mr.  Peppers,  who 
entered  it  at  once  in  the  book;  also  that  he  would  call  on  Dickens  for 
statements  of  the  work  done,  but  that  he  never  gave  but  the  one,  and 
would  tell  him  that  his  (Steadham's)  word  was  as  good  as  his  (Dickens) ; 
that  he  knew  exactly  how  many  days  he  worked  and  how  many  he  lost 
each  week,  and  so  reported  it ;  that  when  he  had  steam  up,  under  orders, 
at  Dickens'  place,  he  reported  it  that  way;  but  witness  later  stated  that 
sometimes  Dickens  did  not  come  down  to  work  till  late  in  the  day,  but, 
if  witness  had  steam  up  all  day,  he  reported  that  as  a  day's  work. 

The  defendant  objected  to  the  introduction  of  said  book  in  evidence, 
on  the  ground  that  it  had  not  been  proved,  which  objection  was  sustained, 
and  the  book  was  excluded.  And  the  Court  then,  on  motion  of  defendant, 
excluded  all  of  the  plaintiff's  evidence,  because  it  was  irrelevant  and 
immaterial,  and  gave  the  general  charge  in  favor  of  the  defendant. 
The  chief  point  of  controversy  is  the  action  of  the  Court  in  ruling  out  the 
book  as  evidence  and  then  excluding  all  of  plaintiffs'  testimony.  The 
appellants  insist  that  there  was  error  in  this  action  of  the  Court,  and  the 
appellee  sustains  the  action,  because  .  .  .  the  person  making  the  entries 
did  not  himself  have  personal  knowledge  of  their  truth.  .  .  . 

William  C.  Fitts  and  David  H.  Eddington,  for  appellant.  —  The  book 
was  a  book  of  original  entry  in  contemplation  of  law.  .  .  . 

Gregory  L.  and  //.  T.  Smith,  for  appellee.  —  The  entries  in  the  book 
are  not  admissible  .  .  .  because  the  person  making  the  entries  had  no 
personal  knowledge  of  their  proof.  .  .  . 

Simpson,  J.  (after  stating  the  facts  as  above). 

1.  As  to  the  third  exception,  while  it  is  true  that  the  expression  is 
found  in  the  authorities  that  the  person  making  the  entry  must  have 
knowledge  of  the  correctness  of  the  item,  yet  it  will  be  found  that  in 
those  cases  there  was  no  proof  by  any  otic  else  of  the  correctness  of  the 
item.  And  it  would  seem,  on  reason,  that  if  one  party  testifies  that  he 
knew  of  the  correctness  of  the  item  and  gave  it  correctly  to  the  other, 
and  the  other  testifies  that  he  entered  it  as  it  was  given  to  him,  that  that 
would  amount  to  the  same  thing  as  if  the  party  who  made  the  entry 
should  swear  that  he  knew  of  the  correctness  of  the  item.  So  it  is  laid 
down  that  "  entries  made  by  a  party  from  data  furnished,  or  memoranda 
kept  by  an  employee  to  assist  his  memory  in  making  a  report  or  return 
will  be  admissible,  if  supplemented  by  the  oath  of  the  party  and  the 


206  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   142 

testimony  of  the  servant  making  the  memoranda  or  furnishing  the 
information."  17  Cyc.  386;  Miller  v.  Shay,  145  Mass.  162.  ...  The 
book  in  this  case  was  not  subject  to  this  objection. 

2.  It  is  next  insisted  that  the  book  was  properly  excluded,  because 
the  entries  were  not  made  contemporaneously  with  the  transaction.  .  .  . 
In  the  case  of  Stoudenmire  v.  Harper  Brothers,  81  Ala.  242,  245,  1  South. 
857,  the  memorandum  sought  to  be  introduced  was  not  an  original 
entry,  nor  even  a  copy  of  the  entries  on  the  books,  but  merely  an  addition 
by  the  witness  of  certain  items  which  he  had  taken  from  the  books,  and 
the  Court  said:  "The  original  must  be  produced,  and  must  have  been 
made  at  or  near  the  time  of  the  occurrence."  .  .  .  The  case  of  Lane  v. 
May  &  Thomas  Hdw.  Co.,  121  Ala.  296,  298,  merely  holds  that  a  memo- 
randum book  could  not  be  introduced  in  evidence  when  there  was  no 
proof  that  the  items  were  entered  "at  or  about  the  time  the  payments 
were  made,  nor  sufficiently  that  the  witness  knew  the  entries  to  be  correct 
when  they  were  made." 

So  there  is  nothing  in  our  decisions  contrary  to  the  general  principle 
laid  down,  to  wit,  that,  while  the  entries  must  be  made  at  or  near  the 
time  of  the  transactions,  yet  no  precise  time  is  fixed  by  law  when  they 
should  be  made.  The  entry  need  not  be  made  exactly  at  the  time  of 
the  occurrence;  but  it  is  sufficient  if  it  be  made  within  a  reasonable  time. 
In  this  particular  every  case  must  be  made  to  depend  upon  its  own 
peculiar  circumstances,  ha\ing  regard  to  the  situation  of  the  parties, 
the  kind  of  business,  the  mode  of  conducting  it,  and  the  time  and  manner 
of  making  the  entries.  An  entry  once  a  week  has  been  held  to  be  suffi- 
cient.    Yearsley's  Appeal,  48  Pa.  531.  .  .  . 

It  must  be  admitted  that  the  cases  are  in  some  confusion  on  this  sub- 
ject, but  from  an  examination  of  them  the  above  seems  to  be  a  reasonable 
deduction.  There  are  a  number  of  cases  where  loose  memoranda  were 
first  made,  and  then  afterwards  transferred  to  a  permanent  book,  and 
the  general  trend  of  decisions  is  that  the  loose  memoranda  are  not  the 
entry,  but  mere  helps  to  the  party  to  remember,  and  the  entry  in  the 
permanent  book  is  the  original  entry,  so  that  it  seems  that  the  rule 
would  be  the  same,  whether  there  were  any  memorandum  or  not.  In 
those  cases  it  is  held  that,  in  order  to  admit  the  entries  in  the  book,  it 
is  necessary,  not  only  that  the  party  who  made  the  entry  shall  swear  that 
the  entry  was  made  in  accordance  with  the  memoranda,  but  also  that  the 
party  who  made  the  memoranda  should  testify  to  the  correctness  of  the 
memorandum  when  he  made  it.  This  testimony  we  have  in  the  case 
now  under  consideration.  It  is  also  held  in  a  number  of  them  that  unless 
some  reason  is  shown  why  the  entry  was  not  made  in  a  day  or  two, 
either  from  the  nature  of  the  business  or  otherwise,  the  entry  will  not 
be  deemed  to  be  contemporaneous  within  the  meaning  of  the  law;  but 
the  cases  recognize  that  circumstances  may  be  such  as  to  justify  the 
delay  in  making  the  entry  for  as  long  a  time  as  a  week.  Redlich  v. 
Bauerlee,  98  111.  134;   Kent  v.  Garvin,  67  Mass.  148;   Vicary  v.  Moore, 


No.  143  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  207 

2  Watts  (Pa.)  451;  Forsythe  v.  Norcross,  5  Watts  (Pa.)  432.  As  stated 
in  the  Redlich  case,  supra :  "  It  suffices  if  it  be  within  a  reasonable  time, 
so  that  it  may  appear  to  have  taken  place  while  the  memory  of  the  fact 
was  recent,  or  the  source  from  which  knowledge  of  it  was  derived  is 
unimpaired."  So,  considering  the  nature  of  the  business  in  this  case, 
the  fact  that  the  boat  made  weekly  trips  and  there  was  no  opportunity 
to  make  the  entries  until  the  report  came  in  at  the  end  of  the  week,  that 
the  contract  itself  provided  for  weekly  reports,  and  that  the  service  was 
such  as  could  be  easily  remembered  for  that  period,  we  hold  that  the 
entries  were  made  within  a  reasonable  time,  and  admissible.  .  .  . 

The  Court  erred  in  excluding  the  book,  and  in  excluding  the  evidence 
of  the  plaintiff,  and  in  giving  the  general  charge  in  favor  of  the  defendant. 
The  judgment  of  the  Court  is  reversed,  and  the  cause  remanded. 

Tyson,  C.  J.,  and  Haralson  and  Denson,  JJ.,  concur. 


143.   CURTIS  V.   BRADLEY 

Supreme  Court  of  Errors  of  Connecticut.     1894 

65  Corm.  99;  31  Atl.  591 

Action  to  recover  for  work  and  labor  and  materials  furnished,  also 
upon  an  account  stated;  brought  to  the  Superior  Court  in  Fairfield 
County  and  tried  to  the  Court,  Ralph  Wheeler,  J.;  facts  found  and 
judgment  rendered  for  the  plaintiff  and  appeal  by  the  defendant  for 
alleged  errors  of  the  Court.     New  trial  denied. 

In  the  summer  of  1890,  the  plaintiff  sold  the  defendant  a  building  lot. 
In  September  of  that  year,  the  defendant  decided  to  have  a  house  erected 
on  the  lot.  It  was  then  understood  that  one  Simeon  E.  Plumb,  a  builder, 
should  build  the  house,  and  that  the  plaintiff,  a  merchant,  should  advance 
the  money  for  the  cost  of  construction.  The  decision  of  this  case 
depended  on  the  actual  terms  of  the  agreement  then  made;  the  defendant 
subsequently  claiming  that  his  only  agreement  was  with  the  plaintiff, 
and  that  by  such  agreement  the  plaintiff  undertook  to  have  the  house 
built  for  the  agreed  price  of  SI, 700.  Plumb  built  the  house  under  the 
directions  of  the  defendant.  The  plaintiff'  paid  to  Plumb  the  amount  of 
all  bills  for  labor  and  materials  as  they  came  due.  The  house  was  finished 
in  INIarch,  1891,  and  the  defendant  accepted  and  occupied  it.  .  .  .  The 
defendant  objected  to  the  total  amount  of  the  bill,  and  refused  payment. 
.  .  .  The  plaintiff  brought  the  present  action.  .  .  . 

The  appeal  contains  two  distinct  grounds  for  an  appeal  from  the  judg- 
ment. .  .  .  Second,  because  the  defendant  is  entitled  to  a  new  trial  on 
account  of  errors  alleged  to  have  been  made  in  the  admission  of  evidence. 
Under  this  ground  of  appeal  four  errors  are  assigned. 

First.  The  plaintiff  offered  in  evidence  certain  slips  of  paper,  testify- 
ing that  Plumb  came  to  the  store  each  Saturday  during  the  building  of 


208  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  143 

the  house,  and  gave  him  the  names  of  the  men  employed  by  him  during 
the  week  and  their  time;  that  the  plaintiff  wrote  down  at  the  time  in  the 
presence  of  Plumb  on  these  slips  these  names,  the  hours  of  time,  the 
amount  due  each  man,  the  total  amount  due,  and  the  date;  that  he  paid 
Plumb  the  total  amount  of  money  called  for  by  each  slip,  and  filed  the 
slip  on  a  spindle;  and  that  he  had  no  personal  knowledge  of  the  facts 
so  stated  to  him  by  Plumb  and  so  written  by  him  on  the  slips,  but  that 
he  made  such  memoranda  correctly  as  Plumb  then  stated  the  facts  to  be. 
Plumb  had  already  testified  that  he  had  employed  these  men  on  the 
Bradley  house,  and  that  the  slips  of  paper  were  correct  statements  of 
the  facts  of  each  case  as  far  as  he  could  recollect ;  that  he  knew  them  to 
be  correct  when  made,  and  that  he  had  given  the  names,  hours  of  time, 
and  the  amounts  to  the  plaintiff,  in  the  manner  that  the  plaintiff  subse- 
quently testified,  and  that  after  deducting  his  own  wages  he  paid  each 
man  the  amount  due  him.  This  evidence  was  offered  to  prove  that  the 
plaintiff  had  incurred  liabilities  and  paid  out  moneys  upon  the  order  of 
and  as  required  by  Plumb  as  agent  for  the  defendant,  in  the  manner 
agreed  upon  by  the  parties,  and  to  prove  the  correctness  of  the  items  and 
prices.  The  defendant  objected  to  the  introduction  of  these  slips,  and 
to  the  testimony  of  the  plaintiff  and  of  Plumb  as  shown.  The  Court 
admitted  the  slips,  not  as  themselves  evidence  apart  from  the  oral  testi- 
mony, but  as  memoranda  made  at  the  time  and  in  the  manner  shown, 
and  to  be  used  by  the  witnesses  Plumb  and  Curtis  in  the  manner  indi- 
cated, the  witness  reading  the  contents  of  the  slips;  and  admitted  the 
testimony  of  Curtis  and  Plumb  in  cormection  with  them  as  stated. 
Said  slips  were  marked  as  exhibits.  .  .  . 

J.  C.  Chamberlain  and  Elbert  0.  Hull,  for  the  appellant  (defendant). 
The  Court  erred  in  allowing  the  statement  of  Curtis  as  to  what  Plumb 
said  at  various  times  in  the  absence  of  the  defendant  about  the  correct- 
ness of  various  items  in  the  bills.  ...  It  would  also  seem  as  though  the 
Court  had  departed  very  far  from  the  usual  rule  in  admitting  in  evidence 
and  having  them  marked  as  exhibits,  slips  to  be  used  as  memoranda  by 
the  witnesses,  especially  as  there  never  was  the  slightest  pretext  that  the 
witnesses  had  any  knowledge  or  recollection  of  the  subject-matter  of 
such  slips,  which  could  be  refreshed  by  their  use.  .  .  . 

Alla7i  W.  Paige  and  George  P.  Carroll,  for  the  appellee  (plaintiff). 

Hamersley,  J.  (after  stating  the  case  as  above).  1.  The  use  of 
the  slips  and  bills  made  at  the  time  of  the  transaction  and  known  to  the 
witnesses  to  have  been  correctly  made,  as  memoranda  to  be  used  by 
them  in  connection  with  their  oral  testimony,  comes  within  the  settled 
rules  of  evidence.  .  .  . 

2.  But  the  defendant  claims  error  in  marking  the  slips  as  exhibits, 
on  the  ground  that  if  they  might  properly  be  read  by  the  witness  they  are 
not  themselves  admissible  as  evidence. 

Courts  in  other  jurisdictions  have  made  different  rulings  as  to  the 
admissibility  of  such  a  writing.     In  England  it  is  excluded.     In  Massa- 


No.  143  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  209 

chusetts  and  some  other  States  it  is  excluded.  Costello  v.  Crowell,  133 
Mass.  355;  Morrison  v.  Chapin,  97  Mass.  72;  Dugan  v.  Mahoney,  11 
Allen  572.  In  Vermont  it  seems  to  be  treated  as  evidence.  Lapham 
V.  Kelly,  35  Vt.  195.  In  New  York  and  some  other  States  the  writing 
is  admitted  as  evidence.  Guy  v.  Mead,  22  N.  Y.  462,  465;  .  .  .  Anchor 
Milling  Co.  v.  Walsh,  18  S.  W.  Rep.  905.  In  the  Federal  jurisdiction 
the  question  is  still  open.  In  Ins.  Cos.  v.  Weides,  supra,  the  Court 
indicates  the  admissibility  of  the  evidence;  but  the  opinion  in  Bates  v. 
Preble,  151  U.  S.  155,  shows  that  the  Court  is  not  committed  to  the 
general  doctrine  that  such  memoranda  are  admissible  for  any  other 
purpose  than  to  refresh  the  memory  of  the  witness.  We  do  not  attempt 
to  cite  all  the  cases  bearing  on  the  question,  or  to  weigh  the  conflicting 
authorities ;  for  we  are  satisfied  on  principle  that  the  evidence  in  question 
is  admissible.  The  discussion  would  be  endless  unless  confined  to  the 
precise  question  presented,  which  may  be  stated  as  follows : 

The  litigated  question  is,  did  the  plaintiff  pay  to  the  agent  of  the 
defendant  a  certain  sum  on  a  certain  date,  as  wages  due  for  labor  per- 
formed by  a  certain  man  employed  by  the  agent?  The  plaintiff  and  the 
agent  testify  that  a  sum  was  paid  for  such  purpose;  that  at  the  time  of 
payment  the  agent  gave  to  the  plaintiff  the  exact  amount  due,  and  the 
name  of  the  employee  entitled  to  the  same,  and  the  plaintiff  then,  in  the 
presence  of  the  agent,  wrote  on  a  piece  of  paper  the  date,  the  amount, 
and  the  name;  that  these  items  as  then  written  by  the  plaintiff  were 
correct;  that  the  paper  produced  in  Court  is  the  identical  paper  then 
written  upon  by  the  plaintiff  and  since  unchanged;  that  they  have  no 
recollection  either  before  or  after  examining  the  paper,  of  the  date,  the 
amount,  or  the  name.     Is  that  paper  admissible  as  evidence? 

All  Courts  concur  in  holding  that  the  witness  may  read  the  statement 
of  such  paper  to  the  jury,  and  that  the  jury  may  draw  the  conclusion 
that  the  statement  so  read  to  them  is  a  true  statement  of  the  facts.  But 
some  Courts  hold  that  the  paper  is  not  evidence. 

It  seems  to  us  to  be  pressing  the  use  of  a  legal  fiction  too  far,  for  a 
Court  to  permit  the  statement  made  by  such  paper  to  be  read  as  evidence, 
while  holding  that  the  law  forbids  the  admission  as  evidence  of  the  paper 
which  is  the  original  and  only  proof  of  the  statement  admitted.  In 
other  words,  it  would  seem  as  if  in  admitting  the  paper  to  be  so  read,  the 
Court  of  necessity  admitted  the  paper  as  evidence,  and  therefore,  by  the 
concurrent  authority  of  all  Courts,  the  paper  is  itself  admissible.  But, 
waiving  the  question  whether  in  admitting  such  paper  to  be  read  the 
Courts  have  gone  so  far  as  to  make  the  denial  of  its  admissibility  no 
longer  tenable,  we  will  deal  with  the  matter  as  if  wholly  undecided. 
Is  the  paper  itself  admissible  as  evidence?  Its  admissibility  in  the  first 
instance  depends  on  its  relevancy.  Of  this  there  can  be  no  doubt.  Being 
relevant,  it  must  be  admitted,  unless  excluded  under  some  legal  princi- 
ple, or  rule  of  public  policy,  which  forbids  the  admission  of  certain  classes 
of  evidence,  no  matter  how  relevant  and  material.     It  cannot  be  said 


210  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  143 

that  the  paper  is  not  capable  in  its  nature  of  being  treated  as  competent 
evidence.  Legal  evidence  is  not  confined  to  the  human  voice  or  oral 
testimony;  it  includes  every  tangible  object  capable  of  making  a  truth- 
ful statement,  such  evidence  being  roughly  classified  as  documentary 
evidence.  In  oral  evidence  the  witness  is  the  man  who  speaks;  in 
documentary  evidence  the  witness  is  the  thing  that  speaks.  In  either 
case  the  witness  must  be  competent,  i.  e.,  must  be  deemed  competent 
to  make  a  truthful  statement;  and  in  either  case  the  competency  of  the 
witness  must  be  proved  before  the  evidence  is  admitted;  the  difference 
being  that  in  oral  evidence  the  competency  is  proved  by  a  legal  pre- 
sumption, and  in  documentary  evidence  the  competency  must  be  proved 
by  actual  testimony;  and  the  further  difference,  that  in  oral  evidence 
the  credit  of  the  witness  is  tested  by  his  own  cross-examination,  while  in 
documentary  evidence  the  credit  of  the  witness  is  tested  by  the  cross- 
examination  of  those  who  must  be  called  to  prove  its  competency.  .  .  . 
The  doubt  has  arisen  from  the  complication  of  the  admissibility  of 
such  paper  with  the  right  of  a  witness  to  refresh  his  memory.  In  fact, 
the  two  questions  may  be  entirely  distinct.  The  right  of  a  witness  to 
refresh  his  memory  is  a  settled  and  necessary  rule  of  evidence.  The 
application  of  that  rule  is  often  difficult,  involving  delicate  distinctions. 
We  are  not  called  upon  now  to  draw  the  line  which  limits  the  right  of 
a  witness  to  the  use  of  such  aids  as,  under  the  subtle  laws  of  associa- 
tion, serve  to  refresh  his  memory.  All  Courts  recognize  that  right,  and 
rightly  hold  that  the  thing  used  to  refresh  memory  is  not  by  reason  of 
such  use  itself  admissible  as  evidence.  When  in  the  application  of  the 
rule  a  document  like  the  one  in  question  was  presented  to  the  witness  and 
absolutely  failed  to  refresh  his  memory,  its  exclusion  as  a  means  of 
refreshing  his  memory  became  imperative;  but  the  evidence  of  the  docu- 
ment was  so  clearly  essential  to  a  fair  and  just  trial,  that  its  use  in  some 
form  seemed  almost  imperative.  Instead  of  treating  the  paper  as  itself 
competent  documentary  evidence,  resort  was  had  to  a  palpable  fiction; 
the  paper  is  read  by  the  witness,  and  the  knowledge  the  witness  once 
had  of  the  facts  stated  by  the  paper  is  imputed  to  him  as  still  existing, 
and  the  statement  of  the  paper  is  received  as  the  testimony  of  the  witness, 
and  the  paper  itself,  the  only  witness  capable  of  making  the  statement, 
is  excluded.  The  use  of  such  a  fiction  in  the  administration  of  justice 
can  rarely  if  ever  be  justified.  It  is  certainly  uncalled  for  in  this  instance. 
The  principles  of  law  invoked  to  justify  the  fiction  are  amply  sufficient 
to  support,  indeed  to  demand,  the  admission  of  the  document  as  evi- 
dence. There  is  no  occasion  to  sacrifice  truth  in  order  to  secure  justice. 
As  regards  its  admissibility  as  evidence,  there  is  no  substantial  difference 
between  this  paper  and  any  other  tangible  object  capable  of  making 
a  truthful  and  relevant  statement.  .  .  .  Suppose  the  litigated  question 
turns  on  the  dimensions  of  a  man's  foot.  A  witness  produces  a  plaster 
cast  of  the  foot;  the  testimony  conclusively  shows  that  the  cast  was  so 
taken  that  it  can  state  accurately  the  dimensions  of  the  foot.     Another 


No.  145  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  211 

witness  produces  a  paper,  on  which  the  exact  measurements  are  written; 
the  testimony  conclusively  shows  that  the  paper  also  was  so  made  that  it 
can  state  accurately  the  dimensions  of  the  foot.  Is  it  not  evident  that 
the  paper  and  the  cast  is  each  a  witness  to  the  fact  that  each  tends  to 
prove?  .  .  . 

The  conditions  required  by  law  to  make  such  documents  legal  evi- 
dence are:  The  substance  ofifered  as  a  witness  must  be  proved  to  have 
been  made  or  found  and  preserved  in  such  manner  that  it  states  directly, 
accurately,  and  truly,  a  fact  relevant  and  material  to  the  issue.  The 
paper  claimed  as  evidence  in  this  case  fulfils  these  conditions.  .  .  . 

3.  It  does  not,  however,  necessarily  follow  from  the  admissibility  of 
such  evidence,  that  the  document  should  be  sent  to  the  jury  room. 
Under  the  general  rule  of  practice  the  jury  must  depend  on  their  memory 
in  the  case  of  oral  testimony,  but  may  take  documentary  evidence  to  their 
consultation.  But  there  is  a  difference  in  documentary  evidence.  Some 
is  not  given  to  the  jury,  either  because  its  possession  is  agreed  to  be  of  no 
consequence  or  is  inconvenient,  or  the  document  is  of  such  a  nature  that 
it  testifies  to  facts  not  relevant,  in  addition  to  the  relevant  facts.  .  .  . 
If  the  writing  admitted  in  evidence  clearly  tends  to  prove  nothing  but 
the  fact  that  it  was  admitted  to  prove,  it  should  go  to  the  jury.  If  by 
reason  of  peculiar  circumstances  it  clearly  may  be  treated  by  the  jury 
as  evidence  of  other  facts  not  admissible,  it  should  not  go  to  the  jury. 
Between  the  two  extremes  the  question  is  largely  one  of  discretion  in 
the  trial  judge.  .  .  . 

A  new  trial  is  denied. 

In  this  opinion  the  other  judges  concurred. 


Sub-topic  F.     Narration 

(1)  Form  of  Narration.^ 

145.  James  Ram.  On  Facts  as  Subjects  of  Inquiry  by  a  Jury.  (3d  Amer.  ed. 
1873,  p.  134).  There  are  two  ways  of  questioning:  one,  where  the  words  made 
use  of  in  the  question  suggest  or  prompt  a  particular  answer,  and  which  is  called 
a  leading  question;  the  other,  where  the  question  does  not  so  lead,  but  is  put  in 
general  terms,  without  at  all  pointing  to  a  particular  reply.  This  may  be  called 
an  open  question;  it  is  open  to  any  answer.  "Did  not  you  see  this?"  or  "Did 
not  you  hear  that?"  are  leading  questions.  In  them  the  person  questioned  is  in 
a  manner  prompted  to  answer,  he  did  see  or  hear  this  or  that  particular  thing. 
"It  is  a  good  point  of  cunning  for  a  man  to  shape  the  answer  he  would  have  in  his 
own  words  and  propositions:  for  it  makes  the  other  party  stick  the  less."  *  "Ye 
will,  therefore  (addressing  Morris),  please  tell  Mr.  Justice  Inglewood,  whether 
we  did  not  travel  several  miles  together  on  the  road,  in  consequence  of  your  own 

^  For  the  principles  of  Psychology  here  applicable,  see  the  present  Compiler's 
"Principles  of  Judicial  Proof"  (1913),  Nos.  253-273. 
^  Bacon's  Essays:  Of  Cunning. 


212  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  145 

anxious  request  and  suggestion,  reiterated  once  and  again,  baith  on  the  evening 
that  we  were  at  Northallerton,  and  there  declined  by  me,  but  afterward  accepted, 
when  I  overtook  ye  on  the  road  near  Clobery  Allers,  and  was  prevailed  on  by 
you  to  resign  my  ain  intentions  of  proceeding  to  Rothbury;  and,  for  my  mis- 
fortune, to  accompany  you  on  your  proposed  route.  'It's  a  melancholy  truth,' 
answered  Morris,  holding  down  his  head,  as  he  gave  this  general  assent  to  the 
long  and  leading  question  which  Campbell  put  to  him."  ^  Assuming  that  the 
person  questioned  honestly  desires  to  speak  the  truth,  and  that  his  memory  is 
not  defective,  a  strong  probability  is  that,  whether  the  question  be  open  or  lead- 
ing, he  will  return  precisely  the  same  answer  to  it. 

146.  NiCHOLLS  V.  DowDiNG.  (Nisi  Prius,  1815.  1  Stark.  81).  Assumpsit  on 
bills  of  exchange,  and  for  goods  sold  and  delivered.  In  order  to  prove  that  the 
defendants  were  partners,  the  first  Antness  was  asked,  whether  the  defendant 
Kemp  had  interfered  in  the  business  of  Dowding.  The  question  was  objected 
to  as  a  leading  one. 

Lord  Ellenborough,  C.  J.  —  I  wish  that  objections  to  questions  as  leading 
might  be  a  little  better  considered  before  they  are  made.  It  is  necessary,  to  a 
certain  extent,  to  lead  the  mind  of  the  -witness  to  the  subject  of  inquiry.  If 
questions  are  asked,  to  which  the  answer  yes  or  no  would  be  conclusive,  they 
would  certainly  be  objectionable.  But  in  general  no  objections  are  more  friv- 
olous than  those  which  are  made  to  questions  as  leading  ones. 


147.   BLEVINS  v.   POPE 

Supreme  Court  of  Alabama.     1845 

7  Ala.  371 

Error  to  the  Circuit  Court  of  .Dallas.  Trover  by  the  defendant 
against  the  plaintiffs  in  error,  to  recover  damages,  for  the  conversion  of 
a  promissory  note  for  SI, 503. 30,  made  by  Wm.  Johnson  &  Co.  to  the 
plaintiffs. 

Upon  the  trial,  the  plaintiffs  introduced  Frederick  Dorr,  of  the  firm 
of  Wm.  Johnson  &  Co.  .  .  .  During  his  examination,  the  witness  had 
given  a  description  of  the  note,  and  its  contents.  The  defendant's 
counsel,  on  the  cross-examination,  asked  him  if  the  note  was  not  in  his 
possession,  and  if  he  could  not  find  it  upon  diligent  search;  he  admitted 
he  could.  He  admitted,  also,  that  he  had  been  several  times  requested, 
by  the  plaintiffs'  counsel,  to  search  for  it;  that  he  had  done  so,  partially, 
and  could  not  find  it,  and  had  told  them  so;  and  that  he  had  no 
particular  desire  to  find  it.  .  .  .  Upon  the  re-examination,  the  plaintiffs' 
counsel  asked  the  witness,  "Was  not  the  note  for  81,503.30?"  w'hich 
question  the  defendant  objected  to,  as  leading.  The  Court  permitted  it 
to  be  answered,  assigning  as  a  reason,  as  appears  from  the  bill  of  excep- 
tions, that  the  witness  had  given  his  recollection  fully,  upon  the  exami- 
nation in  chief,  as  to  the  description  of  the  note;  that  the  effort,  on  the 

1  Rob  Roy. 


No.  148  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  213 

cross-examination,  was  to  show  that  the  note  was  different  from  that 
described  in  the  declaration;  and  that  the  memory  of  the  witness  was 
treacherous.  .  .  . 

Hopkins  and  Gaylc,  for  plaintiffs  in  error,  contended,  .  .  .  that  a 
leading  question  could  not  be  put  by  the  plaintiff",  to  his  own  witness, 
unless,  by  his  demeanor,  he  had  evinced  a  leaning  to  the  defendant,  but 
the  record  showed  that  he  was  impartial.  .  .  . 

Edwards,  contra,  ...  to  show  the  right  of  a  party  to  ask  leading 
questions  of  his  own  witness,  and  that  it  was  a  matter  in  the  discretion 
of  the  Court,  cited  1  Starkie,  Evidence,  123.  .  .  . 

Ormond,  J.  — .  .  .  The  general  course  of  the  examination  of 
witnesses,  and  the  difference  between  an  examination  in  chief  and  a 
cross-examination,  is  perfectly  well  understood.  The  whole  doctrine 
rests  upon  the  supposition,  that  the  witness  is  more  favorable  to  the 
party  who  calls  him,  than  to  the  other  side.  Though  this  may  be 
generally  true,  it  frequently  happens  that  parties  have  to  call  witnesses 
who  are  unfriendly  to  them,  and  if  confined  to  the  usual  course  of  an 
examination  in  chief,  would  not  be  able  to  elicit  the  truth.  When, 
therefore,  the  witness,  by  his  demeanor,  manifests  an  unwillingness  to 
tell  what  he  knows,  or  betrays  a-  leaning  in  favor  of  the  other  side,  the 
Court  will  permit  leading  questions  to  be  put,  for  the  purpose  of  eliciting 
the  truth.  It  is  clear,  however,  that  this  must  rest  in  the  discretion  of 
the  Court,  from  the  impossibility,  in  most  cases,  of  putting  the  facts  on 
record,  so  that  they  might  be  reviewed.  (1  Starkie,  131;  and  see  the 
cases  collected  by  the  editors,  2  C.  &  H.  724,  note  506.)  It  results  from 
this,  that  the  presiding  Judge  need  not  state  his  reasons  for  permitting 
a  leading  question  to  be  put,  upon  the  examination  in  chief,  as  they  would 
be  mere  conclusions,  and  not  facts,  susceptible  of  revision.  .  ,  . 

Let  the  judgment  be  affirmed. 


148.   HEISLER  v.   STATE 

Supreme  Court  of  Georgia.     1856 

20  Ga.  153 

Misdemeanor,  in  Lee  Superior  Court.  Decided  by  Judge  Allen, 
March  Term,  1856.  An  indictment  was  found  at  the  June  Term,  1855, 
of  Lee  Superior  Court,  charging  Elbert  Heisler  with  playing  and  betting, 
on  the  1st  day  of  April,  1855,  "for  money  and  other  things  of  value,  at 
a  game  of  faro,  loo,  brag,  bluff,  three-up,  poker,  vingt-et-un,  seven-up, 
euchre  and  other  games  played  with  cards."  At  the  March  Term,  1856, 
the  case  came  on  to  be  tried.  .  .  . 

The  State  introduced  William  H.  English,  who  testified,  that  in  the 
spring  of  1855,  and  before  the  finding  of  the  indictment,  he  saw  defendant 
engaged  in  playing  a  game  of  seven-up,  being  a  game  played  with  cards. 


214  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  148 

in  the  county  of  Lee.  The  SoHcitor  then  asked  him  "  if  the  defendant 
played  for  money."  Defendant's  counsel  objected  to  this  question  as 
leading,  and  the  Court  sustained  the  objection.  Defendant's  counsel 
moved  the  Court  to  exclude  the  evidence  of  this  witness,  on  that  point, 
from  the  jury,  contending  that  the  Solicitor,  by  his  leading  question, 
having  put  the  answer  to  it  in  the  mouth  of  the  witness,  should  not  so 
vary  the  question  as  to  make  it  legal,  and  thus  elicit  from  the  witness 
information  that  would  be  a  reply  to  the  objectionable  question  overruled 
by  the  Court.  The  Court  overruled  the  motion,  and  permitted  the  Solici- 
tor to  prove  by  the  witness  that  defendant  played  for  money,  and  lost 
twenty  dollars.     To  this  decision,  counsel  for  defendant  excepted. 

No  other  testimony  was  introduced,  and  the  jury  found  the  defendant 
"guilty";  whereupon,  the  Court  fined  the  defendant  one  hundred  dollars, 
and  all  costs,  being  the  highest  fine  the  Court  was  allowed,  by  law,  to 
inflict.  To  this  judgment  of  the  Court,  defendant's  counsel  excepted,  and 
now  assigns  the  same,  together  with  the  refusal  of  the  Court  to  quash 
said  indictment,  and  the  refusal  to  exclude  the  testimony  of  the  witness, 
English,  as  to  defendant's  playing  for  money,  as  error. 

R.  F.  Lyon,  for  plaintiff  in  error.  Sol. -General,  John  W.  Evans,  for 
defendant  in  error. 

By  the  Court.  —  Benning,  J.,  delivering  the  opinion.  .  .  .  Whether 
a  leading  question  shall  be  asked  on  the  direct  examination,  is  a  matter 
for  the  discretion  of  the  Court  hearing  the  examination.  The  case, 
therefore,  in  which  this  Court  would  be  bound  to  touch  that  Court's 
judgment,  allowing  or  not  allowing  a  leading  question  to  be  asked,  would 
be  an  extreme  one. 

In  this  case,  the  Court  would  not  permit  the  leading  question  to  be 
answered;  but  as  the  question  had  been  put,  and  had,  therefore,  done  all 
the  harm  it  could  do,  the  party  hurt  by  it  asked,  as  the  only  remedy, 
that  the  witness  should  be  prevented  from  testifying  on  the  point  to 
which  the  question  related.  This  request  the  Court  refused  to  grant. 
This  remedy  would  be  worse  than  the  disease.  It  is  one  which,  so  far  as 
we  know,  has  never  been  applied  in  practice.  If  a  remedy  known  to  the 
law,  yet,  whether  it  shall  be  applied  in  any  case,  is  a  matter  which,  like 
that  as  to  the  asking  of  leading  questions,  is  for  the  discretion  of  the 
Court  presiding. 

Upon  the  whole,  this  Court  cannot  say  that  it  sees  anything  to  jus- 
tify its  interfering  with  the  refusal  of  the  Court  to  prevent  the  witness 
from  being  examined  on  the  point  to  which  the  leading  question  related. 
That  question,  it  may  be  remarked,  however,  was  not  strongly  leading. 

A  little  wholesome  punishment  inflicted  upon  the  counsel  that  indulge 
in  such  questions,  would,  no  doubt,  soon  stop  the  practice.  .  .  .  We  find 
no  error  in  this  bill  of  exceptions. 


No.  149  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  215 

149.  TRAVELERS'   INSURANCE  CO.  v.  SHEPPARD 

Supreme  Court  of  Georgia.     1890 
85  Ga.  751 

Action  on  a  policy  of  accident  insurance  on  the  life  of  the  plaintiff's 
husband.  The  main  defense  was  that  he  was  not  dead.  .  .  .  [The 
plaintiff's  case  was  that  Sheppard,  her  husband,  fell  into  the  river  acci- 
dentally from  his  boat;  the  defense  maintained  that  Sheppard  had  pur- 
posely disappeared,  to  defraud  the  defendant.  More  details  are  given 
in  No.  459,  post.] 

Henry  Jackson,  Lanier  &  Anderson  and  Hardeman,  Davis  &  Notting- 
ham, for  plaintiff  in  error.     Bacon  &  Rutherford,  contra. 

Bleckley,  Chief  Justice.  —  The  verdict  against  the  company  was  for 
$5,000.  ...  It  remains  to  dispose  of  objections  which  were  taken  to  the 
form  of  the  questions  by  which  some  of  it  was  elicited.  ...  To  thirty  of 
the  interrogatories  propounded  to  Turner,  an  exception  on  this  ground 
[of  leading  questions]  was  duly  filed,  and  was  overruled  by  the  Court  as 
to  each  and  all  of  them. 

No  doubt  most  of  these  interrogatories  are  leading,  but  many  of  them 
relate  only  to  collateral  or  introductory  matters  not  in  dispute  and  not 
bearing  directly  on  the  merits  of  the  controversy.  As  to  such  matters 
leading  questions  are  allowable.  2  Taylor's  Evidence,  §  1404;  1  Green- 
leaf's  Evidence,  §  434. 

But  several  of  the  interrogatories  assume  that  Sheppard  fell  into  the 
river,  which  was  a  disputed  and  most  material  fact,  and  one  or  two  of 
them  that  he  was  dead,  and  that  there  was  news  of  his  death.  This  sort 
of  assumption  is  one  of  the  most  pernicious  forms  in  which  the  vice  of 
leading  questions  can  make  its  appearance,  its  tendency  being  to  induce 
the  witness  to  adopt  the  theory  of  the  facts  propounded  by  the  examiner, 
and  shape  his  testimony  in  a  way  to  lend  support  to  that  theory.  Even 
an  honest  and  well-meaning  witness  may  sometimes  be  drawn  by  this 
device  into  coloring  the  letter,  if  not  the  spirit,  of  his  evidence  more 
highly  than  the  exact  truth,  so  far  as  his  knowledge  of  it  extends,  would 
warrant.  It  is  not  lawful,  as  a  general  rule,  to  propound  in  chief  "ques- 
tions which  involve  or  assume  the  answer  which  the  party  desires  the 
witness  to  make,  or  which  suggest  disputed  facts  as  to  which  the  witness 
is  to  testify."  1  Wharton,  Evidence,  §499;  Stephen,  Digest  of  Evidence, 
art.  128.  That  this  rule  was  flagrantly  violated  in  several  instances 
will  be  manifest  from  a  mere  glance  at  the  following  interrogatories. 
The  answers  are  also  set  out,  —  not  to  elucidate  the  question  whether 
the  interrogatories  are  leading,  for  on  that  question  any  answers  would 
be  irrelevant;  but  to  show  that  the  letter  of  some  of  the  answers  was 
influenced  by  the  form  of  the  questions,  although  the  witness  did  not 
know  either  that  Sheppard  was  dead  or  that  he  fell  into  the  river,  and 


216  BOOK    i:     RULES    OF    ADMISSIBILITY  No.  149 

made  it  perfectly  clear  elsewhere  in  his  testimony  that  he  had  no  such 
knowledge: 

Q.  —  "  State  what  was  the  nature  of  the  current  at  the  point  where 
Sheppard  fell  in,  whether  it  was  slow  or  swift?"  A.  —  "Just  at  the 
point  where  the  boat  lay,  there  was  a  little  counter-current,  but  12  or 
15  feet,  about,  outside  there  was  a  very  strong  current." 

Q.  —  "  How  far  below  the  mouth  of  Moccasin  Slough  was  the  point 
where  Sheppard  fell  into  the  water? "  A.  —  " The  point  where  Sheppard 
fell  in  the  water  was  about  600  yards  below  the  mouth  of  Moccasin 
Slough." 

Q.  —  "  State  whether  or  not  there  were  any  logs  or  tree-tops  or  rafts, 
either  where  Sheppard  fell  in  or  just  below,  and  if  just  below,  how  far 
below?"  A.  —  "There  was  some  tree-tops  and  logs  not  over  40  yards 
where  we  found  the  boat." 

Q.  —  "  What  time  in  the  evening  was  it  that  Sheppard  fell  into  the 
river,  etc.?"  A.  —  "It  was  very  late  in  the  evening,  and  very  dark  and 
cloudy.  It  was  a  dark  and  gloomy  day.  It  was  only  a  short  time  before 
night." 

Q.  —  "  Did  either  you  or  Boykin  or  Brown  carry  the  news  of  Shep- 
pard's  death  that  night  to  his  wife  or  father  and  mother?  If  you  say 
you  did  not,  why  did  not  one  of  you  three  go?"  A.  —  "We  did  not 
carry  the  news  to  the  Sheppard  family  that  night.  I  did  not  feel  able 
to  go." 

A  few  others  of  the  leading  questions  were  calculated  to  do  harm, 
but  perhaps  did  none,  construing  all  the  answers  of  the  witness  together. 
His  testimony,  in  its  general  effect,  makes  the  impression  that  he  was  a 
truthful  and  unbiased  witness.  In  several  instances  the  attempt  to  lead 
him  was  unsuccessful,  and  though  the  letter  of  his  answers  was  some- 
times shaped  by  the  form  of  the  question,  there  was  no  perversion  of  the 
spirit  and  meaning  of  his  testimony,  considered  in  its  totality.  For  this 
reason  we  hold  that  the  Court  did  not  abuse  its  discretion  in  admitting 
all  the  answers  that  w^ere  otherwise  competent,  notwithstanding  the 
vicious  character  of  many  of  the  interrogatories.  To  admit  or  reject 
evidence  drawn  out  by  leading  questions  is  generally  discretionary  with 
the  trial  Court.  Ewing  v.  Moses,  51  Ga.  410;  Farkas  v.  Stewart,  73 
Ga.  90;  Parker  v.  Railroad  Co.,  83  Ga.  539. 


150.   LOTT  V.  KING 

Supreme  Court  of  Texas.     1891 

79  Tex.  292;   15  S.  W.  231 

Appeal  from  Nueces.     Tried  below  before  Hon.  J.  C.  Russell. 
This  was  an  action  of  trespass  to  try  title,  brought  to  recover  a  league 
and  labor  of  land  patented  to  John  B.  Bulrese  upon  duplicate  certificate 


No.  150  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  217 

No.  35/216,  issued  by  the  Commissioner  of  the  General  Land  Office  in 
lieu  of  original  certificate  No.  39,  issued  by  the  Board  of  Land  Com- 
missioners of  Jefferson  County  upon  Bulrese's  headright.  Richard 
King  was  the  original  defendant,  but  he  died  during  the  progress  of  the 
suit,  and  appellee  became  the  party  defendant  in  his  stead.  As  we  under- 
stand from  their  abstract  of  title  and  the  evidence  offered,  the  plaintiffs 
claimed  under  the  heirs  of  one  Nathan  Halbert,  that  Bulrese  sold  his 
headright  to  Halbert  before  the  certificate  was  issued,  and  that  the 
original  certificate  No.  39  was  in  fact  issued  to  Halbert  for  one  league  of 
land.  The  defendant  claimed  under  Bulrese  through  an  alleged  convey- 
ance of  the  certificate  by  Mary  C.  Halbert  as  his  sole  heir. 

The  plaintiff  took  the  deposition  of  Mary  C.  Halbert,  and  upon  a 
written  motion  by  defendant  certain  of  her  answers  were  suppressed. 
There  were  three  grounds  of  the  motion,  one  of  which  was  waived.  The 
grounds  insisted  upon  were  as  follows:  "1.  Because  the  second,  third, 
fourth,  sixth,  tenth,  eleventh,  twelfth,  thirteenth,  and  fourteenth  direct 
interrogatories  were  each  of  them  leading,  irrelevant,  and  incompetent." 
.  .  .  The  direct  interrogatories  and  the  answers  thereto  excepted  to  by 
defendant  were  as  follows: 

"  Interrogatory  2.  This  is  a  suit  in  trespass  to  try  title  to  recover 
one  league  and  one  labor  of  land  situated  in  Nueces  County,  Texas,  and 
patented  to  John  B.  Bulrese,  on  the  7th  day  of  August,  1882,  by  virtue 
of  duplicate  headright  certificate  No.  35/216,  issued  in  lieu  of  original 
headright  certificate  No.  39.  The  original  certificate  was  issued  by  the 
Board  of  Land  Commissioners  of  Jefferson  County,  in  1838.  Were  you 
ever  acquainted  with  (said)  John  B.  Bulrese?  And  if  yea,  when  and 
where  did  you  know  him,  and  for  how  long  did  you  know  him?  Is  he 
dead  or  alive?  If  you  say  that  he  is  dead,  when  and  where  did  he  die? 
Are  you  related  to  said  John  B.  Bulrese  in  any  way?  If  so,  how?  If 
3'ou  answer  that  said  John  B.  Bulrese  is  dead,  and  that  you  are  a  daughter 
of  said  John  B.  Bulrese,  now  please  state  whether  or  not  the  said  Bulrese 
left  any  other  children  surviving  him,  and  if  any,  how  many;  and  give 
their  names;  and  if  any  of  them  are  girls,  were  they  ever  married;  and 
if  yes,  give  the  names  of  their  husbands.  And  are  any  of  the  said  children 
of  Bulrese  dead?  If  yea,  how  many  of  them  are  dead,  and  what  were 
their  names,  and  when  and  where  did  they  die?  If  you  say  that  some 
of  the  children  of  said  Bulrese  are  dead,  did  they  leave  any  children  or 
other  descendants  surviving  them?  A,nd  if  so,  which  of  them?  And 
give  their  names.  Answer.  —  I  was  acquainted  with  the  said  John  B. 
Bulrese.  I  knew  him  in  the  States  of  Louisiana  and  Texas,  and  knew 
him  as  far  back  as  I  can  recollect.  The  said  John  B.  Bulrese  is  dead. 
He  died  somewhere  on  Grand  River  in  the  State  of  Louisiana.  I  am 
related  to  said  John  B.  Bulrese.  He  was  my  father.  Yes,  the  said 
John  B.  Bulrese  left  five  children  surviving  him  at  his  death  besides 
myself,  as  follows."  .  .  . 

"Interrogatory  4-     The  original  land  certificate  No.  39,  issued  by 


218  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  150 

the  Board  of  Land  Commissioners  of  Jefferson  County  to  John  B.  Bulrese 
for  one  league  of  land,  recites  that  he  had  received  the  certificate  for  the 
labor  and  that  he  had  sold  the  league  to  Nathan  Halbert.  On  February 
22,  1837,  he,  said  John  B.  Bulrese,  executed  to  Nathan  Halbert  a  bond 
for  title  by  which  he  bound  himself  to  make  title  to  Nathan  Halbert  to 
all  of  his  headright,  whether  it  be  for  a  league  and  labor  or  for  a  third 
of  a  league,  being  the  land  for  which  he  was  entitled  as  a  citizen  of  Texas 
before  the  day  of  the  declaration  of  independence.  Now,  were  you  ever 
acquainted  with  said  Nathan  Halbert?  If  yea,  were  you  related  to  him 
in  any  way,  and  if  yea,  how?  Is  said  Nathan  Halbert  dead  or  alive? 
If  you  say  he  is  dead,  when  and  where  did  he  die?  Answer.  —  I  was 
acquainted  with  the  said  Nathan  Halbert,  and  I  was  related  to  him.  I 
was  his  wife.  The  said  Nathan  Halbert  is  dead;  he  died  near  Eagle 
Springs,  in  Coryell  County,  Texas,  about  the  year  1867."  .  .  . 

"Interrogatory  10.  If  you  state  that  you  were  acquainted  with 
Barnes  Parker,  now  please  state  whether  or  not  you  ever  sold  and  con- 
veyed the  headright  certificates  of  John  B.  Bulrese  for  one  league  and 
one  labor  of  land  to  said  Barnes  Parker.     Answer.  —  I  never  did." 

"Interrogatory  11.  If  in  answer  to  Interrogatory  10  you  say  you 
never  sold  or  conveyed  the  John  B.  Bulrese  certificate  for  one  league  and 
one  labor  of  land,  now  state  whether  or  not  you  ever  signed  a  deed  or 
transfer  of  said  certificate  to  said  Barnes  Parker.     Ansiver.  —  I  did  not." 

"  Interrogatory  12.  Please  state  whether  or  not  you  ever  authorized 
any  person  to  sign  your  name  to  a  deed  or  transfer  of  said  certificate  to 
said  Barnes  Parker.  Answer.  —  I  never  did  authorize  any  one  to  sign 
my  name  to  a  deed  or  transfer  to  the  said  certificate  of  said  John  B. 
Bulrese  to  Barnes  Parker. 

"Interrogatory  13.  Please  state  whether  or  not  you  ever  had  any 
business  transaction  with  said  Barnes  Parker,  in  which  he  paid  you  the 
sum  of  $500.  Answer.  —  I  never  did  have  any  business  transaction 
with  said  Barnes  Parker  in  which  he  paid  me  $500  or  any  other  sum  of 
money."  .  .  . 

The  motion  to  suppress  these  answers  was  sustained  and  the  plaintiffs 
excepted.     The  ruling  of  the  Court  upon  the  motion  is  assigned  as  error. 

E.  H.  Lott  and  D.  W.  Doom,  for  appellants.  —  1.  The  direct  inter- 
rogatories excepted  to  by  defendant  were  not  leading  in  form.  .  .  . 

Wells,  Staytou  &  Kleberg,  and  Hume  &  Kleberg,  for  appellee.  —  1.  A 
leading  interrogatory  is  one  which  may  be  answered  in  the  affirmative 
or  negative,  or  one  which  suggests  to  the  witness  the  response  he  is 
desired  to  make.  .  .  . 

Gaines,  Associate  Justice  (after  stating  the  case  as  above).   .   .   . 

The  statement  preceding  the  questions  in  the  second  interrogatory 
is  very  general,  and  it  is  clear  that  it  does  not  suggest  the  desired  answer 
to  the  question,  and  we  think  the  same  may  be  said  of  the  fourth.  The 
statement  of  the  facts  that  the  certificate  recited  that  Bulrese  had  sold 
the  league  to  Halbert  and  that  Bulrese  had  made  a  bond  for  title  to 


No.  150  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  219 

Halbert  for  his  right  to  land  does  not  suggest  any  particular  answer  as 
to  questions  concerning  the  relationship  of  the  witness  to  Halbert  or 
the  fact  of  his  being  dead  or  alive.  These  statements  were  unnecessary, 
but  we  are  of  opinion  that  a  statement  in  an  interrogatory  which  merely 
calls  the  attention  of  the  witness  to  the  subject-matter  of  the  inquiry 
is  no  ground  for  suppressing  the  answer.  Long  v.  Steiger,  8  Texas 
460. 

We  are  further  of  the  opinion  that  the  tenth  interrogatory  is  not  lead- 
ing. It  does  not  properly  admit  of  an  answer  "Yes"  or  "No,"  and  we 
are  not  aware  of  any  decision  which  holds  that  a  question  is  leading 
merely  because  it  is  put  in  the  form  "did  or  did  not."  Whether  a 
question  in  that  or  a  similar  form  be  leading  or  not  depends  upon  the 
determination  of  the  inquiry  whether  it  suggests  any  particular  answer; 
and  we  think  questions  in  that  form  which  have  been  held  leading  are 
not  such  as  inquire  into  a  single  fact,  but  such  as  enable  the  witness  to 
state  in  two  words,  such  as  "he  did"  or  "he  did  not,"  a  series  of  group  of 
facts.  Such  is  the  case  of  Tinsley  v.  Carey,  26  Texas  350.  The  question 
there  evidently  suggested  to  the  witness  that  it  was  desired  to  prove  that 
about  January,  1857,  Tinsley  got  money  from  the  sheriff  of  Bastrop 
County,  and  that  he  was  first  to  satisfy  a  judgment  in  favor  of  a  certain 
person  and  then  to  apply  the  balance  upon  other  debts.  That  these 
were  the  facts  desired  to  be  proved  is  indicated  by  the  questions  held 
leading  in  that  case.  But  as  to  the  question  now  under  consideration, 
we  think  it  would  puzzle  the  astutest  lawyer,  who  is  uninformed  as  to  the 
issues  in  the  case,  to  determine  from  the  question  alone  whether  the 
examiner  desired  to  prove  that  the  witness  had  or  had  not  transferred 
the  certificate. 

In  like  manner  the  other  interrogatories  objected  to  we  think 
legal;  except  the  thirteenth,  which  with  some  hesitation  we  hold  to  be 
leading.^ 

1  [The  Docket,  October,  1911. 
"Editor  of  the  Docket: 

"  Enclosed  I  send  you  a  question  which  was  asked  on  direct  examination  in  a 
chancery  cause  recently  in  which  I  was  one  of  the  attorneys.  .  .  . 

"  Yours  truly,  T. 

"  'Q.  —  Is  it  or  is  is  not  a  fact  that  said  B.  told  you  to  let  him  have  the  other 
letters  about  it,  but  he  thought  there  would  be  no  difficulty  in  the  matter  with 
Mr.  R.,  and  he  would  ^^Tite  to  him  that  he  was  of  the  opinion  that  Mr.  T.  was 
laboring  under  some  misapprehension;  that  he,  the  said  B.,  had  heard  Mr.  E. 
speak  of  this  matter  some  time  in  the  summer,  and  he  stated  to  him,  the  said  B., 
the  fact  that  you  had  traded  for  the  place,  and  said  that  it  was  so  because  said 
R.  had  told  him  so;  that  he  carried  him  from  yovir  house  to  K.;  and  that  you 
had  told  him  the  same  thing;  and  that  the  said  B.  said  he  never  knew  said  R., 
but  had  heard  of  him,  and,  from  what  he  had  heard,  he  thought  he  was  a 
pretty  straight  sort  of  fellow;  and  that  he  would  \\Tite  to  said  R.  about  it; 
Did  or  did  not  this  occur?' 

"'.4.  — I  think  it  did.'"] 


220  BOOK    i:     RULES    OF    ADMISSIBILITY  No.   151 

151.  Thomas  Hardy's  Trial.  (1794.  Howell's  State  Trials,  XXIV,  754). 
[Treason.  The  witness  had  testified  to  the  doings  at  a  meeting  of  the  defendant's 
society.  The  witness  was  a  member  of  the  Society  at  the  time,  and  was  not 
known  by  his  colleagues  to  be  attending  the  meetings  to  get  evidence  for  the 
Crown.     He  is  now  on  cross-examination.] 

What  was  the  first  time  that  you  were  at  any  of  those  meetings?  On  the 
20th  of  January. 

How  came  you  to  go  then?  —  I  was  sent  by  a  gentleman.  ...  It  was  a  person 
high  in  office  under  his  majesty;  but  permit  me  to  add,  I  was  not  desired  by 
that  gentleman  to  conceal  his  name.  .  .  . 

Mr.  Gibbs.  —  Then  trusting  in  you,  he  sent  you  to  the  Globe  tavern  on  the 
20th  of  January,   1794?  — Certainly. 

Then  you  never  were  at  any  of  those  meetings  in  the  character  of  a  spy?  —  As 
you  call  it  so,  I  will  take  it  so. 

Mr.  Gibbs.  —  If  you  were  not  there  as  a  spy,  take  any  title  you  choose  for 
yourself,  and  I  will  give  you  that. 

Mr.  Law.  —  He  did  not  state  any  title. 

Mr.  Gibbs.  —  I  did  not  desire  you  to  take  any  title  in  the  sense  that  gentle- 
man is  using  the  term;  you  object  to  the  term  spy,  as  I  called  you,  and  I  bid  you 
take  any  other  name. 

Lord  Chief  Justice  Eyre.  —  There  should  be  no  name  given  to  a  witness 
on  his  examination:  he  states  what  he  went  for,  and  in  making  observations  on 
the  evidence,  you  may  give  it  any  appellation  you  please.  You  recollect  I  made 
the  observation  before,  when  Mr.  Erskine  did  the  same  thing. 

Mr.  Gibbs.  —  I  really  did  not  feel  that  I  was  going  at  all  out  of  the  way  in 
the  cross-examination  of  a  witness,  in  calling  him  by  a  name  which  suits  his 
character,  though  he  does  not  like  it. 

Lord  Chief  Justice  Eyre.  —  Go  on. 

Mr.  Gibbs.  —  You  went  then  (not  to  call  you  a  spy)  to  these  meetings  in  the 
character  of  a  person  who  had  no  other  reason  for  going  there,  than  that  of  pick- 
ing up  what  information  you  could,  and  carrying  it  again  to  those  employers, 
in  whose  confidence  you  were?  —  Certainly.  .  .  . 

Mr.  Gibbs.  —  You  have  been  giving  an  account  of  some  conversation  that 
passed  there;  cannot  you  recollect  who  the  persons  were  that  had  that  con- 
versation?—  No,  I  do  not  know;   there  was  a  universal  conversation. 

Mr.  Gibbs.  —  You  going  there  for  the  purpose  of  collecting  evidence  against 
individuals,  and  coming  now  to  give  evidence  against  an  individual,  you  thought 
it  not  material  to  observe  who  the  people  were  who  then  used  this  language  — 
you,  a  gentleman  used  to  practise  at  the  Old  Bailey,  and  meaning  to  give  evidence 
afterwards  against  those  persons,  did  not  think  it  material  to  learn  by  whom 
these  conversations  were  held? 

Lord  Chief  Justice  Eyre.  —  Mr.  Gibbs,  I  am  sorry  to  interrupt  you,  but 
your  questions  ought  not  to  be  accompanied  with  those  sort  of  comments;  they 
are  the  proper  subjects  of  observation  when  the  defence  is  made.  The  business 
of  a  cross-examination  is  to  ask  to  all  sorts  of  acts,  to  probe  a  witness  as  closely 
as  you  can;  but  it  is  not  the  object  of  a  cross-examination,  to  introduce  that 
kind  of  periphrasis  as  you  have  just  done. 

Mr.  Gibbs.  —  Send  to  Mr.  Erskine,  he  is  in  the  parlor. 

(Mr.  Erskine  immediately  came  into  court.) 

Mr.  Erskine.  —  Will  your  lordship  give  me  leave  to  say,  it  is  the  universal 
practice  of  the  Court  of  King's  bench,  the  first  criminal  court  in  this  country. 


No.  152  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  221 

in  which  I  have  had  the  honor  to  practise  for  seventeen  years  —  we  are  certainly- 
permitted  to  go  as  far  as  this.  I  agree  with  your  lordship  in  what  you  just  now 
said  (and  it  will  be  of  no  consequence  whether  I  did  or  no,  because  your  lordship 
must  give  the  rule).  But  what  I  take  my  learned  friend  to  have  said  to  the  wit- 
ness, is  this:  "You,  sir,"  not  meaning  it  as  an  insult  to  the  witness,  but  "you, 
sir,  as  a  practiser  at  the  Old  Bailey,  must  know  the  necessity,  if  you  go  to  any 
place  to  get  evidence,  of  having  proper  materials  for  that  evidence;  how  do  you 
account  for  not  having  done  that?"  In  a  cross-examination,  counsel  are  not 
called  upon  to  be  so  exact  as  in  an  original  examination  —  you  are  permitted  to 
lead  a  witness.  .  .  . 

Mr.  Justice  Buller.  —  Undoubtedly  the  practice  has  increased  much  within 
my  memory:  what  Mr.  Erskine  alludes  to  now  has  been  universally  the  practice; 
that  when  you  are  upon  a  cross-examination,  you  are  permitted  to  lead  a  witness 
more  than  you  can  on  an  original  examination.  But  be  so  good  as  to  recollect 
the  mode  in  which  the  Lord  Chief  Justice  put  it  yesterday,  and  I  do  not  think 
in  Guildhall,  or  any  where  else,  you  ever  departed  from  that.  You  may  lead  a 
witness  upon  a  cross-examination  to  bring  him  directly  to  the  point  as  to  the 
answer;  but  not  to  go  the  length  as  was  attempted  yesterday,  of  putting  the  very 
words  into  a  witness's  mouth,  which  he  was  to  echo  back  again. 

Mr.  Erskine.  —  Having  done  that  yesterday,  I  immediately  bowed  to  the 
admonition  I  received  from  my  Lord  Chief  Justice. 

Lord  Chief  Justice  Eyre.  —  ...  With  regard  to  the  point,  I  think  it  is 
so  clear  that  the  questions  that  are  put  are  not  to  be  loaded  with  all  the  observa- 
tions that  arise  upon  all  the  previous  parts  of  the  case.  They  tend  so  to  distract 
the  attention  of  every  body;  they  load  us  in  point  of  time  so  much;  and  that 
that  is  not  the  time  for  observation  upon  the  character  and  situation  of  a  witness 
is  so  apparent,  that  as  a  rule  of  evidence  it  ought  never  to  be  departed  from. 
But  it  is  certainly  true  that  it  does  slide  into  examinations,  and  that  it  is  very 
often  not  taken  notice  of,  and  it  saves  more  time  frequently  to  let  it  pass  than 
to  take  notice  of  it.  But  there  is  a  rule  to  which  all  those  sort  of  things,  if  once 
an  appeal  is  made  to  the  Court,  ought  to  be  brought,  and  my  judgment  is,  that 
after  you  have  got  the  particular  facts  upon  which  that  sort  of  observation  is 
founded,  the  examination  ought  to  proceed  to  the  other  facts  upon  the  case,  and 
the  observations  upon  those  former  facts  ought  to  make  part  of  the  defence.  .  .  . 

Mr.  Gibbs.  —  I  think  you  told  me  that  you  were  a  gentleman  who  practised 
at  the  Old  Bailey;  do  you  now  practise  here,  or  have  you  left  off  that  practice? 
—  I  have  not  left  it  off. 

You  now  practise  at  the  Old  Bailey?  —  I  have  not  for  some  time. 

How  happens  that?  — Not  this  six  months. 

Your  reason  for  not  having  practised  is,  that  no  business  has  been  brought 
to  you,  I  presume?- — Certainly,  you  are  right  there. 

Did  you  or  not  think  it  necessary,  at  this  meeting,  to  attend  to  the  particular 
persons  from  whom  the  conversation  that  you  are  now  stating,  proceeded?  —  At 
that  time  I  was  a  total  stranger  almost  to  every  one  in  the  room. 

You  did  not  endeavor  to  distinguish  what  was  said  by  one  man  from  what 
W'as  said  by  another?  —  I  did  not  in  conversation. 


152.  Statutes.    United  Siafes  Revised  Statutes.  (187S.    §  864).    Every  person 
deposing,  as  provided  in  the  preceding  section,  shall  be  cautioned  and  sworn  to 


222  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  152 

testify  the  whole  truth,  and  carefully  examined.  His  testimony  shall  be  reduced 
to  writing  by  the  magistrate  taking  the  deposition,  or  by  himself  in  the  magis- 
trate's presence,  and  by  no  other  person,  and  shall,  after  it  has  been  reduced  to 
writing,  be  subscribed  by  the  deponent. 


153.   ALLEN  v.   RAND 

Supreme  Court  of  Errors  of  Connecticut.     1824: 

5  Conn.  321 

This  was  an  action  of  trespass,  tried  at  Middletown,  February  Term, 
1823,  before  Hosmer,  Ch.  J. 

To  prove  a  material  fact,  the  defendants  offered  in  evidence  the 
deposition  of  Mary  Trowbridge;  to  the  admission  of  which  the  plain- 
tiffs objected,  on  the  ground,  that  it  was  written  by  the  agent  of  the 
defendants,  or  of  one  of  them.  The  circumstances  were  these.  On 
Monday,  previous  to  the  taking  of  the  deposition,  the  parties  met  at  the 
house  where  Mrs.  Trowbridge  resided,  with  the  magistrate  who  ultimately 
took  the  deposition.  He  attempted  then  to  take  it;  but  after  writing 
a  few  lines,  Mrs.  Trowbridge  became  faint  and  exhausted;  and  the 
business  was  adjourned  to  the  next  evening.  Afterwards,  in  the  absence 
of  the  plaintiffs  and  their  counsel,  and  of  the  magistrate.  Rand,  one  of 
the  defendants,  requested  Cornelia  Hall,  who  was  living  in  the  house 
with  Mrs.  Trowbridge,  to  write  her  deposition,  from  time  to  time,  as  she 
was  able  to  give  it.  With  this  request  Miss  Hall  complied;  and,  at  the 
time  adjourned  to,  the  plaintiff  not  having  attended,  the  paper  thus 
written  by  her,  was  presented  to  the  magistrate,  and  being  read  to  Mrs. 
Trowbridge,  was  signed  by  her,  and  sworn  to.  The  Chief  Justice  held, 
that  the  deposition  was  inadmissible;  and  rejected  it.  The  plaintiffs 
having  obtained  a  verdict,  the  defendants  moved  for  a  new  trial,  on  the 
ground  of  this  decision. 

Sherman,  in  support  of  the  motion,  contended,  that  the  deposition 
of  Mrs.  Trowbridge  was  legally  taken.  From  her  peculiar  situation, 
it  was  necessary  that  some  person  residing  in  the  house  with  her,  who 
could  watch  her  returns  of  strength,  should  write  down  her  testimony 
for  her.  An  amanuensis  was  indispensable.  Rand  requested  Miss 
Hall  to  act  in  this  capacity.  He  gave  her  no  instructions.  She  did  not 
know  what  use  was  to  be  made  of  the  writing.  There  was  not  only 
nothing  fraudulent  or  unfair  in  the  transaction,  but  there  was  nothing 
in  the  situation  of  Miss  Hall  calculated  to  produce  any  bias  on  her  mind. 
Aside  from  the  single  circumstance,  that  the  request  came  from  Rand,  she 
acted  in  as  unexceptionable  a  manner  as  she  could.  Then,  does  this 
circumstance,  of  itself,  destroy  the  deposition?  It  was  a  lawful  act,  not 
prohibited  by  the  statute,  and  clearly  not  malum  in  se.  If  a  request 
from  the  party  to  write  a  deposition  vitiates  it;  then  such  a  request  to 
the  deponent,  or  to  the  magistrate,  would  have  that  effect.     The  material 


No.  153  TESTIMONIAL  EVIDENCE;     QUALIFICATIONS  223 

inquiry  is,  not  at  whose  request  the  writing  was  done,  but  in  what  capacity 
the  writer  acted;  whether  it  was  done  by  an  agent  of  the  party,  by  one 
presumed  to  have  an  interest  or  bias  in  his  favor.  This,  evidently,  was 
not  Miss  Hall's  situation.  If  she  was  the  agent  of  Rand,  her  act  was  his 
act;  but  did  Rand  write  this  deposition?  What  she  did  was  in  aid  of 
her  inmate,  the  deponent,  or  of  the  magistrate  engaged  to  take  the 
deposition.  It  lightened  their  labor.  She  was  their  substitute;  but  not 
Rand's. 

Staples  and  Hotchkiss,  contra,  after  remarking  upon  the  salutary 
nature  of  the  provisions  of  law  intended  to  guard  against  fraud  in  the 
taking  of  depositions,  and  the  importance  of  adhering  to  the  general  rule 
prescribed,  without  inquiring  whether  there  was  any  unfairness  in  the 
particular  case,  contended,  that  Miss  Hall  was  in  fact  the  agent  of 
Rand,  and  acted  as  such,  in  writing  the  deposition  of  Mrs.  Trowbridge. 
Whether  she  lightened  Mrs.  Trowbridge's  labor,  or  whether  she  was,  in 
any  sense,  the  amanuensis  of  Mrs.  Trowbridge,  is  immaterial.  Sufficient 
it  is,  that  Rand  employed  her  to  do  this  service;  and  in  doing  it,  she 
acted  under  his  authority.  If  A.  employs  B.  to  do  a  particular  act, 
and  B.  does  it;  is  not  B.,  in  doing  that  act,  the  agent  of  A.?  The  writing 
of  depositions  by  amanuensis  employed  by  the  party  is  a  door  leading  to 
all  the  mischiefs  the  Legislature  intended  to  guard  against.  That  door 
this  Court  will  not  open. 

HosMER,  Ch.  J.  The  only  question  raised  in  this  case,  is,  whether 
the  deposition  of  Mrs.  Trowbridge  was  legally  rejected.  By  statute  it 
is  enacted,  (p.  47)  that  "  the  party,  his  attorney,  or  any  person  interested, 
nhall  not  write,  draw  up,  or  dictate  any  deposition";  and  that  every  such 
deposition  shall  be  rejected  by  this  Court.  Whether  the  deposition  of 
Mrs.  Trowbridge  was  taken  under  the  above  law,  or  while  the  preceding 
statute  was  in  force,  does  not  appear  from  the  motion;  but  this  is  per- 
fectly immaterial,  as  the  law  now  existing  is  precisely  similar  to  the 
former,  not  in  words,  but  in  the  construction  which  the  Courts  had  put 
upon  it.  The  law  will  not  trust  an  agent  to  draw  up  a  deposition  for 
his  principal;  as  by  the  insertion  of  a  wx)rd,  the  meaning  of  which  is 
not  correctly  understood,  or  by  the  omission  of  a  fact  that  ought  to  be 
inserted,  the  testimony  thus  garbled  and  discolored,  will  be  false  and 
deceptive.  Nor  is  there  any  possible  argument  in  favor  of  such  a  pro- 
ceeding. The  deponent  may  write  the  deposition;  or  procure  it  to  be 
written,  by  a  disinterested  person;  or  the  parties  may  agree  on  a  fit 
person  for  this  purpose.  The  statute,  even  when  strictly  construed,  is 
sufficiently  lax,  when  ex  parte  depositions  are  taken,  at  least  not  unfre- 
quently,  to  admit  of  the  poisoning  of  justice  in  the  very  fountain;  for 
if  the  evidence  is  untrue  or  partial,  the  result  can  never  be  conformable 
to  right. 

The  deposition  in  question  was  written  by  Cornelia  Hall,  in  the 
absence  of  the  plaintiffs,  their  counsel,  and  the  magistrate,  on  the  pro- 
curement of  Mr.  Rand,  one  of  the  defendants.     He  requested  and  pro- 


224  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  153 

cured  her  to  write  it,  from  time  to  time,  as  the  deponent  was  able  to 
give  her  testimony.  Miss  Hall  was  an  agent  and  attorney,  authorized  by 
her  principal  to  do  this  specific  act;  for  what  is  an  agent  but  a  substi- 
tute or  deputy,  and  an  attorney  but  one  who  is  put  in  the  place,  stead, 
or  turn  of  another?  3  Blackstone's  Commentaries,  25.  A  general 
agent  cannot  be  permitted  to  draw  up  a  deposition;  a  fortiori  is  a  special 
agent  objectionable,  who,  in  the  situation  of  Miss  Hall,  must  be  influenced, 
in  some  degree,  by  the  wishes,  feelings,  and  interest  of  her  employer. 
As  the  witness  ought  to  be  disinterested,  so  must  the  evidence  be  impar- 
tial, comprising  the  whole  truth,  as  well  as  nothing  but  the  truth; 
and  this  never  can  be  rationally  expected,  when  a  deposition  is  drawn 
up  by  an  attorney  or  agent,  or  what  is  little  less  exceptionable,  by  the 
party  himself.  Sickness  constitutes  no  reason  for  the  relaxation  of  the 
law;  as  it  produces  no  actual  necessity;  and  if  it  did,  it  would  make  no 
difference,  as  no  such  exception  to  the  general  rule  is  admissible.  It 
is  much  preferable,  that  in  particular  instances,  the  party  should  even 
be  deprived  of  testimony,  than  that  a  principle  leading  to  wide-spread 
mischief  should  be  adopted;  as  private  disadvantage  is  a  less  evil,  than 
general  inconvenience. 

It  is  true,  that  an  agent  may  draw  up  a  deposition  impartially;  and 
there  is  no  reason  to  doubt  that  the  young  lady,  in  the  case  before  us, 
acted  with  the  most  delicate  integrity.  But  the  statute  was  made  in 
prevention  of  a  wrong;  and  intends  not,  in  any  case,  to  place  confidence 
where  it  may  be  abused. 

Brainard  and  Bristol,  Js.  were  of  the  same  opinion. 

Peters,  J.,  dissented. 

New  trial  not  to  be  granted. 


154.   PEOPLE  V.  MOORE 

Supreme  Court  of  New  York.     1836 

15  Wend.  419 

This  was  the  trial  of  the  prisoner  on  an  indictment  for  murder,  at 
the  Onondaga  oyer  and  terminer  in  September,  1835,  before  the  Hon. 
Daniel  Mosely,  one  of  the  circuit  judges,  presiding.  After  the  public 
prosecutor  had  adduced  proof  in  support  of  the  indictment,  a  witness  of 
the  name  of  Crofoot  was  sworn  on  the  part  of  the  prisoner,  who  gave 
evidence  material  to  the  defense  of  the  prisoner;  to  invalidate  which  the 
public  prosecutor  called  the  magistrate  to  whom  complaint  of  the  murder 
was  made  by  Crofoot  on  the  day  it  happened,  who  testified  to  a  relation 
of  facts  given  to  him  by  Crofoot  on  that  day,  very  different  from  that 
given  by  him  in  court.  The  magistrate,  on  his  cross-examination, 
stated  that  four  days  after  the  complaint  made  by  Crofoot,  he  took 
Crofoot's  examination  as  a  witness,  which  was  taken  pursuant  to  the 


No.  154  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  225 

statute,  though  he  stated  that  he  did  not  recollect  that  the  examination 
was  read  to  the  witness,  and  on  that  occasion  Crofoot's  relation  of  the 
facts  was  substantially  the  same  as  when  the  complaint  was  made.  This 
evidence  was  objected  to  by  the  public  prosecutor,  but  received  by  the 
Court.  The  counsel  for  the  prisoner  then  offered  to  read  in  evidence  the 
examination  of  Crofoot,  for  the  purpose  of  impeaching  the  testimony 
of  the  magistrate  given  on  his  cross-examination;  to  which  the  public 
prosecutor  objected,  and  the  Court  ruled  that  the  examination  should 
not  be  read  in  evidence,  but  that  the  prisoner's  counsel  might  use  it  for 
the  further  cross-examination  of  the  magistrate.  To  this  decision  the 
prisoner's  counsel  excepted.  .  .  . 

B.  Davis  Noxon,  for  the  prisoner.  J.  J.  Briggs,  district  attorney  of 
Onondaga,  for  the  People. 

By  the  Court,  Savage,  Ch.  J.  —  Two  questions  arise :  1 .  Should  the 
examination  of  Crofoot  have  been  received?  ...  It  has  recently  been 
decided  by  this  Court,  in  conformity,  as  is  supposed,  with  the  weight  of 
authority  and  correct  practice,  that  when  a  witness  is  in  any  manner 
impeached,  the  party  calling  him  may  support  his  testimony  by  showing, 
that  on  other  occasions  he  has  given  the  same  relation  of  facts  to  which 
he  has  sworn  on  the  trial.  12  Wendell  78.  In  that  point  of  view  the 
defendant  was  clearly  entitled  to  produce  the  deposition  taken  before 
the  magistrate  on  the  examination  of  the  prisoner. 

It  was  also  proper  for  the  purpose  for  which  it  was  offered,  to  wit, 
to  show  that  the  justice  was  mistaken  in  the  relation  which  he  had  just 
given  of  what  Crofoot  had  sworn  to.  What  reasons  operated  upon  the 
mind  of  the  Court  do  not  appear,  as  none  are  stated  in  the  bill  of  excep- 
tions. The  objections  now  made  by  the  district  attorney  to  the  introduc- 
tion of  the  deposition  taken  on  the  examination,  are,  1.  That  it  does  not 
appear  to  have  been  correctly  taken.  On  that  point,  the  justice  says 
that  the  examination  was  taken  in  pursuance  of  the  statute,  but  whether 
it  was  read  to  the  witness  or  not  he  did  not  recollect.  When  the  justice 
swears  that  the  deposition  was  taken  in  pursuance  of  the  statute,  the 
presumption  is  that  it  was  regularly  and  properly  taken;  the  law  pre- 
sumes every  public  officer  does  his  duty  until  the  contrary  appears. 
The  deposition  must  therefore  be  considered  properly  taken  until  some 
irregularity  is  shown.  It  is  presumed  that  it  was  read  over  to  the  witness 
or  by  him,  as  it  must  have  been  signed  by  him  according  to  the  statute, 
2  R.  S.  709,  §  19.  But  the  statute  does  not  in  terms  require  that  the 
deposition  shall  be  read  to  the  witness,  as  it  does  that  the  examination 
of  a  prisoner  shall  be  read  to  him,  2  R.  S.  708,  §  16.  There  is  a  reason  for 
this  difference.  The  deposition  of  the  witness  must  be  upon  oath  and 
signed  by  him;  the  examination  of  the  prisoner  must  not  be  on  oath,  and 
need  not  be  signed  by  him,  but  by  the  magistrate.  It  is  not  to  be  pre- 
sumed that  any  man  will  sign  and  swear  to  a  deposition,  without  being 
properly  informed  of  its  contents.  Such  fact,  therefore,  if  it  exist.-, 
should  l)e  shown  on  the  other  side  to  discredit  the  deposition.  .  .  . 


226  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   154 

As  they  erred  in  rejecting  the  testimony  offered,  a  new  trial  should 
be  granted.  It  may  have  been  very  important.  On  that  subject  we 
cannot  judge,  as  the  testimony  to  support  the  indictment  is  not  set  forth, 
nor  was  it  necessary  that  it  should  be.  The  jury  are  to  judge  of  the 
effect  of  the  testimony.  It  is  enough  for  us  to  know  that  competent 
testimony  has  been  withheld  from  the  jury  to  authorize  us  in  awarding 
a  new  trial.  New  trial  granted. 


155.   COWLEY  V.   PEOPLE 
Court  of  Appeals  of  New  York.     1881  » 

83  N.  Y.  464 

Error  to  the  General  Term  of  the  Supreme  Court,  in  the  first  judicial 
department,  to  review  judgment  entered  upon  an  order  made  June  11, 
1880,  affirming  a  judgment  entered  upon  a  verdict  convicting  the  plain- 
tiff error  of  a  misdemeanor.  .  .  .  An  act  of  the  Legislature  was  passed 
in  1876,  entitled  "An  act  to  prevent  and  punish  wrongs  to  children." 
(Laws  of  1876,  chap.  122,  p.  95.)  The  plaintiff  in  error  was  indicted 
under  this  statute.  The  first  count  charged  that  he  wilfully  neglected 
to  provide  a  child  known  as  Louis  Kulkusky,  alias  Louis  Victor,  with, 
and  to  give  him,  proper,  wholesome,  and  sufficient  food,  clothing,  and 
means  of  cleanliness,  and  thereby  did  wilfully  cause  and  permit  his  health 
to  be  injured.  .  .  .  There  was  testimony  of  what  was  the  food  given  to 
this  boy  from  day  to  day;  there  was  testimony  that  it  was  not  enough  in 
quantity  or  variety  for  the  healthy  nutrition  of  a  growing  child;  there 
was  testimony  of  the  state  of  body  and  mind  in  which  the  lad  was  found, 
after  months  of  feeding  thus;  and  that  that  state  was  a  result  of  that 
feeding.  .  .  . 

On  the  trial,  the  People  offered  in  evidence  pictures  taken  by  the 
photographic  process.  One  picture  was  claimed  to  be  that  of  the  boy 
Louis,  before  he  went  into  the  care  of  the  plaintiff  in  error.  Others  were 
of  him  about  two  weeks  after  he  had  been  taken  from  the  custody  of 
the  plaintiff  in  error  and  to  St.  Luke's  Hospital.  They  were  offered  to 
show  the  bodily  appearance  of  the  child  at  the  several  times  of  taking 
the  pictures.  The  first  one  was  proven  to  be  a  correct  likeness  of  him, 
a  perfect  picture  of  him  when  he  came  to  this  country.  The  photographic 
operator  who  took  the  others,  testified  that  he  was  a  photographer,  doing 
that  business  in  New  York  city;  that  he  took  them  about  the  6th  of 
January,  which  was  about  two  weeks  after  Louis  was  taken  to  the  hos- 
pital; that  they  were  exactly  correct  likenesses  of  Louis,  as  he  appeared 
at  the  time  of  taking  them.  The  house  physician  at  the  hospital,  testified 
that  the  last  taken  pictures  represented  the  child  as  he  appeared  at  the 
hospital,  only  that  from  the  position  in  which  the  pictures  were  taken, 
they  did  not  show  the  emaciation  as  great  as  it  really  existed.     Another 


No.  155  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  227 

medical  witness,  who  saw  and  examined  the  child  a  while  after  the  last 
pictures  were  taken,  testified  that  they  were  about  correct.  Another 
such  witness  testified  that  they  were  correct.  It  was  also  in  evidence 
that  the  boy  improved  in  condition  after  he  was  taken  into  the  hospital, 
so  that  the  fair  inference  is,  that  if  the  pictures  were  a  correct  likeness 
of  him  when  taken,  they  did  not  show  a  worse  appearance  of  him  than  it 
was  when  he  left  the  house  of  the  plaintiff  in  error.  The  plaintiff  in 
error  objected  to  the  reception  of  these  pictures  in  evidence. 

Charles  Coivley,  for  plaintiff  in  error. 

Daniel  G.  Rollins,  for  defendant  in  error.  The  photographs  of  the 
child  showing  his  condition  at  the  time  he  was  taken  from  the  custody 
of  the  plaintiff  in  error  were  properly  received  in  evidence.  .  .  . 

FoLGER,  C.  J.  (after  stating  the  case  aS  above).  So  far  as  the  cir- 
cumstances of  the  taking  of  these  pictures,  and  the  purpose  of  them  in 
evidence  were  concerned,  in  our  judgment  they  were  properly  received, 
if  copies  of  objects  taken  by  that  process  are  ever  competent  in  evidence. 
And  we  are  now  to  consider  whether  they  are,  under  a  proper  state  of 
facts,  and  for  a  proper  purpose,  competent  evidence. 

We  know  not  of  a  rule,  applicable  to  all  cases,  ever  having  been 
declaredy  that  they  are  not  competent.  Nor  do  we  see,  in  the  nature  of 
things,  a  reason  for  a  rule  that  they  are  never  competent.  We  do  not 
fail  to  notice,  and  we  may  notice  judicially,  that  all  civilized  communities 
rely  upon  photographic  pictures  for  taking  and  presenting  resemblances 
of  persons  and  animals,  of  scenery  and  all  natural  objects,  of  buildings 
and  other  artificial  objects.  .  .  .  Photographic  pictures  do  not  differ  in 
kind  of  proof  from  the  pictures  of  a  painter.  They  are  the  product  of 
natural  laws  and  a  scientific  process.  It  is  true  that  in  the  hands  of  a 
bungler,  who  is  not  apt  in  the  use  of  the  process,  the  result  may  not  be 
satisfactory.  Somewhat  depends  for  exact  likeness  upon  the  nice  adjust- 
ment of  machinery,  upon  atmospheric  conditions,  upon  the  position  of 
the  subject,  the  intensity  of  the  light,  the  length  of  the  sitting.  It  is  the 
skill  of  the  operator  that  takes  care  of  these,  as  it  is  the  skill  of  the  artist 
that  makes  correct  drawing  of  features,  and  nice  mingling  of  tints,  for 
the  portrait.  Most  of  evidence  is  but  the  sign  of  things.  Spoken  words 
and  written  words  are  symbols.  Once,  a  deaf  mute  born  so  was  presumed 
in  law  an  idiot  (1  Hale  34),  but  later  days  look  upon  him  as  not  incom- 
petent to  be  a  witness,  if  he  in  fact  have  understanding  and  knows  the 
nature  of  an  oath.  (Ruston's  Case,  1  Leach,  Cr.  Cas.  408).  He  is  now 
taught  to  give  ideas  to  his  fellow  men  by  signs,  and  his  deprivation  of 
some  of  the  common  faculties  of  humanity  does  not  exclude  him  from  the 
witness-box.  The  signs  he  makes  must  be  translated  by  an  interpreter 
skilled  and  sworn.  So  the  signs  of  the  portrait  and  the  photograph,  if 
authenticated  by  other  testimony,  may  give  truthful  representations. 
When  shown  by  such  testimony  to  be  correct  resemblances  of  a  person, 
we  see  not  why  they  may  not  be  shown  to  the  triers  of  the  facts,  not  as 
conclusive,  but  as  aids  in  determining  the  matter  in  issue,  still  being 


228  BOOK    i:     RULES   OF   .\DxMISSIBILITY  No.   155 

open,  like  other  proofs  of  identity  or  similar  matter,  to  rebuttal  or  doubt. 
A  witness  who  speaks  to  personal  appearance  or  identity  tells  in  more  or 
less  detail  the  minutia  thereof  as  taken  in  by  his  eye.  What  he  says  is  a 
description  thereof,  by  one  mode  of  signs,  by  words  orally  uttered.  If 
his  testimony  be  written  instead  of  spoken,  and  is  offered  as  a  deposition, 
it  is  a  description  in  another  mode  of  signs,  by  words  written;  and  the 
value  of  that  mode,  the  deposition,  depends  upon  the  accuracy  with 
which  his  words  uttered  are  put  into  words  written.  Now  if  he  has  before 
him  a  portrait  or  a  photograph  of  the  person,  and  it  shows  to  him  a 
correct  copy  of  that  person,  if  it  produce  to  his  view  a  correct  description, 
which  he  testifies  is  a  likeness,  why  may  not  that  be  given  to  the  jury, 
as  a  description  of  the  person  by  the  witness  in  another  mode  of  signs? 
The  portrait  and  the  photogi^aph  may  err,  and  so  may  the  witness.  That 
is  an  infirmity  to  which  all  human  testimony  is  lamentably  liable.  But 
when  care  is  taken  to  first  verify  that  the  process  by  which  the  photograph 
was  taken  was  conducted  with  skill  and  under  favorable  circumstances, 
and  that  the  result  has  been  a  fair  resemblance  of  the  object,  the  picture 
produced  may,  in  many  of  the  issues  for  a  jury,  be  an  aid  to  determina- 
tion. ...  In  our  judgment,  the  learned  recorder  did  not  err  in  taking 
the  photographs  into  the  evidence.  .  .  . 

All  concur,  except  Miller,  J.,  absent  at  argument.  Judgment 
affirmed. 

156.  DE  FORGE  v.   NEW  YORK,  NEW  HAVEN 
&  HARTFORD  R.  CO. 

Supreme  Judicial  Court  of  Massachusetts.     1901 

178  Mass.  59;  59  N.  E.  669 

Tort,  under  St.  1887,  c.  270,  for  injuries  sustained  by  a  freight  brake- 
man  while  in  the  employ  of  the  defendant,  through  the  negligence  of  the 
engineer  of  a  locomotive  engine  of  the  defendant,  on  w^hich  the  plaintiff 
was  riding.  Writ  dated  October  13,  1899.  At  the  trial  in  the  Superior 
Court,  before  Dewey,  J.,  the  jury  returned  a  verdict  for  the  plaintiff; 
and  the  defendant  alleged  exceptions. 

As  a  result  of  the  accident  the  plaintiff's  left  foot  was  injured,  and 
the  principal  inquiry  at  the  trial  was  as  to  the  extent  of  the  injury.  The 
plaintiff  put  in  evidence  X-ray  pictures  of  the  plaintiff's  two  feet,  printed 
from  a  glass  plate.  Each  of  the  pictures  was  marked  under  the  toes  of 
each  foot,  "left"  and  "right"  respectively,  both  words  being  in  lead 
pencil.  One  of  the  plaintiff's  witnesses  explained  that  the  representation 
of  the  foot  with  the  word  " left"  below  it  was  the  left  foot  and  represented 
the  injured  foot,  and  the  other,  marked  "right,"  was  the  right  foot. 
He  then  testified  that  there  had  been  a  dislocation  of  the  bones  upward, 
and  that  an  enlargement  of  the  bone  of  the  foot  marked  "left"  in  the 
picture  was,  in  his  opinion,  the  result  of  fracture,  and  that  the  man 


No.  156  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  229 

would  always  have  a  weak  foot,  and  would  not  be  able  to  perform  the 
duties  of  a  freight  brakeman.  On  cross-examination  he  testified  that, 
leaving  out  the  question  of  fracture,  there  was  no  reason  why  the  plaintiff 
could  not  have  a" perfectly  useful  foot;  and  that  leaving  the  pictures  out, 
there  was  nothing  to  the  eye  to  disclose  any  fracture ;  although  he  had 
suspicions  as  to  a  fracture. 

The  defendant  contended  and  offered  to  show  that  the  X-ray  placed 
the  right  foot  upon  the  right  side  of  the  plate,  and  the  left  foot  upon  the 
left  side  of  the  plate,  and  that  in  printing  sensitized  paper  the  objects 
would  be  reversed;  and  that,  as  matter  of  fact,  the  pictures  showing  an 
enlargement  were  pictures  of  the  right  foot  instead  of  the  left.  This 
evidence  was  excluded.  Immediately  before  this  the  defendant  had 
offered  the  glass  plate  from  which  the  plaintiff's  pictures  were  taken,  and 
this  was  excluded.  Subsequently  other  pictures  printed  from  the  same 
plate  were  offered  in  evidence  and  were  excluded. 

W.  S.  Robinson,  for  the  defendant.  ,/.  B.  Carroll  &  JV.  H.  McClintock, 
for  the  plaintiff. 

Lathrop,  J.  (after  stating  the  facts  as  above).  No  reason  appears 
in  the  exceptions  why  the  evidence  offered  by  the  defendant  was  excluded ; 
and  we  can  see  no  reason  why  the  plate  from  which  the  pictures  put  in 
evidence  by  the  plaintiff  were  printed  should  not  have  been  admitted. 
...  It  is  further  contended  by  the  plaintiff  that  there  was  some  doubt  as 
to  the  manner  in  w^hich  the  plate  was  made,  and  that  the  judge  might 
have  excluded  it  for  that  reason.  We  see  nothing  in  the  exceptions  to 
substantiate  this  claim.  If  it  were  true,  then  the  plaintiff's  pictures 
should  not  have  been  admitted. 

It  is  entirely  clear  from  the  testimony  that  the  picture  on  the  glass 
plate  was  not  taken  by  a  lens  but  by  an  X-ray  machine;  and  that  it  was 
the  impression  of  a  shadow,  not  a  reflection  of  an  object,  the  plate  being 
below  the  feet,  and  the  light  above  them.  When  pictures  were  printed 
from  the  plate,  the  position  of  the  feet  would  be  reversed;  and  this 
would  have  been  demonstrated  had  the  plate  and  the  pictures  taken  by 
the  defendant  been  admitted.  The  plaintiff  assumed,  from  his  marking 
on  the  pictures  admitted,  that  the  feet  as  represented  on  the  plate  were 
reversed,  which  is  not  in  accordance  with  the  testimony  given  by  his 
own  witnesses  as  to  the  manner  in  which  the  impressions  on  the  plate 
were  produced. 

Lastly,  it  is  asserted  that  the  judge  might  have  excluded  in  his  discre- 
tion the  plate  and  the  pictures  offered  by  the  defendant.  The  rule  is 
thus  stated  by  Chief  Justice  Gray  in  Blair  v.  Pelham,  118  Mass.  420: 
"  A  plan  or  picture,  whether  made  by  the  hand  of  man  or  by  photography, 
is  admissible  in  evidence,  if  verified  by  proof  that  it  is  a  true  representa- 
tion of  the  subject,  to  assist  the  jury  in  understanding  the  case.  .  .  . 
Whether  it  is  sufficiently  verified  is  a  preliminary  question  of  fact,  to  be 
decided  by  the  judge  presiding  at  the  trial,  and  not  open  to  exception." 
It  is  therefore  in  the  matter  of  verification  or  authentication  that  the 


230  BOOK    l:     RULES   OF   ADMISSIBILITY  No,  156 

judge  has  discretion.  But  here  there  was  no  question  of  this  sort. 
The  plaintiff  had  put  in  two  pictures  printed  from  the  glass  plate.  The 
defendant  then  offered  the  plate  together  with  two  other  pictures  made 
from  the  same  plate;  and  the  evidence  of  verification  was  stronger  in 
the  case  of  the  defendant's  pictures  than  in  the  case  of  the  plaintiff's. 
The  photographer  who  took  the  plaintiff's  pictures  testified  that  he  did 
not  know  much  about  the  X-ray;  while  the  person  who  took  the  pictures 
for  the  defendant  was  a  physician  of  high  standing  who  had  taken,  as  he 
testified,  in  the  neighborhood  of  a  hundred  X-ray  pictures,  and  had  seen 
the  majority  of  them  developed.  On  this  evidence  we  do  not  deem  it 
possible  that  the  judge  could  have  excluded  the  plate  or  the  pictures  on 
the  ground  that  they  were  not  duly  verified.  While  a  picture  produced 
by  an  X-ray  cannot  be  verified  as  a  true  representation  of  the  subject 
in  the  same  way  that  a  picture  made  by  a  camera  can  be,  yet  it  should  be 
admitted  if  properly  taken.     Bruce  v.  Beall,  99  Tenn.  303. 

The  rule  laid  down  by  Chief  Justice  Gray  in  Blair  v.  Pelham  is  in 
accordance  with  earlier  and  later  cases  in  our  reports.  HoUenbeck  v. 
Rowley,  8  Allen  473.  Marcy  v.  Barnes,  16  Gray  161,  163.  Randall  v. 
Chase,  133  Mass.  210,  213.  Turner  v.  Boston  &  Maine  Railroad,  158 
Mass.  261,  265.  Commonwealth  v.  Morgan,  159  Mass.  375.  Farrell  v. 
Weitz,  160  Mass.  288.     Van  Houten  v.  Morse,  162  Mass.  414,  422. 

It  is  true  that  the  opinion  in  Gilbert  v.  West  End  Street  Railway, 
160  Mass.  403,  after  stating  many  reasons  why  the  photograph  offered 
in  evidence  in  that  case  was  properly  rejected,  concludes  in  these  words: 
"We  think  at  least  it  was  in  the  discretion  of  the  Court  to  reject  it," 
citing  Farrell  v.  Weitz,  ubi  supra.  But  the  case  cited  was  not  decided 
on  the  ground  that  the  judge  had  discretion  except  on  the  matter  of 
verification;  and  we  do  not  think  that  the  Court  intended  to  lay  down  a 
broader  rule  than  that  stated  in  Blair  v.  Pelham. 

It  is  also  true  that  in  some  cases  a  somewhat  broader  rule  is  laid  down. 
See  Verran  v.  Baird,  150  Mass.  141.  Harris  v.  Quincy,  171  Mass.  472. 
Carey  v.  Hubbardston,  172  Mass.  106.  An  examination  of  the  papers  in 
these  cases  leaves  no  doubt  in  our  minds  that  the  cases  were  properly 
decided,  whether  the  reasons  given  were  in  accordance  with  the  rule  laid 
down  in  Blair  v.  Pelham  or  not. 

In  Beals  v.  Brookline,  174  Mass.  1,  where  photographs  were  admitted, 
it  was  said :  "  In  the  admission  of  such  evidence  much  must  be  left  to  the 
discretion  of  the  presiding  justice,  and  we  are  not  prepared  to  say  that 
there  was  error  in  law  in  permitting  them  to  be  shown  to  the  jury." 
But  in  this  as  in  other  matters,  which  may  be  left  generally  to  the  discre- 
tion of  the  trial  judge,  his  discretion  is  not  unlimited,  and  the  judge  is  not 
at  liberty  to  disregard  the  rules  of  law,  by  which  the  rights  of  the  parties 
are  governed.  See  Woodward  v.  Leavitt,  107  Mass.  453,  460.  Chandler 
V.  Jamaica  Pond  Aqueduct,  122  Mass.  305. 

W^e  are  of  opinion  that  the  rights  of  the  defendant  in  this  case  were 
violated,  and  that  the  glass  plate,  the  pictures  taken  by  the  defendant. 


No.  160  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  231 

and  the  evidence  offered  by  the  defendant  and  excluded  should  have  been 
admitted.  It  was  clearly  competent  for  the  defendant  to  introduce 
evidence  to  show  that  the  plaintiff's  pictures  showing  an  enlargement  of 
one  of  the  feet,  and  from  which  a  witness  for  the  plaintiff  discovered  a 
fracture,  did  not  represent  the  left  foot  but  the  right,  and  for  this  purpose 
to  show  the  difference  between  an  ordinary  photograph  and  one  taken  by 
an  X-ray. 

As  the  only  exception  relating  to  the  question  of  liability  has  been 
overruled,  the  new  trial  will  be  on  the  question  of  damages  only. 

So  ordered. 

(2)    Opinion 

160.  History.'  On  the  principle  of  Testimonial  Knowledge  {ante,  Nos. 
108-125),  i.e.  that  the  witness  must  speak  as  a  perceiver,  not  merely  a  guesser, 
a  witness,  speaking  (for  example)  to  a  sale  of  goods  who  declares  that  he  thinks 
or  believes  or  is  persuaded  that  the  sale  was  not  made,  cannot  be  heard,  so  far 
as  he  means  that  he  did  not  see  the  transaction  in  question  but  believes  so  on 
rumor  alone  or  on  supposition.  This  principle  of  personal  observation  came 
early  into  play  in  emphasizing  the  impropriety  of  testimony  by  one  who  speaks 
only  from  hearsay.  Thus,  in  Archbishop  Laud's  Trial  (1644.  4  How.  St.  Tr.  31.5, 
399),  a  witness,  testifying  to  rumors  of  the  bishop's  tampering  with  a  jury, 
said  "and  thereupon,  as  he  conceives,  the  petty-jury  was  changed"  ;  and  the  de- 
fendant argues :  "  [  This  evidence]  is  not  the  knowledge,  but  the  conceit  only  of 
the  witness;  he  'conceives,'  which  I  am  confident  cannot  sway  with  your  lord- 
ships for  a  proof."  At  this  stage,  then,  and  as  the  distinct  first  meaning  of  the 
disparaging  references  to  "opinion,"  the  profession  had  in  mind  a  witness  who 
turns  out  upon  examination  to  have  no  facts  to  contribute,  no  knowledge,  no 
personal  acquaintance  with  the  man  or  the  land  or  the  loan  or  the  affray  about 
which  he  is  speaking. 

But,  at  the  same  time,  or  shortly  after,  there  occurs  a  general  recognition  of 
what  seemed  at  the  time  as  an  exception  to  it,  —  the  use  of  skilled  witnesses.  A 
witness  is  called  to  the  stand,  but  appears  to  have  no  personal  acquaintance  with 
the  circumstances  in  dispute;  then  how  can  we  listen  to  his  mere  opinion?  Be- 
cause he  is  a  skilled  witness  on  these  matters,  says  the  counsel.  Lord  Mansfield 
in  effect  answered  the  objection  that  the  expert  had  no  personal  knowledge,  no 
facts,  by  pointing  out  that  the  subject  was  in  truth  one  of  fact,  but  of  a  class  of 
facts  about  which  expert  persons  alone  could  have  knowledge.  In  short,  it  was 
only  "opinion"  as  a  mere  guess  or  a  belief  without  observation  which  they  re- 
jected; but  "opinion"  as  an  inference  or  conclusion  from  personally-observed 
data  they  did  not  think  of  disparaging.  "Mere  opinion,"  said  Lord  Mansfield, 
in  Carter  r.  Boehm,  is  not  evidence;  "mere  abstract  opinion,"  says  the  Penn- 
sylvania Court  in  1803,  is  not  evidence;  "opinions  not  coupled  with  the  facts," 
"opinion  without  assigning  a  reason,"  say  other  judges,  is  no  evidence;  because, 
of  course,  it  does  not  appear  that  the  witness  has  any  personal  knowledge. 

But,  in  another  generation's  time,  there  occurs  the  modern  mutilation  of  this 
idea,  chiefly  seen  in  the  United  States.  The  English  wTiters  and  judges  and  the 
early  American  judges,  when  they  disparaged  "mere  opinion,"  never  had  in  mind 

^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence,"  §  1917. 


232  BOOK   i:     RULES   OF   ADMISSIBILITY  No.   160 

the  case  of  the  lay-witness  who,  having  a  "  fact  "-knowledge,  included  in  his 
testimony  an  opinion  or  inference  based  on  those  data,  —  as  in  the  leading  in- 
stances (used  by  those  writers  and  judges)  of  handwTiting,  character,  and  sanity. 
But  when,  by  careless  usage,  the  phrase  came  to  be  passed  along  that  "opinion 
is  not  evidence,"  the  distinction  for  skilled  witnesses  not  having  a  "fact-knowl- 
edge was  readily  enlarged,  and  was  made  to  apply  to  the  lay  witness  who  had  a 
"fact "-knowledge,  and  to  support  the  new  and  broad  idea  ,that  "opinion"  in 
general  was  not  evidence.  That  distinction  or  test  was,  as  put  by  Mr.  Garroft', 
in  Beckwith  r.  Sydebotham,  excluded  opinion  which  "was  an  inference  which  it 
was  for  the  jury  to  draw,  if  the  facts  would  warrant  it." 

This  extension  —  logical  enough,  it  is  true,  and  correct  in  theory,  but  per- 
nicious (as  it  has  proved)  in  practice  —  is  a  peculiarly  American  doctrine.  It 
has  apparently  not  taken  place  in  England  in  any  important  degree. 

The  sum  of  the  history  is,  then,  that  the  original  and  orthodox  objection  to 
"mere  opinion"  was  that  it  was  the  guess  of  a  person  who  had  no  personal  knowl- 
edge, and  the  "mere  opinion"  of  an  expert  was  admitted  as  a  necessary  exception; 
the  later  and  changed  theory  is  that  wherever  inferences  and  conclusions  can  be 
drawn  by  the  jury  as  well  as  by  the  witness,  the  witness  is  superfluous,  and  thus 
an  expert's  opinion  is  received  because  and  w^herever  his  skill  is  greater  than  the 
jury's,  while  a  lay  opinion  is  received  because  and  whenever  his  facts  cannot  be 
so  told  as  to  make  the  jury  as  able  as  he  to  draw  the  inference.  The  old  objection 
is  a  matter  of  testimonial  qualifications,  requiring  personal  observation;  the 
modern  one  rests  on  considerations  of  policy  as  to  the  superfluity  of  the  testimony. 
In  the  old  sense,  "opinion"  —  more  correctly,  "mere  opinion"  —  is  a  guess,  a 
belief  without  good  grounds;  in  the  modern  sense,  "opinion"  is  an  inference 
from  observed  and  communicable  data. 


(a)    The  Opinion  Rule,  in  general 

161.   NEW  ENGLAND  GLASS  CO.   v.  LOVELL 
Supreme  Judicial  Court  of  Massachusetts.  1851 

7  Cush.  319 

This  was  case  for  negligence  against  the'owners  of  a  vessel,  as  common 
carriers,  in  not  stowing  properly  under  deck,  conveying  safely,  packages 
of  glassware,  by  means  of  which  they  were  lost.  They  had  been  laden  on 
board  the  defendants'  schooner,  at  Boston,  and  bills  of  lading  given, 
promising  to  carry  them  safely  to  New  York,  "dangers  of  the  seas 
excepted;"  and  the  question  was,  whether  the  loss  was  within  the 
exception. 

It  was  proved  that  the  schooner,  whilst  prosecuting  this  voyage,  was 
driven  ashore  on  Hart  Island,  at  the  head  of  Long  Island  Sound,  and 
the  goods  lost.  It  was  alleged  by  the  plaintiffs,  but  denied  by  the 
defendants,  that  the  goods  lost  were  carried  on  deck,  instead  of  being 
securely  stowed  under  deck;  and  that  became  substantially  the  fact  in 
issue.  It  was  conceded,  that  if  the  packages  of  glassware  were  stowed 
on  deck,  without  the  permission  of  the  shippers,  it  was  proof  of  negligence. 


No.  161  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  233 

which  would  render  the  carriers  responsible  for  the  loss.  Much  evidence 
was  offered  on  both  sides,  upon  the  controverted  fact,  whether  the 
packages  of  glassware  were  stowed  under  deck,  and  as  incident  thereto, 
the  plaintiffs  introduced  evidence  tending  to  show,  that  if  they  had  been 
stowed  under  deck,  they  would  have  been  found  there,  although  in  a 
damaged  condition,  so  that  they  could  be  identified;  because,  upon  the 
facts  proved,  they  could  not  have  been  washed  out  or  broken  to  pieces, 
if  they  had  been  there.  On  the  other  hand,  the  defendants  attempted 
to  prove  that  the  main  hatch  was  forced  off,  and  holes  beaten  in  the 
bottom  of  the  vessel,  by  force  of  the  wind  and  sea,  at  the  time  the  schooner 
stranded,  by  means  of  which  the  packages  might  have  been  washed  out. 

In  this  state  of  the  evidence,  Brown,  a  witness  for  the  plaintiff,  stated 
that  he  had  been  acquainted  with  the  navigation  about  Hart  Island 
thirty  years,  and  been  stranded  there,  and  was  employed  in  saving  and 
getting  off  wrecked  vessels,  and  was  near  the  place  on  the  night  in 
question.  The  plaintiffs  then  proposed  to  ask  him  whether,  taking  into 
view  the  condition  and  situation  of  the  vessel,  and  all  the  accompanying 
circumstances  of  the  case,  the  goods  in  question  could,  in  his  opinion, 
have  been  broken  to  pieces  in  the  hold,  or  washed  out  of  the  hold,  if  they 
had  been  stowed  therein,  in  the  manner  testified  to  by  the  .defendants' 
witnesses.  This  was  objected  to  and  rejected.  The  question  on  this 
exception  is,  whether  it  should  have  been  admitted. 

Shaw,  C.  J.  (after  stating  the  case  as  above).  In  weighing  circum- 
stantial evidence,  the  opinion  of  a  witness  is  often  useful,  and  indeed 
necessary;  but  as  its  admissibility  is  contrary  to  the  general  rule,  and 
limited  to  particular  cases.  It  depends  so  much  upon  the  other  evidence 
which  has  been  given,  the  nature  of  the  facts  to  be  proved,  and  the  particu- 
lar posture  of  the  case,  it  is  often  extremely  difficult  to  apply  it  in  practice. 
The  principle,  upon  which  this  evidence  is  admissible,  is  clear  and  entirely 
just.  In  applying  circumstantial  evidence,  which  does  not  go  directly 
to  the  fact  in  issue,  but  to  facts  from  which  the  fact  in  issue  is  to  be 
inferred,  the  jury  have  two  duties  to  perform;  first,  by  a  rigid  scrutiny 
of  the  evidence  to  ascertain  the  truth  of  the  fact  to  which  the  evidence 
goes,  and  thence  to  infer  the  truth  of  the  fact  in  issue.  This  inference 
depends  upon  experience.  When  we  have  ascertained  by  experience 
that  one  act  is  uniformly  or  generally  the  cause  of  another,  from  proof 
of  the  cause  we  infer  the  effect,  or  from  proof  of  the  effect  we  infer 
the  cause.  For  instance;  it  being  ascertained  by  long  experience  that 
arsenic  is  a  deadly  poison,  if  it  were  proved  that  one  took  arsenic  and  was 
found  dead,  the  inference  would  be,  that  his  death  was  caused  by  that 
poison;  or,  if,  upon  a  post  mortem  examination,  arsenic  were  found  in  the 
stomach,  it  would  be  inferred  that  the  death  was  caused  by  it. 

Now  when  this  experience  is  of  such  a  nature  that  it  may  be  presumed 
to  be  within  the  common  experience  of  all  men  of  common  education, 
moving  in  the  ordinary  walks  of  life,  there  is  no  room  for  the  evidence 
of  opinion;   it  is  for  the  jury  to  draw  the  inference.     It  is  not  because  a 


234  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  161 

man  has  a  reputation  for  superior  sagacity,  and  judgment,  and  power  of 
reasoning,  that  his  opinion  is  admissible;  if  so,  such  men  might  be  called 
in  all  cases  to  advise  the  jury,  and  it  would  change  the  mode  of  trial. 
But  it  is  because  a  man's  professional  pursuits,  his  peculiar  skill  and 
knowledge  in  some  department  of  science,  not  common  to  men  in  general, 
enable  him  to  draw  an  inference,  where  men  of  common  experience, 
after  all  the  facts  proved,  would  be  left  in  doubt.  Suppose  a  vessel  has 
been  stranded,  and  the  charge  is,  that  it  resulted  from  unskilful  and 
careless  navigation.  After  all  the  evidence  given  of  the  state  of  the 
wind  and  weather,  the  position  and  distance  of  the  land,  the  sail  carried, 
the  course  steered,  and  the  nautical  manoeuvres  adopted,  landsmen, 
men  of  common  experience  would  be  unable  to  infer  that  the  disaster  was 
caused  by  bad  seamanship,  rather  than  inevitable  accident;  whereas, 
a  man  of  nautical  experience  might  draw  a  certain  inference,  and  pro- 
nounce it  attributable  to  the  one  or  the  other  cause.  Folkes  v.  Chadd, 
3  Doug.  157;  1  Greenleaf,  Evidence,  §  440;  6  N.  H.  463. 

In  the  present  case,  this  Court  are  of  opinion,  with  the  judge  who 
tried  the  cause,  that  these  questions  were  not  proper  for  the  opinions 
of  the  witness;  they  were  inferences  to  be  drawn  from  facts  within  com- 
mon experience,  not  depending  on  peculiar  experience,  especially  such 
as  the  witness  said  he  possessed.  We  think  the  same  rule  applies  to  the 
rejection  of  the  opinions  of  the  other  witnesses,  as  stated  in  the  answers 
given  in  their  depositions,  which  were  objected  to,  and  rejected  by  the 
Court. 

In  view  of  the  difficulty  of  laying  down  any  rule  on  this  subject, 
precise  enough  for  practical  application,  the  only  proper  course  seems 
to  be,  to  keep  the  principle  steadily  in  view,  and  apply  it  according  to 
all  the  existing  circumstances  affecting  the  particular  case.  Exceptions 
overruled,  i 

W.  Sohier,  for  the  plaintiffs.     B.  F.  Hallett,  for  the  defendants. 


162.   COMMONWEALTH  v.   STURTIVANT 

Supreme  Judicial  Court  of  Massachusetts.  1875 

117  Mass.  122 

Indictment  for  the  murder  of  Simeon  Sturtivant,  at  Halifax,  in  the 
county  of  Plymouth,  on  February  15,  1874.  Trial  before  Wells  and 
Ames,  JJ.,  who  allowed  a  bill  of  exceptions  in  substance  as  follows: 

1.  There  was  evidence  tending  to  show  that  Simeon  Sturtivant  and 
Mary  Buckley,  his  housekeeper,  were  last  seen  alive  about  half  past  six 
o'clock  on  Sunday  evening,  February  15,  1874,  and  that  Thomas  Sturti- 
vant was  last  seen  alive  about  half  past  four  o'clock  on  the  afternoon  of 
the  same  day;  that  about  half  past  seven  o'clock  on  the  morning  of  the 
sixteenth,  Mary  Buckley  was  found  lying  dead  in  a  field  about  thirty- 


No.  162  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  235 

five  rods  from  the  dwelling-house  of  the  Sturtivants,  and  soon  afterwards 
the  dead  body  of  Thomas  was  found  lying  in  one  room  of  the  house,  and 
that  of  Simeon  in  another  room;  that  between  these  rooms  was  another 
large  room,  all  the  doors  of  which  were  closed.  The  only  evidence 
tending  to  show  who  was  the  murderer  of  either  of  these  persons  was 
circumstantial.  The  government  contended  that  the  evidence  tended  to 
show  that  the  three  persons  were  killed  by  the  same  person,  with  the  same 
weapon,  at  the  same  time.  Two  other  indictments  against  the  de^ndant 
had  been  found,  and  were  pending  in  this  Court,  for  the  murder  of 
Thomas  Sturtivant  and  Mary  Buckley.  .  .  . 

2.  A  chemist  having  stated  that  he  was  accustomed  to  make  chemical 
and  microscopic  examination  of  blood  and  blood-stains,  for  the  purpose  of 
determining  whether  they  were  human  blood  or  the  blood  of  other  animals, 
was  admitted  as  a  witness  for  the  government,  and  testified  in  regard  to 
the  tests  which  he  had  applied  to  certain  stains  upon  articles  of  clothing 
belonging  to  the  defendant.  He  was  then  asked  to  give  an  opinion  as 
to  the  direction  from  which  a  certain  stain  upon  the  defendant's  overcoat 
had  come.  The  defendant's  counsel  objected,  contending  that  the  limit 
to  which  the  witness  could  go  was  a  full  description  of  the  stain  as  it 
appeared  under  the  microscope  or  otherwise  and  illustrations  before  the 
jury  (which  the  witness  made).  The  objection  was  overruled,  and  the 
witness  stated  that  the  blood  came  from  below  upward.  It  was  not 
shown  that  he  had  made  or  witnessed  any  experiments  with  blood  or 
other  fluids  in  regard  to  this  matter.  The  examination  of  the  witness 
and  the  rulings  of  the  Court  upon  this  point  were  as  follows : 

Q.  —  "I  wish  to  inquire  what  the  stains  upon  the  coat  would  indicate  as  to 
the  direction  from  which  the  blood  came?"  The  defendant's  counsel  objected 
that  this  was  not  chemistry  or  any  other  branch  of  science.  .  .  . 

Wells,  J.  —  "I  think  your  first  inquiry  would  be,  whether  there  was  any- 
thing discovered  that  indicated  anything  of  that  sort." 

Q.  —  "At  the  time  you  made  your  first  examination,  was  there  anything  dis- 
coverable that  indicated  the  direction  from  which  the  stains  had  come  that  you 
found  upon  the  coat?" 

A.  —  "Yes,    sir." 

Q.  — "What?" 

A.  —  "The  appearance  of  the  stains." 

Q.  —  "Will  you  tell  us  what  direction  they  had  come  from?" 

Defendant's  counsel.  —  "So  far  as  the  stains  are  concerned  that  are  upon  the 
coat,  the  jury  can  judge  as  well  as  he  can." 

Wells,  J.  —  "I  think  the  witness  can  describe  what  it  was  that  he  saw  that 
indicated  the  direction,  and  show  what  it  was,  rather  than  to  give  a  general 
opinion  as  to  what  the  direction  was." 

Defendants  counsel.  —  "I  wish  to  reserve  an  exception,  so  far  as  the  stains 
that  are  now  upon  the  coat  are  concerned,  and  which  the  witness  says  are  the 
same  now  that  they  were  then,  excepting  the  change  resulting  from  the  natural 
handling  of  the  coat." 

Wells,  J.  —  "I  understand,  also,  that  he  says  that  there  were  indications 
then  that  are  not  apparent  now;   that  he  examined  it  with  a  lens,  and  that  that 


236  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  162 

aided  his  examination.  It  is  in  that  view  that  he  is  allowed  to  describe  what 
the  indications  were  which  indicated  the  direction." 

Dejendanfs  counsel.  —  "What  is  not  there  now,  we  do  not  object  to  the  wit- 
ness describing;  but  so  far  as  anything  now  visible,  indicating  in  which  direction 
the  blood  came,  is  concerned,  we  object  to  that.  We  think  the  distinction  should 
be  observed  by  the  witness;  and  unless  your  Honors  are  of  a  different  opinion, 
we  ask  that  he  may  be  confined  to  that." 

Wells,  J.  —  "We  think  he  may  give  the  whole  description,  as  it  was  found." 

^.  —^  "It  is  an  oval  stain  between  one-eighth  and  one-fourth  of  an  inch  long, 
and  one  inch  from  the  edge  of  the  coat,  on  the  right-hand  side,  front,  and  three 
and  three-fourths  inches  below  the  last  button-hole,  the  bottom  button-hole. 
The  direction  of  the  stain  is  diagonal.  Using  my  own  coat  as  an  illustration, 
the  stain  lay  in  this  direction  (illustrating).  The  upper  portion  of  the  stain 
contained  more  blood  than  the  lower,  which  it  does  not  contain  now,  on  account 
of  its  having  been  rubbed  off." 

Q.  —  "What  does  that  indicate  as  to  the  direction?" 

Defendant's  counsel.  —  "One  moment.  If  it  is  chemistry,  we  do  not  object; 
if  it  is  anything  else,  we  do." 

Wells,  J.  —  "I  think  if  the  witness  explains  the  reasons  at  the  same  time 
that  he  gives  the  result,  he  may  do  so." 

A.  —  "If  the  force  of  a  stream  of  fluid,  whatever  it  may  be,  and  especially 
blood,  be  from  below  upward,  the  heaviest  portion  of  the  drop  will  stop  at  the 
further  end  of  the  stain;    if  from  above  downward,  it  will  stop  below." 

Defendant's  counsel.  —  "That  is  pure  opinion  as  to  a  matter  of  mechanics,  not 
chemistry.     Any  butcher  vis  just  as  good  an  expert  on  that  as  this  witness." 

Wells,  J.  —  "The  evidence  is  admitted  subject  to  exception." 

A.  —  "It  can  only  be  seen  with  a  lens  in  a  small  stain." 

Q.  —  "Now,  you  have  described  one,  the  direction  of  which  was  upward 
and  diagonal.     Is  there  any  other?" 

A.  —  "Not  upon  the  coat." 

The  jury  returned  a  verdict  of  guilty  of  murder  in  the  first  degree; 
and  the  defendant  alleged  exceptions. 

B.  W.  Harris.  .  .  .  The  opinion  of  the  chemist  who  testified  from 
the  appearance  of  the  drop  of  blood,  that  it  came  from  below  upward, 
was  incompetent  evidence.  The  expert  should  have  been  limited  to  a 
statement  of  what  he  was,  by  his  superior  knowledge,  better  cjualified 
to  testify  about  than  another,  and  concerning  which  the  jury,  from  that 
knowledge  common  to  mankind  which  they  were  supposed  to  possess, 
would  be  unable  to  determine  for  themselves  and  without  his  aid.  The 
case  finds  "that  it  was  not  shown  that  he  had  made  or  witnessed  any 
experiments  with  blood  or  other  fluids,  in  regard  to  this  matter."  He 
was,  nevertheless,  permitted  to  give  his  opinion  that  the  drop  of  blood 
came  from  below  upward.  .  .  .  The  witness  had  minutely  described  the 
shape  of  the  stain,  its  position  on  the  coat,  that  its  direction  was  diagonal, 
and  that  the  upper  portion  of  it  contained  more  blood  than  the  lower. 
The  jurs',  therefore,  had  all  the  facts,  and  it  w^as  for  them  to  draw  the 
inference  from  whence  the  blood  came,  for  the  witness  had  no  more 
knowledge  derived  from  experiment  than  they.  .  .  . 


No.  162  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  237 

C.  R.  Train,  Attorney-General,  {W.  G.  Colburn,  Assistant  Attorney- 
General,  with  him),  for  the  Commonwealth. 

Endicott,  J.  .  .  .  The  principal  exception  is  to  the  competency  of 
the  evidence  in  regard  to  the  blood-stain.  The  question  here  is  whether 
a  witness,  who  is  familiar  with  blood  and  has  examined,  with  a  lens,  a 
blood-stain  upon  a  coat,  when  it  was  fresh,  can  also  testify  that  the 
appearance  then  indicated  the  direction  from  which  it  came,  and  that  it 
came  from  below  upward,  although  he  has  never  experimented  with  blood 
or  other  fluid  in  this  respect.  The  witness  had  previously  testified  to  its 
appearance  at  the  time  he  examined  it,  and  to  the  fact  that  at  the  trial 
it  was  not  in  the  same  condition,  some  of  the  blood  having  been  rubbed  off. 

The  exception  to  the  general  rule  that  witnesses  cannot  give  opinions 
is  not  confined  to  the  evidence  of  experts  testifying  on  subjects  requiring 
special  knowledge,  skill,  or  learning;  but  includes  the  evidence  of  common 
observers,  testifying  to  the  results  of  their  observation  made  at  the  time 
in  regard  to  common  appearances  or  facts,  and  a  condition  of  things 
which  cannot  be  reproduced  and  made  palpable  to  a  jury.  Such  evidence 
has  been  said  to  be  competent  from  necessity,  on  the  same  ground  as  the 
testimony  of  experts,  as  the  only  method  of  proving  certain  facts  essential 
to  the  proper  administration  of  justice.  Nor  is  it  a  mere  opinion  which 
is  thus  gi\'en  by  a  witness,  but  a  conclusion  of  fact  to  which  his  judgment, ' 
observation,  and  common  knowledge  has  led  him  in  regard  to  a  subject- 
matter  which  requires  no  special  learning  or  experiment,  but  which  is 
within  the  knowledge  of  men  in  general. 

Every  person  is  competent  to  express  an  opinion  on  a  question  of 
identity  as  applied  to  persons,  things,  animals,  or  handwriting,  and  may 
give  his  judgment  in  regard  to  the  size,  color,  weight  of  objects,  and  may 
estimate  time  and  distances.  He  may  state  his  opinion  in  regard  to 
sounds,  their  character,  from  what  they  proceed,  and  the  direction  from 
.which  they  seem  to  come.  State  r.  Shinborn,  46  N.  H.  497.  The 
correspondence  between  boots  and  footprints  is  a  matter  requiring  no 
peculiar  knowledge,  and  to  which  any  person  can  testify.  Common- 
wealth V.  Pope,  103  Mass.  440.  So  a  person  not  an  expert  may  give 
his  opinion  whether  certain  hairs  are  human  hairs.  Commonwealth  t. 
Dorsey,  103  Mass.  412.  And  a  witness  may  state  what  he  understood  by 
certain  "expressions,  gestures,  and  intonations,"  and  to  whom  they  were 
applied;  otherwise  the  jury  could  not  fully  understand  their  meaning. 
Leonard  v.  Allen,  11  Cush.  241. 

In  this  connection  may  be  noticed  a  large  class  of  cases,  where,  from 
certain  appearances  more  or  less  difficult  to  describe  in  words,  witnesses 
have  been  permitted  to  state  their  conclusions  in  relation  to  indications 
of  disease  or  health,  and  the  condition  or  qualities  of  animals  or  persons. 
As,  when  a  witness  testifies  that  a  horse's  foot  appeared  to  be  diseased, 
he  states  a  matter  of  fact,  open  to  the  observation  of  common  men. 
Willis  V.  Quimby,  31  N.  H.  485.  And  it  is  proper  for  a  witness  to  give 
his  opinion  that  a  horse  appeared  to  be  sulky  and  not  frightened  at  the 


238  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  162 

time  of  an  accident;  Whittier  v.  Franklin,  46  N.  H.  23;  or  he  may  testify 
as  to  the  quaUties  and  appearance  of  a  horse.  State  v.  x\very,  44  N.  H. 
392.  ...  It  is  competent  for  a  witness  to  testify  to  the  condition  of 
health  of  a  person,  and  that  he  is  ill  or  disabled,  or  has  a  fever,  or  is 
destitute  and  in  need  of  relief;  Parker  v.  Boston  &  Hingham  Steamboat 
Co.,  109  Mass.  449;  Wilkinson  v.  Moseley,  30  Ala.  562;  Barker  v.  Cole- 
man, 35  Ala.  221;  Autauga  County  v.  Davis,  32  Ala.  703;  and  one 
may  testify  that  another  acted  as  if  she  felt  very  sad ;  Culver  v.  Dwight, 
6  Gray  444.  So  those  who  have  observed  the  relations  and  conduct  of 
two  persons  to  each  other  may  testify  whether,  in  their  opinion,  one  was 
attached  to  the  other.  x\nd  in  M'Kee  v.  Nelson,  4  Cowen  355,  the  Court 
say:  "The  opinion  of  witnesses  on  this  subject  must  be  derived  from  a 
series  of  instances  passing  under  their  observation,  which  yet  they  never 
could  detail  to  a  jury."  See  Trelawney  v.  Colman,  2  Stark.  191.  A 
witness  may  also  give  his  judgment  whether  a  person  was  intoxicated  at 
a  given  time;  People  v.  Eastwood,  4  Kernan  562;  or  whether  he  noticed 
any  change  in  the  intelligence  or  understanding,  or  any  want  of  coherence 
in  the  remarks  of  another.  Barker  v.  Comins,  110  Mass.  477.  Nash  v. 
Hunt,  116  Mass.  237.  .  .  . 

It  would  seem  to  be  within  the  knowledge  of  men  in  general,  when 
'looking  at  the  effects  of  a  blow  upon  a  solid  body,  to  determine  from  the 
external  marks  and  indications,  if  any  exist,  the  direction  from  which  it 
came.  .  .  .  Suppose  the  panel  of  a  carriage  door  is  broken  in  by  a  colli- 
sion; different  appearances  would  follow  from  a  horizontal  blow  delivered 
at  right  angles,  than  from  a  blow  from  the  front  or  rear,  from  above  or 
below.  Such  appearances  the  common  observer  can  detect,  some  more 
accurately  and  clearly  than  others,  but  it  is  presumed  to  be  within  the 
power  of  all;  and  the  opinion  of  an  expert,  who  has  experimented  by 
blows  on  similar  surfaces,  and  is  learned  in  the  law  of  forces,  is  not 
necessary  or  required.  If  the  panel  itself  is  introduced  to  the  jury,  they, 
are  competent  and  able  to  decide  the  question.  If  it  cannot  be,  the 
witness  who  saw  it  may  describe,  as  well  as  he  can,  what  he  saw,  and 
state  the  conclusion  he  formed  at  the  time.  It  would  also  seem  to  be 
within  the  range  of  common  knowledge  to  observe  and  understand  those 
appearances,  in  marks  or  stains  caused  by  blood  or  other  fluids,  which 
indicate  the  direction  from  which  they  came,  if  impelled  by  force.  .  .  . 

The  competency  of  this  evidence  rests  upon  two  necessary  conditions : 
first,  that  the  subject-matter  to  which  the  testimony  relates  cannot  be 
reproduced  or  described  to  the  jury  precisely  as  it  appeared  to  the  witness 
at  the  time;  and  second,  that  the  facts  upon  which  the  witness  is  called 
to  express  his  opinion  are  such  as  men  in  general  are  capable  of  com- 
prehending and  understanding.  When  these  conditions  have  been  com- 
plied with  or  fulfilled  in  a  given  case,  the  Court  must  then  pass  upon  the 
question,  whether  the  witness  had  the  opportunity  and  means  of  inquiry 
and  was  careful  and  intelligent  in  his  observation  and  examination.   .   .   . 

In  the  case  at  bar  the  admission  of  the  evidence  by  the  Court  involved 


No.  163  TESTEMONIAL  EVIDENCE:     QUALIFICATIONS  239 

the  decision:  (1)  that  the  stain  was  not  in  the  same  condition,  and  did 
not  exhibit  the  same  appearance  at  the  trial  as  it  did  when  examined  hy 
the  witness,  and  cannot  be  reproduced  to  the  jury:  upon  this  as  a  matter 
of  fact  there  is  no  question;  (2)  that  the  stain  might  in  itself  furnish 
indications  from  what  direction  it  came,  capable  of  being  observed  by  a 
witness,  who  though  familiar  with  blood  and  its  cjualities,  had  not  made 
or  seen  experiments  made  with  it  or  other  fluids  in  this  respect;  and 
(3)  that  the  witness  had  made  that  thorough,  careful,  and  intelligent 
observation  of  the  appearances,  which  would  entitle  him  to  testify. 
We  must  take  the  decision  of  the  Court  on  this  last  point  to  be  conclusive. 
Whether  the  reasons  the  witness  gave  for  his  opinion  of  the  direction 
of  the  stain  were  sound  or  unsound,  does  not  affect  the  question  of 
competency,  and  of  course  the  defendant  had  full  opportunity  to  test 
him  by  cross-examination,  or  to  show  by  evidence  or  argument  that  his 
reasons  were  unsound.  .  .  .  Exceptions  overruled. 


163.   HARDY  v.  MERRILL 

Superior  Court  of  Judicature.  1875 

56  N.  H.  227 

Appeal,  by  W'illiam  H.  Hardy  against  Isaac  D.  Merrill,  from  the 
decree  of  the  judge  of  probate  approving  and  allowing,  in  solemn  form, 
the  will  of  Joseph  Hardy,  deceased.  Said  will  was  dated  July  26,  1870. 
.  .  .  The  issues  were  in  common  form.  In  the  first,  the  executed  alleged 
that  the  said  Joseph  Hardy  was  of  sound  mind;  and  in  the  second,  he 
alleged  that  said  will  was  not  obtained  by  undue  influence:  upon  both 
of  which  allegations  issue  was  taken  by  the  appellant.  .  .  .  Solomon 
Hardy,  a  brother  of  the  testator,  was  called  as  a  witness  by  the  appellant, 
and  the  following  questions,  among  others,  were  put  to  him: 

1.  "Being  a  brother  of  Joseph  Hardy,  from  your  observation  of  his  appear- 
ance and  conduct  at  the  time  you  saw  him  at  your  house  in  Jime,  1869,  state 
whether  or  not,  in  your  opinion,  he  was,  at  the  time,  of  sound  and  disposing  mind 
and  memory."  2.  "Being  a  brother  of  the  testator,  from  what  you  had  ob- 
served as  to  his  conversation,  conduct,  and  general  deportment  as  to  all  subjects, 
up  to  July  26,  1870,  have  you  any  opinion  as  to  his  sanity  at  that  date,  and,  if 
so,  what  is  it?" 

The  referees  excluded  these  questions,  and  the  appellant  ex- 
cepted.  .   .   . 

.  .  .  Josiah  C.  Hardy,  a  witness  for  the  appellant,  testified,  among 
other  things,  that  the  "testator  appeared  like  a  failing  man  in  every 
respect,"  which  was  excluded,  and  the  appellant  excepted.  Madison  M. 
Howe,  a  witness  for  the  appellant,  testified  that  the  testator  "appeared 
like  a  man  who  did  not  seem  to  know  what  he  was  talking  about  half 
the  time,"  which  was  excluded,  and  the  appellant  excepted;   but  he  was 


240  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  163 

allowed  to  state,  subject  to  the  exceptions  of  the  appellee,  that  "he  (the 
testator)  appeared  very  weak  in  his  mind."  George  B.  Hardy,  a  witness 
for  the  appellant,  stated,  subject  to  exception  of  the  appellee,  that  "he 
(the  testator)  appeared  childlike  —  appeared  feeble  in  body  and  mind  — 
more  like  a  child  than  a  rational  man."  Samuel  C.  Hardy,  a  witness  for 
the  appellant,  testified  that  "  it  looked  to  me  as  though  he  was  failing  in 
his  business  capacity,  or  in  his  mind,"  which  was  excluded,  and  appellant 
excepted.  .  .  . 

In  the  Circuit  Court,  at  the  April  Term,  1875,  it  was  ordered  that 
the  questions  of  law  raised  by  the  report  of  the  referees  be  reserved  and 
transferred  to  this  Court  for  determination. 

Mucjridqc,  for  the  appellant.  We  submit  that  the  questions  put  to 
Solomon  Hardy,  the  brother  of  the  testator,  whether  he  had  any  opinion 
as  to  the  sanity  of  the  testator  when  the  will  was  made,  and  if  so,  what 
it  was,  was  improperly  excluded  by  the  Court.  We  know  that  this 
suggestion  is  in  conflict  with  certain  decisions,  referred  to  by  the  other 
side,  in  which  this  kind  of  testimony  has  been  rejected;  but  feeling,  as 
we  do,  that  the  existing  rule  on  this  subject  is  clearly  wrong,  we  most 
respectfully  ask  the  Court  to  reconsider  it,  in  the  hope  that,  its  fallacies 
appearing,  it  may  be  condemned  as  tending  to  subvert  rather  than 
promote  the  ends  of  justice,  and  as  being  no  longer  worthy  of  toleration. 

The  first  time  that  the  precise  question  now  under  consideration  was 
before  the  Court  in  this  State  was  in  Boardman  v.  Woodman,  47  N.  H. 
120,  and  the  decision  was  then  made  by  a  divided  Court.  The  opinion 
of  a  majority  of  the  judges  in  that  case  seems  to  be  based  on  the  general 
doctrine,  recognized  in  some  of  the  prior  cases  referred  to  by  counsel 
on  the  other  side,  that  ordinarily  the  opinions  of  witnesses  other  than 
experts  are  not  admissible.  .  .  .  We  wish  to  refer  the  Court,  also,  to  the 
learned  and  exhaustive  dissenting  opinions  of  Judge  Doe,  in  State  v. 
Pike,  and  Boardman  v.  Woodman,  as  indicating  what  we  claim  to  be  the 
true  rule  of  evidence,  and  the  one  abundantly  supported  by  the  weight 
of  judicial  authority.  We  would  suggest,  that  no  more  odious  law  of 
practice  exists  than  the  one  under  consideration,  and  that  its  rigid  enforce- 
ment is  one  of  the  greatest  embarrassments  and  hindrances  in  the  admin- 
istration of  justice  that  can  be  found  in  the  practice  of  this  State. 

To  render  evidence  as  to  mental  condition  competent,  it  must  be 
purely  and  essentially  descriptive  in  its  character;  and  any  statement 
partaking  at  all  of  the  nature  of  an  opinion  is  at  once  rejected.  By 
witnesses  who  are  not  capable  readily  of  making  that  accurate  discrimi- 
nation required  to  keep  opinion  and  fact,  oftentimes  so  intimately 
blended,  separate  in  testifying,  the  rule  is  most  difficult  of  comprehension, 
and  much  testimony  is  many  times  excluded  on  account  of  the  inability 
of  the  witness  to  make  the  true  distinction  demanded.  .  .  . 

Again:  we  suggest  that  a  class  of  evidence,  which  would  with  every 
intelligent  jury  be  the  most  satisfactory,  is  now  peremptorily  excluded. 
A  parent,  brother,  or  friend,  who  may  have  associated  with  the  testator 


No.  163  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  241 

on  terms  of  the  closest  intimacy  every  day  of  his  hfe,  and  become,  by 
the  closest  observation  and  study,  perfectly  familiar  with  every  phase  of 
his  character,  no  matter  how  great  his  learning  and  intelligence  on  other 
subjects,  unless  he  has  made  mental  diseases  a  study,  so  that  he  can  be 
recognized  as  an  expert  in  such  matters,  is  debarred  from  expressing  his 
opinion,  while  that  of  the  expert,  who  never  saw  the  party,  and  had  no 
actual  knowledge  of  him,  upon  a  hypothetical  case  is  admitted.  .  .  . 

Sargent  &  Chase,  for  the  executor.  .  .  .  The  questions  to  Solomon 
Hardy  were  not  competent,  he  not  being  a  subscribing  witness  to  the 
will,  nor  an  expert.  The  general  rule,  that  the  opinions  of  witnesses  not 
experts  are  not  competent  evidence,  is  well  established  and  everywhere 
admitted.  The  subscribing  witnesses  to  a  will  are  an  exception  to  this 
rule,  well  marked  and  defined.  The  statute  has  made  another  exception 
as  to  the  value  of  property  —  Gen.  Stats,  ch.  209,  §  24.  There  is  no 
good  reason  why  insanity  should  be  treated  as  an  exception  to  this  general 
rule.  .  •  . 

Foster,  C.  J The  case  before  us  involves  an  inquiry  into  the 

nature  and  extent  of  the  exceptions  to  the  general  rule,  that  testimony 
of  facts  alone  is  admissible  in  courts  of  justice,  and  that  the  opinions  of 
witnesses  are  to  be  excluded.  The  same  questions  are  presented  which 
were  considered  by  the  late  Supreme  Court  in  Boardman  v.  Woodman, 
47  N.  H.  120,  and  State  v.  Pike,  49  N.  H.  399.  In  both  these  cases  a 
majority  of  the  Court  sustained  the  doctrine  of  the  exclusion  of  the 
opinions  of  non-professional  witnesses  upon  questions  of  mental  condition. 
.  .  .  But  the  subject  is  so  rapidly  increasing  in  importance,  that  its 
thorough  re-examination  ought  to  be  no  longer  postponed.  .  .  . 

It  would  be  merely  a  repetition  of  the  historical  part  of  Judge  Doe's 
opinion,  in  State  v!  Pike,  49  N.  H.  421,  423,  if  I  were  to  relate  how,  after 
the  eminent  jurists,  who  presided  in  our  courts  between  the  years  1811 
and  1833,  had  all  passed  off  the  stage,  the  "Massachusetts  exception" 
gradually  worked  into  favor  in  New  Hampshire,  it  having  been  errone- 
ously declared  by  the  Massachusetts  Courts  to  be  an  expression  of  the 
English  common  law.  ...  A  tolerably  careful  investigation  authorizes 
me  to  repeat  the  language  of  Judge  Doe,  that  "in  England  no  express 
decision  of  the  point  can  be  found,  for  the  reason  that  such  evidence 
has  always  been  admitted  without  objection.  It  has  been  universally 
regarded  as  so  clearly  competent,  that  it  seems  no  English  lawyer  has 
ever  presented  to  any  Court  any  objection,  question,  or  doubt  in  regard 
to  it."  State  v.  Pike,  49  N.  H.  408,  409.  I  presume,  however,  it  will  not 
be  denied  that  in  the  ecclesiastical  Courts,  where  questions  of  testa- 
mentary capacity  are  generally  tried,  such  opinions  have  always  been 
received.  .  .  .  The  practice  in  the  Courts  of  the  common  law  has  been 
universal  and  unwavering  in  the  same  direction;  and  "the  number  of 
English  authorities  is  limited  only  by  the  number  of  fully  reported  cases 
in  which  the  question  of  sanity  has  been  raised."  State  v.  Pike,  49  N.  H. 
409.  .  .  . 


242  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   163 

It  is  proper  for  me  to  invite  attention  to  the  history  of  what  I 
have  called  the  Massachusetts  exception.  .  .  .  The  exception  grew  and 
dilated,  finding  larger  and  stronger  expression  along  through  the  years 
and  the  course  of  the  cases  of  Hathorn  v.  King,  8  Mass.  371,  Dickinson 
V.  Barber,  9  Mass.  225,  Needham  v.  Ide,  5  Pick.  510,  Com.  v.  Wilson,  1 
Gray  337,  down  to  Com.  v.  Fairbanks,  2  Allen  511  (1861),  when  it  was 
held  per  curiam,  "that  the  incompetency  of  the  opinions  of  non-experts 
was  not  an  open  question  in  Massachusetts;"  though  Judge  Thomas 
had  recently  said,  in  Baxter  v.  Abbott,  7  Gray  79,  that 

"If  it  were  a  new  question  (he)  should  be  disposed  to  allow  every  witness  to 
give  his  opinion,  subject  to  cross-examination  upon  the  reasons  upon  which  it  is  • 
based,  his  degree  of  intelligence,  and  his  means  of  observation." 

In  very  recent  times,  however,  we  observe  a  more  liberal  disposition 
on  the  part  of  the  Massachusetts  Courts  —  see  Barker  v.  Comins,  1 10 
Mass.  477  (1872),  and  Nash  v.  Hunt,  116  Mass.  237  (1874).  In  the  former 
of  these  cases,  it  was  held  that  persons  acquainted  with  the  testator, 
although  neither  witnesses  to  the  will  nor  medical  experts,  may  testify 
whether  they  noticed  any  change  in  his  intelligence,  and  any  want  of 
coherence  in  his  remarks.     Gray,  J.,  said, 

"The  question  did  not  call  for  the  expression  of  an  opinion  upon  the  question 
whether  the  testator  was  of  sound  or  unsound  mind,  which  the  witnesses,  not  being 
either  physicians  or  attesting  witnesses,  would  not  be  competent  to  give.  The 
question  whether  there  was  an  apparent  change  in  a  man's  intelligence  or  under- 
standing, or  a  want  of  coherence  in  his  remarks,  is  a  matter  not  of  opinion  but  of 
fact,  as  to  which  any  witness  may  testify,  in  order  to  put  before  the  court  or  jury 
the  acts  and  conduct  from  which  the  degree  of  his  mental  capacity  may  be  in- 
ferred." ... 

With  deference  and  great  respect  I  may  be  allowed  to  say,  that  I 
rejoice  much  more  in  the  results  attained  in  these  later  cases,  than  in  the 
modus  operandi  of  judicial  reasoning  by  which  the  conclusions  were 
reached.  They  indicate  decided  and  accelerating  progress  of  the  Massa- 
chusetts Courts  in  the  right  direction.  The  full  establishment  of  the 
true  doctrine  there,  is  a  question  of  time  only. 

Courts  and  text-writers  all  agree  that,  upon  questions  of  science  and 
skill,  opinions  may  be  received  from  persons  specially  instructed  by 
study  and  experience  in  the  particular  art  or  mystery  to  which  the  inves- 
tigation relates.  But  without  reference  to  any  recognized  rule  or  prin- 
ciple, all  concede  the  admissibility  of  the  opinions  of  non-professional 
men  upon  a  great  variety  of  unscientific  questions  arising  every  day,  and 
in  every  judicial  inquiry.  These  are  questions  of  identity,  handwriting, 
quantity,  value,  weight,  measure,  time,  distance,  velocity,  form,  size, 
age,  strength,  heat,  cold,  sickness,  and  health;  questions,  also,  concerning 
various  mental  and  moral  aspects  of  humanity,  such  as  disposition  and 
temper,  anger,  fear,  excitement,  intoxication,  veracity,  general  character, 
and  particular  phases  of  character,  and  other  conditions  and  things,  both 


No.  163  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  243 

moral  and  physical,  too  numerous  to  mention.  .  .  .  Opinions  concerning 
matters  of  daily  occurrence,  and  open  to  common  observation,  are 
received  from  necessity;  and  any  rule  which  excludes  testimony  of  such 
a  character,  and  fails  to  recognize  and  submit  to  that  necessity,  tends  to 
the  suppression  of  truth  and  the  denial  of  justice.  The  ground  upon 
which  opinions  are  admitted  in  such  cases  is,  that,  from  the  very  nature 
of  the  subject  in  issue,  it  cannot  be  stated  or  described  in  such  language 
as  will  enable  persons,  not  eye-witnesses,  to  form  an  accurate  judgment 
in  regard  to  it.  How  can  a  witness  describe  the  weight  of  a  horse?  or  his 
strength?  or  his  value?  Will  any  description  of  the  wrinkles  of  the  face, 
the  color  of  the  hair,  the  tones  of  the  voice,  or  the  elasticity  of  step,  con- 
vey to  a  jury  any  very  accurate  impression  as  to  the  age  of  the  person 
described?  And  so,  also,  in  the  investigation  of  mental  and  psychological 
conditions,  —  because  it  is  impossible  to  convey  to  the  mind  of  another 
any  adequate  conception  of  the  truth  by  a  recital  of  visible  and  tangible 
appearances,  —  because  you  cannot,  from  the  nature  of  the  case,  describe 
emotions,  sentiments,  and  affections,  which  are  really  too  plain  to  admit 
of  concealment,  but,  at  the  same  time,  incapable  of  description,  —  the 
opinion  of  the  observer  is  admissible  from  the  necessity  of  the  case;  and 
witnesses  are  permitted  to  say  of  a  person,  " He  seemed  to  be  frightened; " 
"he  was  greatly  excited;"  "he  was  much  confused;"  "he  was  agitated;" 
"he  was  pleased;"  "he  was  angry."  .  .  .  All  evidence  is  opinion  merely, 
unless  you  choose  to  call  it  fact  and  knowledge  as  discovered  by  and 
manifested  to  the  observation  of  the  witness.  .  .  .  And  it  seems  to  me 
quite  unnecessary  and  irrelevant  to  crave  an  apology  or  excuse  for  the 
admission  of  such  evidence,  by  referring  it  to  any  exceptions  (whether 
classified,  or  isolated  and  arbitrary)  to  any  supposed  general  rule,  accord- 
ing to  the  language  of  some  books  and  the  custom  of  some  judges. 

There  is,  in  truth,  7io  general  rule  requiring  the  rejection  of  opinions  as 
evidence.  A  general  rule  can  hardly  be  said  to  exist,  which  is  lost  to  sight 
in  an  enveloping  mass  of  arbitrary  exceptions.  .  .  .  Suppose,  the  day 
before  or  a  week  before  the  death,  a  lawyer,  farmer,  and  blacksmith  saw 
the  deceased,  and  had  an  opportunity  to  see  whether  he  appeared  to  be 
well  or  sick:  suppose  the  lawyer  is  asked,  "Did  you  observe  any  indica- 
tions of  his  being  well  or  sick?"  and  the  answer  to  be,  "I  observed  no 
indication  of  his  being  sick;  he  appeared  as  well  as  usual,  as  well  as  I 
ever  saw  him;"  suppose  the  farmer  is  asked,  "Did  you  notice  anything 
unusual  in  his  appearance  or  conduct?"  and  the  answer  is,  "No,  I  did 
not ; "  suppose  the  blacksmith  is  asked,  "  In  your  opinion  was  he  well  or 
sick?"  and  the  answer  is,  "In  my  opinion  he  was  perfectly  well;  his 
spirits,  looks,  and  behavior,  all  showed,  in  my  opinion,  freedom  from 
weakness  and  pain;"  what  legal  distinction  can  be  drawn  between  these 
questions  and  answers,  to  make  one  competent,  and  either  of  the  others 
incompetent?  It  is  all  opinion,  and  nothing  but  opinion,  of  the  man's 
physical  condition  in  relation  to  health  or  disease.  The  use  or  the  omis- 
sion of  the  word  "opinion,"  in  either  of  those  questions  or  answers,  does 


244  BOOK    i:     RULES    OF   .\DMISSIBILITY  No.   163 

not  affect  the  character  of  the  testimony  in  the  sUghtest  degree.  Calling 
such  testimony  "  opinion "  does  not  make  it  "  opinion ;"  and  calling  it 
something  else  does  not  make  it  something  else.  .  .  . 

Now  let  us  imagine  a  scene  that  might  very  probably  be  exhibited  in 
any  Court  where  the  Massachusetts  rule  prevails.  One  witness  says: 
"  He  did  not  appear  as  usual ;  he  did  not  appear  natural."  "  Very  well," 
says  a  learned  barrister,  "  very  well,  Mr.  Witness.  You  may  say  that,  — 
that  is  quite  regular,  —  that  is  your  opinion.  Now  tell  us  in  what 
respect  he  did  not  appear  'as  usual'  or  'natural.'"  "Well,  I  can't 
describe  it,  but  I  should  call  it  wandering,  delirious;  he  was  incoherent 
in  his  talk."  "  Very  well,  Mr.  Witness,  you  acquit  yourself  like  a  sensible 
man.  Now  tell  the  jury  whether  in  your  opinion  he  was  then  of  sound 
mind."  "I  object,"  thunders  the  learned  barrister  on  the  other  side. 
"  I  object,"  thunders  the  opposing  junior.  "  Counsel  knows  better;  it  is 
an  insult  and  an  outrage  to  put  such  a  question."  .  .  .  The  witness  is 
confounded.  The  jury  are  confounded.  Everybody  is  confounded,  — 
except  those  who  understand  that  "incoherence  of  thought"  and  "deli- 
rium," vulgarly  called  "  wandering,"  is  not  a  state  of  mental  unsoundness, 
is  not  mental  disease ;  and  that  "  as  usual "  or  "  natural "  is  not  a  condition 
of  mental  health.  Whether  it  is  such  condition  or  not  is  a  question  then 
solemnly  debated.  ...  At  the  close  of  the  scene  Avhich  I  have  described, 
not  a  man  of  the  laity  goes  out  of  the  room  without  being  disgusted  with 
this  exhibition  of  the  law  as  a  system  of  arbitrary  rules,  that  ignoring  all 
legal  ideas  decides  upon  a  distinction  purely  verbal.  And  why  should 
not  the  laymen  be  disgusted  with  the  senseless  subtlety  which  permits 
one  party  to  show  by  his  witness  that  a  testator  "appeared  perfectly 
natural,"  and  forbids  the  adverse  party  to  offer  the  testimony  of  another 
witness  that  "he  didn't  appear  to  be  in  his  right  mind"?  .  .  . 

In  the  case  now  before  us,  the  learned  judge  and  his  associates,  to 
whom  the  trial  was  referred,  evidently  and  inevitably  experienced  great 
embarrassment  and  confusion  of  mind  in  their  effort  to  conform  to  the 
supposed  rule.  The  futility  of  their  endeavors  is  notably  apparent. 
Mr.  McAlpine  was  permitted  to  say  of  the  testator,  "He  seemed  to  be 
all  broken  down  in  body,"  but  was  forbidden  to  say,  "He  seemed  to  be 
all  broken  down  in  mind;"  and  yet,  the  same  witness  (without  specifica- 
tion of  mental  or  bodily  infirmity)  was  permitted  to  say  that,  between 
certain  dates,  "he  had  changed  very  much;"  "his  mind  was  such  that  he 
could  not  give  any  intelligent  answer;"  "he  didn't  seem  to  have  any 
memory;"  "I  discovered  that  he  had  failed;"  "his  conversation  was 
childish."  The  following  questions  were  ruled  out:  First.  "Being  a 
brother  of  Joseph  Hardy,  from  your  observation  of  his  appearance  and 
conduct  at  the  time  you  saw  him  at  your  house,  in  June,  1869,  state 
whether  or  not,  in  your  opinion,  he  was  at  the  time  of  sound  and  disposing 
mind  and  memory."  Second.  "Being  a  brother  of  the  testator,  from 
what  you  had  observed  as  to  his  conversation,  conduct  and  general  deport- 
ment as  to  all  subjects,  up  to  the  26th  day  of  July,  1870,  have  you  any 


No.  163  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  245 

opinion  as  to  his  sanity  at  that  date,  and  if  so,  what  is  it?"  Mr.  Hardy 
was  not  allowed  to  say  that  the  testator  "  appeared  like  a  failing  man  in 
every  respect."  .  .  . 

The  Massachusetts  rule  is,  that  non-experts'  opinions  shall  be  ex- 
cluded. But  the  rule  itself  does  not  exclude  them ;  it  only  excludes  the 
use  of  certain  words.  It  admits  the  opinions,  and  merely  embarrasses  the 
witness  and  confounds  the  jury  by  requiring  the  witness  to  express  his 
opinion  w'ithout  using  certain  forbidden  terms,  and  by  using  others  that 
are  understood  by  the  jury  and  everybody  else  to  be  precisely  synony- 
mous. A  non-expert,  who  has  been  watching  by  the  bedside  of  a  sick 
man,  may  say,  "He  was  delirious  all  night;"  a  farmer  may  say  that  his 
neighbor's  boy  is  so  lacking  in  intelligence  as  to  be  "  below  par; "  anybody 
may  say  that  a  man  was  "crazy  drunk;"  that  a  testator  didn't  seem  to 
understand  anything  that  was  said  to  him  —  seemed  senseless,  unnatural, 
not  as  usual;  or,  that  "no  change  was  perceptible  in  his  intelligence," 
"no  incoherence  of  thought,"  nor  anything  unusual  or  singular  in  respect 
to  "his  mental  condition;"  was  healthy  or  sickly  in  body;  —  but  in 
giving  his  opinions  of  mental  health  or  disease,  the  non-expert  must  not 
use  the  words  "sane,"  "insane,"  "mentally  disordered,"  or  "deranged." 
.  .  .  The  selection  of  the  phraseology  in  which  such  an  opinion  may  be 
expressed,  and  that  in  which  it  cannot  be  uttered,  depends  on  no  legal 
principle,  but  on  the  mere  whim  of  the  Court.  Such  an  arbitrary  and 
senseless  choice  or  rejection  of  terms  in  which  to  express  an  admissible 
opinion  is  mere,  sheer  logomachy,  a  waste  of  precious  time  given  us  for 
better  purposes^  a  verbal  quibble  unworthy  of  the  law,  and  calculated  to 
bring  it  into  contempt.  .  .  . 

Thus  supported  upon  principle  and  authority,  I  am  satisfied  that  the 
time  has  arrived  when  this  Court  is  called  upon  to  declare  the  law  to  be 
in  conformity  with  the  views  I  have  expressed. 

Ladd,  J.  I  think  it  is  shown  by  proofs  which  fall  little,  if  at  all, 
short  of  demonstration,  that  the  doctrine  excluding  the  opinions  of  non-\ 
experts  on  the  question  of  insanity  has  grown  up  in  this  State  within  the 
memory  of  men  now  living  in  the  profession;  that  it  had  no  place  in  the 
common  law  brought  here  from  England,  nor  in  the  jurisprudence  or 
practice  in  this  State,  from  the  constitution  down  to  a  comparatively 
recent  date;  that  it  is  contrary  to  reason,  extremely  difficult  of  appli- 
cation, and  inconvenient  in  practice;  that  the  great  weight  of  judicial 
opinion  and  authority  outside  this  State  is  against  it;  and  that,  even  if 
we  look  at  the  condition  of  authority  as  shown  by  the  expression  of  judi- 
cial opinion  and  practice  in  this  State,  the  balance  cannot  fairly  be  said 
to  be  in  favor  of  the  rule.  No  titles  are  to  be  disturbed  by  adopting  a 
rule  more  consonant  with  reason,  and  which  accords  with  the  almost 
universal  practice  in  jurisdictions  where  the  common  law  is  used  the 
world  over.  I  therefore  concur  fully  with  my  brother  Foster  in  the 
conclusions  at  which  he  has  arrived. 

Gushing,  C.  J.,  concurred.     Case  discharged. 


246  '      BOOK   i:     RULES   OF  ADMISSIBILITY  No.  164: 

164.    FISKE  V.   GOWING 

Supreme  Court  of  New  Hampshire.  1881 

61  N.  H.  431 

Debt,  on  the  statute  (G.  L.,  e.  236,  s.  19).  Plea,  the  general  issue. 
Verdict  for  the  defendant. 

The  plaintiff  recovered  judgment  against  Milan  Harris,  A.  R.  Harris, 
and  S.  G.  Griffin,  who  were  stockholders  in  the  M.  Harris  Woollen  Co., 
a  corporation  of  which  the  defendant  was  treasurer;  the  execution  issued 
thereon  was  placed  in  the  hands  of  the  sheriff  for  collection,  who  exhibited 
it  to  the  defendant  at  his  office  in  Boston,  and  at  the  time  gave  to  him 
a  proper  and  sufficient  written  request  for  a  certificate  of  the  number 
of  shares,  etc.,  of  the  judgment  debtors  in  the  corporation;  and  the 
defendant  did  not  then,  or  ever,  furnish  such  certificate.  The  defense 
was,  that  after  giving  the  written  request  the  sheriff  waived  or  with- 
drew it.  Both  the  sheriff  (produced  as  a  witness  by  the  plaintiff)  and 
the  defendant  testified  fully  in  respect  to  all  the  conversation,  facts, 
and  circumstances  which  took  place  during  their  interview.  Subject  to 
the  plaintiff's  exception,  the  Court  allowed  the  following  question  to  be 
put  to  the  defendant,  and  his  answer  to  be  taken:  "Did  you,  or  not, 
understand  from  what  Mr.  Holt  [the  sheriff]  said,  and  from  his  conduct, 
that  he  waived  or  withdrew  his  request  for  a  certificate?"  Ans.  —  "I 
fully  so  understood  it;  that  was  the  reason  I  took  no  steps  towards  giving 
a  certificate."  .  .  . 

Lane  &  Dole,  for  the  plaintiff.  B.  Wadleigh  and  S.  Hardy,  for  the 
defendant. 

Smith,  J.  The  precise  question  raised  in  this  case  was  decided  in 
y  Eaton  V.  Rice,  8  N.  H.  378,  where  it  was  held  that  a  witness  may  state 
generally  what  he  understood  a  contract  between  two  persons  to  have 
been  from  their  conversation,  although  he  may  not  be  able  to  state  the 
language  used  in  making  the  agreement.  It  rarely  happens  that  two 
persons  are  able  to  give  precisely  the  same  account  of  a  conversation. 
Their  narration  will  differ  more  or  less  according  to  their  intelligence, 
their  interest  in  the  subject-matter,  their  opportunities  for  hearing,  their 
prejudices  for  or  against  the  parties,  the  lapse  of  time  since  the  conver- 
sation occurred,  and  a  variety  of  other  circumstances.  Emphasis  thrown 
upon  the  wrong  word  might  convey  a  meaning  different  from  that  orig- 
inally intended.  Often  the  manner  in  which  a  remark  is  made,  and 
the  conduct  and  appearance  of  the  party,  may  have  much  to  do  in  pro- 
ducing the  understanding  that  was  received,  much  of  which  it  is  diffi- 
cult and  sometimes  impossible  for  a  witness  to  describe.  It  was  a  vital 
question  whether  the  defendant  understood  or  had  a  right  to  under- 
stand, from  what  was  said  and  done,  that  the  request  for  a  certificate 
was  waived  or  withdrawn.     He  might  have  received  his  understanding 


No.  165  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  247 

in  part  from  the  conduct  of  the  officer,  and  in  part  from  what  was  said 
between  tliem  and  from  the  way  it  was  said.     To  confine  the  witness^'' ^ 
to  a  mere  narration  of  the  language  used,  if  he  were  able  to  recall  it, 
might  give  the  jury  an  imperfect  and  erroneous  idea  of  the  actual  under-^  ^ 
standing  of  the  parties. 

The  request  for  a  certificate  might  be  waived  expressly,  or  by  a  mutual 
understanding  that  it  was  waived.  ...  It  was  a  question  of  mutual 
understanding.  Such  evidence  has  been  so  commonly  received  that  the 
question  of  its  admissibility  can  hardly  be  said  to  be  an  open  one. 

Case  discharged. 


165.  MARCOTT  v.   MARQUETTE,  HOUGHTON 
&  ONTARIO  R.  CO. 

Supreme  Court  of  Michigan.  1882 

49  Mich.  101;  13  iV.  W.  374 

Error  to  Marquette.  Submitted  June  22.  Decided  October  4. 
Case.     Plaintiff  brings  error.     Affirmed. 

.  .  .  The  case  was  submitted  to  the  jury  upon  the  facts,  and  they 
returned  a  verdict  for  the  defendant.  The  action  was  for  causing  the 
death  of  plaintiff's  intestate,  a  child  two  or  three  years  old,  who  got 
upon  the  track  of  the  railroad,  and  was  struck  by  a  passing  train.  The 
train  was  an  irregular  train,  consisting  of  a  locomotive  and  a  single 
passenger  car,  and  was  moving,  as  the  jury  found,  at  the  rate  of  twenty- 
four  miles  an  hour.  Plaintiff  lived  very  near  the  track,  and  there  was 
no  fence  between  the  track  and  his  house.  Plaintiff  was  a  laborer  in 
defendant's  employ.  He  had  two  small  children,  and  when  he  went 
to  his  labor  in  the  morning,  left  them  with  their  mother,  who  at  this 
time  was  unwell.  The  children  went  out  of  the  house  by  themselves, 
and  were  observed  by  a  neighbor  upon  the  track  when  the  train  was 
approaching.  One  of  them  got  off  in  time,  and  the  other  was  killed. 
No  one  appears  to  have  seen  them  when  they  went  upon  the  track  and 
the  testimony  of  the  engineer  tended  to  show  that  they  had  probably 
been  in  a  ditch  by  the  side  of  an  embankment  on  which  the  track  was 
laid,  and  that  they  had  come  upon  the  track  in  haste  when  they  were 
first  observed.  The  jury  negatived  any  carelessness  in  the  parents  in 
suffering  them  to  go  out  unattended.  .  .  .  When  the  engineer  was  on 
the  stand  as  a  witness  for  the  defense,  he  was  asked  why  he  did  not  see 
the  children  upon  the  track.  He  answered,  "The  children  could  not 
possibly  be  on  the  track  and  I  not  see  them,  unless  they  got  on  from 
the  ditch  on  the  left-hand  side  of  the  engine."  This  was  objected  to 
as  a  mere  opinion,  but  the  Court  held  it  to  be  competent. 

F.  0.  Clark,  for  appellant.  A  witness  cannot  swear  to  mere  deduc- 
tions. .  .  .  W.  P.  Hcaly,  for  appellee. 


248  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  165 

CoOLEY,  J.  (after  stating  the  case  as  above).  — The  Court  was  right 
in  this  ruling.  The  engineer  was  watching  the  track  for  obstacles  and 
discovered  none.  The  sweep  of  vision  he  could  testify  to,  and  if  the  fact 
was  that  the  children  could  not  come  upon  the  track  without  coming 
within  the  range  of  his  vision,  except  by  coming  from  the  left-hand 
ditch,  it  was  entirely  proper  that  he  should  testify  to  that  fact.  It  was 
not  matter  of  opinion,  but  of  knowledge. 

But  the  Court  is  said  to  have  ruled  differently  on  evidence  offered 
for  the  plaintiff'.  Mrs.  LaCoss,  a  neighbor  of  the  plaintiff,  had  testi- 
fied that  she  was  in  the  garden  by  her  house  for  ten  or  fifteen  minutes 
before  the  train  passed,  and  that  she  did  not  hear  any  whistle  blown. 
She  was  then  asked:  "Could  the  whistle  have  blown  anywhere  near 
Champion  station  and  you  not  have  heard  it?"  This  was  objected  to 
and  ruled  out.  It  is  contended  that  a  fact  was  called  for  in  this  case 
just  as  much  as  in  the  other.  We  do  not  think  so.  It  might  be  a  fact 
that  Mrs.  LaCoss  heard  or  noticed  no  ringing  of  a  bell,  but  whether  a 
bell  could  have  rung  without  her  hearing  it  is  another  matter  altogether. 
It  is  probably  within  the  knowledge  of  every  reflecting  person  that 
familiar  sounds  within  his  hearing  often  fail  to  be  noticed  by  him  at  all, 
where  the  circumstances  are  such  that  he  has  no  occasion  to  notice  them. 
The  striking  of  a  clock,  and  the  customary  railroad  signals,  are  familiar 
illustrations:  the  sound  strikes  the  ear  without  securing  mental  atten- 
tion, and  immediately  afterwards  the  person  cannot  say  he  heard  it  at 
all.  If  one  under  such  circumstances  swears  that  there  was  no  sound, 
because  if  there  had  been  he  would  have  heard  it,  he  testifies  very  care- 
lessly, unless  indeed  he  had  his  mind  on  the  signal  at  the  time,  and  was 
awaiting  it.  .  .  .  But  the  case  was  one  in  which  the  jury  could  judge 
as  well  as  the  w^itness  herself.  When  she  had  given  the  facts  of  dis- 
tance, and  whether  there  was  any  interfering  obstacle,  there  was  no 
good  reason  why  her  judgment  of  the  probability  of  hearing  a  whistle 
should  be  taken,  rather  than  that  of  the  jury,  or  why  her  judgment 
should  direct  theirs  in  a  matter  which  related  to  a  fact  of  common  obser- 
vation and  common  experience.  They  could  apply  and  should  apply 
their  own  good  sense  to  the  case;  and  if  she  had  sworn  positively  there 
was  no  bell,  merely  because  she  did  not  notice  it,  the  jury  might  dis- 
regard the  statement,  if  other  evidence  satisfied  them  that  it  was  errone- 
ous, without  any  imputation  upon  her  veracity.  Mistakes  are  too.  easy 
and  too  common  in  such  matters  to  afford  much  ground  for  serious 
accusation.  .  .  . 

We  find  no  error  of  substance  in  the  record,  and  the  judgment  must 
stand  affirmed. 

The  other  justices  concurred. 


No.  166  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  249 

166.    GRAHAM  v.  PENNSYLVANIA  CO. 

Supreme  Court  of  Pennsylvania.  1890 
139  Pa.  149;  21  Atl.  131 

On  October  23,  1888,  William  S.  Graham  and  Maria  E.  Graham,  his 
wife,  in  right  of  said  wife,  brought  trespass  against  the  Pennsylvania 
Company,  operating  the  Pittsburgh,  P^ort  Wayne  &  Chicago  railway,  to 
recover  damages  for  personal  injuries  received  by  Mrs.  Graham  and 
alleged  to  have  been  caused  by  the  negligence  of  the  defendant  com- 
pany.    Issue. 

At  the  trial  on  April  1,  1890,  it  was  shown  that  the  arrangement  of 
the  Federal  street  station,  Allegheny  City,  where  Mrs.  Graham  received 
her  injuries,  was  as  follows:  Along  the  track  upon  which  Mrs.  Graham 
arrived,  were  two  platforms,  together  about  23  feet  wide,  the  two  covered 
with  a  shed.  Next  the  track  was  a  platform  3  feet  10  inches  wide  (as 
given  in  the  appellant's  paper-book,  4  feet  9  inches,  as  given  in  that 
of  the  appellees),  extending  the  length  of  the  train  eastwards  towards 
the  exit  gate.  This  platform  was  9  inches  below  the  lowest  car  step. 
On  the  other  edge  of  it  from  the  train,  was  a  descent  of  9  inches  to  the 
main  platform,  which  was  about  19  feet  wide,  extending  across  to  the 
north  main  track.  The  posts  of  the  shed,  on  one  side,  were  at  the  inner 
edge  of  the  narrow  platform;  on  the  other,  about  12  feet,  perhaps,  to 
the  south.  The  shed  was  lighted  by  electric  lights  of  50-candle  power, 
suspended  under  the  comb  of  the  roof. 

Mrs.  Graham  testified  that  on  the  evening  of  February  6,  1888, 
about  8  o'clock,  her  train  reached  the  station,  when  she  alighted  and 
with  a  basket  on  her  arm  started  east  towards  the  exit;  that,  after  walk- 
ing about  12  feet,  "edging"  to  the  right  to  get  within  the  line  of  the 
posts,  she  fell  and  sustained  severe  injuries;  tTiat  she  had  frequently 
stopped  at  Federal  street  station  from  defendant's  trains,  but  never 
before  had  she  alighted  upon  this  raised  platform;  and  she  could  not 
imagine  at  first  what  caused  her  to  fall,  as  she  supposed  she  had  alighted 
upon  the  main  platform,  until  she  looked  about  her  and  observed  the 
descent  from  the  narrow  platform  to  the  other,  and  that  was  the  first 
she  knew  of  the  offset  there. 

William  Graham,  a  son  of  the  plaintiffs,  called  on  their  behalf: 

Q.  —  "  State  whether,  in  your  judgment,  from  your  observation 
there,  your  knowledge  of  the  platform,  that  is  a  safe  platform  upon 
which  to  alight  from  trains?"  Objected  to,  as  incompetent  and  irrele- 
vant. By  the  Court:  "Objection  overruled."  Exception.  A.  —  "I 
think  it  is  an  unsafe  platform  to  arrive  on,  for  the  light  shines  towards 
you,  and  the  elevation  is  in  front  of  you,  and  the  light  shining  against 
this  elevation  would  make  the  platform  appear  one,  unless  you  were 
looking  for  it;   unless  you  were  warned  against  it.  ..." 


250  BOOK    i:     RULES    OF    ADMISSIBILITY  No.  166 

Other  witnesses  for  the  plaintiffs  were  permitted  to  testify  under 
objection  and  exception,  to  the  same  effect.  .  .  .  The  jury  returned  a 
verdict  for  the  plaintiff  for  $3000.  A  rule  for  a  new  trial  having  been 
discharged,  judgment  was  entered,  when  the  defendant  took  this  appeal, 
assigning  for  error:   1,2.     The  admission  of  plaintiffs' offers. 

Mr.  George  B.  Gordon  (with  him  Mr.  John  H.  Hampton  and  Mr. 
William  Scott),  for  the  appellant:  (1)  The  question  at  issue  was  whether 
the  platform  provided  by  the  defendant  was  so  constructed  that  it  could 
be  used  by  passengers,  by  the  exercise  of  ordinary  care  on  their  part, 
without  injur}-.  There  was  involved  in  the  case  no  question  of  any 
particular  technical  knowledge,  with,  reference  to  the  platform.  It  was 
a  plain,  ordinary  contrivance,  of  which  any  juror  of  ordinary  knowledge 
was  competent  to  judge,  when  put  in  possession  of  the  facts.  Having 
the  location,  the  distance  of  this  offset  from  the  train,  the  height  of  the 
offset,  and  the  width  of  the  platform  below,  the  jury  were  as  competent 
to  pass  upon  the  fact  whether  it  was  dangerous  or  not,  as  upon  a  like 
question  connected  with  a  step  in  a  sidewalk  or  pair  of  stairs.  The 
offers  objected  to  were,  therefore,  inadmissible.  .  .  . 

Mr.  R.  B.  Petty  (with  him  Mr.  J.  0.  Petty  and  Mr.  A'.  T.  Friend), 
for  the  appellees:  (1)  The  witnesses  whose  testimony  was  admitted, 
under  objection,  were  not  called  and  permitted  to  testify  as  experts. 
They  did  not  testify  as  experts  at  all.  Before  they  were  permitted  to 
give  their  judgments,  they  testified  that  they  were  familiar  with  the 
platform  from  daily  use  .  .  .  and,  upon  showing  their  knowledge  of  all 
the  facts,  they  were  permitted  to  give  their  judgments.  The  question 
is  settled  by  the  rulings  in  Bearry  v.  Gilmore,  16  Pa.  463.  .  .  . 

Opinion,  Mr.  Justice  Mitchell.  That  the  opinions  of  witnesses  are 
in  some  cases  admissible  as  evidence,  even  when  not  coming  properly 
under  the  head  of  expert  testimony,  has  long  been  established  in  practice. 
In  several  classes  of  questions,  the  line  between  the  witness's  judgment 
or  opinion  and  his  affirmation  of  a  fact  is  so  indistinct  that  it  cannot  be 
marked  out  in  practice.  Such  are  questions  of  identity  of  persons  or 
things,  of  the  lapse  of  time,  of  comparative  shape  or  color  or  sound,  of 
expression  and  through  it  of  meaning,  etc.  In  all  of  these,  however 
positively  the  witness  may  affirm  facts,  what  he  says  is  after  all  largely 
his  opinion,  but  so  blended  with  knowledge  and  recollection  that  the 
line  where  opinion  ends  and  fact  begins  cannot  be  distinguished.  Hence, 
both  must  be  admitted  or  both  excluded,  and  to  do  the  latter  is  often 
to  shut  out  the  only  light  the  case  admits  of.  In  questions,  therefore, 
of  identity,  of  sanity,  of  handwriting,  and  some  others  of  like  nature, 
opinions  of  witnesses,  having  sufficient  knowledge  of  the  particular 
circumstances  to  form  the  basis  of  a  responsible  judgment,  have  been 
admitted  without  hesitation.  Such  is  the  elementary  doctrine  laid 
down  in  Greenleaf  and  other  authoritative  works,  but  the  theory  on 
which  such  evidence  is  admitted  is  very  slightly  developed.  The  cases, 
however,  have  extended  far  beyond  the  classes  mentioned  in  the  text 


No.  166  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  251 

books,  and  may  be  said  not  only  to  have  become  legion,  but  legion 
against  legion.  An  examination  of  a  large  number  of  them,  while  not 
enabling  us  to  reconcile  all  the  practical  applications,  does,  we  think, 
show  that  the  ground  on  which  such  evidence  must  always  rest,  as 
expert  testimony  strictly  so  called  does,  is  a  clear  necessity.  .  .  . 

In  those  matters  where  mere  descriptive  language  is  inadequate  to 
convey  to  the  jury  the  precise  facts  or  their  bearing  on  the  issue,  the 
description  by  the  witness  must  of  necessity  be  allowed  to  be  supple- 
mented by  his  opinion,  in  order  to  put  the  jury  in  position  to  make  the 
final  decision  of  the  fact.  It  is  thus  expressed  in  Commonwealth  v. 
Sturtivant,  117  Mass.  122  [ante,  No.  162],  where  a  large  number  of 
illustrations  are  given  (some  of  which,  I  may  say,  in  passing,  seem  to  us 
extremely  questionable) : 

"The  exception  .  .  .  includes  the  evidence  of  common  observers  testifying 
to  the  results  of  their  observation,  made  at  the  time,  in  regard  to  common  appear- 
ances or  facts,  and  a  condition  of  things  which  cannot  be  reproduced  and  made 
palpable  to  a  jury." 

But,  as  necessity  is  the  ground  of  admissibility,  the  moment  the 
necessity  ceases,  the  exception  to  the  general  rule  that  requires  of  a 
witness  facts  and  not  opinions  ceases  also.  Hence,  whenever  the  cir- 
cumstances can  be  fully  and  adequately  described  to  the  jury,  and 
are  such  that  their  bearing  on  the  issue  can  be  estimated  by  all  men, 
without  special  knowledge  or  training,  opinions  of  witnesses,  expert  or 
other,  are  not  admissible.  This  is  well  stated  by  Chief  Justice  Shaw, 
in  New  England  Glass  Co.  v.  Lovell,  7  Cush.  321  [ante,  No.  161]: 

"The  principle  upon  which  this  evidence  is  admissible  is  clear  and  entirely 
just.  In  applying  evidence  which  does  not  go  directly  to  the  fact  in  issue,  but 
to  facts  from  which  the  fact  in  issue  is  to  be  inferred,  the  jury  have  two  duties 
to  perform:  first,  ...  to  ascertain  the  truth  of  the  fact  to  which  the  evidence 
goes,  and  thence  to  infer  the  truth  of  the  fact  in  issue.  This  inference  depends 
on  experience.  .  .  .  Now,  when  this  experience  is  of  such  a  nature  that  it  may  be 
presumed  to  be  within  the  common  experience  of  all  men  of  common  education, 
moving  in  the  ordinary  walks  of  life,  there  is  no  room  for  the  evidence  of  opinion; 
it  is  for  the  jury  to  draw  the  inference."  .  .  . 

This  examination  of  elementary  principles  and  general  authorities 
has  seemed  necessary,  because  our  own  cases  on  the  exact  point  are 
few,  and  supposed  not  to  be  in  entire  harmony.  .  .  . 

Some  occasional  difference  in  application  may  be  unavoidable, 
because,  as  said  by  Chief  Justice  Shaw  in  New  England  Glass  Co.  v. 
Lovell,  supra,  there  is  extreme  difficulty  in  laying  down  any  rule  precise 
enough  for  practical  application,  and  the  only  proper  course  is  to  keep 
the  principle  steadily  in  view,  and  apply  it  according  to  the  circum- 
stances of  each  case.  .  .  . 

In  the  present  case,  the  alleged  dangerous  place  was  a  raised  part 
of  the  platform,  or  broad  step,  4  feet  wide  and  9  inches  high.  It 
came  clearly  within  the  range  of  ordinary  experience.     The  briefest 


252  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  166 

statement  would  convey  a  perfect  comprehension  of  the  place,  and 
every  juryman  who  ever  got  in  or  out  of  a  car,  or  went  up  or  down  a 
flight  of  steps,  was  as  capable  of  judging  of  the  alleged  danger  as  the 
witnesses  who  gave  their  opinions.  The  first  and  second  assignments 
of  error  must  be  sustained.  .  .  . 

However,  it  is  clear  that  the  admitted  facts  fail  to  establish  any 
negligence  of  defendant,  and  that  the  plaintiff  must,  as  a  matter  of  law, 
always  fail  to  recover.  It  would,  therefore,  be  useless  to  send  the  case 
back  for  another  trial.     Judgment  reversed. 


167.   SCHAEFER  &  CO.   v.   ELY 

Supreme  Court  of  Errors  of  Connecticut.  1911 

84  Conn.  501 ;  80  Atl.  lib 

Appeal  from  Superior  Court,  Fairfield  County;  Howard  J.  Curtis, 
Judge. 

Action  by  John  V.  Schaefer,  Jr.,  &  Co.  against  Elizabeth  L.  Ely  and 
others  on  a  building  contract,  to  recover  the  balance  due  thereunder, 
and  for  the  value  of  extra  work  done  in  connection  therewith.  There 
was  a  judgment  for  plaintiff,  and  defendants  appeal.     Affirmed. 

John  C.  Chamberlain  and  George  G.  McNall  (Ivins,  Mason,  Wolf  & 
Hoguet,  on  the  brief),  for  appellants.  Edivin  L.  Scofield  and  Wilbur  S. 
Wright,  for  appellee. 

Wheeler,  J.  In  the  second  count  of  the  complaint,  the  plaintiff 
alleges  that,  on  October  2,  1905,  the  plaintifP  and  defendants  entered  into 
an  agreement,  whereby  the  plaintiff  was  to  furnish  all  material  and  labor 
for  the  erection  of  the  buildings  known  as  the  Misses  Ely  School  Building, 
at  Greenwich,  Conn.,  in  accordance  with  the  plans  and  specifications  of 
Carrere  &  Hastings,  architects,  with  such  modifications  as  might  be 
desired  by  the  defendants,  in  consideration  of  the  payment  to  it  by  the 
defendants  of  a  sum  equal  to  the  cost  of  the  work  and  $7,500  commission 
and  5  per  cent,  upon  the  cost  of  the  added  or  modified  work.  The 
plaintiff  alleges  that  there  is  still  due  and  unpaid,  according  to  the  archi- 
tects' certificate,  $38,665.89. 

One  ruling  only  is  made  a  ground  of  appeal.  Mr.  Brainerd,  a  con- 
struction engineer,  and  of  the  firm  of  architects  intrusted  with  the  building 
of  the  Ely  School,  qualified  as  an  expert  upon  the  character  and  manner 
of  the  construction  of  the  Ely  School  Building  and  the  west  wing.  He 
testified  that  he  drew  the  plans,  specifications,  and  contract,  and  was 
familiar  with  and  knew  of  all  subsequent  changes  and  additional  work, 
and  that  as  the  work  progressed  it  was  constantly  within  his  knowledge, 
through  the  books,  reports,  and  records  in  his  office,  and  that  he  made  an 
examination  of  the  work  in  April,  1907,  for  the  purpose  of  enabling  him 
to  determine  as  to  the  acceptance  of  the  work  and  the  issuance  of  the  final 


No.  167  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  253 

certificate.  He  was  inquired  of  as  to  whether  he  was  satisfied  from  that 
examination  that  the  work  called  for  by  the  contract,  and  as  in  fact  done, 
had  been  done  in  a  workmanlike  manner.  The  defendants  objected  to 
the  question,  because  not  a  subject  for  an  opinion. 

The  main  objection  to  this  evidence  was  that  the  opinion  of  the  witness 
could  not  be  given;  that  he  must  state  in  detail  what  he  saw,  and  the 
various  defects,  and  leave  the  conclusion  of  compliance  with  the  contract 
to  be  drawn  between  the  contract  and  the  work  done  by  the  Court. 
This  is  an  erroneous  view.  The  witness  who  qualifies  as  an  expert  and 
testifies  to  his  familiarity  with  contract,  plans,  specifications,  and  changes 
therein,  and  with  the  work  done,  may  give  his  conclusions  as  to  the  com- 
parison between  these,  without  detailing  at  length  the  manner  in  which 
each  item  of  the  work  done  had  been  performed.  When  the  opinion  of 
the  witness  in  a  case  is  evidence  otherwise  competent,  and  that  the  subject 
of  the  investigation  will  be  made  clearer  by  its  introduction,  the  opinion 
should  be  received. 

When  facts  sought  to  be  proved  are  of  so  voluminous  or  complicated 
a  character  that  their  introduction  would  occupy  much  time,  and  might 
be  difficult  of  understanding  by  themselves,  and  these  many  facts  are  to 
be  proved  for  the  purpose  of  drawing  a  conclusion  from  them,  the  Court 
may  permit  a  witness  who  is  qualified  upon  the  subject  of  investigation, 
and  has  made  the  investigation,  to  express  an  opinion,  without  giving  the 
details  on  which  the  opinion  rests. 

The  opinion  of  the  expert  as  to  whether  a  building  is  furnished  in  a 
workmanlike  manner,  or  according  to  certain  plans  and  specifications, 
is  admissible  for  the  same  reason  as  is  the  opinion  of  the  accountant  as 
to  the  result  of  his  examination  of  the  books  of  account,  or  as  to  schedules 
taken  from  the  books,  verified  by  him  (Elmira  Roofing  Co.  v.  Gould, 
71  Conn.  629,  631,  42  Atl.  1002),  or  as  summaries  or  averages  from 
voluminous  or  complicated  records  are  admitted.  Wigmore  on  Evidence, 
(1904  Ed.)  §  1231. 

The  necessities  of  the  situation,  taken  in  connection  with  the  improba- 
bility of  liability  to  misrepresentation,  led  to  the  rule  admitting  the 
opinion  of  the  accountant  and  the  record  searcher,  and  the  situation  is  as 
urgent  permitting  the  qualified  architect  or  mechanic  to  testify  as  to 
whether  work  is  done  in  a  workmanlike  manner,  or  according  to  a  con- 
tract. The  opportunity  of  cross-examination,  and  the  presence  in  court 
of  contract,  plan,  and  specifications,  and  the  ability  of  the  opposing 
party  to  examine  the  work  done  and  test  the  sufficiency  of  the  opinion, 
render  such  a  source  of  evidence  practically  safe  against  misrepre- 
sentation. 

The  authorities  upon  this,  as  upon  many  subjects  of  opinion  evidence, 
are  variant,  with  a  strong  tendency  to  widen  the  scope  of  opinion  evidence. 
Atwood  V.  Atwood,  79  Atl.  .59.  The  following  are  instances  of  correct 
applications  of  the  general  rule: 

The  qualified  witness  may  state  that  the  work  is  well  done.     Wood  v. 


254  BOPK   i:     RULES   OF   ADMISSIBILITY  No.  167 

Brewer  &  Brewer,  57  Ala.  515,  517;  Ward  v.  Kilpatrick,  85  N.  Y.  413. 
He  may  state  that  the  machine  was  built  in  a  good  and  workmanlike 
manner.  Curtis  v.  Gano,  26  N.  Y.  427.  He  may  state  whether  a  railroad 
was  properly  constructed  at  a  certain  point.  St.  Louis,  A.  &  T.  R.  Co. 
v.  Johnston,  78  Tex.  536,  15  S.  W.  104;  Kreuzberger  v.  Wingfield,  96 
Cal.  251,  31  Pac.  109.  He  may  state  the  cost  of  erecting  a  building  from 
plans,  or  similar  to  one  destroyed.  Joske  Bros.  v.  Pleasants,  15  Tex. 
Civ.  App.  433,  440,  39  S.  W.  586;  Woodruff  v.  Imperial  Fire  Ins.  Co., 
83  N.  Y.  133,  138.  He  may  state  that  the  building  was  constructed  in 
accordance  with  the  contracts.  J.  T.  Stark  Grain  Co.  v.  Harry  Bros.  Co. 
(Tex.  Civ.  App.)  122  S.  W.  947.  He  may  give  his  opinion  as  to  the  dif- 
ference in  value  of  a  vessel  as  repaired,  and  what  her  value  would  have 
been  if  repaired  according  to  the  contract.  Sikes  v.  Paine  et  al.,  32  N.  C. 
280,  51  Am.  Dec.  389.  .  .  . 

There  is  no  error.     The  other  Judges  concurred. 

168.   John  H.  Wigmore.     A  Treatise  on  the  System  of  Evidence  at  Common 
Law.     (1905.  Vol.  Ill,  §  1929.) 

Future  of  the  Opinion  Rule.  If  one  were  asked  to  name  the  rules  most  peculiar 
j  to  the  Anglo-American  evidence-law,  he  ought  perhaps  to  name  the  Character 
I  rule,  the  Hearsay  rule,  and  the  Opinion  rule.  Neither  is  found  on  the  Continent. 
All  three  are  indigenous  judicial  developments.  All  are  the  product  of  the  jury- 
system.  All  are  founded  on  a  peculiar  cautiousness  in  our  law,  and  all  have  been 
developed  with  an  equally  peculiar  rigidity  and  stolid  disregard  of  practical  con- 
sequences. All  three  are  complex  and  far-reaching  in  application,  as  well  as 
voluminous  in  detailed  development.  But  a  radically  different  future  may  be 
predicted  for  them.  The  Hearsay  rule  and  the  Character  rule  will  always  remain 
in  our  law,  in  a  more  or  less  relaxed  form;  while  the  Opinion  rule  will  in  sub- 
stance disappear.  An  important  difference  between  them  is  that  the  first  two 
are  the  solid  growth  of  experience;  while  the  last  rule,  in  its  American  develop- 
ment, is  merely  the  logically  technical  development  of  a  misunderstood  term. 
The  Opinion  rule  day  by  day  exliibits  its  unpractical  subtlety  and  its  useless 
refinement  of  logic.  Under  this  rule  w-e  accomplish  little  by  enforcing  it  and 
we  should  do  no  harm  if  we  dispensed  with  it.  We  accomplish  little,  because,  from 
the  side  on  which  the  witness  appears  and  from  the  form  of  the  question,  his 
answer,  i.e.,  his  opinion,  may  often  be  inferred.  We  should  do  no  harm,  because, 
even  when  the  final  opinion  or  inference  is  admitted,  the  inference  amounts  in 
force  usually  to  nothing  imless  it  appears  to  be  solidly  based  on  satisfactory  data, 
the  existence  and  quality  of  which  we  can  always  bring  out,  if  desirable,  on  cross- 
examination.  Add  to  this  that,  vmder  the  present  illiberal  application  of  the  rule, 
and  the  practice  as  to  new  trials,  a  single  erroneous  ruling  upon  the  single  trifling 
answer  of  one  witness  out  of  a  dozen  or  more  in  a  trial  occupying  a  day  may  over- 
turn the  whole  result  and  cause  a  double  expense  of  time,  money,  and  effort; 
and  we  perceive  the  absurdly  unjust  effects  of  the  rule.  Add,  finally,  the  utter 
impossibility  of  a  consistent  application  of  the  rule,  and  the  consequent  uncer- 
tainty of  the  law,  and  we  understand  how  much  more  it  makes  for  injustice  rather 
than  justice.  It  has  done  more  than  any  one  rule  of  procedure  to  reduce  our 
litigation  towards  a  state  of  legalized  gambling.  It  must  go.  Better  to  cut  it 
out.  root  and  branch. 


No.  172  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  255 

(6)   Opinion  to  Character 

170.  Layer's  Trial.  (1722.  Howell's  State  Trials,  XVI,  253).  Counsel 
[asking  as  to  the  credit  of  witness].  Is  he  a  man  as  may  be  beUeved,  even  upon 
his  oath,  or  not? 

Witness.  —  I  must  tell  you  that  I  found  him  in  so  many  mistakes   about 
his  own  wife  that,  by  God,  I  would  not  take  his  word  for  a  halfpenny. 
Counsel.-^Go  on,  but  don't  swear  "by  God"  any  more. 

171.  Lord  Chancellor  IVIacclesfi eld's  Trial.  (1725.  16  How.  St.  Tr. 
1239).  Common  Serjeant  [asking  as  to  the  credit  of  a  principal  witness  for  the 
prosecution.]  We  desire  that  Mr.  Price  may  give  your  Lordships  an  account  of 
what  he  knows  of  the  character  of  Mr.  Cothingham  and  how  long  he  hath  known 
him. 

Mr.  Price.  —  My  lords,  I  have  known  him  upwards  of  twenty  years ;  I  never 
knew  anybody  say  anything  amiss  of  him.  ...  I  know  no  man  in  his  place 
behaved  himself  better  than  he  hath  done. 

Common  Serjeant.  —  We  desire  to  ask  not  only  to  what  Mr.  Price's  opinion 
is,  but  to  what  is  the  opinion  of  others,  as  to  his  general  character. 

Mr.  Price.  —  I  believe,  if  you  ask  his  character  of  an  hundred  people,  ninety 
of  them  will  give  him  rather  a  greater  character. 

172.  Alexander  Davison's  Trial.  (1808.  31  How.  St.  Tr.  186).  [The 
accused,  a  commissary-general  in  the  army,  was  charged  with  fraud  in  the  public 
accounts].     Lord  Moira  sworn. 

Q.  —  Had  your  lordship  (as  general-in-command)  an  opportunity  of  observ- 
ing his  [the  accused's]  public  conduct?  Q.  —  His  conduct  was  clear  and  punc- 
tual, answering  every  expectation  I  had  formed,  strictly  delicate  in  refusing 
emoluments  which  he  might  well  have  claimed. 

Q.  —  From  your  lordship's  general  knowledge  of  his  conduct,  is  he  a  person 
whom  your  lordship  would  think  capable  of  committing  a  fraud?  A.  —  Certainly 
not. 

[After  an  interruption  on  another  point.]  L.  C.  J.  Ellenborough. — The 
correct  inquiry  is  as  to  the  general  character  of  the  accused,  and  whether  the 
witness  thinks  him  likely  to  be  guilty  of  the  offense  charged  in  the  indictment. 

Sir  Andrew  Hammond  sworn. 

L.  C.  J.  Ellenborough.  —  From  your  knowledge  of  Mr.  Davison's  character 
jmd  conduct,  do  you  think  him  capable  of  committing  a  fraud?  A.  —  I  should 
have  thought  him  the  last  man  in  the  world  that  would  have  attempted  any- 
thing of  the  kind,  or  even  to  have  been  a  cause  of  it. 

Mr.  James  Davidson  sworn. 

Q.  —  From  all  that  you  have  observed  of  him  [Mr.  D.]  and  all  that  you 
have  known  and  heard  of  him,  what  is  your  opinion  of  his  general  character? 
A.  —  You  say  "known  and  heard";  all  that  I  have  known  of  him  is  that  he  has 
been  an  honest  man,  an  honest  dealer  with  me  as  a  merchant. 

Q.  —  From  what  you  have  heard  in  the  world  at  large,  what  is  your  opinion 
of  him?  A. — There  are  a  variety  of  reports  concerning  Mr.  Da\'ison;  those 
I  know  only  as  the  world  knows;  but  as  to  his  dealings  with  me,  I  always  found 
him  an  honorable  and  honest  man. 


256  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  173 

173.    REGINA  v.   ROWTON 

Crown  Cases  Reserved.  1865 

Leigh  &  Cave  520;  10  Cox  Cr.  C.  25 

[The  facts  and  evidence  in  this  case,  with  the  ruling  on  the  first 
question,  are  printed  ante,  No.  13.  On  the  second  question  reserved 
by  the  trial  judge,  viz.,  whether  the  personal  opinion  of  the  Crown's 
witness  to  the  bad  moral  character  of  the  accused  was  admissible,  the 
arguments  and  the  opinions  were  as  follows:] 

Sleigh,  for  the  prisoner.  .  .  .  Secondly,  this  evidence  was  wrongly 
admitted,  on  the  ground  that  evidence  of  general  reputation  only  can 
be  given,  and  that  nothing  which  amounts  to  an  individual  opinion  can 
be  received.  Character  and  reputation  both  mean  credit  derived  from 
public  opinion  or  esteem.  When  the  witness  in  this  case  said  that  he 
knew  nothing  of  the  opinion  of  the  neighborhood,  he  should  have  been 
stopped.  The  best  definition  of  character  is  to  be  found  in  a  speech  of 
Erskine's,  when  he  was  counsel  for  Hardy  (24  St.  Tr.  1079) : 

"You  cannot,"  he  says,  "when  asking  to  character,  ask  what  has  A.  B.  C. 
told  you  about  this  man's  character.  No;  but  what  is  the  general  opinion  con- 
cerning him.  Character  is  the  slow-spreading  influence  of  opinion,  arising  from 
the  deportment  of  a  man  in  society.  As  a  man's  deportment,  good  or  bad,  neces- 
sarily produees  one  circle  without  another,  and  so  extends  itself  till  it  unites  in 
one  general  opinion;   that  general  opinion  is  allowed  to  be  given  in  evidence." 

Tayler.  —  As  to  the  second  point,  there  is  no  rule  of  law  excluding 
the  answer  here  given.  It  was  scrupulous  and  conscientious  evidence 
of  character.  The  witness  says,  in  effect,  "  In  my  opinion  as  a  pupil 
the  defendant's  character  was  very  bad."  (Cockburn,  C.  J.  —  Is  gen- 
eral evidence  of  good  character  to  be  met  by  the  particular  opinion  of 
an  individual?) 

Tayler.  —  All  evidence  is  admissible,  unless  it  be  excluded  by  some 
rule.  What  was  given  in  evidence  here  was  evidence  of  the  prisoner's 
disposition;  for  that,  and  not  reputation,  is  the  sense  in  which  the  word 
"character"  is  used  in  these  cases.  (Cockburn,  C.  J.  —  I  do  not 
understand  that  to  be  the  meaning  of  the  word  "character."  Erle, 
C.  J.  —  I  agree  with  Mr.  Tayler  that  the  question  of  character  is  a  ques- 
tion of  disposition,  and  that  reputation  is  admissible  only  because  it  is 
some  evidence  of  disposition.) 

Tayler.  —  The  prisoner,  by  giving  evidence  of  character,  raises  the 
issue  that  he  is  of  such  a  disposition  as  to  make  it  more  than  ordi- 
narily improbable  that  he  should  have  committed  the  offense  charged 
against  him.  Character,  in  that  sense,  and  reputation  do  not  stand 
on  the  same  basis.  The  latter  should  rather  be  defined  as  estimated 
character.  ... 

Cockburn,  C.  J.  —  This  case  turns  upon  the  admissibility  of  an 
answer  given  by  a  witness  who  was  called  to  rebut  evidence  of  good 


No.   173  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  257 

character  which  had  been  given  in  favor  of  the  prisoner,  and  who  was 
asked  what  was  the  prisoner's  general  character  for  decency  and  morality. 
The  answer  was  in  these  terms : 

"  I  know  nothing  of  the  neighborhood's  opinion,  because  I  was  only  a  boy 
at  school  when  I  knew  him;  but  my  own  opinion,  and  the  opinion  of  my  brothers 
who  were  also  pupils  of  his,  is  that  his  character  is  that  of  a  man  capable  of  the 
grossest  indecency  and  the  most  flagrant  immorality." 

The  chief  questiori  for  us  is  whether  that  answer  was  proper  to  be 
left  to  the  consideration  of  the  jury.  I  am  of  opinion  that  it  was  not, 
and  that  the  conviction  cannot  stand. 

CocKBURN,  C.  J.  (for  the  majority).  The  second  question  is.  Was 
the  answer  which  was  given  in  this  case,  in  reply  to  a  perfectly  legiti- 
mate question,  such  an  answer  as  could  be  properly  left  to  the  jury? 
Now,  in  determining  this  point,  it  is  necessary  to  consider  what  is  the 
meaning  of  evidence  of  "character."  Does  it  mean  evidence  of  general 
reputation,  or  evidence  of  disposition?  I  am  of  opinion  that  it  means 
evideiice  of  general  reputation.  What  you  want  to  get  at  is  the  ten- 
dency and  disposition  of  the  man's  mind  towards  committing  or  abstain- 
ing from  committing  the  class  of  crime  with  which  he  stands  charged; 
but  no  one  has  ever  heard  the  question.  What  is  the  tendency  and  dis- 
position of  the  prisoner's  mind?  put  directly.  The  only  way  of  getting 
at  it  is  by  giving  evidence  of  his  general  character  founded  on  his  general 
reputation  in  the  neighborhood  in  which  he  lives.  ...  In  my  judgment 
it  must  be  restricted  to  the  man's  general  reputation,  and  must  not 
extend  to  the  individual  opinion  of  the  witness.  ...  If  that  be  the 
true  doctrine  as  to  the  admissibility  of  evidence  to  character  in  favor  of 
the  prisoner,  the  next  question  is,  W^ithin  what  limits  must  the  rebutting 
evidence  be  confined?  I  think  that  that  evidence  must  be  of  the  same 
character  and  confined  within  the  same  limits  —  that,  as  the  prisoner 
can  only  give  evidence  of  general  good  character,  so  the  evidence  called 
to  rebut  it  must  be  evidence  of  the  same  general  description,  showing 
that  the  evidence  which  has  been  given  in  favor  of  the  prisoner  is  not 
true,  but  that  the  man's  general  reputation  is  bad.  In  this  case  the  wit- 
ness disclaims  all  knowledge  of  the  general  reputation  of  the  accused.  .  .  . 

I  find  it  uniformly  laid  down  in  the  text  books  that  the  evidence  to 
character  must  be  general  evidence  of  reputation;  and,  dealing  with 
the  law  as  I  find  it,  my  opinion  is  that  the  answer  given  in  this  case 
was  inadmissible,  and  that  the  conviction  ought  not  to  stand. 

ICrle,  C.  J.  .  .  .  With  respect  to  tiie  second  question,  .  .  .  What 
is  the  principle  on  which  evidence  of  character  is  admitted?  It  seems 
to  me  that  such  evidence  is  admissible  for  the  purpose  of  showing  the 
disposition  of  the  party  accused,  and  basing  thereon  a  presumption  that 
he  did  not  commit  the  crime  imputed  to  him.  Disposition  cannot  be 
ascertained  directly;  it  is  only  to  be  ascertained  by  the  opinion  formed 
concerning  the  man,  which  must  be  founded  either  on  personal  experi- 


258  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   173 

ence,  or  on  the  expression  of  opinion  by  others,  whose  opinion  again 
ought  to  be  founded  on  their  personal  experience.  The  question  between 
us  is,  whether  the  Court  is  at  Hberty  to  receive  a  statement  of  the  dis- 
position of  a  prisoner,  founded  on  the  personal  experience  of  the  witness, 
who  attends  to  give  evidence  and  state  that  estimate  which  long  personal 
knowledge  of  and  acquaintance  with  the  prisoner  has  enabled  him  to 
form. 

I  think  that  each  source  of  evidence  is  admissible.  You  may  give 
in  evidence  the  general  rumor  prevalent  in  the  prisoner's  neighborhood, 
and,  according  to  my  experience,  you  may  have  also  the  personal  judg- 
ment of  those  who  are  capable  of  forming  a  more  real,  substantial, 
guiding  opinion  than  that  which  is  to  be  gathered  from  general  rumor. 
I  never  saw  a  witness  examined  to  character  without  an  inquiry  being 
made  into  his  personal  means  of  knowledge  of  that  character.  The 
evidence  goes  to  the  jury  depending  entirely  upon  the  personal  experi- 
ence of  the  witness  who  has  offered  his  testimony.  Suppose  a  witness 
to  character  were  to  say,  "  This  man  has  been  in  my  employ  for  twenty 
years.  I  have  had  experience  of  his  conduct;  but  I  have  never  heard 
a  human  being  express  an  opinion  of  him  in  my  life.  For  my  own  part, 
I  have  always  regarded  him  with  the  highest  esteem  and  respect,  and 
have  had  abundant  experience  that  he  is  one  of  the  worthiest  men  in 
the  world."  The  principle  the  Lord  Chief  Justice  has  laid  down  would 
exclude  this  evidence;  and  that  is  the  point  where  I  differ  from  him. 
To  my  mind  personal  experience  gives  cogency  to  the  evidence;  whereas 
such  a  statement  as,  "I  have  heard  some  persons  speak  well  of  him," 
or,  "  I  have  heard  general  report  in  favor  of  the  prisoner,"  has  a  very 
slight  effect  in  comparison.  Again,  to  the  proposition  that  general 
character  is  alone  admissible,  the  answer  is  that  it  is  impossible  to  get 
at  it.  There  is  no  such  thing  as  general  character;  it  is  the  general 
inference  supposed  to  arise  from  hearing  a  number  of  separate  and  dis- 
interested statements  in  favor  of  the  prisoner.  But  I  think  that  the 
notion  that  general  character  is  alone  admissible  is  not  accurate.  .  .  . 

The  arguments  of  Mr.  Tayler  upon  this  branch  of  the  case  have 
commanded  my  assent.  They  are  strongly  confirmed  by  the  case 
of  Rex  V.  Davison  (31  St.  Tr.  99  [ante,  No.  172]).  In  that  case  Lord 
Ellenborough  held  —  and  all  the  counsel  engaged  in  it  were  of  the 
same  opinion  —  that  the  personal  experience  of  a  witness,  or  his  opinion 
founded  upon  his  personal  experience,  was  admissible.  .  .  .  On  the 
general  principle  which  I  have  stated,  I  think  that  both  questions  ought 
to  be  answered  in  the  affirmative,  and  that  the  conviction  should 
stand.  .  .  . 

WiLLES,  J.  .  .  .  With  respect  to  the  second  question,  I  agree 
in  opinion  with  the  Lord  Chief  Justice  Erle.  .  .  .  The  ultimate  fact 
to  be  arrived  at  by  such  evidence  is  that  the  prisoner's  character,  in  the 
sense  of  the  particular  disposition  which  nature  or  education  may  have 
given  him,  is  good  and  not  evil:     You  can,  no  doubt,  go  into  the  question 


No.  174  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  259 

of  reputation,  and  inquire  as  to  the  opinion  of  others  concerning  the 
man.  But  I  apprehend  that  the  man's  disposition  is  the  principal 
matter  to  be  inquired  into,  and  that  his  reputation  is  merely  accessory, 
and  admissible  only  as  evidence  of  disposition.  .  .  .  The  judgment  of 
the  particular  witness  is  superior  in  quality  and  value  to  mere  rumor. 
Numerous  cases  may  be  put  in  which  a  man  may  have  no  general  char- 
acter —  in  the  sense  of  any  reputation  or  rumor  about  him  —  at  all, 
and  yet  may  have  a  good  disposition.  For  instance,  he  may  be  of  a 
shy,  retiring  disposition,  and  known  only  to  a  few;  or  again,  he  may  be 
a  person  of  the  vilest  character  and  disposition,  and  yet  only  his  inti- 
mates may  be  able  to  testify  that  this  is  the  case.  One  man  may  deserve 
that  character  [reputation]  without  having  acquired  it,  which  another 
man  may  have  acquired  without  deserving  it.  In  such  cases  the  value 
of  the  judgment  of  a  man's  intimates  upon  his  character  becomes  mani- 
fest. In  ordinary  life,  when  we  want  to  know  the  character  of  a  servant, 
we  apply  to  his  master.  A  servant  may  be  known  to  none  but  members 
of  his  master's  family;  so  the  character  of  a  child  is  known  only  to  its 
parents  and  teachers,  and  the  character  of  a  man  of  business  to  those 
with  whom  he  deals.  .  .  .  According  to  the  experience  of  mankind,  one 
would  ordinarily  rely  rather  on  the  information  and  judgment  of  a 
man's  intimates  than  on  general  report;  and  why  not  in  a  court  of  law? 
.  .  .  The  evidence  in  this  particular  case  was  of  a  very  peculiar  char- 
acter, because  the  prisoner  was  charged  with  an  offense  which  would 
not  only  be  committed  in  secret  if  it  were  committed  at  all,  but  would 
be  likely  to  be  kept  secret  by  the  persons  who  were  subjected  to  it.  Such 
being  the  case,  in  order  to  ascertain  the  prisoner's  character  for  morality 
and  decency,  the  persons  of  whom  you  would  inquire  would  be  those 
who  had  been  within  reach  of  his  influence  —  persons  who  would  not 
be  likely  to  communicate  his  conduct  to  the  neighborhood  or  to  one 
another.  ...  It  appears  to  me  that  that  evidence  of  the  man's  char- 
acter comes  within  the  scope  of  the  principle  I  have  been  referring  to, 
and  ought  to  have  been  admitted,  if  any  evidence  of  the  prisoner's  bad 
character  is  to  be  admitted  at  all.  .  .  . 

The  other  learned  Judges  concurred  in  the  judgment  delivered  by  the 
Lord  Chief  Justice  of  England.     Conviction  quashed. 

174.  John  H.  Wigmore.  Note  on  R.  v.  Rowton.  {Treatise  on  Evidenee, 
1905,  vol.  Ill,  1981,  n.  21).  In  R.  v.  Rowton  the  opinion  of  Cockburn,  C. 
J.,  for  the  majority,  does  not  cite  a  single  precedent  in  its  favor.  The  com- 
pleteness of  the  historical  misunderstanding  in  the  mind  of  the  learned  but 
dogmatic  Chief  Justice  may  be  judged  from  his  following  statement,  which 
should  be  compared  with  the  preceding  Hst  of  citations:  "No  one  has  ever 
heard  the  question,  'What  is  the  tendency  and  disposition  of  the  prisoner's 
mind?'  put  directly."  The  Chief  Justice's  citation  of  Phillipps  on  Evidence 
seems  to  show  that  he  reached  his  conclusion  solely  on  that  authority,  the 
frailty  of  which  may  be  seen  in  a  few  words.  In  the  first  edition,  of  1814,  at 
p.  72,  was  the    following  passage,  quite  consistent  with  the  law  as  explained 


'260  BOOK    i:     RULES   OF   ADMISSIBILITY  Xo.  174 

above:  "In  trials  for  felony  the  prisoner  is  always  permitted  to  call  witnesses 
to  his  general  character";  repeated  in  substance  up  to  the  3d  edition;  then,  in 
the  4th,  in  1820,  comes  the  following  insertion:  "What,  then,  is  evidence  of 
general  character?  One  medium  of  proof  is  by  showing  how  the  person  stands  in 
general  estimation;  proof  that  he  is  reputed  to  be  honest  is  evidence  of  his  char- 
acter for  honesty,  and  the  species  of  evidence  most  commonly  resorted  to  in  such 
inciuiries.  It  frecjuently  occurs  that  witnesses,  after  speaking  to  the  general 
opinion  of  the  prisoner's  character,  state  their  personal  experience  of  his  honesty; 
and  this  statement  is  admitted,  rather  from  favor  to  the  prisoner,  than  strictly 
as  evidence  of  general  character."  This  passage  is  made  more  emphatic  in  later 
editions,  ending  with  the  10th  (I,  507)  in  1852.  But  not  a  single  authority  was 
vouchsafed  for  the  above  passage  until  in  1824,  in  the  6th  edition,  R.  v.  Jones, 
the  single  misleading  utterance,  above  explained,  was  referred  to;  and,  in  spite 
of  the  score  of  instances  in  the  ISOOs  alone,  no  other  citation  was  made,  nor  could 
be,  indeed,  to  justify  that  passage.  Thus,  curiously  and  unfortimately  enough, 
the  law  of  England  as  repeatedly  declared  for  two  centuries  was  overturned  by 
a  passage  invented  and  inserted  by  a  text-writer  without  the  citation  of  a  single 
precedent. 

175.  Sir  James  Fitzjames  Stephen.  Note  on  R.  v.  Rowton.  (Digest  of 
the  Law  of  Evidence,  Srd  ed..  Note  XXV,  to  Chapter  VI.),  Character,  when  Relevant. 
The  subject  is  considered  at  length  in  R.  v.  Rowton,  1865,  1  L.  &  C.  520.  One 
consequence  of  the  view  of  the  subject  taken  in  that  case  is  that  a  witness  may 
with  perfect  truth  sw^ear  that  a  man,  who  to  his  knowledge  has  been  a  receiver 
of  stolen  goods  for  years,  has  an  excellent  character  for  honesty,  if  he  has  had  the 
good  luck  to  conceal  his  crimes  from  his  neighbors.  It  is  the  essence  of  success- 
ful hj-pocrisy  to  combine  a  good  reputation  with  a  bad  disposition,  and  according 
to  R.  v.  Rowi;on,  the  reputation  is  the  important  matter.  The  case  is  seldom 
if  ever  acted  on  in  practice.  The  question  always  put  to  a  witness  to  character 
is,  What  is  the  prisoner's  character  for  honesty,  morality,  or  humanity?  as  the 
case  may  be ;  nor  is  the  witness  ever  warned  that  he  is  to  confine  his  evidence  to 
the  prisoner's  reputation.  It  would  be  no  easy  matter  to  make  the  common  run 
of  witnesses  understand  the  distinction. 

176.    HAMILTON  v.   PEOPLE 

Supreme  Court  of  Michigan.  1874 

29  Mich.  172 

Error  to  Calhoun  Circuit.  Information  for  burning  a  barn  with 
intent  to  defraud  insurers.  Defendant  Thomas  W.  Hamilton  brings 
error.     Reversed  and  new  trial  ordered.' 

The  defendants  were  indicted  for  burning  a  barn,  with  intent  to 
defraud  an  insurance  company.  The  conviction  was  had  of  this 
plaintiff  in  error  (defendants  below  being  tried  separately)  upon  the 
testimony  of  William  Fuller,  who  was  sworn  as  State's  evidence.  .  .  . 
The  theory  of  the  prosecution  depended  entirely  on  the  evidence  of  the 
respondent  Fuller,  who  swore  to  a  plan,  made  in  advance,  to  burn  the 
barn  in  question,  by  putting  a  lighted  candle  in  a  place  where,  as  it 


No.  176  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  261 

burned  low,  it  would  reach  litter  and  other  combustible  material,  and 
set  it  on  fire.  ...  A  witness,  William  Gayton,  having  been  sworn  to 
sustain  Fuller's  reputation  for  truth  and  veracity,  was  asked  whether 
he  had  not  said  at  a  certain  time  and  place  that  he  would  not  believe 
Fuller  under  oath,  and  answered  that  he  did  not  think  he  had  done  so 
at  that  time,  but  that  it  was  likely  he  might  have  said  so  at  the  time  of 
Fuller's  arrest  for  this  crime.  This  answer  was  stricken  out  as  not 
responsive.  He  was  then  asked  whether  the  arrest  affected  his  opinion 
of  Fuller,  one  way  or  the  other.  This  was  ruled  out,  as  well  as  a  proposi- 
tion to  show  his  statements  to  different  persons  to  the  same  effect,  that 
he  would  not  believe  Fuller  under  oath.  .  .  . 

Brotvn  &  Patterson  and  M.  S.  Brackett,  for  plaintiff  in  error.  Byron 
D.   Ball,   Attorney-General,   for  the  People. 

Campbell,  J.  .  .  .  Was  it  proper,  then,  to  ask  a  sustaining  witness 
on  cross-examination,  whether  he  had  said  he  would  not  believe  the 
impeached  witness  under  oath? 

The  purpose  of  any  inquiry  into  the  character  of  a  witness  is  to 
enable  the  jury  to  determine  whether  he  is  to  be  believed  on  oath.  Evi- 
dence of  his  reputation  would  be  irrelevant  for  any  other  purpose.  And 
a  reputation  which  would  not  affect  a  witness  so  far  as  to  touch  his 
credibility  under  oath  could  have  no  proper  influence.  The  English 
text  books  and  authorities  have  always,  and  without  exception,  required 
the  testimony  to  be  given  directly  on  this  issue.  The  questions  put 
to  the  impeaching  and  supporting  witnesses  relate,  first,  to  their  knowl- 
edge of  the  reputation  for  truth  and  veracity  of  the  assailed  witness; 
and,  second,  whether  from  that  reputation  they  would  believe  him  under 
oath.  The  only  controversy  has  been  whether  or  no  the  grounds  of 
belief  must  rest  upon  and  be  confined  to  a  knowledge  of  reputation  for 
veracity  only.  But  confined  to  that,  the  authorities  are  harmonious. 
—  1  Stark.  Ev.,  237  and  seq.;  2  Phil.  Ev.  (Edwards'  Ed.),  955,  958.  A 
very  recent  decision  is  found  in  Queen  v.  Brown  &  Hedley,  L.  R.  1  C. 
C.  R.  70. 

The  reason  given  is  that,  unless  the  impeaching  witness  is  held  to 
showing  the  extent  to  which  an  evil  reputation  has  affected  a  person's 
credit,  the  jury  cannot  accurately  tell  what  the  witness  means  to  express 
by  stating  that  such  reputation  is  good  or  bad,  and  can  have  no  guide 
in  weighing  his  testimony.  ...  It  has  also  been  commonly  observed 
that  impeaching  questions  as  to  character  are  often  misunderstood,  and 
witnesses,  in  spite  of  caution,  base  their  answer  on  bad  character  gener- 
ally, which  may  or  may  not  be  of  such  a  nature  as  to  impair  confidence 
in  testimony.  When  the  question  of  credit  under  oath  is  distinctly 
presented,  the  answers  will  be  more  cautious. 

Until  Mr.  Greenleaf  allowed  a  statement  to  creep  into  his  work  on 
evidence  to  the  effect  that  the  American  authorities  disfavored  the 
English  rule,  it  was  never  very  seriously  questioned.  —  See  Greenl. 
Ev.,  §  461.     It  is  a  little  remarkable  that  of  the  cases  referred  to  to 


262  BOOK    i:     RULES    OF    ADMISSIBILITY  No.   176 

sustain  this  idea,  not  one  contained  a  decision  upon  the  question,  and 
only  one  contained  more  than  a  passing  dictum  not  in  any  way  called 
for.  —  Phillips  v.  Kingfield,  1  Appleton's  (Me.)  R.  375.  The  authori- 
ties referred  to  in  that  case  contained  no  such  decision,  and  the  Court, 
after  reasoning  out  the  matter  somewhat  carefully,  declared  the  ques- 
tion was  not  presented  by  the  record  for  decision.  .  .  . 

The  objection  alleged  to  such  an  answer  by  a  witness  is,  that  it 
enables  the  witness  to  substitute  his  opinion  for  that  of  the  jury.  But 
this  is  a  fallacious  objection.  The  jury,  if  they  do  not  act  from  personal 
knowledge,  cannot  understand  the  matter  at  all  without  knowing  the 
witness'  opinion,  and  the  ground  on  which  it  is  based.  It  is  the  same 
sort  of  difficulty  which  arises  in  regard  to  insanity,  to  disposition  or 
temper,  to  distances  and  velocities,  and  many  other  subjects,  where  a 
witness  is  only  required  to  show  his  means  of  information,  and  then 
state  his  conclusions  or  belief  based  on  those  means.  If  six  witnesses 
are  merely  allowed  to  state  that  a  man's  reputation  is  bad,  and  as  many 
say  it  is  good,  without  being  questioned  further,  the  jury  cannot  be 
said  to  know  much  about  it.  Nor  would  any  cross-examination  be 
worth  much  unless  it  aided  them  in  finding  out  just  how  far  each  wit- 
ness regarded  it  as  tainted. 

So  far  as  the  reports  show,  the  American  decisions,  instead  of  shaking 
the  English  doctrine,  are  very  decidedly  in  favor  of  it,  and  have  so 
held  upon  repeated  and  careful  consideration,  and  we  have  not  been 
referred  to,  nor  have  we  found  any  considerable  conflict.  —  See  in  New 
York,  People  v.  Mather,  4  Wend.  R.  229.  ...  In  New  Hampshire, 
Titus  V.  Ash,  4  Foster  319;  in  Pennsylvania,  Bogle's  Exrs.  v.  Kreitzer, 
46  Pa.  St.  465;  Lyman  v.  Philadelphia,  56  Pa.  St.  488;  in  Maryland, 
Knight  V.  House,  29  Md.  194;  in  California,  Stevens  v.  Irwin,  12  Cal. 
306;  People  v.  Tyler,  35  Cal.  553;  in  Illinois,  Eason  v.  Chapman,  21 
111.  33;  in  Wisconsin,  Wilson  v.  State,  3  Wis.  798;  in  Georgia,  Stokes 
V.  State,  18  Ga.  17;  Taylor  v.  Smith,  16  Ga.  7;  in  Tennessee,  Ford  v. 
Ford,  7  Humph.  92;  in  Alabama,  McCutchen  v.  McCutchen,  9  Port. 
650;  in  Kentucky,  Mobley  v.  Hamit,  1  A.  K.  Marsh.  590;  also  in  Judge 
McLean's  Circuit,  in  U.  S.  v.  Van  Sickle,  2  McLean  219. 

Mr.  Greenleaf  himself  intimates  that  it  might  be  a  proper  inquiry 
on  cross-examination.  We  think  the  inquiry  proper,  when  properly 
confined  and  guarded,  and  not  left  to  depend  on  any  basis  but  the 
reputation  for  truth  and  veracity.  And  we  also  think  that  the  cross- 
examination  on  impeaching  or  sustaining  testimony  should  be  allowed 
to  be  full  and  searching.  .  .  . 

For  the  reasons  we  have  given  the  judgment  must  be  reversed  and 
a  new  trial  granted,  and  the  respondent  must  be  remanded  into  the 
custody  of  the  proper  sheriff",  to  be  held  in  custody  until  bailed  or  other- 
wise dealt  with  according  to  law. 

CooLEY,  J.,  and  Graves,  Ch.  J.,  concurred. 

Christiancy,  J.,  did  not  sit  in  this  case. 


lo.   177  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  263 

177.  William  TRiCKE'ri\  Character-Eiyidence  in  Criminal  Cases.  (1904. 
The  Forum,  Dickinson  College  of  Law,  Vol.  VIII,  p.  128.)  But  little  trace,  if 
any,  of  an  attempt  to  prove  a  defendant's  character  by  the  summarized  impres- 
sions of  those  who  have  known  him,  is  to  be  found  in  the  Pennsylvania  reports. 
(Men  who  knew  the  defendant  well  seem  to  have  testified  from  that  knowledge 
to  his  chastity  in  Commonwealth  v.  Brubaker,  13  Super.  14.)  It  is  not  clear  that 
this  would  not  be  a  feasible  method,  nor  that  it  would  not  be  more  reliable  and 
satisfactory  than  the  method  actually  in  vogue.  "The  most  natural  way  to 
learn  what  disposition  to  truth-telling  is  possessed  by  a  witness,  would  be,"  says 
Prof.  Wigmore  (Greenleaf's  Evidence,  p.  582,  16th  ed.),  "to  receive  the  esti- 
mates of  those  who  are  personally  and  intimately  acquainted  with  him,  and  have 
had  ample  opportunity  to  learn  his  character;  and  such  was  the  original  and 
orthodox  practice,  both  in  England  and  in  this  country.  Such  continues  to  be 
the  rule  in  England."  As  the  veraciousness  of  a  man  can  be  discovered  best  by 
those  who  are  acquainted  with  him,  so  can  any  other  personal  quality.  For 
some  reason,  not  at  all  satisfactory,  this  testimony  of  those  who  know  the  man, 
is  not  receivable  as  to  his  traits. 

The  specific  acts  of  a  man  cannot  be  proved  in  order  that  the  jury  may  induct 
from  them  his  character.  The  inductions  of  witnesses,  who  have  observed  his 
acts  and  are  competent  to  make  and  report  inductions  from  them,  cannot  be 
heard  from  the  witnesses  themselves.  How,  then,  can  the  character  of  a  defend- 
ant be  shown?  Only  in  one  way,  viz.,  by  his  reputation.  The  objections  to  this 
vehicle  of  proof  are  striking.  The  reputation,  if  well  grounded,  emanates  from 
those  who  have  seen  the  specific  acts,  and  have  reported  them,  or  from  those 
who  have  seen  these  acts,  have  generalized  and  inducted  character  from  them, 
and  have  stated  their  generalizations  and  inductions.  The  witness  who  testi- 
fies to  reputation  testifies,  in  substance,  that  he  has  heard  A,  and  B,  and  C, 
and  D,  and  twenty  or  forty  others,  say  that  the  accused  was  this  or  that  sort 
of  a  man.  The  witness  may  or  may  not  correctly  represent  what  he  has  heard 
from  others.  These  others  may  have  repeated  only  what  still  others  had  told 
them,  and  these  may  not  have  correctly  reported  what  they  heard.  But,  the 
value  of  the  original  reporter  would  depend  on  his  being  an  observer  of  an  ade- 
quate number  of  the  acts  of  the  defendant,  and  on  his  properly  inducting 
character  from  them.  If  these  observers  were  before  the  court,  the  content 
and  the  value  of  their  opinions  could  be  more  surely  learned,  than  when,  invis- 
ible themselves,  their  identities  even  being  unascertained,  reports  at  first, 
second,  tenth,  nay,  so  far  as  can  be  known,  at  thousandth  hand,  of  what  they 
have  said,  are  the  only  evidence  of  their  opinions. 

The  propriety  of  receiving  reputation,  so  far  as  it  is  composed  of  the  opinions 
of  non-observers,  rests  on  the  unverified  assumption  that  this  reputation  will 
faithfully  represent  the  opinions  of  the  observers.  This  assumption  is  not  only 
unprovable,  but  improbable.  It  is  true  that,  Lowrie,  C.  J.  (HoflFman  v.  Kemerer, 
44  Pa.  452)  remarks,  "there  is  no  danger  of  any  person  having  a  better  reputa- 
tion in  ordinary  conduct  than  he  deserves,"  a  dictum  which  could  be  justified 
only  by  an  investigation  of  a  very  large  number  of  reputations,  and  of  the  conduct 
of  the  persons  affected  by  them;  for  such  things  are  not  self-evident.  We  are 
not  aware  that  any  sociological  students  have  conducted  such  investigations. 
Socrates  was  believed  at  Athens  to  be  a  much  w^orse  man  than  he  was,  and  proph- 
ets are  without  honor  where  they  ought  to  be  best  known.  It  is  quite  as  easy 
to  think  that  a  reputation  may  be  better  than  is  deserved  as  that  it  may  be 
worse.     It  would  be  a  miracle  if,  in  a  large  percentage  of  cases,  the  reputation 


264  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   177 

exactly  corresponded  with  the  facts  of  conduct  and  character.  The  annals  of 
crime  not  infrequently  exhibit  shocking  and  startling  discrepancies  between 
the  good  repute  of  men  and  what  the  evidence  shows  to  have  been  their  actual 
character.  .  .  .  But,  whatever  may  be  the  justification  of  assuming  that,  in  the 
long  rvm,  reputation  will  correspond  with  the  conduct  of  the  subject,  so  far  as 
it  is  visible  to  observers,  there  is  scarcely  a  word  to  be  said  in  favor  of  employ- 
ing the  reputation  as  the  evidence  of  the  tenor  of  conduct,  to  the  exclusion  of 
the  judgments  of  those  who  know  the  party  whose  conduct  or  character  is  in 
question. 

(c)    Opinion  to  Handwriting 

179.  Algernon  Sidney's  Trial.  (1683.  Howell's  State  Trials,  IX,  851, 
864.)     [Seditious  libel.]     Mr.  Shepjyard  sworn. 

Att'y-Gen.  —  Pray,  will  you  look  upon  these  writings  [shewing  the  libel]. 
Are  you  acquainted  with  Colonel  Sidney's  hand? 

Sheppard.  —  Yes,  my  lord. 

Att'y-Gen.  —  Is  that  his  handwriting? 

Sheppard.  —  Yes,  sir;   I  believe  so.     I  believe  all  these  sheets  to  be  his  hand. 

Att'y-Gcn.  —  How  come  you  to  be  acquainted  with  his  hand? 

Sheppard.  —  I  have  seen  him  write  the  indorsement  upon  several  bills  of 
exchange. 

Col.  Sidney.  —  My  lord,  I  desire  you  would  please  to  consider  this,  that 
similitude  of  hands  can  be  no  evidence. 

L.  C.  J.  Jeffries.  —  Reserve  yourself  until  anon,  and  make  all  the  advan- 
tageous remarks  you  can.  .  .  . 

Sidney.  —  Now,  my  lord,  I  am  not  to  give  an  account  of  these  papers;  I 
do  not  think  they  are  before  you,  for  there  is  nothing  but  the  similitude  of  hands 
offered  for  proof.  The  similitude  of  hands  is  nothing;  we  know  that  bonds  will 
be  counterfeited,  so  that  no  man  shall  know  his  own  hand. 

180.  Hales'  &  Kinnersley's  Trial.  (1729.  Howell's  State  Trials,  XVII, 
267.)  .  .  .  Mr.  Strange.  —  May  it  please  your  lordship,  and  you  gentlemen  of 
the  jury,  this  is  an  indictment  against  the  two  prisoners  William  Hales  and 
Thomas  Kinnersley.  This  indictment  sets  forth,  that  they  being  persons  of 
ill  fame,  and  intending  to  deceive  Mr.  Edwards,  etc.,  on  the  2d  of  March,  in  the 
first  year  of  his  majesty's  reign,  did  forge  a  writing  purporting  to  be  a  promis- 
sory note,  etc.  .  .  . 

(Note  read:)  —  "I  promise  to  pay  to  Mr.  Thomas  Kinnersley,  or  his  order, 
within  six  months  after  date,  the  sum  of  sixteen  hundred  and  fifty  pounds,  for 
ye  value  received, 

"March  30,  1728.  Samuel  Edwards." 

Indorsement.  "Thomas  Kinnersley." 

Serjt.  Whitaker.  —  The  gentlemen  of  the  jury  should  see  it  now*.  .  .  . 

Mr.  Thomas  Bird  sworn. 

Att'y-Gen.  —  Sir,  whose  hand  is  that?  [  showing  him  a  different  note,  of 
earlier  date.] 

Bird.  —  Mr.  Kinnersley,  Sir,  owned  that  to  be  his  handwriting.. 

Att'y-Gen.  —  Was  it  showed  by  you  to  Mr.  Kinnersley  at  that  time  when  he 
owned  it? 

Bird.  —  Yes,  Sir. 


No.  ISl  TESTIMONIAL   evidence:     QUALIFICATIONS  265 

Kinncrslcy.  —  And  did  I  own  it,  Sir? 

Att'y-Gen.  —  Why,  you  owned  it  in  court.     This  is  the  old  note. 

Kinnersley.  —  I  beg  your  pardon,  Sir;   I  did  not  understand  that. 

Att'y-Gen.  —  Give  that  note  to  the  jury  to  compare  it  with  the  other  note 
that  is  now  before  them.  .  .  . 

Mr.  Lincoln  sworn.  ... 

Serjt.  Whitaker.  —  Mr.  Lincoln,  those  receipts  which  you  produced,  did  Mr. 
Kinnersley  actually  write  them: 

Lincoln.  —  I  saw  him  write  them  all. 

Serjt.  Whitaker.  —  Show  them  to  the  jury. 

Judge  Reynolds.  —  Gentlemen  of  the  jury,  in  that  book  you  will  find  some 
receipts  wrote  by  Mr.  Kinnersley,  which  Mr.  Lincoln  swears  are  his  hand;  that 
he  saw  him  write  them  all. 

18L  History  of  the  Rule.^  The  trials  of  the  1500s  and  1600s  illustrate  (1) 
that  the  term  "similitude"  or  "comparison  of  hands"  covered  all  modes  of 
proving  handwriting  (in  the  strict  sense,  i.e.,  every  way  in  which  the  type  of 
writing  was  the  source  of  belief,  and  that  this  kind  of  evidence  was  much  dis- 
trusted; (2)  that  the  orthodox  use  of  such  proof  was  confined  at  least  to  ciiil 
causes;  (3)  that  the  only  accepted  mode  of  such  proof  was  by  those  who  had 
seen  the  person  icrite.  But  a  gradual  expansion  took  place  of  the  limits  of  the 
doctrines  under  (2)  and  (3).  (2)  We  first  find  the  doctrine  that  in  criminal  cases 
proof  by  "similitude  of  hands"  is  admissible  if  the  disputed  paper  was  found  in 
the  accused's  possession.  (3)  The  Crown  lawyers  had  already  begun  and  inces- 
santly kept  up  the  practice  of  offering  witnesses  who  had  an  inferior  knowledge, 
based  on  specimens  seen  by  them  and  somehow  known  to  them  as  genuine  other- 
wise than  by  seeing  them  written.  The  great  case  of  Lord  Ferrers  v.  Shirley,  in 
1731  {ante,  No.  121)  stamped  this  new  doctrine  as  orthodox.  By  the  beginning 
of  the  ISOOs  this  class  of  testimony  takes  its  place  on  an  equal  footing  with  the 
older  kind,  but  as  distinctly  modern  and  parvenu. 

Thus  the  opposition  to  proof  by  "comparison  of  hands"  had  been  forced  to 
give  way,  and  the  use  of  such  proof  had  been  enlarged.  But  the  old  stigma 
remained,  and  the  old  literature  discountenancing  it  was  still  perused.  Thus, 
when  now  still  other  varieties  of  it  were  attempted  to  be  availed  of,  it  came 
about  that  the  argument  against  them  was  that  they  involved  "comparison 
of  hands"  and  were  thus  unlaA\'ful. 

What  we  have  as  the  1800s  came  in  (the  time  when  reasons  and  principles 
for  the  rules  of  evidence  began  much  to  be  thought  about)  is  (1)  the  acceptance 
of  witnesses  who  had  seen  the  person  wTite;  (2)  the  acceptance  of  witnesses  who 
had  received  writings  subsequently  treated  by  him  as  genuine  or  who  had  had 
the  custody  of  ancient  documents  of  the  same  person's;  (3)  the  permission,  for 
such  persons,  of  bringing  into  court  the  specimens  they  knew  and  juxtaposing 
them;  (4)  the  exclusion  of  any  other  mode  of  testimony  under  the  condemna- 
tory phrase  "comparison  of  hands." 

(.1)  Kinds  of  IVitnesses.  The  other  kinds  of  witnesses  that  were  thus  ex- 
cluded would  be  (o)  an  ordinary  witness  who  knew  nothing  about  the  handwriting 
but  merely  juxtaposed  specimens  and  compared;  (6)  the  same  testimony  by  one 
skilled  in  hamlwriting  generally. 

^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (1905,  Vol. 
Ill,  §§  1991-1993). 


266  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  181 

(o)  Now  the  former  was  of  course  barred  absolutely  by  the  Opinion  rule, 
well  expounded  in  this  connection  in  the  following  passage : 

1770,  Yates,  J.,  in  Brookbard  v.  Woodley,  Peake  N.  P.  21,  note:  "Where  it 
is  merely  opinion  on  similitude  of  the  writing  collected  from  barely  com- 
paring them,  the  jury  may  compare  them  as  well  as  anybody  else,  and  any 
two  people  may  think  differently." 

(b)  The  other  kind  of  testimony  thus  excluded  was  that  of  experts  speaking 
from  juxtaposition.  This  it  was  now  strenuously  sought  to  introduce.  It  is  no 
matter  of  surprise  that  the  judges  instinctively  hesitated;  for  the  idea  of  expert- 
ism  in  handwriting  was  then  a  novel  one.  But  the  significant  circumstance  is 
that  those  who  tried  to  use  this  kind  of  testimony  were  obliged  to  strive  to  remove 
from  it  the  stigma  of  being  "comparison  of  hands."  They  failed  for  a  long  time 
to  introduce  the  new  kind  of  testimony;  and  the  Legislature  had  finally  to  step 
in  with  its  aid.  But  the  result  of  the  discussion  was  that  the  stigmatized  "com- 
parison of  hands"  now  obtained  definitely  a  narrow  meaning;  it  covered  the 
testimony  of  all  witnesses  whose  knowledge  was  acquired  solely  by  examination 
of  specimens  for  the  purpose  of  the  trial;  it  no  longer  applied  to  witnesses  who  had 
gained  a  knowledge  by  seeing  the  person  write  or  by  receiving  correspondence  or 
the  like.  .  .  . 

(B)  Submission  of  Specimens  to  the  Jury.  There  is,  of  course,  a  sole  remain- 
ing way  of  attempting  to  prove  the  genuineness  of  handwTiting,  viz.,  without  ask- 
ing the  opinion  of  any  witness,  to  lay  before  the  jury  sovie  specimens  of  the  writing 
of  the  person  in  question.  In  the  early  practice  before  ISOO  there  was  no  objec- 
tion to  the  jury's  examination  purely  as  such.  The  witness  who  had  seen  the 
person  WTite  (or  later,  had  received  papers,  or  possessed  old  documents  learned 
to  be  genuine)  might  bring  the  writing  in,  if  he  had  it,  and  tlie  jury  would  in- 
cidentally look  at  it.  Thus  the  stigma  of  "comparison  of  hands"  was  not  appli- 
cable to  the  fact  of  the  jury's  examination  as  such;  the  struggle  was  against  the 
use  of  a  certain  kind  of  witness,  not  against  what  he  did  if  admitted.  But  now 
the  controversy  (above  mentioned)  over  expert  testimony  by  juxtaposition  was 
in  full  array;  the  new  and  narrow  sense  of  the  stigmatized  "comparison  of  hands" 
natiu-ally  associated  itself  with  any  and  every  process  of  "comparison"  or  manual 
juxtaposition;  and  doubts  about  the  propriety  of  the  time-honored  inspection 
by  the  jury  thus  arose.  The  Court  of  Exchequer,  in  1830,  and  the  King's  Bench, 
in  1836,  after  canvassing  the  whole  subject  from  the  point  of  view  of  policy,- put 
a  limitation  upon  the  practice  —  confining  it  to  documents  already  in  the  case  — 
which  remained  the  law,  until  the  Common  Law  Procedure  Act  of  1854 
speedily  reverted  to  the  early  tradition,  and  substituted  its  more  satisfactory  rule. 

If  the  foregoing  exposition  has  been  clear,  we  may  understand  that  the  classes 
of  witnesses  who  may  testify  to  handwriting  have  increased  in  number  by  succes- 
sive enlargements;  that  the  whole  meaning  of  "comparison  of  hands"  has 
changed ;  that  the  mere  process  of  juxtaposition  coram  judicio,  whether  for  wit- 
ness or  for  jury,  was  historically  orthodox  and  uncjuestionable;  and  that  the 
opposite  fates  at  common  law  of  juxtaposition  by  experts  and  juxtaposition  by 
jury  —  exclusion  for  the  former,  but  limited  sanction  for  the  latter  —  were  due 
simply  to  the  fact  that  the  former  had  never  been  attempted  till  the  ISOOs  and 
was  merely  prevented  from  coming  into  existence,  while  the  latter  had  always 
existed  and  was  thus  able  to  survive  the  attempts  on  its  life. 


No.  182  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  267 

182.    DOE  DEM.   PERRY  v.   NEWTON 

Queen's  Bench.  1836 

5  A.  &  E.  514;  1  Nev.  &  P.  1 

Ejectment  for  land  in  Cumberland.  At  the  trial  before  Coleridge, 
J.,  at  the  last  assizes  at  Carlisle,  it  appeared  tliat  this  action  was  brought 
by  the  heir  at  law  of  one  Broekbank  against  the  defendants,  who  claimed 
as  devisees  under  the  will  of  the  same  individual.  In  February  last  the 
testator  died,  as  was  supposed  intestate.  Some  weeks  afterwards,  in 
removing  the  bed  in  which  he  had  died,  a  document  was  found,  which 
the  defendants  alleged  to  be  his  will.  The  question  at  the  trial  was,  as 
to  the  genuineness  of  this  document.  It  was  dated  in  1833,  and  was 
witnessed  by  three  persons,  all  of  whom  were  dead  at  the  time  of  the 
discovery  of  the  will ;  and  it  was  not  known  by  whom  it  had  been  written. 
Evidence  was  given,  on  the  part  of  the  defendants,  of  belief  in  the  hand- 
writing of  the  testator  and  attesting  witnesses.  On  cross-examination 
the  same  persons  proved  that  various  letters  produced  to  them  by  the 
plaintiff's  counsel,  and  purporting  to  be  letters  written  and  signed  by 
the  testator  and  two  of  the  persons  attesting  the  will,  were  respectively 
in  their  handwriting.  On  the  part  of  the  plaintiff  witnesses  were  after- 
wards called,  who  negatived,  according  to  their  belief,  the  alleged  hand- 
writing of  the  testator  and  attesting  witnesses ;  and  it  was  then  proposed 
to  give  in  evidence  the  before-mentioned  letters,  proved  to  have  been 
undoubtedly  written  by  the  testator  and  witnesses  respectively,  in  order 
that  the  jury  might  compare  the  handwriting  contained  in  those  letters 
with  the  signatures  to  the  will,  and  thus  detect  an  alleged  dissimilarity 
between  such  letters  and  signatures.  This  evidence  was  rejected  by  the 
learned  judge.     A  verdict  was  found  for  the  defendants. 

Alexander  now  moved  for  a  rule  nisi  for  a  new  trial,  on  the  ground 
that  this  proof  had  been  improperly  rejected.  "The  general  rule  of 
evidence  on  this  subject  is  stated  to  be,  that  handwriting  cannot  be 
proved  by  a  comparison  of  the  paper  in  dispute  with  any  other  papers, 
although  acknowledged  to  be  genuine.  The  generality  of  the  proposi- 
tion was,  however,  limited  by  Griffith  v.  Williams,  1  Cro.  &  J.  47.  In 
that  case  the  Court  of  Exchequer  held,  that  the  rule  does  not  apply 
where  the  writing  acknowledged  to  be  genuine  is  already  in  evidence 
in  the  cause,  and  that  in  such  case  the  jury  may  compare  the  two 
documents.  Nor  was  this  the  earliest  decision  upon  the  point;  for  in 
Allesbrook  v.  Roach,  1  Esp.  351,  not  noticed  in  the  last-cited  case, 
Lord  Kenyon  allowed  the  signature  of  the  defendant  to  several  bills 
of  exchange  to  be  compared  by  the  jury  with  his  alleged  signature  to  the 
bill  on  which  that  action  was  brought.  The  bills  there  allowed  to  be 
made  the  subject  of  comparison  were  no  more  connected  with  the  rhatter 
in  dispute  than  the  letters  proposed  to  be  given  in  evidence  in  the  present 


268  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   182 

action.  .  .  .  The  question,  therefore,  will  be,  the  propriety  of  such  a 
limitation.  Two  reasons  have  been  assigned  in  its  support:  first,  that 
the  jury  may  be  wholly  illiterate,  and  unable,  therefore,  to  institute 
the  comparison;  the  second,  that  the  party  interested  has  it  in  his  power 
to  select,  and  probably  will  select,  out  of  a  number  of  documents,  such 
only  as  suit  his  purpose,  and  will  keep  back  the  rest.  The  first  reason, 
however  applicable  at  former  times,  will  scarcely  have  any  weight  at 
the  present  day.  The  second  would  apply  with  equal  stringency  to 
cases  of  ancient  documents,  which  are  undoubtedly  provable  by  a 
comparison  of  handwriting,  and  yet  in  such  cases  the  interested  party 
possesses  the  same  power  of  producing  or  keeping  back  any  specimens 
he  may  deem  favorable  or  otherwise  to  his  view  of  the  case.  Such  a 
course  of  proceeding  is  open  to  inquiry  and  observation,  and  affords  a 
test,  rather  for  the  value,  than  for  the  admissibility,  of  this  description 
of  evidence.  It  is  difficult  to  see  on  what  solid  grounds  the  distinction 
can  rest  between  the  admissibility  of  documents  already  in  evidence 
in  the  cause,  and  those  offered  for  the  purpose  of  comparison.  Both 
are  avowedly  in  the  handwriting  of  the  party;  and  the  question  being 
the  genuineness  of  the  alleged  writing,  they  afford  an  equal  criterion. 

Lord  Denman,  C.  J.  —  This  is  a  point  on  which  we  ought  not  to 
raise  any  doubt.  I  rather  think  the  decision  in  Griffith  v.  Williams, 
1  Cro.  &  J.  47,  has  been  considered  to  go  a  long  way;  but  the  real  ground 
upon  which  that  rests  appears  to  me  to  be  that  the  comparison  is  unavoid- 
able. There  being  two  documents  in  question  in  the  cause,  one  of 
which  is  known  to  be  in  the  handwriting  of  a  party,  the  other  alleged, 
but  denied  to  be  so,  no  human  power  can  prevent  the  jury  from  compar- 
ing them  with  a  view  to  the  question  of  genuineness;  and,  therefore, 
it  is  best  for  the  Court  to  enter  with  the  jury  into  that  inquiry,  and  to 
do  the  best  it  can,  under  circumstances  which  cannot  be  helped.  .  .  . 

Patterson,  J.  —  I  always  thought  that  the  rule  laid  down  in  Grif- 
fith V.  Williams,  1  Cro.  &  J.  47,  was  limited  to  documents  which  were 
already  before  the  jury.  It  is  not  said  in  the  report  of  that  case  that 
necessity  was  the  ground  upon  which  the  comparison  was  allowed; 
but  I  think  that  must  have  been  so.  It  was  impossible,  in  such  a  case, 
to  prevent  the  jury  from  making  a  comparison.  I  have  rejected  evi- 
dence, upon  the  ground  of  distinction  now  taken,  in  a  case  which  came 
before  me  at  Gloucester,  I  think  on  the  Crown  side.  .  .  . 

Williams,  J.  —  I  doubt  if  the  facts  of  AUesbrook  v.  Roach,  1  Esp. 
351,  are  correctly  given;  for  the  rule,  if  laid  down  there  as  it  is  stated, 
does  not  appear  to  have  been  acted  upon  since,  although  it  might  be 
supposed  that  such  a  decision  by  Lord  Kenyon,  whose  judgment  on 
points  of  evidence  is  so  much  respected,  would  have  been  followed  up  in 
other  cases.  I  question  the  authority  of  the  case,  as  there  has  been 
no  corresponding  practice.  If  the  comparison  here  contended  for  were 
admitted,  the  party  disputing  a  document  ascribed  to  him  might  pro- 
duce to  the  jury  for  that  purpose  a  selection  from  any  number  of  papers 


No.  183  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  269. 

written  by  himself,  which  would  he  very  dangerous.  The  decision  in 
Griffith  v.  Williams,  1  Cro.  &  J.  47,  no  doubt  proceeded  upon  the  ground 
that  comparison  of  the  documents,  when  they  are  in  evidence  for  other 
purposes,  cannot  be  avoided,  and,  liierefore,  it  is  better  that  the  com- 
parison should  be  made  under  the  direction  of  the  Court  than  in  a 
corner.  .  .  . 

Coleridge,  J.  —  I  am  of  the  same  opinion.  I  only  wish  to  say  a 
word  in  respect  to  that  instance  on  which  Mr.  Alexander  relied  with 
respect  to  ancient  handwriting.  ...  I  have  always  understood  that 
to  be  an  excepted  case;  but  that  exception  has  been  founded  on  the 
same  principle  which  justifies  it  in  others.  The  exception  is  of  neces- 
sity; the  handwriting  cannot  be  proved  in  any  other  way.  Doubtless 
it  is  less  open  than  modern  writing  would  be  to  the  objection  that  the 
selection  may  be  an  unfair  one. 

I  will  add  another  reason  why  I  think  the  evidence  was  properly 
rejected,  —  that  many  irrelevant  issues  would  be  thereby  raised.  It  is 
all  very  well  if  the  jury  are  to  look  only  at  the  documents  that  are  other- 
wise in  evidence  in  the  cause.  Whether  those  documents  are  or  are  not 
in  the  handwriting  of  the  party  must  be  proved  in  the  course  of  the 
case.  If  the  rule  is  extended  to  documents  that  have  nothing  to  do  with 
the  matter  in  dispute,  on  every  one  of  those  an  issue  is  raised  quite 
irrelevant  to  the  main  point;  with  this  additional  objection  to  be  made 
to  it,  that  the  other  party  cannot  know  what  documents  are  going  to  be 
produced,  and  does  not  come  prepared  to  answer  inferences  arising  from 
their  production.  This  seems  an  additional  reason  why  the  rule  should 
be  narrowed.  Rule  refused. 


183.    DOE  DEM.   MUDD  v.   SUCKERMORE 

Queen's  Bench.  1836 

5  A.  &  E.  703 

Ejectment  for  messuages,  etc.,  in  Suffolk.  On  the  trial  before 
Vaughan,  J.,  at  the  Suffolk  Spring  assizes,  1835,  a  verdict  was  found 
for  the  defendant.  In  Easter  term,  1835,  Storks,  Serjt.,  obtained  a 
rule  for  a  new  trial  on  the  ground  of  an  improper  rejection  of  evidence. 
The  question  in  the  cause  was  the  due  execution  of  a  will ;  and  the  three 
attesting  witnesses  were  called.  It  was  supposed  that  one  of  them, 
Stribling,  was  deceived  in  swearing  to  his  own  attestation,  and  that, 
although  he  had  attested  a  will  for  the  testator,  the  document  produced 
was  not  that  will,  but  a  forgery,  and  that  the  attestation  was  in  truth 
a  counterfeit.  Upon  cross-examination,  two  signatures,  purporting  to 
be  his,  and  to  have  been  subscribed  to  depositions,  made  by  him  in  pro- 
ceedings relating  to  the  same  will  in  another  court,  and  also  sixteen  or 
eighteen  signatures,  apparently  his,  pasted  on  a  sheet  of  pasteboard, 


270  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  183 

were  shown  to  him;  and  he  said  he  beheved  they  were  all  of  his  hand- 
writing. At  the  time  he  gave  his  evidence,  another  witness  was  in 
court,  and,  the  cause  lasting  to  the  second  day,  was  called.  He  had 
never  seen  Stribling  write,  nor  hft,d  any  other  means  of  acquiring  a 
knowledge  of  the  character  of  his  handwriting,  but  from  an  examination 
of  the  signatures  so  produced:  this  he  had  made  on  the  first  day,  and, 
from  this,  he  stated  that  he  thought  he  had  acquired  a  knowledge  of  the 
character  of  his  handwriting;  and  he  was  asked  whether  he  believed  the 
attestation  to  the  will  to  be  the  handwriting  of  Stribling.  This  was 
objected  to,  and,  on  argument,  determined  to  be  inadmissible. 

.  .  .  Cause  was  shown  by  KcUy  and  Gunning;  and  Storks,  Serjt., 
and  Bylcs,  were  heard  in  support  of  the  rule.  The  Court  took  time  to 
consider;  and  in  Trinity  term,  1837  (June  8th),  their  Lordships,  differing 
in  opinion,  delivered  judgment  seriatim.  .  .  . 

Coleridge,  J.  .  .  .  In  my  opinion,  after  much  consideration,  the 
evidence  was  properly  rejected. 

The  rule  as  to  proof  of  handwriting,  where  the  witness  has  not  seen 
the  party  write  the  document  in  question,  may  be  stated  generally 
thus.  Either  the  witness  has  seen  the  party  write  on  some  former  occa- 
sions, or  he  has  corresponded  with  him,  and  transactions  have  taken 
place  between  them  upon  the  faith  that  letters  purporting  to  have  been 
written  or  signed  by  him  have  been  so  written  or  signed.  On  either 
supposition,  the  witness  is  supposed  to  have  received  into  his  mind  an 
impression,  not  so  much  of  the  manner  in  which  the  writer  has  formed 
the  letters  in  the  particular  instances,  as  of  the  general  character  of  his 
handwriting;  and  he  is  called  on  to  speak  as  to  the  writing  in  question 
by  a  reference  to  the  standard  so  formed  in  his  mind.  It  is  obvious 
that  the  weight  of  this  evidence  may  vary  in  every  conceivable  degree; 
but  the  principle  appears  to  be  sound,  both  in  regard  to  the  test  of 
genuineness,  and  the  acquisition  of  the  means  of  applying  it.  The 
test  of  genuineness  ought  to  be  the  resemblance,  not  to  the  formation 
of  the  letters  in  some  other  specimen  or  specimens,  but  to  the  general 
character  of  the  writing,  which  is  impressed  on  it  as  the  involuntary  and 
unconscious  result  of  constitution,  habit,  or  other  permanent  cause,  and 
is,  therefore,  itself  permanent.  And  we  best  acquire  a  knowledge  of 
this  character  by  seeing  the  individual  write  at  times  when  his  manner 
of  writing  is  not  in  question,  or  by  engaging  with  him  in  correspondence; 
either  supposition  giving  reason  to  believe  that  he  writes  at  the  time  not 
constrainedly,  but  in  his  natural  manner.  .  .  . 

Upon  these  grounds  directly,  I  conceive,  although  not  on  these 
alone,  our  law  has  not,  during  a  long  course  of  years,  permitted  hand- 
writing to  be  proved  by  the  immediate  comparison,  by  a  witness,  of  the 
paper  in  dispute  with  some  other  specimen  proved  to  have  been  written 
by  the  supposed  writer  of  the  first.  ...  It  is  familiar  to  lawyers  that 
many  attempts  have  been  made  to  introduce  this  mode  of  proof,  accord- 
ing to  the  practice  of  the  civil  and  ecclesiastical  laws;   and  a  text  writer, 


No.  183  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  271 

to  whose  opinions  I  shall  always  pay  the  greatest  respect,  Mr.  Starkie 
I  mean,  has  given  this  mode  of  proof  the  sanction  of  his  authority,  as 
preferable  on  principle  to  our  own;  2  Starkie  on  Evidence,  375,  Ed.  2. 
But,  after  some  uncertainty  of  decision,  the  attempts  have  finally  failed. 
Rex  V.  Cator,  4  Esp.  117,  though  a  Nisi  Prius  decision,  brings  this  matter 
very  fully  under  review;  and,  to  the  extent  at  least  of  what  is  rejected, 
has  always  since  been  considered  as  laying  down  the  rule  correctly.  In 
my  humble  judgment,  that  ought  not  to  be  departed  from.  Assuming 
that  no  dispute  exists  as  to  the  genuineness  of  the  standard,  or  the  fair- 
ness with  which  it  has  been  selected,  such  a  comparison  leads  to  no 
inference  as  to  the  general  character  of  the  handwriting.  The  two 
specimens  may  be  much  alike,  or  very  different;  yet,  in  the  former  case, 
they  may  proceed  from  different  hands,  in  the  latter  case  from  the  same. 
If  the  points,  which  I  have  just  supposed  to  be  conceded,  be  brought  into 
question,  other  and  more  serious  objections  arise  to  this  mode  of  proof. 
If  the  genuineness  be  disputed,  a  collateral  issue  is  raised,  and  that  upon 
every  paper  used  as  a  standard;  an  issue,  too,  in  which  the  proof  may 
be  exactly  of  the  same  nature  as  that  used  in  the  principal  cause,  namely, 
mere  comparison;  with  the  additional  disadvantages,  that  the  former 
standard  is  not  produced,  and  that  the  opposing  party  can  avail  himself 
of  no  counterproof .  It  is  easy  to  see  too,  as  has  been  well  observed  by 
Mr.  Starkie,  that  this  inquiry  might  lead  to  an  endless  series  of  issues 
each  more  unsatisfactory  than  the  preceding. 

Upon  the  grounds,  therefore,  that  our  rule  is  a  sound  one,  and  well 
established,  both  in  what  it  admits  and  what  it  rejects,  sound  in  prin- 
ciple, and  convenient  with  reference  to  the  mode  of  trial  to  which  it  is 
to  be  applied,  and  that  the  present  facts  are  substantially  within  the 
latter  branch  of  it,  I  am  of  the  opinion  that  the  learned  Judge  rightly 
rejected  the  evidence  tendered.  .  .  . 

Williams,  J.  —  This  was  an  action  of  ejectment,  to  try  the  validity 
of  a  will.  .  .  .  The  question  seems  mainly  to  be  reduced  to  this  point, 
whether  the  knowledge,  which  the  witness  professed  to  have,  was 
acquired  by  means  prohibited  by  any  known  and  established  rule  of 
law.  .  .  .  And  the  objection  is  twofold;  first,  that  it  was  acquired  merely 
by  the  comparison  of  writing;  and  next,  that,  at  all  events,  it  was 
not  acquired  by  either  of  the  legitimate  and  recognized  modes, 
already  referred  to,  having  seen  the  party  write,  or  corresponded  with 
him. 

As  to  the  first,  ...  it  seems  to  me  that  the  evidence,  so  far  as  this 
objection  ig  concerned,  was  admissible,  because  it  was  not  the  com- 
parison of  handwriting,  in  the  proper  and  ordinary  sense  of  the  term. 
To  reject  it,  because  what  was  equivalent  to  a  comparison  of  hand- 
writing took  place,  would  go  far,  so  far  as  the  reason  of  the  thing  is 
concerned,  towards  disturbing  the  rule  altogether,  and  letting  in  a  com- 
parison of  handwriting  as  a  medium  of  proof  in  all  cases  whatsoever, 
or  excluding,  in  a  great  degree,  all  possibility  of  proof.     What  is  to  be 


272  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  183 

said,  where  the  means  of  knowledge  are  derived  from  a  bygone  corre- 
spondence of  considerable  standing?  What  is  it  but  comparing  a  distant, 
and  (in  proportion  to  the  length  of  time)  faint  image  in  the  mind  with 
the  writing  in  question?  .  .  . 

I  come  now  to  consider,  whether  the  witness  in  this  case  had  any 
legitimate  means  of  knowledge  to  authorize  the  question,  the  answer 
to  which  was  rejected.  It  has  been  said  that  the  specimens  selected 
may  have  been  garbled  and  fallacious,  "calculated  to  serve  the  purpose 
of  the  party  producing  them,  and,  therefore,  not  exhibiting  a  fair  speci- 
men of  the  general  character  of  the  handwriting."  ...  I  cannot  per- 
ceive how  it  can  be  affirmed  that  this  was  a  partial  selection  by  those 
who  wished  to  use  the  papers.  The  selection  was  not  depending  upon 
their  power  merely.  The  whole  was  subject  to  the  answer  of  the  wit- 
ness. The  papers  produced  might  all  have  been  admitted  to  be  of  his 
handwriting,  or  one-half,  or  any  other  portion  of  them,  or  all  might  have 
been  denied.  When  the  papers  were  so  admitted,  was  there  not  then 
some  proof  that  the}'  were  of  the  witness's  handwriting?  And  if  so, 
how  can  the  case  differ  in  kind,  though  it  may  in  amount  or  degree  of 
proof,  from  the  perusal  or  reperusal  of  a  couple  of  letters,  written,  the 
one  ten,  the  other  five,  years  before?  Why  may  the  witness  give  an 
opinion  of  any  person's  handwriting  from  a  study  of  such  letters? 
Because  the  writer  has,  in  some  manner,  authenticated  them  to  be  his. 
Why  might  the  witness  have  been  asked  the  proposed  questions  in  this 
instance?  Because  the  witness  had  sworn  that  the  papers  were  of  his 
handwriting.  In  each  case,  it  is  from  the  perusal  of  papers  (and  papers 
only)  that  the  knowledge  is  acquired.  In  each  case  there  is  some  proof 
that  the  papers  to  be  perused,  in  order  to  form  a  judgment,  are  those 
of  the  parties  respectively,  respecting  whose  handwriting  in  the  par- 
ticular case  the  question  and  inquiry  arise.  .  .  .  Anything,  I  presume, 
from  which  the  identity  of  the  writer  is  established,  may  suffice.  If 
then,  from  such  proof,  whence  a  reasonable  inference  may  arise  that  the 
letter  or  signature  is  by  such  or  such  person,  an  opinion  of  his  handwrit- 
ing may  be  given,  the  question  recurs,  whether  there  be  not  sovie  founda- 
tion for  opinion,  where  the  party  has  upon  his  oath  declared  that  the 
papers  perused  by  the  witness  were  written  by  himself.  That  no  person 
has,  hitherto,  been  allowed  to  speak  of  his  belief  of  handwriting,  except 
he  has  acquired  his  knowledge  by  one  or  other  of  the  prevalent  methods 
(having  seen  the  party  write,  or  receive  writing  from  him),  may  doubt- 
less be  true;  but  it  is,  I  fear,  but  an  imperfect  solution  of  the  present 
difficulty.  May  not  the  answer  be,  that  the  case  is  new?  In  truth,  has 
it  ever  arisen  before?  If  not,  we  are  called  upon,  as  in  the  various 
and  ever  varying  combinations  of  human  affairs  continually  does  and 
must  occur,  to  apply,  as  well  as  we  can,  the  principles  and  analogies 
having  the  nearest  and  most  direct  affinity  to  the  subject,  to  this  fresh 
question.  .  .  . 

Upon  the  whole,  with  sincere  respect  for  the  contrary  opinions,  I 


No.  183  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  273 

think  the  evidence  was  improperly  rejected,  and  that  there  ought  to 
be  a  new  trial. 

Patteson,  J.  —  In  this  case,  .  .  .  the  learned  Judge  rejected  his 
testimony;  and  the  question  is  whether  he  was  right  in  so  doing.  .  .  . 

All  evidence  of  handwriting,  except  where  the  witness  sees  the  docu- 
ment written,  is  in  its  nature  comparison.  It  is  the  belief  which 
a  witness  entertains  upon  comparing  the  writing  in  question  with  an 
exemplar  in  his  mind  derived  from  some  previous  knowledge.  That 
knowledge  may  have  been  acquired,  either  by  seeing  the  party  write, 
in  which  case  it  will  be  stronger  or  weaker  according  to  the  number  of 
times  and  periods,  and  other  circumstances  under  which  the  witness 
has  seen  the  party  write,  but  it  will  be  sufficient  knowledge  to  admit  the 
evidence  of  the  witness  (however  little  weight  may  be. attached  to  it  in 
such  cases),  even  if  he  has  seen  him  write  but  once,  and  then  merely 
signing  his  surname.  ...  Or  the  knowledge  may  have  been  acquired  by 
the  witness  having  seen  letters  or  other  documents  professing  to  be  the 
handwriting  of  the  party,  and  having  afterwards  communicated  person- 
ally with  the  party  upon  the  contents  of  those  letters  or  documents, 
or  having  otherwise  acted  upon  them  by  written  answers,  producing 
further  correspondence,  or  acquiescence  by  the  party  in  some  matter 
to  which  they  relate,  or  by  the  witness  transacting  with  the  party  some 
business  to  which  they  relate,  or  by  any  other  mode  of  communication 
between  the  party  and  the  witness  which,  in  the  ordinary  course  of  the 
transactions  of  life,  induces  a  reasonable  presumption  that  the  letters 
or  documents  were  the  handwriting  of  the  party.  ...  A  third  mode  is 
now  sought  to  be  introduced,  namely,  by  satisfying  the  witness  by  some 
information  or  evidence  that  a  number  of  papers  are  in  the  handwriting 
of  the  party,  and  then  desiring  him  to  study  those  papers,  so  as  to  acquire 
a  knowledge  of  the  handwriting,  and  fix  an  exemplar  in  his  mind,  and 
afterwards  putting  into  his  hand  the  writing  in  question,  and  asking  his 
belief  respecting  it,  or  by  merely  putting  certain  papers  into  the  witness's 
hands,  without  telling  him  who  wrote  them,  and  desiring  him  to  study 
them,  and  acquire  a  knowledge  of  the  handwriting,  and  afterwards 
showing  him  the  writing  in  question,  and  asking  his  belief  whether  they 
are  written  by  the  same  person,  and  calling  evidence  to  prove  to  the 
jury  that  the  former  are  the  handwriting  of  the  party,  which  perhaps 
may  be  considered  as  the  same  process  in  effect,  expressed  in  other  words. 
The  very  foundation  of  this  mode  is  the  establishment  of  the  fact  that 
the  papers,  from  studying  which  the  witness  is  to  acquire  his  knowledge, 
are  the  handwriting  of  the  party.  Now  that  fact  must  be  established, 
either  by  the  acknowledgment  of  the  party,  or  by  the  information  of 
third  persons. 

Assuming  the  witness  to  be  the  only  person  to  be  satisfied  of  the  fact, 
it  is  obvious  that  the  acknowledgment  of  the  party,  if  the  witness  be 
called  to  affirm  the  handwriting,  would  be  a  most  unsafe  ground  on  which 
to  act,  and  was  so  considered  by  Lord  Kenyon  in  Stranger  v.  Searle, 


274  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  183 

1  Esp.  14;  and,  if  the  witness  be  called  to  disaffirm  the  handwriting,  the 
acknowledgment  of  the  party,  unless  he  be  a  party  to  the  suit,  ought 
not  to  bind  the  litigants;  and,  if  he  be  a  party  to  the  suit,  it  may  fairly 
be  urged  that  the  case  would  come  within  the  second  mode  of  acquiring 
knowledge  above  suggested,  namely,  by  a  direct  communication  with 
the  party.  The  other  mode  of  satisfying  the  witness,  viz.,  by  the  infor- 
mation of  third  persons,  is  equally  open  to  objection,  as  it  must  be 
given  behind  the  back  of  one  or  both  of  the  litigant  parties,  and  would 
obviously  be  most  unsafe  and  unfair. 

The  jury,  therefore,  must  be  satisfied  of  the  fact.  Now  that  must 
be  by  evidence,  and  will  raise  a  number  of  collateral  issues,  foreign  to 
those  on  the  record,  and  for  which  one  of  the  litigants  must  of  necessity 
be  wholly  unprepared,  in  addition  to  the  danger  of  unfair  selection  by 
the  other  litigant  who  produces  the  papers.  I  need  hardly  advert  to 
the  great  inconvenience  and  waste  of  time  which  will  be  incurred  by  such 
a  wide  range  of  collateral  matter,  nor  to  the  observation  that  the  proof 
of  the  papers  in  those  collateral  issues  might  be  by  calling  a  witness  who 
had  acquired  his  knowledge  of  the  handwriting  in  the  very  same  way 
from  other  papers,  which  would  equally  require  to  be  proved;  and  so 
it  is  obvious  that  the  same  process,  as  is  now  attempted,  might  be 
repeated  ad  infinitum,  and  lead  to  no  conclusion.  This  Court  recently, 
in  the  case  of  Doe  dem.  Perry  v.  Newton  [ante,  No.  182],  1  Nev.  &  P.  1., 
has  expressly  determined  that  documents  irrelevant  to  the  issues  on  the 
record  shall  not  be  received  in  evidence  at  the  trial,  in  order  to  enable 
a  jury  to  institute  such  a  comparison.  Much  less  can  it  be  permitted  to 
introduce  them  in  order  to  enable  a  witness  to  do  so.  .  .  . 

I  do  not,  under  these  circumstances,  feel  that  I  am  obliged  by  authori- 
ties to  admit  of  any  mode  of  acquiring  a  knowledge  of  handwriting, 
except  the  two  above  suggested,  and,  for  the  reasons  already  stated,  I 
am  of  opinion  that  no  other  mode  ought  to  be  introduced,  and  that  the 
learned  Judge  was  right  in  rejecting  the  evidence. 

Lord  Denman,  C.  J.  ...  We  are  bound  to  consider  whether,  as 
a  matter  of  strict  law,  the  plaintiff  had  a  right  to  lay  before  the  jury  the 
evidence  that  was  withholden  from  them.  .  .  . 

Taking  it,  then,  as  clear  that  the  undeniable  peculiarities  of  this 
case  do  not  preclude  evidence  of  opinion  as  to  the  handwriting,  the 
only  question  is,  whether  the  witness  called  to  pronounce  one  had  a 
sufficient  material  for  forming  one,  to  be  admissible  for  that  purpose. 
And  he  appears  to  stand  in  exactly  the  same  situation  as  he  would  have 
done,  if  called  to  speak  of  the  handwriting  of  a  party  to  the  suit,  whether 
for  or  against  the  genuineness  of  the  document.  He  may  have  been 
called  for  the  plaintiff  to  prove  the  defendant's  signature  to  a  bill  or 
bond.  He  did  not  see  him  sign  it;  nor  has  he  ever  seen  him  write:  but 
this  is  confessedly  immaterial,  if  he  has  had  other  adequate  means  of 
obtaining  a  knowledge  of  his  hand,  2  Starkie  on  Ev.  372,  Ed.  2.  .  .  . 
The  clerk  who  constantly  read  the  letters,  the  broker  who  was  ever 


No.  184  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  275 

consulted  upon  them,  is  as  competent  to  judge  whether  another  signa- 
ture is  that  of  the  writer  of  the  letters,  as  the  merchant  to  whom  they 
were  addressed.  The  servant  who  has  habitually  carried  letters  addressed 
by  me  to  others  has  an  opportunity  of  obtaining  a  knowledge  of  my 
writing,  though  he  never  saw  me  write,  or  received  a  letter  from  me. 
...  In  ancient  documents,  knowledge  of  an  officer's  handwriting  is 
frequently  obtained  by  an  observation  of  his  signature  to  papers  which 
he  would  be  called  upon  officially  to  sign;  and  a  witness  speaking  from 
that  knowledge  may  give  an  opinion  whether  any  particular  writing  was 
made  by  the  same  person.  The  process  is,  therefore,  recognized  as 
one  which  may  enable  one  man  to  form  a  competent  opinion  as  to  the 
writing  of  another. 

Pausing  here  for  a  moment,  I  must  fairly  say  that  I  think  the  syllo- 
gism complete.  Opinion  is  evidence  of  handwriting,  where  it  is  founded 
on  knowledge  obtained  from  inspection  of  documents  proved  to  be 
written  by  the  same  party.  The  opinion  tendered  here  was  founded  on 
such  knowledge.  If,  however,  any  rule  excluding  such  evidence  had 
been  promulged  by  competent  authority,  I  should  at  once  have  yielded 
my  own  views.     I  find  no  such  rule  laid  down.  .  .  . 

From  the  substitution  of  a  witness  for  the  jury,  in  forming  an  opinion 
on  the  genuineness  of  handwriting,  an  advantage  follows  so  great  and 
obvious,  that  it  would  form  a  strong  motive  for  so  framing  the  rule 
of  evidence;  I  mean  the  prevention  of  that  distracting  multiplicity  of 
issues  which  a  jury  might  be  called  upon  to  try,  arising  out  of  every  one 
of  the  whole  number  of  documents  placed  before  them.  .  .  .  On  these 
points  the  party  could  not  be  expected  to  come  prepared;  and  infinite 
injustice  might  ensue  from  prejudices  of  every  kind.  I  therefore 
entirely  adhere  to  Doe  dem.  Perry  v.  Newton  [ante,  No.  182],  1  Nev.  &  P.  1, 
in  which  we  refused  a  rule  nisi  for  -a  new  trial,  moved  for  on  the  ground 
that  my  brother  Coleridge  had  excluded  papers  tendered  evidence  for 
the  mere  purpose  of  being  compared  with  some  which  were  proved.  .  .  . 

On  the  whole,  I  think  the  question  regular,  and  the  exclusion  of 
the  evidence  improper;  but,  the  Court  being  equally  divided,  the  rule 
for  a  new  trial  must  be  discharged. 

Rule  discharged. 

184.    MORRISON  v.  PORTER 

Supreme  Court  of  Minnesota.  1886 

35  Minn.  425;  29  N.  W.  54 

The  plaintiff  brought  this  action  in  the  District  Court  for  Hennepin 
county  to  determine  the  defendant's  adverse  claims  to  certain  land,  and 
appeals  from  an  order  by  Lochren,  J.,  refusing  a  new  trial. 

P.  M.  Babcock,  for  appellant.  .  .  .  Jolm  D.  Howe  and  S.  L.  Perrin, 
for  respondents. 


276  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  184 

Dickinson,  J.  —  The  defendant  railroad  corporation  has  title  to  the 
land  in  controversy  through  a  chain  of  conveyances  running  back  to 
the  plaintiff,  if  in  fact  the  plaintiff  executed  a  certain  deed  of  convey- 
ance in  the  year  1S60,  the  execution  of  which  the  plaintiff  disputes. 
The  Court  found  that  it  had  been  executed  by  her. 

The  first  point  to  be  considered  arises  upon  the  admission  in  evi- 
dence of  an  instrument  (Exhibit  Y)  containing  a  signature  of  the  plain- 
tiff admitted  to  be  genuine,  to  enable  a  comparison  to  be  made  between 
that  signature  and  the  disputed  signature  in  issue,  Exhibit  Y  being 
not  otherwise  relevant  to  the  issue.  Expert  witnesses  were  allowed  to 
give  their  opinions,  based  upon  such  comparison.  Upon  the  question 
thus  presented,  as  to  whether  a  writing,  admitted  to  be  in  the  hand  of 
the  person  whose  signature  is  in  issue,  may  be  received  in  evidence  for 
the  purpose  of  comparison,  the  authorities  are  so  at  variance  that  we 
are  at  liberty  to  adopt  the  rule  of  evidence  which  seems  to  be  most 
consistent  with  reason,  and  conducive  to  the  best  results.  At  common 
law,  and  generally  in  the  United  States,  it  has  been  the  rule  that  where 
other  writings,  admitted  to  be  genuine,  are  already  in  evidence  for 
other  purposes  in  the  case,  comparison  may  be  made  between  such 
writings  and  the  instrument  in  question.  If  such  a  comparison  is  con- 
ducive to  the  ends  of  truth,  and  is  allowable,  there  would  seem  to  be 
but  little  reason  for  refusing  to  allow  a  comparison  with  other  writings 
admitted  to  be  genuine,  although  not  in  evidence  for  other  purposes. 

The  objections  which  have  been  urged  to  receiving  other  instru- 
ments, for  the  purpose  of  comparison,  have  been  the  multiplying  of 
collateral  issues;  the  danger  of  fraud  or  unfairness  in  selecting  instru- 
ments for  that  purpose,  from  the  fact  that  handwriting  is  not  always 
the  same,  and  is  affected  by  age,  and  by  the  various  circumstances 
which  may  attend  the  writing ;  and  the  surprise  to  which  a  party  against 
whom  such  evidence  is  produced  may  be  subjected.  When  the  writings 
presented  are  admitted  to  be  genuine,  so  that  collateral  issues  are  not 
likely  to  arise,  nor  the  adverse  party  to  be  surprised  by  evidence  which 
he  is  unable  to  meet,  these  objections  seem  to  us  to  be  insufficient  as 
reasons  for  excluding  the  evidence.  If  such  evidence  has  apparent  and 
direct  probative  force,  it  should  not  be  excluded  unless  for  substantial 
reasons.  In  general,  and  from  necessity,  the  authenticity  of  handwrit- 
ing must  be  subject  to  proof  by  comparison  of  some  sort,  or  by  testi- 
mony which  is  based  upon  comparison,  between  the  writing  in  question 
and  that  which  is  in  some  manner  recognized  or  shown  to  be  genuine. 
This  is  everywhere  allowed,  through  the  opinions  of  witnesses  who  have 
acquired  a  knowledge,  more  or  less  complete,  of  the  handwriting  of  a 
person,  as  by  having  seen  him  write,  or  from  acquaintance  with  papers 
authenticated  as  genuine.  In  such  cases  the  conception  of  the  hand- 
writing retained  in  the  mind  of  the  witness  becomes  a  standard  for 
comparison,  by  reference  to  which  his  opinion  is  formed,  and  given  in 
evidence.     It  would  seem  that  a  standard  generally  not  less  satisfactory. 


No.  185  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  277 

and  very  often  much  more  satisfactory,  is  afforded  by  the  opportunity 
for  examining,  side  by  side,  the  writing  in  dispute  and  other  writings 
of  unquestioned  authenticity;  and  this,  we  think,  is  in  accordance  with 
the  common  judgment  and  experience  of  men. 

The  evils  that  may  be  suggested  as  Hkely  to  arise  from  the  selection 
of  particular  writings  for  the  purposes  of  comparison  may  be  left,  as 
all  unfair  or  misleading  evidence  must  be,  to  be  corrected  by  other  evi- 
dence, and  by  the  intelligent  judgment  of  the  Court  or  jury.  In  our 
opinion,  such  evidence  is  conducive  to  the  intelligent  ascertaining  of 
the  truth,  and  the  receiving  of  it  in  this  case  was  not  error.  We  cite 
authorities  sustaining  this  view,  some  of  which  go  further  in  this  direc- 
tion than  does  our  present  decision.  Tyler  v.  Todd,  36  Conn.  218; 
Moody  V.  Rowell,  17  Pick.  490;  State  v.  Hastings,  53  N.  H.  452;  Adams 
V.  Field,  21  Vt.  256;  State  v.  Ward,  39  Vt.  225;  Farmers'  Bank  v. 
Whitehill,  10  Serg.  &  R.  110;  Travis  v.  Brown,  43  Pa.  St.  9;  Chance  v. 
Indianapolis  &  W.  G.  R.  Co.,  32  Ind.  472;  Macomber  v.  Scott,  10  Kan. 
335;   Wilson  v.  Beauchamp,  50  Miss.  24. 

The  conclusion  of  the  Court  that  the  plaintiff  executed  the  deed  in 
question  is  very  satisfactorily  sustained  by  the  evidence.  It  is  opposed 
by  the  bare  denial  of  the  plaintiff.  The  deed  purported  to  have  been 
executed  by  herself  and  by  her  husband,  and  to  have  been  acknowledged 
in  the  manner  prescribed  by  law,  and  has  been  on  record  more  than 
twenty  years.  The  fact  of  its  execution  is  sustained,  not  merely  by 
the  statutory  authentication,  but  by  the  evidence  of  the  subscribing 
witnesses,  although  they  do  not  now  recollect  the  fact  itself.  Evidence 
of  a  circumstantial  nature,  relating  to  the  signature  itself,  went  also 
to  show  that  the  plaintiff's  name  was  not  a  forged  writing.  Clear  and 
convincing  proof  is  required  to  oppose  the  statutory  authentication  by 
which  the  proof  of  deeds  is  established.  .  .  . 

The  deed  of  the  plaintiff,  being  sustained,  determines  the  case,  and 
it  is  unnecessary  to  consider  the  respondents'  further  claim  of  title  by 
prescription.  Order  affirmed. 


185.    UNIVERSITY  OF   ILLINOIS  v.   SPALDING 

Supreme  Court  of  New  Hampshire.  1900 

71  A^/f.  163;51  ^i/.  731 

Debt,  on  a  bond.  Solomon  Spalding  was  the  only  defendant  named 
in  the  writ  who  was  resident  in  this  State,  and  the  only  one  upon  whom 
service  was  made  or  who  appeared.  Trial  at  the  January  Term,  1901, 
of  the  Supreme  Court,  before  Parsons,  J.,  and  a  jury,  and  verdict  for 
the  defendant.  .  .  . 

The  defendant's  signature  as  surety  and  the  breach  of  the  bond  were 
admitted.     The  defense  was  that  after  the  bond  was  signed,  and  before 


278  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  185 

it  was  delivered  to  the  plaintiffs,  the  name  of  one  surety  was  erased  and 
another  written  over  it,  and  that  the  appearance  of  the  signatures,  was 
such  that  ordinary  care  would  have  disclosed  the  erasure  and  substitu- 
tion to  the  plaintiffs  before  acceptance  of  the  bond.  An  enlarged  photo- 
graphic copy  presented  faint  lines  of  the  writing  alleged  to  have  been 
erased.  The  plaintiffs  claimed  that  the  erasure  was  of  a  part  of  the 
defendant's  name  accidentally  written  by  him  upon  the  line  below  his 
full  signature,  while  the  defendant  denied  that  the  words  erased  were 
in  his  handwriting.  For  the  purpose  of  comparison  the  defendant 
introduced  in  evidence  his  signatures  written  upon  stock  certificates, 
and  sworn  to  be  genuine  by  him  and  by  the  treasurer  of  the  corpora- 
tion. The  plaintiffs  excepted  to  this  evidence  on  the  ground  that  the 
signatures  were  neither  admitted  to  be  genuine,  nor  found  in  papers 
otherwise  in  the  case,  and,  further,  that  they  appeared  to  have  been 
written  at  a  date  subsequent  to  the  execution  of  the  bond.  .  .  . 

Charles  J.  Hamhlett,  Charles  H.  Burns,  and  John  S.  H.  Frink,  for  the 
plaintiffs.     George  B.  French  and  Oliver  E.  Branch,  for  the  defendant. 

Remick,  J.  .  .  .  The  exception  next  considered  presents  the  ques- 
tion whether  signatures  of  the  defendant  on  papers  otherwise  irrelevant, 
and  not  admitted  to  be  genuine,  were  admissible  for  the  mere  purpose 
of  comparison  with  the  signature  in  dispute. 

By  the  general  rule  of  the  common  law,  comparison  by  juxtaposi- 
tion was  limited  to  the  writing  in  issue  and  writings  in  the  case  for  other 
purposes.  The  introduction  of  writings  otherwise  irrelevant  for  the 
mere  purpose  of  comparison  was  permitted  only  when  the  writing  in 
issue  was  so  ancient  as  not  to  admit  of  proof  based  on  knowledge  derived 
from  seeing  the  party  write  or  its  equivalent.  1  Greenleaf,  Evidence, 
§  580;  .  .  .  Doe  v.  Newton,  5  A.  &  E.  514  [ante.  No.  182];  Doe  v. 
Suckermore,  5  A.  &  E.  703  [ante,  No.  183];  Griffits  v.  Ivery,  11  A. 
&  E.  322;  Hickory  v.  United  States,  151  U.  S.  303.  This  general 
rule  of  the  common  law  has  been  adopted  and  is  enforced  in  its 
integrity  in  the  United  States  courts.  Strother  v.  Lucas,  6  Pet. 
763;  Rogers  v.  Ritter,  12  Wall.  317;  Moore  v.  United  States,  91 
U.  S.  270;  Williams  v.  Conger,  125  U.  S.  397,  414;  Hickory  v.  United 
States,  151  U.  S.  303;  Stokes  v.  United  States,  157  U.  S.  187.  .  .  . 
The  tendency,  however,  of  legislation  and  judicial  decisions  is  away 
from  this  strict  and  narrow  rule  toward  the  more  liberal  one  per- 
mitting comparison  with  any  writing  established  to  be  the  WTit- 
ing  of  the  party  whose  hand  is  in  issue,  whether  otherwise  relevant  or 
not,  and  without  reference  to  the  age  of  the  particular  writing  in  con- 
troversy. 15  Am.  &  Eng.  Enc.  Law  (2d  ed.),  265,  269.  The  rule  has 
been  so  enlarged  in  England  by  the  statute  of  17  &  18  Vict.,  ch.  125, 
sec.  27.  Also  by  statute  in  many  of  the  States  of  this  country.  15  Am. 
&  Eng.  Enc.  Law  (2d  ed.),  270.  In  other  States  the  same  result  has 
been  reached  by  judicial  decisions.  .  .  .  While  more  or  less  has  been 
said  to  the  same  effect  by  the  Courts  in  this  jurisdiction,  much,  not  in 


No.  185  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  279 

terms  overruled,  has  also  been  said  to  the  contrary.  .  .  .  While  the  law- 
remains  in  the  conflicting  and  inconclusive  shape  disclosed  by  the  fore- 
going review  of  the  authorities,  confusion  and  controversy  are  inevitable. 
Consistency  and  efficiency  alike  require  a  definite  rule,  authoritatively 
declared.  In  this  view,  we  have  re-examined  the  question,  both  from 
the  point  of  reason  and  authority. 

It  may  be  safely  stated  as  a  fundamental  proposition  that,  on  the 
question  whether  a  given  signature  is  in  the  handwriting  of  a  partic- 
ular person,  comparison  of  the  disputed  signature  with  other  writings  of 
that  person  known  to  be  genuine  is  a  rational  method  of  investigation, 
and  that  similarities  and  dissimilarities  disclosed  are  probative,  and  as 
satisfactory  in  the  instinctive  search  for  truth  as  opinion  formed  by  the 
unquestioned  method  of  comparing  the  signature  with  an  exemplar  of 
the  person's  handwriting,  existing  in  the  mind,  and  derived  from  direct 
acquaintance,  however  little,  with  the  party's  handwriting.  The  objec- 
tions upon  which  the  common-law  rule  of  exclusion  is  founded  are  three- 
fold: (1)  Ignorance  of  jurors,  and  their  inability  to  make  intelligent 
comparison;  (2)  danger  of  unfairness  and  fraud  in  the  selection  of 
specimens,  with  n.o  sufficient  opportunity  for  the  opposing  party  to 
investigate  and  expose;  (3)  collateral  issues  to  the  genuineness  of  speci- 
mens presented. 

(1)  The  first  objection,  however  justified  by  the  state  of  English 
society  when  it  was  originally  announced,  has  no  weight  at  the  present 
time  in  a  jurisdiction  where  intelligence  and  education  are  general,  and 
needs  no  further  comment.  (2)  Since  the  right  to  produce  specimens 
under  a  rule  allowing  a  comparison  is  equally  open  to  both  parties,  and 
the  specimens  are  all  subject  to  examination  and  cross-examination, 
the  opportunity  for  advantage  from  unfair  selections  is  too  slight  to 
furnish  reason  for  closing  the  door  against  this  important  avenue  of 
investigation.  (3)  The  third  objection  —  that  to  permit  comparison 
with  specimens  not  otherwise  in  evidence,  and  admitted  for  the  mere 
purpose  of  comparison,  would  introduce  collateral  issues,  and  confuse 
and  distract  the  jury  ^  is,  when  applied  to  specimens  neither  ad- 
mitted by  the  parties  nor  found  by  the  Court  to  be  genuine, 
firmly  grounded  in  reason  and  authority.  The  whole  doctrine  of  com- 
parison presupposes  the  existence  of  genuine  standards.  Comparison 
of  a  disputed  signature  in  issue  with  disputed  specimens  would  not 
be  comparison,  in  any  proper  sense.  When  the  identity  of  anything 
is  fully  and  certainly  established,  you  may  compare  other  things  with 
it  which  are  doubtful,  to  assert  in  whether  they  belong  to  the  same 
class  or  not;  but,  when  both  are  doubtful  and  uncertain,  comparison 
is  not  only  useless  as  to  any  certain  result,  but  clearly  dangerous,  and 
more  likely  to  bewilder  than  to  instruct  a  jury.  If  disputed  signatures 
were  admissible  for  the  purpose  of  comparison,  a. collateral  inquiry 
would  be  raised  as  to  each  standard;  and  the  proof  upon  this  inquiry 
would  be  comparison  against,  which  would  only  lead  to  an  endless  series 


280  BOOK    l:     RULES    OF   ADMISSIBILITY  Xo.   185 

of  issues,  each  more  unsatisfactory  than  the  first,  and  the  case  would 
thus  be  filled  with  issues  aside  from  the  real  question  before  the  jury. 
Juries  are  indeed  more  intelligent  than  when  the  common  law  denied 
them  even  the  right  to  make  comparison  with  admitted  signatures  not 
otherwise  in  the  case;  but  the  time  has  not  yet  come  when  they  should 
be  left  without  chart  or  compass.  It  is  due  to  them  and  to  the  adminis- 
tration of  justice  that  when  called  upon  to  pass  upon  the  identity  of 
a  signature  the  standards  furnished  for  this  purpose  should  be  genuine 
standards.  The  jury  should  not  be  required,  nor  should  they  be  per- 
mitted, to  make  comparison  with  disputed  standards,  and  to  settle  for 
themselves  the  collateral  question  of  the  genuineness  of  the  standards, 
which  might  often  be  more  difficult  than  the  main  question  of  the  genuine- 
ness of  the  writing  in  issue.  Such  a  practice  is  not  only  indefensible  in 
reason,  but  it  is  against  the  judicial  and  legislative  opinion  of  the  world, 
almost  without  exception.  .  .  .  The  controversy  in  the  great  case  of 
Doe  V.  Suckermore  was  not  to  secure  the  admission  of  disputed  signa- 
tures to  be  passed  upon  by  the  jury,  but  to  the  end  that  specimens 
already  established  to  be  genuine  might  be  used  as  a  basis  of  comparison ; 
Williams,  J.,  and  Denman,  C.  J.,  while  contending  in  that  case  for  the 
right  to  compare  specimens  admitted  to  be  genuine,  expressly  conceded 
that  disputed  specimens  should  not  be  permitted  to  go  to  the  jury.  .  .  . 
In  St.  17  &  18  Vict.,  ch.  125,  sec.  27,  .  .  .  while  the  refinements,  distinc- 
tions, and  exceptions  which  had  confused  the  subject  and  embarrassed 
the  administration  of  justice  were  thus  wiped  away,  and  the  door  opened 
wide  for  comparison  with  genuine  specimens,  it  is  to  be  noted  that  the 
essential  principle  of  the  common  law  forbidding  disputed  signatures 
and  collateral  issues  was  distinctly  preserved,  by  the  provision  limiting 
comparison  to  writings  "  proved  to  the  satisfaction  of  the  judge  to  be 
genuine."  So,  wherever  the  door  has  been  opened  to  this  class  of  proof, 
whether  by  legislation  or  by  judicial  expansion  and  adaptation  of  the 
common  law,  the  same  safeguard  has  been  preserved.  .  .  . 

The  true  rule  is  that,  when  a  writing  in  issue  is  claimed  on  the  one  hand 
and  denied  on  the  other  to  be  the  writing  of  a  particular  person,  any  other 
writing  may  be  admitted  in  evidence  for  the  mere  purpose  of  comparison 
with  the  writing  in  dispute,  whether  the  latter  is  susceptible  of  or  sup- 
ported by  direct  proof  or  not;  but,  before  any  such  writing  shall  be  admis- 
sible for  such  purpose,  its  genuineness  must  be  found  as  a  preliminary 
fact  by  the  presiding  judge,  upon  clear  and  undoubted  evidence.  This 
involves,  indeed,  a  marked  departure  from  the  common  law.  It  does 
away  with  the  common-law  limitation  of  comparison  to  standards  other- 
wise in  the  case,  and  hence  with  its  exceptions,  and  the  controversy  and 
confusion  which  have  grown  out  of  them.  ...  In  some  States,  as 
already  shown,  legislation  has  been  deemed  essential  to  bring  about  such 
changes;  but  in  others,  as  we  have  also  shown,  the  same  result  has  been 
accomplished  by  judicial  action.  As  the  common-law  rule  was  based 
primarily  upon  the  assumed  incapacity  of  jurors  to  make  intelligent 


No.  186  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  281 

comparison,  such  judicial  action  would  seem  warranted  under  the  power 
to  adapt  the  common  law  to  new  conditions.  The  value  of  comparison 
as  a  method  of  proof  being  now  generally  conceded,  juries  being  no  longer 
too  ignorant  to  derive  benefit  from  that  source,  and  the  danger  of  spuri- 
ous specimens  and  the  objections  to  collateral  issues  being  fully  met  by 
requiring  the  genuineness  of  the  standard  to  be  determined  as  a  pre- 
liminary fact  by  the  trial  judge,  there  remains,  it  would  seem,  no  satis- 
factory reason  for  the  old  limitations  and  exceptions.  And  it  is  fair  to 
assume  that,  had  no  statute  been  enacted,  the  common  law  of  England, 
adjusting  itself  to  changed  conditions,  would  now  accord  with  the  rule 
we  have  announced.  Such  a  tendency  was  indicated  by  the  discussion 
and  decision  in  [Doe  d.]  Mudd  v.  Suckermore,  which  was  so  soon  followed 
by  the  act  of  Parliament  referred  to.  In  any  event,  the  essential  prin- 
ciple of  the  common  law  is  preserved,  and  the  dangers  and  objections 
against  which  it  was  aimed  met,  by  requiring  the  genuineness  of  the 
standard  to  be  found  by  the  Court  as  a  preliminary  fact,  upon  clear 
and  positive  testimony. 

In  the  present  case,  no  objection  appears  to  have  been  made  to  the 
introduction  of  the  specimen  signatures  upon  the  ground  that  their 
genuineness  had  not  been  predetermined  by  the  Court.  .  .  . 

The  exception  to  the  admission  of  the  signatures  because  they  were 
made  subsequent  to  the  time  the  bond  purported  to  have  been  made 
cannot  be  sustained.  True,  "the  claimed  author  of  disputed  writings 
cannot  make  testimony  in  his  favor  by  bringing  in  for  comparison  a 
writing  manufactured  by  him  for  that  very  purpose  after  the  contro- 
versy has  arisen.  ..."  Sanderson  v.  Osgood,  52  Vt.  309;  King  v. 
Donahue,  110  Mass.  155;  Hickory  v.  United  States,  151  U.  S.  303. 
There  is  no  pretense  in  the  present  case  that  the  signatures  introduced 
for  the  purpose  of  comparison  were  made  after  controversy  arose,  or  that 
they  were  manufactured  for  the  purpose  of  comparison.  The  mere 
fact  that  they  were  made  subsequent  to  the  execution  of  the  bond  is  not 
sufficient  to  render  them  inadmissible. 

Exceptions  overruled. 

Parsons,  J.,  did  not  sit;  the  others  concurred. 

186.  Statutes.  England  (1854,  Common  Law  Procedure  Act,  17  &  18 
Vict.  c.  125,  §  27).  Comparison  of  a  disputed  writing  with  any  writing  proved 
to  the  satisfaction  of  the  judge  to  be  genuine  shall  be  permitted  to  be  made  by 
witnesses;  and  such  writings,  and  the  evidence  of  witnesses  respecting  the  same, 
may  be  submitted  to  the  Court  and  jury  as  evidence  of  the  genuineness,  or  other- 
wise, of  the  writing  in  dispute. 

California.  (C.  C.  P.  1872,  §  1944).  Evidence  respecting  the  handwriting 
may  also  be  given  by  a  comparison  made  by  the  witness  or  by  the  jury,  with 
writings  admitted  or  treated  as  genuine  by  the  party  against  whom  the  evidence 
is  offered,  or  proved  to  be  genuine  to  the  satisfaction  of  the  judge. 

New  York.  (Laws  18S0,  c.  36,  §  1;  Laws  1888,  c.  555).  Comparison  of  a 
disputed  writing,  with  any  writing  proved  to  the  satisfaction  of  the  Court  to  be 


282  BOOK   i:     RULES   OF   ADMISSIBILITY  No  186 

genuine,  shall  be  permitted  to  be  made  by  witnesses  in  all  trials  and  proceedings, 
and  such  writings  and  the  evidence  of  witnesses  respecting  the  same  may  be 
submitted  to  the  Court  and  jury  as  evidence  of  the  genuineness,  or  otherwise, 
of  the  writing  in  dispute.  §  2  (amendment  of  1888)  [same  for  the  first  eighteen 
words;  then]  handwriting  of  any  person  claimed  on  the  trial  to  have  made  or. 
executed  the  disputed  instrument  or  writing,  shall  be  permitted  and  submitted 
to  the  Court  and  jury  in  like  manner. 


187.    HOAG  V.   WRIGHT 

Court  of  Appeals  of  New  York.  1903 

174  N.  Y.  36;     66  N.  E.  579 

[Printed  j^ost,  as  No.  220] 

(d)  Hypothetical  Questions 

189.  Lord  Melville's  Trial.  (1806.  House  of  Lords,  Howell's  State 
Trials,  XXIX,  1065).  [Henry  Dundas,  Lord  Melville,  was  impeached  for  em- 
bezzlement of  the  public  funds  while  treasurer  of  the  navy.  The  prosecution  is 
seeking  to  prove  the  profit  made  on  the  misuse  of  a  certain  portion  of  the 
funds.] 

Mr.  Serjeant  Best.  .  .  .  The  Commons  now  propose  to  prove,  by  a  calcu- 
lation, the  amount  of  the  interest  which  Lord  Melville  has  saved,  applying 
particularly  to  those  sums  which  are  paid  into  the  Bank  of  Scotland,  upon 
which  your  lordships  have  it  in  evidence,  he.  Lord  Melville,  would  have  been 
charged  with  interest;  and  also  the  dividends  he  has  received;  they  amount  to 
21,571  £.  5s.  9d.,  which  Lord  Melville  has  derived  from  the  use  of  the  public 
money,  which  the  managers  have  traced  into  his  hand,  upon  these  stocks. 

Then  Joseph  Kaye,  Esq.,  was  called  in,  and  being  sworn,  was  examined  as 
follows: 

Mr.  Serjeant  Best.  —  Have  you  made  any  calculation,  as  to  the  profit  made 
upon  the  different  sums  which  have  just  been  mentioned? 

Mr.  Kaye.  —  I  have. 

Mr.  Serjeant  Best.  —  Does  the  paper  that  you  hold  in  your  hand  contain 
those  calculations?  —  Mr.  Kaye.  —  It  does. 

Mr.  Plumer.  —  Do  your  lordships  think  that  this  is  a  proper  subject  of 
evidence?  .  .  . 

Mr.  Adam.  —  I  conceive  this  to  be  by  no  means  admissible  evidence.  In 
the  first  place,  the  learned  manager  states,  as  an  assumption  of  his,  that  here 
are  certain  matters  proved;  my  lords,  I  say,  therefore,  that  the  data  are  assumed 
in  the  first  instance.  In  the  data  be  assumed,  it  is  impossible  for  your  lordships 
to  receive  any  calculation  upon  those  assumed  data  as  evidence.  .  .  . 

A  Lord.  —  I  submit  to  your  lordships,  that  the  data  stand  where  they  did; 
they  must  stand  or  fall  by  the  proof.  There  is  nothing  more  common  than  to 
put  to  a  witness:  "Provided  such  and  such  a  sum  has  been  received,  what  is 
the  amount  of  interest?"  and  it  is  merely  casting  upon  the  witness  the  labor  of 
doing  that  which  all  the  lords  might  do  with  a  pen  themselves;    but  which  is 


No:  189  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  283 

done  through  the  medium  of  the  witness  in  a  more  compendious  manner;  the 
data  and  facts  stand  as  they  did;  it  is  a  mere  hypotlietical  question  to  the  wit- 
ness, "If  the  fact  stands  so  and  so,  what  is  the  arithmetical  result?" 

Lord  Chancellok.  —  I  take  it  to  assume  no  facts  whatever;  it  proceeds 
on  certain  data.  If  you  take  away  the  foundation  upon  which  it  is  made,  which 
is  matter  for  the  Court  afterwards,  there  is  an  end  of  the  superstructure. 

Mr.  Serjeant  Best.  —  Is  that  calculation,  which  you  hold  in  your  hand,  a 
correct  calculation  upon  these  sums? 

Mr.  Kai/e.  —  It  is  as  correct  as  I  can  make  it.  I  believe  every  figure  will  be 
found  right.  .  .  . 

(Then  Joseph  Kaye,  Esq.,  was  cross-examined  as  follows):  .  .  . 

Mr.  Plumer.  —  From  what  did  you  take  the  data? 

Mr.  Kaye.  —  I  must  state  the  items,  in  order  to  answer  that  question.  The 
first  item  is  13,500  £  India  stock;  I  took  that  from  the  data  of  the  credit  in  the 
signed  accounts  in  these  books  of  Messieurs  Coutts  and  Company,  to  the  day 
that  was  carried  to  the  credit  of  Mr.  Trotter,  as  has  appeared  in  evidence. 

Lord  Chancellor.  - —  All  the  witness  has  done,  is  to  establish,  by  calcula- 
tion, that  such  a  stock,  from  such  a  time,  will  produce  so  much.  He  does  not 
himself  prove  any  fact,  and  the  calculations  he  has  made  must  therefore  depend 
upon  the  facts  which  are  proved  by  others. 

Mr.  Plumer.  —  Does  that  document  contain  all  the  data  upon  which  the 
calculation  is  made? 

Mr.  Kaye.  —  Yes,  the  learned  counsel  may  refer  to  every  document  that  has 
been  given  in  evidence.  The  entries  of  the  books  have  been  given  in  evidence, 
from  which  I  have  taken  this  account.  .  .  . 

Mr.  Plumer.  —  Then  upon  the  India  stock  alone,  there  arises  a  profit  accord- 
ing to  your  calculation  of  about  10,000  £. 

Mr.  Kaye.  —  Yes,  the  profit  and  excess  of  dividends  above  the  interest. 

Mr.  Serjeant  Best.  —  Does  this  account  include  the  10,600  £  on  the  Chest 
account? 

Mr.  Kaye.  —  No,  here  is  nothing  here  upon  the  Chest  account.  .  .  . 

A  Lord.  —  Before  Mr.  Trotter  is  called,  I  wish  to  suggest  whether  this  paper 
should  be  entered  on  your  lordship's  minutes;  if  it  should  turn  out  that  there  is 
no  foundation  for  these  facts,  it  will  have  an  improper  effect,  by  having  been 
entered. 

Another  Lord. — All  the  inconvenience  that  might  result  from  this  entry, 
would  be  obviated  by  stating  that  if  it  is  proved,  or  shall  be  proved,  that  such 
and  such  facts  exist,  that  is  the  calculation  of  the  profits;  but  that  will  not  be 
an  admission  of  the  facts. 

A  Lord.  —  I  submit,  whether  it  is  not  proper  to  ask  the  witness  on  what 
suppositions  he  makes  these  calculations. 

On  what  suppositions,  or  admissions,  do  you  make  these  calculations  which 
you  have  given  to  the  Court? 

Mr.  Kaye.  —  The  first  item  of  13,500  £  India  stock  I  have  taken  at  the  value 
which  was  paid  into  Mr.  Trotter's  account. 

A  Lord.  —  Is  not  the  foundation  of  your  making  these  calculations,  a  supposi- 
tion that  these  are  the  facts? 

Mr.  Kaye.  —  Yes. 

A  Lord.  —  Read  the  title. 

Mr.  Kaye.  —  "A  statement  of  the  profits  made  by  investments  in  the  funds, 
on  account  of  Lord  Melville,  and  by  advances  made  for  interest  of  money."  .  .  . 


284  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   189 

A  Lord.  —  I  submit  that  tliis  might  be  all  set  right,  if  the  honorable  manager 
would  put  one  question  to  the  witness:  "Supposing  such  and  such  facts  to  have 
been  proved,  is  that  the  calculation?" 

Another  Lord.  —  Is  that  calculation  formed  on  the  assumption  by  you,  that 
all  the  facts  stated  in  that  pa])er  are  proved? 

Mr.  Kaye.  —  Most  certainly.  .  .  . 

The  paper  was  delivered  in. 

190.  M'Naghten's  Case.  (1843.  House  of  Lords.  10  CI.  &  F.  207).  Ques- 
tion for  the  Judges:  "Can  a  medical  man  conversant  with  the  disease  of  insanity, 
who  never  saw  the  prisoner  previously  to  the  trial,  but  who  was  present  during 
the  whole  trial  and  the  examination  of  the  witnesses,  be  asked  his  opinion  as  to 
the  state  of  the  prisoner's  mind  at  the  time  of  the  commission  of  the  alleged 
crime,  etc.?"  Maule,  J.  In  principle,  it  is  open  to  this  objection,  that  as 
the  opinion  of  the  witness  is  foimded  on  those  conclusions  of  fact  which  he  forms 
from  the  evidence,  and  as  it  does  not  appear  what  these  conclusions  are,  it  may 
be  that  the  evidence  he  gives  is  on  such  an  assumption  of  facts  as  makes  it  irrel- 
evant to  the  incjuiry. 

191.  Dickenson  r.  Fitchburg.  (1859.  Massachusetts.  13  Gray  546,  555). 
Shaw,  C.  J.  The  respondents  have  offered  the  testimony  of  a  witness,  that  in 
his  opinion  the  market  value  of  the  estate  was  enhanced  by  the  widening  of  the 
street,  the  witness  was  asked  by  the  respondents  to  state  the  grounds  and  reasons 
upon  which  his  opinions  were  founded;  this  was  objected  to  by  the  petitioners, 
and  rejected  by  the  sheriff.  ...  It  is  objected  that  the  admission  of  this  evi- 
dence would  open  the  door  to  evidence  entirely  incompetent,  by  allowing  the 
witness  to  state  the  facts  on  which  the  opinion  is  founded,  facts  not  proved  by 
competent  evidence.  This  objection  seems  to  us  to  be  founded  on  a  misconcep- 
tion of  the  manner  in  which  the  investigation  is  to  be  conducted,  and  the  testi- 
mony of  experts  received  and  applied.  It  assumes  that  the  facts  will  be  taken 
to  be  true  because  the  witness  has  stated  that  he  found  his  opinion  upon  them. 
But  this  is  quite  a  mistake.  In  order  to  obtain  the  opinion  of  a  witness  on 
matters  not  depending  upon  general  knowledge,  but  on  facts  not  testified  of  by 
himself,  one  of  two  modes  is  pursued:  either  the  witness  is  present  and  hears  all 
the  testimony,  or  the  testimony  is  summed  up  in  the  question  put  to  him;  and 
in  either  case  the  question  is  put  to  him  hypothetically,  whether,  if  certain  facts 
testified  of  are  true,  he  can  form  an  opinion,  and  what  that  opinion  is?  The 
jury  will  then  be  instructed,  if  the  truth  of  any  such  fact  is  contested,  first  to 
consider  whether  the  fact  on  which  such  opinion  rests  is  proved  to  their  satis- 
faction; if  it  is,  then  to  give  such  weight  to  the  opinion  resting  on  it  as  it  deserves; 
but  if  the  fact  is  not  proved  by  the  evidence,  then  to  give  the  opinion  no  weight. 
This  is  necessary  to  enable  the  jury,  upon  the  true  theory  of  jury  trial,  to  decide 
all  questions  of  fact,  upon  competent  evidence  laid  before  them.  M'Naghten's 
Case,  10  CI.  &  Fin.  200  [ante,  No.  190]. 


No.  192  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  285 


192.    BELLEFONTAINE   &  INDIANA  RAILROAD  CO. 
V.  BAILEY 

Supreme  Court  of  Ohio.  1860 

11  Oh.  St.  333 

Error  to  the  District  Court  of  Darke  county. 

Peter  Bailey  brought  this  action  against  the  Bellefontaine  and 
Indiana  Railroad  Company,  before  a  justice  of  the  peace  of  Darke 
county,  to  reco\er  damages  for  the  kiUing  of  his  two  horses,  through  the 
carelessness  and  negligence  of  the  cars.  .  .  .  The  company  answered 
simply  denying  the  negligence  charged.  ... 

On  the  trial  of  the  case  in  the  Common  Pleas,  it  appeared  from  a 
bill  of  exceptions  embodied  in  the  record,  that  the  defendant,  to  main- 
tain the  issue  joined  on  its  part,  called  to  the  stand,  as  a  witness,  Aloah 
Skilton,  who  testified  that  he  was  acting  as  locomotive  engineer  on  the 
train  which  killed  the  horses  for  which  the  action  was  brought,  at  the 
time  of  said  killing,  and  saw  said  horses  in  the  act  of  coming  upon 
the  railroad  track;  that  he  was  acquainted  with  the  business  of  running 
railroad  engines  and  trains,  and  had  been  engaged  in  the  business  for 
the  last  five  years.  The  defendants'  counsel  then  asked  said  witness  his 
opinion  as  to  the  possibility  of  avoiding  the  injury  to  the  said  horses, 
in  view  of  the  distance  between  the  train  and  the  plaintiff's  horses  when 
the  latter  came  upon  the  railroad  track?  To  which  question  the  plaintiff 
objected;  which  objection  the  Court  sustained,  and  refused  to  allow  the 
question  to  be  answered;  to  which  decision  of  the  Court  the  defendant 
excepted.  .  .  . 

ConJclm  &  Thompson  and  Murray,  for  plaintiff  in  error.  Wilson 
and  Allen  &  Meeker,  for  defendant  in  error. 

Brinkerhoff,  J.  (after  stating  the  case  as  above).  —  That  the 
running  and  management  of  railroad  locomotives  and  trains  is  so  far 
an  art,  outside  of  the  experience  and  knowledge  of  ordinary  jurors,  as 
to  render  the  opinions  of  persons  acquainted  with  the  running  and 
management  of  such  locomotives  and  trains,  as  experts,  admissible  and 
proper  testimony,  in  proper  cases,  is  very  clear  on  principle,  and  is  so 
recognized  in  Quimby  v.  Vermont  Central  Railway,  23  Vt.  R.  394,  and 
Illinois  Central  Railway  v.  Ready,  17  111.  R.  580.  .  .  . 

1 .  The  objection  that  the  witness  is  put  in  the  place  of  the  jury,  and 
is  made  to  perform  their  proper  function,  applies,  so  far  as  it  has  any 
foundation  at  all,  to  all  testimony  of  this  kind.  The  truth  is,  as  is  well 
remarked  by  Mr.  Redfield  in  the  note  above  referred  to,  the  testimony 
of  scientific  witnesses  and  experts  is  a  sort  of  education  of  the  jury,  upon 
subjects  in  regard  to  which  they  are  not  presumed  to  be  properly 
instructed;  and  they  at  last  are  entitled  and  required  to  pass  upon  the 
weight  and  credit  to  be  attached  to  the  opinions  given  them,  weakened 


286  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   192 

or  strengthened,  as  they  may  be,  by  the  sifting  process  of  cross-examina- 
tion, and  by  counter  or  corroborating  testimony. 

2.  It  is  objected,  in  the  second  place,  that  the  question  put  to  the 
witness  does  not  suppose  or  assume  a  state  of  facts  on  which  his  opinion 
was  to  be  based.  Undoubtedly,  if  the  witness  had  been  a  stranger  to 
the  actual  facts,  it  would  then  have  been  necessary  to  assume  a  state  of 
facts  as  the  foundation  of  any  opinion  he  might  give;  but  no  such  assump- 
tion, it  seems  to  us,  is  necessary  when  the  witness  is,  or  is  properly  pre- 
sumed to  be,  himself  personally  acquainted  with  the  material  facts  of  the 
case.  The  witness  here  was  himself  the  engineer  of  the  locomotive,  by 
which  the  injury  was  done;  he  saw  the  horses  when  they  came  upon 
the  track;  we  think  it  is  fairly  presumable  that  he  knew  something  of  the 
distance  between  the  engine  and  the  horses  when  they  came  upon  the 
track;  the  velocity  and  weight  of  the  train;  the  character  of  the  grade; 
the  means  of  checking  the  velocity  of  the  train;  and  the  time  and  distance 
which  would  be  required  to  check  the  progress  of,  or  stop  the  train.  If 
an  expert  may  give  his  opinion  on  facts  testified  to  by  others,  we  see  no 
reason  why  he  may  not  do  so  on  facts  presumably  within  his  own  personal 
knowledge;  and  if  his  knowledge  of  any  material  fact  be  wanting  or 
defective,  the  parties  have  ample  opportunity  to  show  it  by  cross  exami- 
nation, and  by  testimony  aliunde.  A  physician  or  surgeon  called  on  to 
give  an  opinion  as  to  the  state  of  health,  or  the  cause  of  the  death  of  any 
person,  and  having  no  personal  knowledge  of  the  person's  symptoms, 
must  of  necessity  testify  hypothetically  from  assumed  or  supposed 
symptoms;  but  surely  the  attending  physician  or  surgeon  of  the  patient, 
having  himself  the  best  opportunity  of  personally  knowing  his  symptoms 
and  condition,  is  not,  in  the  first  instance  presumed  to  be  under  any  such 
necessity.  The  question  before  us  is,  in  principle,  it  seems  to  us,  the 
same;  and  we  think  the  Common  Pleas  erred  in  refusing  to  allow  the 
question  to  be  answered. 

The  judgment  of  the  District  Court  and  of  the  Common  Pleas  will  be 
reversed,  and  the  cause  will  be  remanded  to  the  Common  Pleas  for 
further  proceedings. 

Scott,  C.  J.,  and  Sutliff,  Peck  and  Gholson,  JJ.,  concurred. 


193.   PEOPLE   V.   McELVAINE 

Court  of  Appeals  of  New  York.  1890 

121  N.  Y.  250;  24  N.  E.  465 

Appeal  from  judgment  of  the  Court  of  Sessions  of  Kings  County, 
rendered  October  23,  1889,  entered  upon  a  verdict  convicting  defendant 
of  the  crime  of  murder  in  the  first  degree. 

George  M.  Curtis,  for  appellant.  .  .  .  The  evidence  of  Dr.  Lanton  C. 
Gray  was  improperly  admitted.  .  .   . 


No.  193  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  287 

James  W.  Ridgivay,  for  respondent.  ...  It  is  no  objection  to  a 
hypothetical  question  that  the  state  of  facts  which  it  assumes  is  erroneous, 
if  within  the  possible  or  probable  range  of  the  evidence,  since  the  judge 
cannot  decide  as  a  prelimirjary  question  on  objection  to  the  evidence, 
whether  it  is  erroneous  or  not,  the  question  being  for  the  jury.  ... 

RuGER,  Ch.  J.  —  The  defendant,  upon  trial,  was  convicted  of  the 
crime  of  murder  in  the  first  degree,  for  having  killed  one  Luca  in  his  own 
house  in  Brooklyn,  about  three  o'clock  in  the  morning  of  the  23rd  day  of 
August,  1889.  .  .  . 

The  sole  defense  attempted  was  the  alleged  insanity  of  the  accused. 
Considerable  evidence  was  given  on  the  trial  in  his  behalf  tending  to 
show  that  he  possessed  a  defective  mental  organization  and  was  subject 
to  delusions  and  hallucinations,  which  were  claimed  to  be  evidence  of  his 
insanity.  Two  witnesses  were  called  on  his  behalf,  as  experts,  who  respec- 
tively gave  evidence  tending  to  show  a  belief  that  he  was,  to  a  certain 
degree,  insane.  Two  expert  witnesses  were  also  called  on  behalf  of  the 
prosecution,  to  give  opinions  upon  the  question  of  the  defendant's  sanity, 
and  each  testified  that  he  was,  in  their  opinion,  sane.  It  cannot  be 
questioned  but  that  the  evidence  of  these  witnesses  was  material  and  had 
weight  with  the  jury  upon  the  question  of  the  defendant's  mental  con- 
dition. If  these  opinions  were  based  upon  an  erroneous  hypothesis  and 
were  founded  in  any  material  respect  upon  indefinite  or  unascertainable 
conditions,  or  upon  considerations  which  were  not  the  proper  ^subject  of 
expert  evidence,  they  must  be  regarded  as  having  been  erroneously 
admitted. 

The  only  serious  objection  to  the  convictions  arises  upon  an  exception 
to  the  ruling  of  the  Court,  permitting  Dr.  Gray,  a  witness  for  the  prosecu- 
tion and  an  expert  of  high  reputation  and  character,  to  answer,  against 
objection,  a  hypothetical  question  as  to  the  defendant's  sanity.  The 
question  put  by  the  district  attorney,  and  the  proceedings  accompanying 
the  question  were  as  follows : 

"Q.  Now,  are  you  able  to  say  whether  in  your  judgment,  based  upon  all 
the  testimony,  the  acts  of  the  defendant  on  the  night  of  the  homicide,  the  testi- 
mony as  to  his  past  life  given  by  the  witnesses  in  his  defense,  and  based  upon 
the  whole  case,  whether  this  young  man  is  sane  or  insane? 

"Mr.  Curtis.  —  I  object,  as  it  is  not  a  question  properly  put. 

"The  Court.  — Vfhy  not? 

"Mr.  Curtis.  —  It  is  too  vague  and  indefinite.  In  order  to  put  a  hypothet- 
ical question  properly,  so  say  the  Court  of  Appeals,  it  must  consist  of  specific- 
ally proven  facts,  which  come  within  the  pale  of  the  proof;  not  where  a  person 
for  instance,  is  permitted  to  give  an  anomalous  opinion.  .  .  . 

"The  Court.  —  Where  a  medical  witness,  who  is  called  as  an  expert,  has  been 
in  court  during  the  whole  trial  and  heard  all  the  testimony  in  the  case,  every- 
thing that  has  been  done  and  said  by  everybody,  I  don't  see  why  it  is  not  compe- 
tent to  ask  him  whether  upon  these  facts,  all  he  heard  testified  to,  he  thinks  the 
defendant  is  sane  or  insane.  This  witness  has  heard  all  that  has  been  sworn  to 
by  everybody. 


288  BOOK   i:     RULES    OF    ADMISSIBILITY  No.  193 

"To  the  Witness: 

"You  have  heard  all  the  testimony  in  the  case? 

"The  District  Attorney.  —  Based  upon  the  whole  testimony  of  the  prosecu- 
tion and  the  defense,  including  the  hypothetical  question  put  by  Judge  Curtis, 
and  everything  that  you  have  heard  sworn  to  here;  now  will  you  answer  the 
question? 

"The  defense  excepts. 
"A.  —  I  have  formed  an  opinion. 
"Q.— State  it? 
"The  defense  excepts. 
"A.  —  I  believe  the  defendant  is  sane. 

"Q.  — What  do  you  believe  he  was  at  the  time  of  the  commission  of  the 
offense? 

"A.  —  I  believe  he  was  sane  at  the  time  of  the  commission  of  the  offense." 

We  cannot  doubt  but  that  this  question  was  improper.  The  witness 
was  thus  permitted  to  take  into  consideration  all  the  evidence  in  the  case 
given  upon  a  long  trial  extending  over  nine  days,  and,  upon  so  much  of 
it  as  he  could  recollect,  determine  for  himself  the  credibility  of  the 
witnesses,  the  probability  or  improbability  of  their  statements,  and, 
drawing  therefrom  such  inferences  as,  in  his  judgment,  were  warranted 
by  it,  pronounce  upon  the  sanity  or  insanity  of  the  defendant.  It  cannot 
be  questioned  but  that  the  witness  was  by  the  question  put  in  the  place 
of  the  jury  and  was  allowed  to  determine  upon  his  ow^n  judgment  what 
their  verdict  ought  to  be  in  the  case.  .  .  . 

The  rule  as  to  the  conditions  governing  the  formation  of  hypothetical 
questions  to  experts,  has  frequently  been  discussed  and  illustrated  in  the 
reported  cases  in  this  Court.  ...  In  Reynolds  v.  Robinson,  64  N.  Y. 
589,  595,  Judge  Earl,  in  speaking  of  evidence  attempted  to  be  given 
under  a  hypothetical  question,  says: 

"  In  such  a  case  It  is  not  the  provision  of  the  witness  to  reconcile  and  draw  in- 
ferences from  the  evidence  of  other  witnesses  and  to  take  in  such  facts  as  he  thinks 
their  evidence  has  established,  or  as  he  can  recollect  and  carry  in  his  mind,  and 
thus  form  and  express  an  opinion.  His  opinion  may  be  obtained  by  stating  to 
him  a  hypothetical  case,  taking  in  some  or  all  of  the  facts  stated  by  witnesses, 
and  claimed  by  counsel  putting  the  question  to  be  established  by  their  evidence, 
and  when  the  question  is  thus  stated  the  witness  has  in  his  mind  a  definite  state 
of  facts,  and  the  province  of  the  triers,  whether  referees  or  jurors,  is  not  interfered 
with."  .  .  . 

No  other  decisions  from  this  State  are  cited,  and  we  deem  it  unneces- 
sary to  discuss  or  consider  the  rules  prevailing  in  other  countries  in  view 
of  the  reported  decisions  made  in  our  own  Courts. 

An  attempt  was  subsequently  made  to,  in  some  degree,  cure  the  error 
committed,  by  proving  by  the  witness  that  in  answering  the  question  he 
assumed  the  truth  of  the  e\idence  given  by  the  defendant's  witnesses; 
but  we  think  this  did  not  remove  the  vice  inhering  in  the  question.  Even 
as  thus  affected,  it  left  the  uncertainty  of  his  memory  as  to  all  of  the 
evidence  in  the  case,  and  the  freedom  of  his  judgment  as  to  all  other 


No.  194  TESTIMONIAL  EVIDENCE:     QUALIFICATIONS  289 

evidence  to  give  such  weight  as  he  should  in  his  own  mind  determine  it 
was  ehtitled  to,  and  substantially  allowed  him  to  usurp  the  functions  of 
the  jury  in  deciding  the  questions  of  fact. 

We  think  it  is  not  competent  in  any  case  to  predicate  a  hypothetical 
question  to  an  expert  upon  all  of  the  evidence  in  the  case,  whether  he 
has  heard  it.  all  or  not,  upon  the  assumption  that  he  then  recollects  it, 
for  it  would  then  be  impossible  for  the  jury  to  determine  the  facts  upon 
which  the  witness  bases  his  opinion,  and  whether  such  facts  were  proved 
or  not.  Suppose  the  jury  concluded  that  certain  facts  are  not  proved, 
how  are  they,  in  such  an  event,  to  determine  whether  the  opinion  is  not, 
to  a  great  degree,  based  upon  such  facts?  When  specific  facts,  either 
proved  or  assumed  to  have  been'  proved,  are  embraced  in  the  question 
the  jury  are  enabled  to  determine  whether  the  answer  to  such  question  is 
based  upon  facts  which  have  been  proved  in  the  case  or  not,  and  whether 
other  facts  bearing  upon  the  correctness  and  force  of  the  answer  are 
contained  therein,  or  have  been  omitted  from  it;  but  in  the  absence  of 
such  a  question  the  evidence  must  always  be,  to  a  certain  extent,  uncer- 
tain, unintelligible,  and,  perhaps,  misleading. 

We  regret  that  an  error  of  this  character  is  found  in  a  case  which  was 
otherwise  tried  by  the  learned  Court  with  an  intelligent  understanding 
of  and  adherence  to  the  rules  of  law  applicable  to  the  case,  and  a  strict 
regard  to  the  rights  of  the  accused;  but,  in  compliance  with  the  uniform 
practice  of  Courts  in  capital  cases  to  avoid  even  the  possibility  of  injustice 
to  the  accused,  we  think  the  error  referred  to  requires  a  new  trial. 

All  concur.     Judgment  reversed. 

194.   PEOPLE   V.   FABER 

Court  of  Appeals  of  New  York.  1910 

199  N.  Y.  25G;   92  N.  E.  675 

Appeal  from  a  judgment  of  the  Supreme  Court,  rendered  July  10, 
1909,  at  a  Trial  Term  for  the  county  of  Warren,  upon  a  verdict  convicting 
the  defendant  of  the  crime  of  murder  in  the  first  degree. 

J.  Edward  Singleton,  for  appellant.  The  expert  witnesses  sworn  on 
behalf  of  the  People  were  erroneously  allowed  to  express  their  opinions 
as  to  the  sanity  of  defendant  without  first  giving  the  facts  on  which  the 
opinion  was  based.  .  .  . 

John  H.  Cunningham,  for  respondent.  ...  It  is  not  legal  error  to 
permit  a  medical  expert,  who  has  made  a  personal  examination  of  a 
person  for  the  purpose  of  determining  his  mental  condition,  to  give  an 
opinion  as  to  that  condition  at  the  time  of  the  examination  without,  in 
the  first  instance,  disclosing  the  particular  facts  upon  which  the  opinion 
is  based.  .  .  . 

Cha.se,  J.  —  The  defendant  has  been  convicted  of  the  crime  of  murder 
in  the  first  degree.     If  is  not  denied  that  he  shot  and  killed  Maude 


290  BOOK    i:     RULES    OF   ADMISSIBILITY  No.   194 

Bumps,  otherwise  known  as  Maude  Ryan.  It  is  contended  on  behalf  of 
the  defendant  that  the  evidence  of  premeditation  and  deHberation  is  not 
sufficient  to  sustain  the  judgment  rendered,  and  it  is  also  contended  in 
his  behalf  that  the  defendant  at  the  time  of  the  commission  of  the  act 
was  laboring  under  such  a  defect  of  reason  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or  that  the  act  was  wrong. 

We  have  fully  examined  the  record  and  are  of  the  opinion  that  the 
judgment  should  not  be  reversed  as  a  matter  of  fact,  but  that  the  trial 
judge  erred  in  his  charge  in  relation  to  the  duties  of  jurors.  .  .  . 

It  is  unnecessary  to  consider  the  other  alleged  errors  claimed  in  behalf 
of  the  defendant,  as  the  questions  so  presented  may  not  arise  upon  a  new 
trial,  except  as  to  the  contention  of  the  defendant  that  the  Court  erred 
in  allowing  the  admission  of  certain  opinions  as  to  the  defendant's 
sanity  which  were  given  by  physicians  who  are  skilled  and  experienced 
alienists,  without  requiring  the  prosecution  to  first  disclose  the  personal 
conversations,  observations  and  examinations  upon  which  such  experts 
severally  based  their  opinions.  .  .  .  We  will  consider  such  rulings  now, 
that  the  trial  Court  may  have  the  opinion  of  this  Court  in  regard  thereto 
upon  the  new  trial. 

In  the  early  history  of  the  Courts  of  England  mere  opinion  evidence 
was  wholly  rejected.  The  admission  of  opinions  as  evidence  by  persons 
specially  qualified  by  skill  and  experience  to  speak  as  experts  has  been 
a  matter  of  development  both  in  England  and  in  this  country.  The 
history  of  the  admission  of  such  evidence  with  illustrations  from  decisions 
of  the  Courts  is  given  by  Wigmore  in  his  exhaustive  work  on  Evidence, 
and  in  connection  therewith  he  refers  to  the  practice  of  admitting  opinion 
evidence  by  experts  based  upon  observation,  and  concludes  that  evidence 
by  experts  of  conceded  skill  and  experience  may  be  received  when  based 
upon  the  observation  of  the  witness  without  in  the  first  instance  neces- 
sarily requiring  that  the  facts  observed  be  stated  to  the  Court  and  jury. 
In  connection  with  his  discussion  of  the  question  as  to  the  admissibility 
of  opinion  evidence  and  of  the  early  opposition  to  the  admission  of  such 
evidence  in  any  case,  he  says : 

"It  has  already  been  seen  in  reviewing  the  history  of  the  doctrine,  that  in 
the  beginning  the  disparagement  of  opinion  rested  on  grounds  totally  different 
from  those  now  received.  It  was  objected  to  because  as  a  mere  guess,  the  belief 
of  one  having  no  good  grounds,  it  lacked  the  testimonial  qualification  of  observa- 
tion; hence,  a  viere  opinion,  as  soon  as  it  appeared  to  be  such,  must  be  rejected. 
In  a  few  jurisdictions  the  modern  doctrine  has  been  confused  with  the  earlier 
one,  and  it  is  laid  down  as  a  general  rule  that  opinions  must  he  accompanied  with 
the  facts  on  which  they  are  based  —  usually  with  the  exception  that  expert  wit- 
nesses are  exempted  from  this  rule. 

Now,  in  no  respect  is  this  rule  sound.  In  the  first  place,  then,  there  is  no 
principle  and  no  orthodox  practice  which  requires  a  witness  having  personal 
observation  to  state  in  advance  his  observed  data  before  he  states  his  inferences 
from  them;  all  that  needs  to  appear  in  advance  is  that  he  had  an  opportunity  to 
observe  and  did  observe,  whereupon  it  is  proper  for  hun  to  state  his  conclusions, 


No.  194  TESTIMONIAL   EVIDENCE:     QUALIFICATIONS  291 

leaving  the  detailed  grounds  to  be  drawn  out  on  cross-examination.  Any  other 
rule  cumbers  seriously  the  examination,  and  amounts  in  effect  to  changing  sub- 
stantially the  whole  examination  into  a  voir  dire  —  an  innovation  on  established 
methods  which  is  unwarranted  by  policy."     (§  1922.) 

He  further  saj's : 

"All  opinions  or  conclusions  are  in  a  sense  hypothetical.  But  does  it  follow 
that,  when  the  opinion  comes  from  the  same  witness  who  has  learned  the  premises 
by  actual  observation  those  premises  must  be  stated  beforehand,  hypothetically 
or  otherwise,  by  him  or  to  him?  For  example,  the  physician  is  asked,  'Did  you 
examine  the  body?'  'Yes.'  'State  your  opinion  of  the  cause  of  death.'  Is  it 
here  necessary  that  he  should  first  state  in  detail  the  facts  of  his  personal  observa- 
tion, as  premises,  before  he  can  give  his  opinion?  In  academic  nicety,  yes;  prac- 
tically, no;  and  for  the  simple  reason  that  on  cross-examination  each  and  every 
detail  of  the  appearances  he  observed  will  be  brought  out  and  thus  associated 
W'ith  his  general  conclusion  as  the  grounds  for  it,  and  the  tribunal  will  under- 
stand that  the  rejection  of  these  data  will  destroy  the  validity  of  his  opinion. 
In  the  opposite  case,  where  the  witness  has  not  had  personal  observation  of  the 
premises,  they  are  not  to  be  got  from  him  on  cross-examination,  because  he  had 
no  data  of  personal  observation;  and  that  is  precisely  the  reason  why  they  must 
be  indicated  and  set  out  in  the  question  to  him,  for  thus  only  can  the  premises 
be  clearly  associated  with  the  conclusion  based  upon  them.  Through  failure 
to  perceive  this  limitation,  courts  have  sometimes  sanctioned  the  requirement 
of  an  advance  hy]3othetical  statement  even  where  the  expert  witness  speaks  from 
personal  observation."     (§  675.) 

There  is  a  great  difference  in  the  decisions  of  the  Courts  of  the  States 
upon  this  subject,  but  it  seems  unnecessary  to  consider  such  authorities 
other  than  those  of  this  State.  We  are  in  accord  with  the  conclusions 
reached  by  Mr.  Wigmore  in  his  work  on  Evidence;  and  such  conclusion 
is  in  accord  with  the  weight  of  authority  in  this  State.  In  People  v. 
Youngs,  151  N.  Y".  210,  the  question  was  directly  before  this  Court,  and  its 
determination  was  essential  to  the  disposition  of  the  appeal.  Evidence 
of  the  opinions  of  experts  was  received  in  that  case  without  first  reciuiring 
that  the  observations  upon  which  such  opinions  were  based  be  given  in 
evidence.  The  judgment  appealed  from,  by  which  the  defendant  had 
been  sentenced  to  death,  was  affirmed,  and  this  Court  said:  .  .  . 

"It  may  be  true  that  the  Court  in  the  exercise  of  a  sound  discretion  may 
require  the  witness  to  state  the  facts  before  expressing  the  opinion;  and  in  all 
cases  the  opposite  party  has  the  riglit  to  elicit  the  facts  upon  cross-examination. 
But  the  precise  question  here  is  whether  the  Court  committed  an  error  in  permit- 
ting the  witness  to  give  the  opinion  before  the  facts  upon  which  it  was  founded 
were  all  disclosed.  And  we  think  that  when  it  is  shown  that  a  medical  expert 
has  made  the  proper  professional  examination  of  the  patient  in  order  to  ascer- 
tain the  existence  of  some  physical  or  mental  disease  he  is  then  qualified  to 
express  an  opinion  on  the  subject,  though  he  may  not  yet  have  stated  the  scien- 
tific facts  or  external  symptoms  upon  which  it  is  based.  People  v.  Kemmler, 
119  N.  Y.  580;  People  v.  Taylor,  138  N.  Y.  398;  People  v.  Hoch,  150  N.  Y.  291.) " 
(p.  218.)  .  .  . 


292  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   194 

A  witness  to  a  will,  although  a  non-expert,  may  testify  to  the  com- 
petency of  the  testator  to  make  a  will.  In  common  practice  in  the 
Courts  a  physician  who  has  examined  a  patient  is  allowed  to  testify 
directly  as  to  the  disease  from  which  the  patient  is  suffering.  There 
seems  to  be  no  good  reason  for  requiring  a  physician  to  specify  in  detail 
his  observations  before  expressing  an  opinion  as  to  the  sanity  or  insanity 
of  a  person  examined  by  him  any  more  than  he  should  be  required  to 
recount  such  observations  in  advance  of  expressing  an  opinion  as  to 
whether  a  person  had  typhoid  fever  or  was  suffering  from  an  epileptic 
fit.  .  .  . 

The  trial  Court  did  not  err  in  allowing  the  physicians  to  express  their 
opinions  in  regard  to  the  sanity  of  the  defendant  without  previously 
stating  in  detail  the  observations  upon  which  the  opinions  were  based. 
For  the  reasons  stated  the  judgment  of  conviction  should  be  reversed 
and  a  new  trial  granted. 

CuLLEN,  Ch.  J.,  Haight,  Willard  Bartlett  and  Hiscock,  JJ., 
concur;   Gray,  J.,  absent. 

Judgment  of  conviction  reversed,  etc. 


Topic  2.    Rules  Limiting  Impeachment  of  Witnesses 
Sub-topic  A.     General  Character  Traits  ^ 

196.  Lord  Chancellor  Macclesfield's  Trial.  (1725.  Howell's  State 
Trials,  XVI,  1239).  Common  Serjeant:  We  desire  that  Mr.  Price  may  give 
your  Lordships  an  account  of  what  he  knows  of  the  character  of  [the  witness] 
Mr.  Cothingham  and  how  long  he  hath  known  him. 

Mr.  Price.  — My  lords,  I  have  known  him  upwards  of  twenty  years;  I  never 
knew  anybody  say  anything  amiss  of  him.  ...  I  know  no  man  in  his  place 
behaved  himself  better  than  he  hath  done. 

Common  Serjeant.  —  We  desire  to  ask  not  only  to  what  Mr.  Price's  opinion 
is,  but  to  what  is  the  opinion  of  others,  as  to  his  general  character. 

Mr.  Price.  —  I  believe,  if  you  ask  his  character  of  an  hundred  people,  ninety 
of  them  will  give  him  rather  a  greater  character. 

197.  Rex  v.  Watson.  (1817.  32  How.  St.  Tr.  1, 495,  2  Stark.  154).  Abbott, 
J.  The  usual  question  put  for  the  purpose  of  discrediting  the  testimony  of  a 
witness  is,  Would  you  believe  that  witness  upon  his  oath? 

Bayley,  J.  —  The  witnesses  may  state  that  he  is  not  a  man  to  be  believed 
upon  his  oath. 

James  Lawson  sworn.  —  Examined  by  Mr.  Wetherell.  Q.  —  Do  you  know 
a  person  of  the  name  of  John  Heyward,  alleged  to  abide  at  No.  6,  Stangate-wall, 
Lambeth,  in  the  county  of  Surrey,  stock-broker?  A.  —  I  know  the  person  you 
allude  to.  Q.  —  How  many  years  have  you  known  him?  A.  —  Upwards  of 
ten  years;  in  fact,  I  have  known  him  from  a  boy.     Q.  —  Would  you  believe  him 


^  For  the  principles  of  Logic  and  Psychology  applicable  to  this  topic,  see  the 
present  Compiler's  "Principles  of  Proof"  (1913.  Nos.  196-202.) 


No.  198  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  293 

upon  his  oath;  or  in  your  judgment,  is  he  a  person  to  be  beheved  upon  his  oath? 
A.  —  I  believe  not;  I  would  not  believe  him  upon  his  oath.  Q.  —  You  would 
not;  and  you  believe  he  is  not  a  person  to  be  believed  upon  his  oath?     A.  —  I  do. 


198.   STATE  V.   RANDOLPH 

Supreme  Cqurt  of  Errors  of  Connecticut.  1856 

24  Conn.  363 

Ellsworth,  J.  .  .  .  Another  subject  has  been  discussed,  respect- 
ing M^hich  there  is  a  diversity  in  the  practice  of  the  Courts  of  justice. 
We  mean,  the  proper  question  to  be  put  to  a  witness  who  is  called  to 
impeach  the  character  of  another  witness. 

One  thing,  however,  is  obvious,  that  in  all  Courts,  whatever  be  the 
form  or  extent  of  the  inquiry,  the  thing  aimed  at  is  one  and  the  same,  the 
character  of  the  witness  for  truth;  and  where  the  question  assumes  a 
more  general  form,  it  is  allowed  only  for  its  supposed  bearing  on  the 
truthfulness,  or  the  reverse,  of  the  witness.  His  character  for  truth 
is  all  that  is  pertinent  and  material  to  the  point,  and  all  that  the  jury 
should  inquire  after;  other  facts,  other  offences,  tried  or  untried,  not 
being  crimen  falsi,  have  no  bearing  upon  the  inquiry  whatever,  and  should 
not  be  brought  into  the  case. 

In  the  English  Courts,  the  inquiry  is  in  this  form :  "  Are  you  acquainted 
with  the  character  of  the  witness?  —  What  is  his  general  character?  — 
Would  you  believe  him  under  oath?"  As  a  general  rule  of  practice  this 
has  been  found  satisfactory  in  that  country  and  elsewhere;  and  doubtless 
would  be  so  here,  if  our  Courts  had  not,  at  an  early  period,  adopted  a 
different  rule,  which  has  proved  to  be  satisfactory  and  sufficient,  and 
which  we  are  not  willing,  at  this  late  day,  to  abandon  for  another,  cer- 
tainly not  better,  if  as  good.  The  more  general  inquiry  in  England  is 
adopted,  as  we  have  said,  to  learn  the  witness'  character  for  truth;  ours 
is  adopted  for  the  same  purpose,  but  is  more  single  and  direct.  In  our 
Courts,  the  inquiry  put  is :  "  Is  the  character  of  the  witness  for  truth  on 
a  par  with  that  of  mankind  in  general?" 

The  English  rule  has  this  advantage,  that  it  brings  the  general  char- 
acter of  the  witness  before  the  triers,  which  is  important,  where  the 
witness  has  not  acquired  a  specific  character  on  the  subject  of  truth,  and 
hence  it  is  urged,  wnth  some  force,  that  in  such  a  case,  the  general  inquiry 
is  essential,  for  no  other  will  reach  the  case;  and  further,  that  the  testi- 
mony of  the  impeaching  witness  that,  from  his  acquaintance  with  the 
witness'  character,  he  would,  or  would  not,  believe  the  witness  under  oath, 
will  throw  light  on  the  credit  and  standing  of  the  witness.  We  do  not 
deny  that  there  is  much  good  sense  in  this  course  of  reasoning.  But 
on  the  other  hand,  our  rule,  proceeding  upon  the  same  idea,  goes  to  the 
question  of  truth  at  once,  nor  does  it  leave  anything  to  the  mere  inference 


294  BOOK    i:     RULES    OF   .ADMISSIBILITY  No.  198 

of  the  impeaching  witness,  whether  he  would,  or  not,  beheve  the  witness 
under  oath.  By  our  rule,  he  states  the  premises,  or  character  for  truth, 
from  which  he  draws  the  conclusion,  and  as,  in  other  cases,  leaves  the 
triers  to  draw  their  own  inferences.   .   .   . 

The  English  rule,  as  laid  down  by  Greenleaf,  has  been  practiced  upon 
in  several  of  the  States  of  the  union,  while  in  others  a  more  restricted 
and  specific  one  has  been  preferred.  .  .  .  Whether  we  ought  to  go 
further,  and  allow  the  English  questions  to  be  put  to  the  witness,  has 
not  been  decided,  certainly  not  in  this  Court,  although  we  believe  it  has 
often  been  done  on  the  circuit.  General  bad  character  is  undoubtedly 
a  serious  blemish  in  a  witness,  and  might  justly  detract  from  the  weight 
of  his  testimony,  and  so  might  the  character  of  a  witness  for  the  specific 
blemish  of  licentiousness,  especially  in  the  female  sex.  But  where  shall 
we  stop  the  inquiries?  Witnesses,  who  can  have  no  opportunity  to 
exculpate  themselves,  or  give  explanations  of  their  acts,  ought  not  to 
be  exposed  to  unjust  obloquy,  nor  should  the  trial  be  complicated  and 
prolonged  by  trying  collateral  issues.  If  it  were  wise  and  just  to  inquire 
for  one's  reputation  for  virtue,  why  not  for  gambling,  horse-racing, 
drunkenness,  sabbath-breaking,  etc.?  These  are  serious  blemishes  on 
character.  Now  the  general  inquiry  in  the  English  Courts,  and  the 
more  limited  one  in  ours,  is  free  from  the  objections  to  specific  acts,  or 
the  character  of  specific  habits;  which,  if  allowed  to  be  proved,  would  be 
very  uncertain  in  effect,  for  they  would  be  differently  estimated  and 
viewed  by  the  triers,  and  hence,  general  character,  which  every  witness 
is  supposed  to  be  able  to  establish,  whenever  attacked,  is  held  to  be  all 
that  is  necessary  or  proper.  For  a  more  full  and  satisfactory  discussion 
of  these  questions,  we  refer  to  an  elaborate  opinion  of  McLean,  J.  in 
United  States  v.  Van  Sickle,  2  McLean  R.  223. 


199.   CALHOON  v.   COMMONWEALTH 

Court  of  Appeals  of  Kentucky.  1901 

64  S.  W.  Rep.  965 

Appeal  from  Circuit  Court,  Green  County.  Thomas  Calhoon  was 
convicted  of  the  offense  of  manslaughter,  and  he  appeals.     Reversed. 

Henry  &  Woodward,  for  appellant.  Clem  J.  Whittemore,  for  the 
Commonwealth. 

White,  J.  —  The  appellant  was  indicted  in  the  Circuit  Court  of 
Green  County,  charged  with  the  crime  of  murder.  On  trial  he  was  con- 
victed of  manslaughter,  and  his  punishment  fixed  by  the  jury  at  twenty 
years  in  the  penitentiary,  and  he  appeals. 

The  errors  assigned  and  complained  of  by  appellant  are  the  admission 
of  testimony  and  as  to  instructions.  The  testimony  objected  to  was  that 
of  several  witnesses  called  for  defense  to  prove  the  general  character  of 


No.  200  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  295 

deceased,  Tilden  Morr,  as  to  peace  and  quietude.  After  these  witnesses 
had  testified  as  to  the  general  character  of  Morr  as  to  peace  and  quietude, 
and  that  it  was  bad,  the  prosecution  was  allowed,  over  objection,  to 
prove  by  a  witness  that  the  general  character  of  accused  as  to  peace  and 
quietude  was  bad.  As  an  indication  of  the  questions  asked,  we  quote 
from  the  bill  of  exceptions:  "witness  was  asked  if  he  was  acquainted 
with  the  general  character  of  the  defendant  for  peace  and  quiet  in  the 
neighborhood  where  he  resided,  from  having  heard  his  neighbors  speak  of 
it,  and  the  witness  answered,  '  I  have  heard  that  the  defendant's  charac- 
ter was  bad.'"  ...  At  the  time  of  the  admission  of  this  testimony 
accused  had  testified  in  his  own  behalf,  but  had  offered  no  testimony 
as  to  his  own  character,  —  neither  as  to  peace  and  quiet,  nor  any  other 
way.     This  action  of  the  Court  is  complained  of  as  error. 

The  object  of  this  testimony,  evidently,  was  to  show  that  accused 
was  given  to  quarreling  and  raising  disturbances  generally.  It  could  not 
have  been  to  impeach  him  as  a  witness.  We  are  of  opinion  that  the 
testimony  was  incompetent  for  any  purpose.  Appellant  had  not  pre- 
sented an  issue  as  to  his  general  character  as  a  peaceable,  law-abiding 
citizen,  and  until  he  had  done  so  the  prosecution  had  no  right  to  show  that 
his  character  and  reputation  in  that  particular  were  bad.  When  appel- 
lant testified  for  himself,  he  invited  an  investigation  of  his  character  for 
truth,  the  same  as  any  other  witness ;  but,  as  to  any  other  traits  of  char- 
acter, they  were  not  put  in  issue.  It  is  clearly  incompetent  to  attempt 
to  impeach  a  witness  by  showing  that  he  has  a  bad  character  for  peace 
and  quietude.  The  testimony,  being  incompetent,  was  prejudicial  to 
appellant.  .  .  . 

The  judgment  of  conviction  is  reversed,  and  cause  remanded  for  new 
trial,  and  for  proceedings  consistent  herewith. 


200.   STATE  V.  BECKNER 

Supreme  Court  of  Missouri.  1905 

194  Mo.  281;  91  S.  W.  893 

Appeal  from  Jackson  Criminal  Court.  —  Hon.  John  W.  Wofford, 
Judge.     Reversed  and  remanded. 

This  was  a  prosecution  for  murder.  .  .  .  The  defendant  was  duly 
arraigned  and  entered  his  plea  of  not  guilty.  On  the  8th  day  of  May, 
1905,  defendant  was  put  upon  his  trial,  and  on  May  12,  1905,  the  jury 
returned  a  verdict  finding  him  guilty  of  murder  in  the  second  degree.  .  .  . 
At  the  close  of  the  defendant's  evidence  in  chief,  the  State  offered  various 
witnesses  for  the  purpose  of  impeaching  the  general  reputation  of  the 
defendant,  for  peace  and  good  order,  and  to  show  that  his  general  reputa- 
tion was  that  of  a  violent,  turbulent  and  dangerous  man,  over  the  objec- 
tions and  exceptions  of  the  defendant.     Thereupon  the  defendant  offered 


296  BOOK    i:     RULES    OF    ADMISSIBILITY  No.  200 

evidence  on  his  part  tending  to  prove  that  his  general  reputation  was 
that  of  a  quiet,  peaceable,  law-abiding  citizen.  .  .  .  The  defendant  was 
sentenced  in  accordance  with  the  verdict  of  the  jury,  and  now  prosecutes 
his  appeal  from  the  said  judgment  and  sentence.  .  .  . 

Boyle,  Guthrie  &  Smith  for  appellant;  J.  S.  Brooks  of  counsel.  The 
trend  of  authority  is  to  the  effect  that  a  witness  may  be  impeached  by 
showing  his  general  reputation  for  truth  and  veracity  and  his  general 
moral  character  for  the  purpose  of  affecting  his  credibility  as  a  witness; 
but  it  has  always  been  held  in  all  the  Courts  that  a  man's  bad  character 
for  turbulence  and  violence  could  not  be  put  in  issue  by  the  State  unless 
the  defendant  had  first  introduced  witnesses  to  show  his  character  was 
good.  .  .  . 

Herbert  S.  Hadley,  Attorney-General,  Frank  Blake,  Assistant  Attor- 
ney-General, and  /.  B.  Kimbrell,  for  the  State.  The  testimony  respecting 
the  general  reputation  of  defendant  for  being  a  violent,  turbulent  and 
dangerous  person  was  admissible  to  impeach  him  as  a  witness.  That 
any  witness  in  a  case  may  be  impeached  not  only  by  showing  that  his 
general  reputation  for  truth  and  veracity  is  bad,  but  also  by  showing 
that  his  general  reputation  for  morality  and  for  possessing  the  various 
attributes  of  an  immoral  character  is  bad,  has  been  the  settled  law  of 
this  State  since  the  case  of  State  v.  Shields,  13  Mo.  236,  decided  in  1850. 

Gantt,  J.  (after  stating  the  case). 

Various  errors  are  assigned  for  the  reversal  of  the  judgment  herein, 
but  the  most  important  and  serious  question  raised  by  the  defendant  is 
as  to  the  action  of  the  Court  in  permitting  the  prosecuting  attorney,  over 
the  objection  of  the  defendant,  to  call  various  witnesses  and  to  propound 
to  them  this  question:  "Do  you  know  the  general  reputation  of  the 
defendant  for  peace  and  quietness  or  turbulence  and  violence  in  the 
neighborhood  where  he  lives?" 

1.  In  this  State,  from  a  very  early  period,  it  has  been  the  uniform 
rule  of  decisions  that  the  character  of  a  defendant,  charged  with  a  criminal 
offense,  cannot  be  assailed  by  the  State  until  the  accused  has  offered  proof 
as  to  his  character,  or,  in  other  words,  put  his  character  in  issue.  (State 
V.  Creson,  38  Mo.  372;  State  v.  Martin,  74  Mo.  547;  State  v.  Palmer,  88 
Mo.  568;  State  v.  Hart,  66  Mo.  208;  State  v.  Hudspeth,  159  Mo.  178.) 
And  this  is  the  general  doctrine  announced  by  trustworthy  commentators 
on  Criminal  Law.  (^Yharton's  Criminal  Evidence,  9th  Ed.,  §  64,  and 
cases  cited;  3  Greenleaf's  Evidence,  §  25;  State  v.  Hull,  20  L.  R.  A.  609, 
and  cases  collated  in  the  note.)  The  Criminal  Court,  however,  admitted 
this  evidence  on  the  ground  that'the  defendant  had  offered  himself  as  a 
witness  and,  having  done  so,  he  occupied  the  position  of  any  other 
witness,  and  was  liable  to  l)e  cross-examined  as  to  any  matter  pertinent 
to  the  issue  and  might  be  contradicted  and  impeached  a.s  any  other 
witness,  and  subjected  to  the  same  tests. 

At  a  very  early  day  in  the  judicial  history  of  this  State  and  before 


No.  200  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  297 

the  defendant  was  permitted  to  testify  in  his  own  behalf,  it  was  held,  in 
State  V.  Shields,  13  Mo.  236,  that  for  the  purpose  of  discrediting  a  witness, 
the  opposite  party  is  not  restricted  to  inquiring  into  the  general  reputation 
of  such  witness  for  truth  and  veracity,  but  may  inquire  as  to  the  witness's 
moral  character  generally.     Napton,  J.,  speaking  for  the  Court,  said: 

"It  seems  to  be  a  better  and  more  settled  opinion,  in  discrediting  a  witness, 
a  party  is  not  restricted  to  inquiries  into  the  character  of  the  witness  for  veracity. 
A  bad  moral  character  generally,  or  a  depravity  not  necessarily  allied  to  a  want 
of  truth,  may  yet  to  some  extent  shake  the  credibility  of  the  witness,  and,  there- 
fore, is  a  fair  subject  of  investigation.  The  questions  propounded  in  this  case 
were  proper,  although  they  must  necessarily,  to  have  had  any  sensible  impres- 
sion upon  the  case,  been  followed  by  others  eliciting  the  opinion  of  the  witness 
upon  the  effect  which  the  general  or  specific  moral  depravity  spoken  of,  had 
ujjon  the  credibility  of  the  witness  attacked.  The  entire  exclusion  of  the  ques- 
tion seems  to  have  proceeded  upon  the  ground  that  general  bad  character  was 
inadmissible,  unless  it  was  general  bad  character  for  truth  and  veracity."  (Day 
V.  State,  13  Mo.  422.) 

The  doctrine  thus  annovmced  has  been  followed  in  this  State  from 
that  day  until  the  present.  .  .  .  The  last  announcement  on  this  subject 
is  in  State  v.  Pollard,  174  Mo.  607,  in  which  Judge  Fox  said:    • 

"We  will  say  in  respect  to  this  complaint,  that  the  learned  trial  judge  accepted 
and  followed  the  rule  adopted  by  a  long  line  of  decisions  in  this  State,  commen- 
cing with  the  case  of  State  v.  Shields,  and  followed  in  the  cases  (citing  all  the  cases 
hereinbefore  referred  to).  These  cases  announce  the  rule  as  to  the  impeachment 
of  witnesses,  that  the  inquiry  need  not  be  confined  to  the  trait  of  character  in 
issue,  but  may  be  extended  to  general  moral  character.  In  view  of  the  long  and 
uniform  adherence  as  announced  in  the  cases  quoted,  and  as  this  only  consti- 
tutes one  division  of  this  Court,  I  will  not  undertake  to  overrule  the  doctrine 
thus  announced,  but  will  say  for  myself,  that  the  rule  upon  the  impeachment 
of  witnesses  should  be  restricted  to  the  trait  of  character  directly  involved,  that 
of  truth  and  veracity." 

Thus  we  have  two  well-defined  rules  of  law  which  apparently  conflict. 
When  a  defendant,  under  statutes  like  ours,  is  permitted  to  testify,  and 
he  avails  himself  of  his  privilege,  it  is  at  once  obvious  that  he  occupies  a 
dual  position,  that  of  witness  and  accused.  .  .  .  The  proof  of  character 
offered  as  a  defense  to  a  charge  of  crime  and  evidence  rebutting  such 
character  must  be  such  as  bears  analogy  and  reference  to  the  nature  of 
the  charge  on  which  the  defendant  is  being  tried.  (1  Wigmore  on 
Evidence,  §  59,  and  cases  cited  in  note.)  The  ground  upon  which  such 
testimony  is  admissible  is  that  good  character  tends  to  lessen  the  proba- 
bility of  guilt.  .  .  .  On  the  other  hand,  the  defendant  in  his  character  as 
a  witness  is  not  entitled  to  offer  his  good  character  in  evidence  to  corrobo- 
rate his  testimony  until  it  has  been  attacked  by  the  State.  (2  Wigmore 
on  Evidence,  §§  891,  1104.) 

The  difficulty  arising  out  of  the  foregoing  rules,  when  a  statute  like 
ours  permits  a  defendant  in  a  criminal  prosecution  to  testify  in  his  own 
behalf,  has  been  encountered  by  the  Courts  of  last  resort  in  many  of  the 


298  BOOK   i:     RULES   OF  ADMISSIBILITY  No,  200 

States,  as  it  was  by  this  Court  in  State  v.  Clinton,  67  Mo.  380.  In 
Lockard  v.  Commonwealth,  87  Ky.  201,  under  a  statute  very  similar  to 
ours  on  this  subject,  the  defendant  testified  in  his  own  behalf,  but  offered 
no  evidence  as  to  his  character.  The  Commonwealth  then  introduced 
several  witnesses,  who  were,  over  the  appellant's  objection,  permitted  to 
testify  that  while  they  knew  nothing  of  defendant's  character  for  truth- 
fulness, yet  his  general  moral  character  was  bad.  In  Kentucky,  as  in 
this  State,  it  had  been  decided  at  an  early  day  that  evidence  of  the 
general  moral  character  of  a  witness  was  admissible  upon  the  ground,  as 
was  said  in  the  case  of  Tacket  v.  May,  3  Dana  80,  that  "  a  witness  whose 
moral  character  is  bad,  is  jiot  as  credible  as  one  whose  moral  character  is 
good."  Holt,  J.,  speaking  for  the  whole  Court,  discussed  the  effect  of 
the  statute  in  view  of  the  settled  rule  of  decision  in  that  State  that  the 
general  bad  character  of  any  witness  might  be  shown  to  impeach  him. 
He  met  the  objection  urged  by  many  law-writers  and  many  able  judges, 
that  the  impeachment  of  the  general  moral  character  of  a  defendant  as  a 
witness  would  affect  him  as  a  defendant,  and  would  violate  the  rule  that 
until  he  put  his  character  in  issue,  the  State  could  not  assail  it,  and  said, 
"When,  however,  the  defendant  becomes  a  witness,  he  voluntarily 
assumes  another  character,"  and  .  .  .  held  that  these  considerations 
must  prevail  over  the  suggestion  that  if  the  general  moral  character  of 
the  accused,  when  he  becomes  a  witness,  can  be  assailed,  it  is  in  effect  a 
violation  of  the  rule  that  in  a  criminal  case  the  defendant  alone  can  put 
it  in  issue.  .  .  . 

2.  Whatever  may  have  been  the  differences  in  this  Court  as  to 
whether  certain  specific  traits  of  immorality  affected  the  credibility  of  a 
witness,  it  is  clear  that  the  case  of  State  v.  Shields,  13  Mo.  236,  which  is 
the  foundation  for  the  rule  that  in  impeaching  a  witness  the  inquiry  may 
extend  to  his  moral  character  generally,  is  predicted  upon  the  ground 
that  the  loss  of  moral  principle  evidenced  by  the  practice  of  a  particu- 
lar vice  a'ffects  his  credibility.  But  accepting  this  as  the  established  rule, 
was  it  competent  for  the  State  to  assail  the  defendant's  character,  before 
he  placed  his  character  in  issue,  by  proving  that  he  was  a  violent  and 
turbulent  man?  As  we  have  already  seen,  the  Alabama  Court,  while 
adopting  the  rule  that  when  a  defendant  offered  himself  as  a  witness  he 
could  be  impeached  by  proving  his  general  bad  character  for  morality, 
yet  rejected  evidence  in  a  homicide  case  of  the  character  for  violence  or 
turbulence  as  casting  no  light  on  his  credibility.  It  will  be  observed 
that  the  question  propounded  to  the  impeaching  witnesses  in  this  case 
did  not  involve  his  general  reputation  for  truth  and  veracity,  nor  his 
general  reputation  for  immorality,  but  was  confined  to  the  specific 
charge  as  to  his  reputation  of  being  a  violent  and  turbulent  man.  This 
evidence,  we  think,  was  not  directed  to  the  impeachment  of  the  defendant 
in  his  character  as  a  witness,  but  was  direct  evidence  tending  to  impeach 
his  character  as  a  defendant  only  for  turbulence  and  violence,  when  he 
had  not  put  his  character  in  issue.  .  .  . 


No,  201  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  299 

In  our  opinion,  our  esteemed  brother  of  the  Criminal  Court  erred  in 
holding  that  a  reputation  for  being  violent  and  turbulent  was  tanta- 
mount to  evidence  of  a  reputation  of  general  bad  character  and  admissible 
to  impeach  the  credibility  of  the  defendant  as  a  witness.  ...  It  seems 
clear  to  us  that  this  evidence  went  directly  to  the  character  of  the  defend- 
ant as  a  defendant  in  the  case  and  not  to  his  credibility  as  a  witness, 
and  this  being  so,  we  must  hold  it  was  reversible  error. 


201.   ALLEMAN  v.   STEPP 

Supreme  Court  of  Iowa.     1879 

52  la.  626;  3  A^  W.  636 

Action  at  law  to  recover  for  services  rendered  to  defendant  by 
plaintiff,  who  is  a  surgeon.  There  was  a  judgment  for  plaintiff,  from 
which  he  appeals.     The  facts  of  the  case  appear  in  the  opinion. 

Holmes  &  Reynolds,  for  appellant.     Kidder  &  Crooks,  for  appellee. 

Beck,  Ch.  J.  —  1.  The  petition  declares  upon  an  account  for  services 
rendered  by  plaintiff,  as  a  surgeon,  in  reducing  fractures  of  the  bones  of 
defendant's  leg,  the  amputation  of  the  thigh,  and  attendance  until  the 
defendant's  recovery.  The  answer  admits  the  services,  but  as  a  defense 
pleads  that  there  was  a  difference  between  the  parties  as  to  the  true  and 
just  amount  of  plaintiff's  bill,  and  thereupon  they  had  a  settlement  and 
plaintiff  agreed  to  charge  S250  for  his  services,  which  defendant  then 
undertook  to  pay.  .  .  .  The  defendant  testified  to  the  settlement  as 
alleged  in  his  answer;  it  was  denied  by  plaintiff.  It  can  hardly  be  said 
that  defendant's  testimony  is  corroborated,  but  the  abstract  does  not 
purport  to  give  all  the  evidence. 

The  plaintiff  introduced  a  physician  who  testified  that  he  had  known 
the  defendant  from  a  time  prior  to  the  amputation  of  his  limb.  He  was 
then  asked  to  state  the  condition  of  defendant's  mind  as  to  memory 
before  and  after  the  injury;  to  state  the  effect  of  the  injury  upon  the 
defendant's  memory  as  to  money  and  finances  in  particular,  and  to  state 
whether,  in  the  opinion  of  the  witness,  the  mind  of  defendant  was  greatly 
impaired.  The  evidence,  upon  defendant's  objection,  was  rejected. 
We  think  the  ruling  erroneous.  Surely,  if  defendant  was  suffering  from 
an  impaired  mind,  which  affected  his  memory,  the  fact  would  tend  to 
lessen  the  credit  to  be  given  to  his  testimony.  Can  it  be  doubted  that 
the  credibility  of  a  witness  may  be  assailed  by  showing  his  want  of 
mental  capacity?  It  is  said  that  the  infirmity  of  memory  should.be 
shown  by  cross-examination.  But  it  might  not  be  made  to  appear  in 
that  way,  though  it  really  existed.  The  witness  was  a  physician  and 
knew  the  defendant  before  and  after  the  injury  and  the  condition  of  his 
mind  as  to  memory.  He  was  surely  competent  to  state  the  fact  of  defend- 
ant's loss  of  memory,  and  in  our  judgment  he  was  competent  to  state  his. 


300  BOOK   i:     RULES    OF    ADMISSIBILITY  No.  201 

opinion  of  the  defendant's  mental  condition,  based  upon  his  knowledge 
and  observation  of  the  defendant  before  and  after  the  injury.  If  in  this 
way  it  should  be  made  to  appear  that  defendant's  memory  was  impaired 
by  disease,  his  credibility  would  be  impeached. 

Under  familiar  rules  of  the  law  the  credibility  of  a  witness  may  be 
impeached  by  showing  moral  defects.  Mental  defects  in  the  witness, 
or  loss  or  impairment  of  memory,  will,  according  to  the  observation  of  all 
men,  detract  from  the  credibility  otherwise  due  a  witness,  just  as  surely 
as  do  moral  defects.  It  is  not  reasonable  to  hold  that  the  law  will  permit 
impeachment  of  a  witness  by  showing  the  moral  defects  of  his  character, 
and  will  not  permit  impeachment  by  proof  of  defects  of  memory  caused 
by  diseases  of  the  body  or  mind.  Under  the  rules  of  evidence,  and  stat- 
utes of  this  State,  a  witness  may  be  impeached  by  proof  of  his  bad  moral 
character,  and  that  his  reputation  for  veracity  is  so  low  that  he  cannot 
be  believed  under  oath.  The  impeaching  witness  states  his  conclusions, 
belief  or  opinions,  based  upon  knowledge  of  the  character  and  reputation 
of  the  witness  whose  credibility  is  brought  in  question.  The  like  course 
was  proposed  in  this  case,  to  impeach  the  defendant  by  showing  his 
mental  defects.  The  testimony  excluded  was  of  the  conclusion,  belief 
and  opinion  of  the  witness,  based  upon  knowledge  that  defendant's 
memory  was  impaired  by  disease  affecting  the  mind. 

It  is  proper  to  say  that  the  rule  we  recognize  extends  no  farther  than 
to  permit  the  impeachment  of  a  witness  by  showing  an  abnormal  condi- 
tion of  the  mind  caused  by  disease,  or  habits  which  impair  the  memory. 
It  will  not  permit  evidence  of  the  want  of  strength  or  accuracy  of  memory 
of  a  witness  whose  mind  is  not  shown  to  be  in  an  abnormal  condition. 
While  it  is  true  that  the  memories  of  men  of  sound  physical  and  mental 
health  are  not  equally  strong  and  accurate,  or  they  are  unequal  in  other 
faculties  of  the  mind  and  in  physical  development,  the  law  can  devise  no 
standard  of  measurement  or  test  of  the  mind  in  its  normal  condition. 
It  cannot  be  compared  with  the  mind  of  others  in  order  to  impeach  or 
support  the  memory.  ... 

For  the  error  in  excluding  the  evidence  offered  by  plaintiff,  the  judg- 
ment of  the  District  Court  is  reversed. 

Seevers,  J.  ^  I  concur  in  the  result  reached  in  the  foregoing  opinion, 
but  as  I  understand  it  goes  further  than  I  am  willing  to  go.  That  evi- 
dence is  admissible  to  show  that  the  mind  or  memory  of  a  witness  has 
become  impaired  or  abnormal  by  reason  of  disease  I  think  is  true,  and 
this  in  substance  the  plaintiff  offered  to  show;  but  he  went  farther  and 
by  another  question  offered  to  show  the  "effect  of  the  injury  upon 
deficndant's  memory,  as  to  money  and  finances  in  particular."  This 
was  not  in  my  judgment  admissible.  The  impaired  or  abnormal  con- 
dition of  the  mind  being  shown,  the  effect  was  for  the  jury  to 
determine. 


No.  203  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  301 

Sub-topic  B.     Specific  Conduct  ^ 

202.  Rookwood's  Trial.  (1696.  Howell's  State  Trials,  XIII,  209).  Sir 
B.  Shower  (for  the  defendant) :  We  will  call  some  other  witnesses  to  Mr.  Porter's 
[the  chief  witness  for  the  Crown]  reputation  and  behavior;  we  think  they  will 
prove  things  as  bad  as  an  attainder.  .  .  . 

L.  C.  J.  Holt.  —  You  must  tell  us  what  you  call  them  to. 

Sir  B.  Shower.  —  Why,  then,  my  lord,  if  robbing  upon  the  highway,  if  clip- 
ping, if  conversing  with  clippers,  if  fornication,  if  buggery,  if  any  of  these  irregu- 
larities will  take  off  the  credit  of  a  man,  I  have  instructions  in  my  brief  of  evidence 
of  crimes  of  this  nature  and  to  this  purpose  against  Mr.  Porter;  and  we  hope 
that  by  law  a  prisoner  standing  for  his  life  is  at  liberty  to  give  an  account  of  the 
actions  and  behavior  of  the  witnesses  against  him.  I  know  the  objection  that 
Mr.  Attorney  [-General]  makes,  —  that  a  witness  does  not  come  prepared  to 
vindicate  and  give  an  account  of  every  action  of  his  life,  and  it  is  not  commonly 
allowed  to  give  evidence  of  particular  actions.  But  if  those  actions  be  repeated, 
and  a  man  lives  in  the  practice  of  them,  and  this  practice  is  continued  for  several 
years,  and  this  be  made  out  by  evidence,  we  hope  that  no  jury  that  have  any 
conscience  will  upon  their  oaths  give  any  credit  to  the  evidence  of  a  person  against 
whom  such  a  testimony  is  given.    .    .    . 

Mr.  Attorney-General  Trevor.  —  My  lord,  they  themselves  know  that  this 
sort  of  evidence  never  was  admitted  in  any  case,  nor  can  be,  for  it  must  tend  to 
the  overtlirow  of  all  justice  and  legal  proceedings;  for,  instead  of  trying  the 
prisoner  at  the  bar,  they  would  try  Mr.  Porter.  It  has  been  always  denied, 
where  it  comes  to  a  particular  crime  that  a  man  may  be  prosecuted  for;  and  this, 
it  seems,  is  not  one  crime  or  two,  but  so  many  and  so  long  continued,  as  they 
say,  and  so  often  practised,  that  here  are  the  whole  actions  of  a  man's  life  to  be 
ripped  up;  which  they  can  never  show  any  precedent  when  it  was  permitted, 
because  a  man  has  no  opportunity  to  defend  himself.  Any  man  in  the  world 
may  by  this  means  be  wounded  in  his  reputation,  and  crimes  laid  to  his  charge 
that  he  never  thought  of,  and  he  can  have  no  opportunity  of  giving  an  answer 
to  it,  because  he  never  imagined  there  would  be  any  such  objection.  It  is  killing 
a  man  in  his  good  name  by  a  side-wound,  against  which  he  has  no  protection  or 
defence. 

Sir  B.  Shower.  —  My  lord,  ...  we  conceive,  with  submission,  we  may  be 
admitted  in  this  case  to  offer  what  we  have  offered.  Suppose  a  man  be  a  common, 
lewd,  disorderly  fellow,  one  that  frequently  swears  to  falsehood  for  his  life.  We 
know  it  is  a  common  rule  in  point  of  evidence  that  against  a  witness  you  shall 
only  give  an  account  of  his  character  at  large,  of  his  general  conversation.  But 
that  general  conversation  arises  from  particular  actions;  and  if  the  witnesses 
give  you  an  accoimt  of  such  disorderly  actions  repeated,  we  hope  that  will  go 
to  his  discredit;  which  is  that  we  are  now  laboring  for. 

L.  C.  J.  Holt.  —  Look  ye,  you  may  bring  witnesses  to  give  an  account  of  the 
general  tenor  of  his  conversation;  but  you  do  not  think  sure  that  we  will  try 
now  at  this  time  whether  he  be  guilty  of  robbery  or  buggery. 

203.  Layer's  Trial.  (1722.  Howell's  State  Trials,  XVI,  246,  256).  Mr. 
Hungerford  [on  being  stopped  by  the  Court,when  offering  testimony  to  various 

^  For  the  principles  of  Logic  and  Psychology  applicable  to  this  topic,  see  the 
present  Compiler's  "Principles  of  Proof"  (1913),  Nos.  196-202. 


302  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  203 

misdeeds  of  another  witness].     If  my  brief  be  true,  the  whole  Ten  Command- 
ments have  been  broken  by  him. 

L.  C.  J.  Pratt.  —  Very  well,  and  so  you  charge  him  with  the  breach  of  the 
Ten  Commandments,  and  he  must  let  it  go  for  fact,  because  he  cannot  have  an 
opportunity  of  defending  himself!  .  .  .  [Later,  forbidding  a  similar  offer]  you 
have  been  so  often  admonished  by  the  Court,  but  it  signifies  nothing.  You  are 
charging  Mrs.  Mason  with  being  a  bawd,  when  you  ought  only  to  inquire  as  to 
her  general  character.  ...  At  this  rate  the  most  innocent  persons  may  be 
branded  as  the  most  infamous  villains,  and  it  is  impossible  for  them  to  defend 
themselves. 

204.  Watson's  Trial.  (1817.  Howell's  State  Trials,  XXXII,  1,  486). 
[One  Castle  had  been  a  principal  witness  for  the  Crown.  The  defence  now 
proposed  to  call  a  witness  to  show  Castle  to  have  lived  in  bigamy.  This  was 
objected  to.] 

Wetherell  and  Copley,  for  defendant,  argued  "that  a  man  might  be  able  to 
prove  that  a  witness  was  not  to  be  believed  upon  oath,  by  showing  that  he  had 
been  guilty  of  a  number  of  criminal  acts,  although  he  could  not  produce  a  single 
record  of  conviction;  that  since  it  might  be  proved  indirectly  that  the  witness 
is  not  credible  upon  oath,  it  was  too  strong  a  proposition  to  say  that  the  same 
conclusion  might  not  be  proved  directly  by  actual  proof  of  accumulated  crimes 
which  demonstrated  the  infamy  of  the  witness;  .  .  .  that  the  consequences 
would  be  enormous  and  alarming  to  the  administration  of  justice,  if  such  evidence 
were  to  be  shut  out;  a  witness  who  had  committed  a  multitude  of  crimes,  but 
who  had  not  been  convicted  of  one,  would  stand  as  a  fair  and  credible  witness 
in  a  court  of  justice. 

Ellenborough,  L.  C.  J.  —  This  is  so  clear  a  point  and  so  entirely  without  a 
precedent  that  it  would  be  a  waste  of  time  to  call  for  a  reply.  .  .  .  The  Court 
does  not  sit  for  the  purpose  of  examining  into  collateral  crimes.  It  would  be 
unjust  to  permit  it,  for  it  would  be  impossible  that  the  party  should  be  ready 
to  exculpate  himself  by  bringing  forward  evidence  in  answer  to  the  charge;  there 
would  be  no  possibility  of  a  fair  and  competent  trial  upon  the  subject,  and 
therefore  it  is  never  done. 

Bayley,  J.  —  If  this  evidence  were  admissible,  it  would  be  impossible  to 
proceed  in  the  administration  of  justice,  because  on  every  trial  the  Court  would 
have  to  try  one  hundred  different  issues,  and  juries,  instead  of  having  one  issue 
to  try,  would  have  their  attention  withdrawn  from  one  single  point  to  look  into 
an  indefinite  number  of  crimes.  The  rule  is  that  a  party  against  whom  a  witness 
is  called  may  examine  witnesses  as  to  his  general  character,  but  he  is  not  allowed 
to  prove  particular  facts  in  order  to  discredit  him,  ...  for  although  every  man 
be  supposed  to  be  capable  of  defending  his  general  character,  he  cannot  come 
prepared  to  defend  himself  against  particular  charges  without  notice.  ...  If 
the  witness  were  apprised  of  the  charges,  he  might  come  prepared  with  evi- 
dence to  show  that,  although  there  was  prima  facie  evidence  against  him,  they 
were  in  reality  unfounded. 


No.  205  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  303 

205.   PEOPLE   V.   JACKSON 

Supreme  Court  of  New  York.     1857 

3  Parker  Cr.  C.  391 

Indictment  for  rape.  This  was  a  certiorari  to  the  Kings  Oyer  and 
Terminer,  in  which  court  the  prisoner  had  been  convicted,  before  S.  B. 
Strong,  one  of  the  justices  of  this  Court,  and  Samuel  D.  Morrls,  county 
judge,  and  the  justices  of  the  Sessions.  .  .  .  The  jury  found  the  prisoner 
guilty. 

John  G.  Schumaker  (District  Attorney),  for  the  People.  .  .  .  Alex- 
ander Hadden,  for  the  prisoner.  ... 

By  the  Court,  S.  B.  Strong,  J.  —  The  defendant  was  tried  at  the 
Court  of  Oyer  and  Terminer  held  in  the  county  of  Kings  on  an  indictment 
against  him  and  another  for  a  rape  upon  Catharine  Sullivan.  The  trial 
occupied  eight  days,  and  resulted  in  his  conviction.  The  complainant 
was  asked,  on  her  cross-examination  by  the  counsel  for  the  accused, 
whether  upon  her  passage  from  Liverpool  to  New  York,  previous  to  the 
alleged  outrage,  she  had  illicit  intercourse  with  a  fellow  passenger;  to 
which  she  answered  unhesitatingly  that  she  had  not.  Subsequently  the 
counsel  for  the  accused  offered  to  prove  by  another  witness  particular 
acts  of  such  illicit  sexual  intercourse  between  the  complainant  and  the 
same  passenger  during  such  voyage.  The  district  attorney  objected  to 
the  admission  of  the  proposed  evidence ;  and  the  Court  decided  that  the 
defendant  might  prove  the  general  bad  character  of  the  prosecutrix  for 
chastity,  but  that  evidence  of  particular  acts  of  unchaste  conduct  by 
her,  with  any  person  other  than  the  accused,  at  any  period  previous  to 
their  intercourse,  was  inadmissible,  and  rejected  the  evidence  as  to  such 
alleged  acts  offered  in  behalf  of  the  accused,  to  which  his  counsel  excepted. 
The  only  question  raised  by  the  bill  of  exceptions  is  whether  this  rejection 
of  the  proposed  evidence  was  proper.  .  .  . 

Generally  the  conduct  of  a  witness  in  matters  disconnected  from  the 
subject  of  the  trial,  being  irrelevant,  cannot  be  given  in  evidence.  The 
objections  to  admitting  .such  evidence  are,  that  it  raises  collateral  issues, 
and  that  the  party  against  whom  it  may  be  offered  would  generally  be 
taken  by  surprise,  and  not  be  prepared  to  meet  it.  It  is  very  desirable 
that  the  inquiries  upon  a  trial  should  be  confined  to  the  issues  actually 
joined  between  the  parties.  They  attend  to  try  those  only;  the  attention 
of  the  jury  is  or  should  be  exclusively  directed  to  them,  and  not  adverted 
to  other  and  irrelevant  matters  which  have  a  tendency  to  confuse  their 
minds,  and  an  investigation  into  collateral  matters  would  protract  issues 
into  inconvenient  and  intolerable  length.  .  .  . 

If  there  should  be  anything  to  require  the  rejection  of  the  proposed 
evidence,  or  to  diminish  the  force  of  what  is  actually  adduced,  it  may  be 
proved,  pro^•ided  it  does  not  raise  or  tender  a  collateral  issue.     Thus  it 


304  BOOK   i:     RULES    OF   .ADMISSIBILITY  No.  205 

may  be  proved  that  a  proposed  witness  has  been  convicted  of  an  infamous 
offence  by  producing  the  record.  That  raises  no  collateral  issue  of  fact, 
as  the  record  is  conclusive,  and  there  can  be  no  further  inquiry.  But  it 
is  not  competent  to  prove  that  the  witness  has  in  fact  committed  a  crime, 
if  he  has  not  been  convicted,  —  although  the  actual  perpetration  of  the 
crime  is  what  renders  him  unworthy  of  belief.  That,  if  permitted,  might 
raise  a  collateral  issue  for  trial.  So,  too,  a  witness  may  be  asked  if  he 
has  not  perpetrated  some  offence,  or  been  guilty  of  some  moral  obliquity, 
which  would  if  true  impair  the  weight  of  his  evidence.  He  may  indeed 
refuse  to  answer  whether  he  has  been  guilty  of  an  act  which  would  render 
him  liable  to  an  indictment  or  a  prosecution  for  a  penalty,  or  of  any  act 
disconnected  with  the  main  transaction  which  would  have  a  tendency  to 
degrade  him.  But  he  may  confess  either,  at  his  option,  and  the  evidence 
would  be  admissible.  That  would  not,  however,  raise  any  issue  for  trial, 
as  whatsoever  his  answer  might  be  the  party  asking  the  question  could 
not  controvert  it.  .  .  . 

There  can  be  no  doubt  but  that,  in  ordinary  cases,  an  inquiry,  ad- 
dressed to  any  other  than  the  assailed  witness,  as  to  any  particular  act 
derogatory  to  his  character,  or  as  to  any  specific  blemish  in  his  reputation, 
should  be  excluded. 

It  was  contended  on  the  argument,  however,  that  the  rule  had  been 
relaxed  in  reference  to  the  testimony  of  the  prosecution  in  trials  for  rape, 
and  in  such  cases  the  door  had  been  opened  sufficiently  wide  to  admit  the 
evidence  offered  and  rejected  in  the  Court  below.  It  is  certainly  right 
that  the  testimony  of  the  female  preferring  the  complaint  should  be 
subjected  to  the  strictest  scrutiny  compatible  with  the  due  administration 
of  justice;  she  is  a  necessary  and  generally  the  sole  witness  of  the  trans- 
action. Experience  has  shown  that  the  charge  is  frequently  unfounded 
and  instituted  from  impure  motives.  .  .  .  They  are  permitted  to  prove 
that  the  general  character  of  the  prosecutrix  for  chastity  is  bad,  or  that 
she  had  previously  had  sexual  intercourse  with  the  accused.  In  either 
case,  the  probability  of  any  considerable  resistance  would  be  very  slight. 
.  .  .  But  the  reasons  for  the  admission  and  against  the  rejection  of 
evidence  as  to  the  general  character  of  the  prosecutrix  for  chastity,  and 
her  illicit  previous  intercourse  with  the  accused,  are  inapplicable  to  the 
proof  of  sexual  intercourse  between  her  and  another,  which  was  offered 
and  rejected  in  this  case.  ...  If  proof  of  particular  instances  should  be 
admissible,  rebutting  evidence  would  be  allowable,  and  thus  there  might 
be  one  or  more  collateral  issues  to  occupy  the  time  and  divert  the  atten- 
tion of  the  jury.  Such  would  be  the  evils  if  the  prosecution  could  require 
previous  and  timely  notice  of  the  particulars  of  the  intended  attack  upon 
the  conduct  of  the  complainant;  but  as  no  such  notice  can  be  exacted, 
there  would  be  no  means  of  meeting  the  evidence,  often  of  the  dissolute 
companions  of  the  accused,  however  mistaken  or  corrupt  it  might 
be,  and  thus  the  character  of  an  innocent  and  greatly  abused  female 
might  be  sacrificed,  and  the  ends  of  public  justice  be  defeated.     The 


No.  206  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  305 

weight   of   authority    is    decidedly   against   the   admissibility    of   such 
evidence.  .  .  . 

As  the  proffered  evidence  in  this  case  was  properly  rejected,  the  motion 
for  a  new  trial  must  be  denied,  and  the  record  must  be  remitted  to  the 
Court  of  Oyer  and  Terminer,  with  instructions  to  sentence  the  defendant 
conformably  to  his  conviction.  Proceedings  affirmed. 


206.  Lord  Castlemaine's  Trial.  (1680.  Howell's  State  Trials,  VII, 
1082).     [Treason.] 

Att.  Gen.  —  Swear  Mr.  Dangerfield. 

Pris.  —  Pray  stay. 

L.  C.  J.  ScROGGS.  —  Why  so? 

Pris.  —  Here  I  am  a  prisoner,  my  lords,  and  submit  it  to  your  lordships, 
whether  or  no  Mr.  Dangerfield,  who  hath  had  the  censure  of  this  Court,  may  be 
a  witness?  WTiether  or  no  counsel  shall  show  reasons  to  your  lordships,  whether 
he  may  speak  or  no? 

Justice  Jones.  —  You  must  show  your  exceptions  that  you  have  against 
him. 

Pris.  —  My  exception  is  this:  that  he  was  convicted  of  felony,  that  he  broke 
prison,  and  was  outlawed  upon  it.  Besides  this,  my  lord,  he  is  a  stigmatick, 
hath  stood  in  the  pillory,  and  was  burnt  in  the  hand.  .  .  . 

Just.  Jones.  —  When  was  he  outlawed? 

Att.  Gen.  —  In  the  27th  year  of  the  King,  and  we  say  he  hath  a  pardon  in 
the  30th  year  of  the  King.  ...   (A  record  produced.) 

Att.  Gen.  —  That  record  we  confess;  show  the  pardon,  show  the  pardon.  .  .  . 
(The  pardon  read:   "Decimo  tertio  die  Januarii,  Anno  Regni,  &c.")  .  .  . 

L.  C.  J.  —  Now  you  see,  my  lord,  you  think  Dangerfield  ought  not  to  be  a 
witness,  who  hath  gone  tlirough  so  many  pvmishments,  outlawed  for  felony, 
and  burnt  in  the  hand  for  felony:  Mr.  Attorney  makes  answer.  We  have  a  pardon, 
and  by  that  he  is  restored,  as  he  says,  to  be  a  witness  again.  ...  If  so  be  that 
you  should  insist  upon  it,  and  he  be  capable  of  being  a  witness,  supposing  it  so, 
yet  I  must  say  you  may  give  in  the  evidence  of  every  record  of  the  conviction 
of  any  sort  of  crimes  he  hath  been  guilty  of,  and  they  shall  be  read.  They  say 
last  day  there  were  sixteen ;  if  there  were  an  hundred  they  should  be  read  against 
him,  and  they  shall  all  go  to  invalidate  any  credit  that  is  to  be  given  to  anything 
he  shall  swear. 

Pris.  —  My  lord,  I  humbly  submit  myself  to  your  lordship,  sixteen  we  have, 
I  bring  bvit  six,  you  shall  have  them,  Mr.  Attorney,  when  you  please.  .  .  . 

L.  C.  J.  —  Wliat  think  you,  Mr.  Attorney,  if  a  man  be  convicted  of  felony, 
and  afterwards  hath  a  general  pardon,  is  he  a  witness? 

Att.  Gen.  —  Yes  truly,  my  lord,  it  signifies  the  same  thing,  my  lord,  as  to  be 
a  free  man  again.  .  .  . 

Recorder.  —  My  lord  Hobart  says,  A  pardon  takes  away  the  guilt. 

L.  C.  J.  —  It  takes  away  guilt  so  far  as  he  shall  never  be  cjuestioned;  but 
it  does  not  set  a  man  as  if  he  had  never  offended.  It  cannot  in  reason  be  said, 
a  man  guilty  of  perjury  is  as  innocent  as  if  he  had  never  been  perjured.  .  .  . 

Ati.  Gen.  —  My  lord,  if  you  please,  Mr.  Dangerfield  may  be  sworn,  if  your 
lordship  pleases.  . 


306  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  206 

L.  C.  J.  —  My  lord  shall  have  the  benefit  of  excepting  against  his  credi- 
bility. .  .  . 

Att.  Gen.  —  If  it  restore  him  to  his  credit,  I  hope  it  shall  not  blemish  him  so 
much  when  he  is  sworn,  that  he  shall  not  be  believed. 

L.  C.  J.  — We  will  not  have  any  prepossession  in  that  case,  his  crimes  shall 
be  all  taken  notice  of;  is  it  fit  to  have  men  guilty  of  all  sorts  of  villanies,  and  not 
to  observe  it  ? 

207.  Statutes.  England  (1844.  St.  6  &  7  Vict.  c.  85;  1854,  St.  17  &  18 
Vict.  c.  125,  §  103).  A  witness  in  any  cause  may  be  questioned  as  to  whether  he 
has  been  convicted  of  any  felony  or  misdemeanor;  and,  upon  being  so  ques- 
tioned, if  he  either  denies  the  fact  or  refuses  to  answer,  it  shall  be  lawful  for  the 
opposite  party  to  prove  such  conviction. 

CaUfornia.  (1872.  Code  Civ.  Pr.  §  2051).  [A  witness  is  not  impeachable] 
by  evidence  of  particular  wrongful  acts,  except  that  it  may  be  shown,  by  the 
examination  of  the  witness,  or  the  record  of  the  judgment,  that  he  has  been 
convicted  of  a  felony. 

Illinois.     (1874.  Rev.  St.  c.  51,  §  1,  c.  38,  §  426).    [Printed  ante,  in  No.  77]. 


208.   KOCH  V.   STATE 

Supreme  Court  of  Wisconsin.     1906 

126  Wis.  470;   106  N.  W.  531 

Error  to  review  a  judgment  of  the  Municipal  Court  of  Milwaukee 
County;  A.  C.  Brazee,  Judge.  Reversed.  Plaintiff  in  error  was  tried 
jointly  with  one  Meyers  upon  an  information  for  robbery  and  larceny 
from  the  person  under  §  4378,  Stats.  1898.  From  which  judgment  and 
conviction  plaintiff  in  error  sued  out  his  writ  of  error. 

W.  B.  Rubin,  for  the  plaintiff  in  error. 

For  the  defendant  in  error  there  was  a  brief  by  the  Attorney-General 
and  A.  C.  Titus,  assistant  attorney-general,  and  oral  argument  by  Mr.- 
Titus. 

Kerwin,  J.  —  The  errors  assigned  raise  the  following  questions  for 
review:  First,  the  exclusion  of  testimony.  .  .  . 

The  State  produced  as  a  witness  one  Kanter,  who  testified  to  facts 
tending  to  connect  plaintiff  in  error  with  the  crime  charged.  On  cross- 
examination  he  was  asked  the  following  question :  "  Have  you  ever  been 
arrested  and  convicted  of  being  drunk  and  disorderly?"  The  question 
was  objected  to  as  incompetent,  irrelevant,  and  immaterial,  and  the 
objection  sustained,  and  this  ruling  is  assigned  as  error.  It  is  contended 
that  the  evidence  sought  to  be  adduced  was  proper  under  §  4073,  Stats. 
1898.  ...  §  4073  provides  that  a  person  who  has  been  convicted  of  a 
criminal  offense  is,  notwithstanding,  a  competent  witness,  but  the  convic- 
tion may  be  proved  to  affect  his  credibility,  either  by  the  record  or  his 
own  cross-examination.  ...  §  1561  makes  it  a  criminal  offense,  punish- 
able by  fine  and  imprisonment,  for  any  person  to  be  found  in  any  public 


No.  208  TESTIMONIAL   EVIDENCE:     I.MPEACHMENT  307 

place  in  such  state  of  intoxication  as  to  disturb  others,  or  unable,  by  reason 
of  his  condition,  to  care  for  his  own  safety  or  the  safety  of  others.  .  .  . 

1.  At  common  law  it  was  only  convictions  of  crimes  which  rendered 
the  person  infamous  that  excluded  him  from  being  a  witness,  and  it  was 
regarded  a  point  of  no  small  difficulty  to  determine  precisely  the  crime 
which  rendered  the  perpetrator  thus  infamous.  It  was  the  infamy  of 
the  crime,  not  the  nature  or  mode  of  punishment,  that  rendered  the 
witness  incompetent.  1  Greenleaf  Evidence  (16th  ed.)  §§  372,  373; 
Bartholomew  v.  People,  104  111.  601 ;  State  v.  Taylor,  98  IVIo.  240.  The 
rule  of  the  common  law,  however,  has  been  regulated  by  legislative  enact- 
ment. In  England,  by  statute,  "a  witness  may  be  questioned  as  to 
whether  he  has  been  convicted  of  any  felony  or  misdemeanor."  3 
Taylor,  Evidence,  §  1437.  Statutes  exist  in  man}'  of  the  States  regulating 
the  subject.  In  some  States  such  statutes  have  been  held  to  remove  the 
common-law  disability  and  permit  proof  of  former  conviction  of  infavious 
crimes  only  to  affect  credibility  (Card  r.  Foot,  57  Conn.  427;  Bartholo- 
mew V.  People,  supra;  Coble  v.  State,  31  Ohio  St.  100);  while  in  other 
States  statutes  providing  that  a  party  who  has  been  convicted  of  a 
criminal  offense  may  testify,  but  that  the  conviction  may  be  proved  to 
affect  his  credibility,  apply  to  misdemeanors  as  well  as  felonies.  In  New 
York,  under  a  statute  quite  similar  to  ours,  it  is  held  that  the  statute 
was  intended  to  establish  a  uniform  rule  and  permit  the  conviction  of  a 
witness  of  any  crime  to  be  proved,  and  allow  the  effect  of  such  conviction 
upon  his  credibility  to  be  passed  upon  by  the  jury.  People  v.  Burns, 
33  Hun  296.  The  same  rule  has  been  held  in  other  States.  In  State  v. 
Sauer,  42  Minn.  258,  it  is  said:  "From  the  earliest  legislation  in  this 
State,  all  felonies  and  all  misdemeanors  have  been  denominated  as 
'  crimes,' "  and  it  is  held  that  the  conviction  of  any  crime  may  be  received 
to  affect  the  weight  of  the  witness's  testimony.  In  Massachusetts, 
under  a  statute  providing  that  "  conviction  of  any  crime  may  be  shown 
to  affect  the  credibility  of  any  person  testifying,"  it  was  held  that  the 
statute  applied  to  any  crime,  and  it  is  said:  "It  is  obvious  that  some 
offenses  that  are  not  felonies  may  affect  one's  credibility  much  more  than 
some  felonies."  See  Comm.  v.  Hall,  4  Allen  305;  Comm.  v.  Ford,  146 
Mass.  131;  Arhart  v.  Stark,  27  N.  Y.  Supp.  301. 

Our  statute  on  this  subject  (§  4073)  provides: 

"  A  person  who  has  been  convicted  of  a  criminal  offense  is,  notwith- 
standing, a  competent  witness,  but  the  conviction  may  be  proved  to 
affect  his  credibility,  either  by  the  record  or  by  his  own  cross-examination, 
upon  which  he  must  answer  any  question  relevant  to  that  inquiry,  and 
the  party  cross-examining  him  is  not  concluded  by  his  answer."  Under 
a  similar  statute  in  Missouri,  the  Court  holds  that  the  term  "criminal 
offense,"  as  used  in  the  statute,  includes  both  felonies  and  misdemeanors, 
and  that  evidence  tending  to  show  that  witnesses  had  been  convicted  of 
misdemeanors  was  competent  as  affecting  their  credibility.  State  v. 
Blitz,  171  Mo.  530.    We  think  it  clear,  therefore,  that  "  criminal  offenses," 


308  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  208 

within  the  meaning  of  §  4073,  Stats.  1898,  includes  a  misdemeanor. 
Stoltman  t'.  Lake,  124  Wis.  462;  In  re  Bergin,  31  Wis.  383;  State  v. 
BUtz,  supra;  Comra.  v.  Ford,  supra;  State  v.  Sauer,  supra;  People  v. 
Burns,  supra. 

2.  But  the  question  arises  here  whether  a  conviction  under  a  city 
ordinance  is  a  criminal  offense  within  the  meaning  of  §  4078.  §  2598 
defines  a  criminal  action  as  one  prosecuted  by  the  State  as  a  party 
against  a  person  charged  with  a  public  offense.  A  crime  or  misdemeanor 
is  defined  to  be  "  an  act  committed  or  omitted  in  violation  of  a  public 
law  either  prohibiting  or  commanding  it."  4  Bl.  Com.  5;  In  re  Bergin, 
31  Wis.  383.  ...  It  has  been  held  in  New  York,  under  a  statute  provid- 
ing that  a  person  who  has  been  convicted  of  a  crime  or  misdemeanor  is, 
notwithstanding,  a  competent  witness,  but  the  conviction  may  be  proved 
for  the  purpose  of  affecting  the  weight  of  his  testimony,  either  by  the 
record  or  upon  cross-examination,  that  a  conviction  under  a  city  ordi- 
nance M'as  not  a  conviction  of  a  misdemeanor  within  the  meaning  of 
the  statute.  Arhart  v.  Stark,  supra.  See,  also,  on  this  proposition, 
Stoltman  v.  Lake,  supra;  Coble  v.  State,  31  Ohio  St.  100;  Williams  v. 
Augusta,  4  Ga.  509;  Madison  v.  Horner,  15  S.  D.  359;  Davenport  v. 
Bird,  34  Iowa  524;  Brookville  v.  Gagle,  73  Ind.  117;  Kansas  v.  Clark, 
68  Mo.  588;  Byers  v.  Comm.  42  Pa.  St.  89;  Wiggins  v.  Chicago,  68  111. 
372.  .  .  .  We  are  therefore  forced  to  the  conclusion,  upon  principle  and 
authority,  that  the  term  "  criminal  offense,"  within  the  meaning  of  §4073, 
Stats.  1898,  includes  misdemeanors  as  well  as  felonies,  but  that  conviction 
under  a  municipal  ordinance  is  not  a  conviction  of  a  criminal  offense 
within  the  meaning  of  such  statute.  .  .  . 

It  is  contended  by  counsel  for  the  State  that  the  offense  sought  to  be 
proved  by  the  question  to  this  witness  is  not  a  criminal  offense  under 
§  4073,  Rev.  St.  1898,  because  not  made  such  in  localities  where  there  is 
a  municipal  ordinance  or  regulation  for  the  punishment  of  drunkenness, 
and  that  in  the  city  of  Milwaukee  such  offense  is  so  punishable.  We 
have  discovered  no  evidence  in  the  record  to  the  effect  that  there  is  any 
ordinance  or  regulation  upon  the  subject  in  the  city  of  Milwaukee,  nor 
is  the  question  confined  to  the  commission  of  a  criminal  offense  in  the 
city  of  Milwaukee.  So  far  as  appears  from  the  record  and  the  form  of 
the  question  asked,  the  criminal  offense  sought  to  be  proved  may  as  well 
have  been  committed  in  any  other  locality  as  in  the  city  of  Milwaukee, 
and  obviously  may  have  reference  to  the  commission  of  an  offense  some 
place  within  the  State  of  Wisconsin  where  there  was  no  municipal  ordi- 
nance or  regulation  respecting  the  matter.  §  1561  being  in  force  in  all 
parts  of  the  State,  and  the  question  not  being  confined  to  any  locality, 
it  must  be  deemed  to  have  reference  to  a  locality  where  no  municipal 
ordinance  or  regulation  had  been  passed.  .  .  . 

It  follows,  therefore,  that  the  Court  erred  in  excluding  evidence  on 
cross-examination,  in  permitting  the  verdict  to  be  amended,  and  in  deny- 
ing the  motion  for  new  trial. 


No.  210  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  309 

By  the  Court.  —  Judgment  of  the  Court  below  is  reversed,  and  the 
cause  remanded  for  a  new  trial. 


209.  OxiER  V.  United  States.  (1896.  Indian  Territory.  1  Ind.  T.  85, 
38  S.  W.  331).  Lewis,  J.  There  is  a,  clear  distinction  recognized  by  the  au- 
thorities cited  above,  between  impeaching  a  witness  by  proof  of  facts  which  dis- 
credit him,  made  independently  of  his  examination,  and  by  proof  of  the  same 
facts  elicited  in  his  cross-examination.  Proof  of  particular  facts  tending  to 
impair  his  credibility,  made  independently  of  his  own  examination,  is  excluded 
for  the  reason  that  its  admission  would  engender  a  multiplicity  of  collateral  issues, 
and  would  frequently  surprise  a  witness  witli  matter  which  he  could  not  be  pre- 
pared to  disprove.  But  these  reasons  do  not  apply  to  his  cross-examination  as 
to  the  same  facts,  because  the  witness,  better  than  any  one  else,  can  explain  the 
impeaching  matter,  and  protect  himself  to  the  extent  that  explanation  will 
protect  him ;  the  cross-examining  party  being  bound  by  his  replies.    .    .    . 

210.  R.  V.  Castro,  alias  Tichborne.  (1873.  32d  day,  Kenealy's  ed.,  I, 
396,  Report  of  the  Charge,  II,  720,  722).  [Lord  B.,  who  had  testified  to  the 
tattoo-marks  on  Roger  Tichborne,  was  cross-examined.]  Dr.  Kenealy,  counsel 
for  defendant:    Did  you  play  a  practical  joke  [on  Captain  H.]?    .    .    . 

L.  C.  J.  CocKBURN.  —  It  may  be  a  practical  joke  of  such  a  nature  that  the 
jury  would  disbelieve  the  evidence  on  his  oath,  on  its  being  made  known  to 
them.     We  must  leave  that  to  the  discretion  of  Dr.  Kenealy.    .    .    . 

Dr.  Kenealy.  —  It  was  not  a  practical  joke.     Did  you  take  away  his  wife? 

Lord  B.  —  I  cannot  answer  that  question.    .    .     . 

Dr.  Kenealy.  —  Did  you  seduce  his  wife  and  make  her  elope  from  her  hus- 
band? ...  I  am  sorry  to  have  to  ask  my  lord  to  tell  you  you  must  answer  it. 

L.  C.  J.  CoCKBURN.  —  I  certainly  shall  not. 

Dr.  Kenealy.  —  Indeed  you  must,  my  lord!  It  goes  to  the  witness'  credit.  I 
must  have  it  answered,  my  lord.  .  .  . 

L.  C.  J.  CocKBURN.  —  I  am  afraid,  if  the  question  is  pressed,  you  [the 
witness]  must  answer  it.  It  is  one  of  the  consequences  of  being  brought  into  a 
coiu-t  of  justice  as  a  witness  that  whatever  he  has  done  may  be  brought  up 
against  him. 

[Upon  charging  the  jury,  L.  C.  J.  Cockburn  adverted  to  this  examination 
as  follows]:  Lord  B.  has  committed  a  wofully  sad  sin;  .  .  .  another  man's  wife 
left  her  husband  and  joined  him,  and  they  have  lived  together.  .  .  .  [Counsel] 
asks  you  deliberately  to  come  to  the  conclusion  that  because  of  this  ofFense  Lord 
B.  is  not  to  be  believed  upon  his  oath,  —  nay,  more,  that  you  must  assume  him 
to  be  perjured.  Is  that,  do  you  think,  a  view  that  you  can  properly  adopt? 
Is  it  because  a  man  has  committed  a  breach  of  morality,  however  flagrant,  that 
those  to  whom  his  testimony  may  be  important  in  a  court  of  justice  are  to  be 
deprived  of  it?  .  .  .  There  are  crimes  and  offenses  which  savor  so  much  of  false- 
hood and  fraud  that  they  do  go  legitimately  to  the  credit  of  witnesses.  There 
are  offenses  of  a  different  character,  and  grievous  offenses  if  you  will,  but  which 
do  not  touch  that  particular  part  of  a  man's  moral  organization  —  if  I  may  use 
the  phrase  —  which  involves  truth;  and  there  is  an  essential  distinction  between 
this  species  of  fault  and  those  things  which  go  to  the  very  roof  of  honesty,  integ- 
rity, and  truth,  and  so  do  unfortunately  disentitle  witnesses  to  belief. 


310  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  211 


211.   BUEL  V.   STATE 

Supreme  Court  of  Wisconsin.     1899 

104  Wis.  132;  80  N.  W.  78 

The  accused  was  charged  with  the  murder  of  one  Nelson,  a  companion 
who  had  in  his  possession  at  the  time  a  sum  of  money.  The  further  facts 
of  the  supposed  homicide  are  stated  more  fully  in  No.  518,  post. 

Error  to  review  a  judgment  of  the  Circuit  Court  for  Sawyer  County; 
John  K.  Parish,  Circuit  Judge.     Reversed.  ^ 

The  Court  against  objection  permitted  the  prosecuting  attorney  on 
cross-examination  to  ask  the  accused  these  questions:  "Did  you  have 
any  trouble  with  any  man  there  in. that  house  while  you  were  there?" 
"  Do  you  remember  of  making  an  assault  upon  a  man  there  and  breaking 
his  arm?"  "Did  you  kill  a  man  at  Ord,  Nebraska?"  "Did  you  kill 
two  men  at  Ord,  Nebraska?"  "State  the  trouble  you  had  at  Ord  that 
caused  you  to  leave  there?"  " Did  the  insurance  company  give  you  any 
reason  for  not  giving  you  the  insurance  money?"  referring  to  the  insur- 
ance on  a  house  belonging  to  the  accused  which  was  burned.  "  Did  you 
ever  have  any  talk  with  any  of  them  that  the  reason  they  would  not  pay 
it  was  that  you  burned  the  house  yourself?  "  "  What  was  the  insurance 
on  the  house?"  To  the  last  question  the  accused  answered  $200,  and 
to  each  of  the  others  he  gave  a  negative  answer.  The  Court  frequently 
cautioned  him  tliat  he  need  not  make  answers  to  any  question  that  would 
tend  to  incriminate  him. 

For  the  plaintiff  in  error  there  was  a  brief  by ./.  B.  Alexander,  attorney, 
and  V.  W.  James,  of  counsel,  and  oral  argument  by  Mr.  Alexander. 

For  the  defendant  in  error  there  was  a  brief  by  the  Attorney-General, 
and  oral  argument  by  C.  E.  Bucll,  first  assistant  attorney-general. 

Marshall,  J.  (after  stating  the  case  as  above).  ...  It  is  argued  in 
support  of  the  conduct  of  the  trial  at  this  point,  that  on  cross-examination 
the  previous  life  and  character  of  the  witness,  especially  when  he  is  a 
party,  may  be  inquired  into  to  such  an  extent  as  in  the  sound  judgment 
of  the  trial  Court  may  seem  proper.  Such  is  undoubtedly  the  settled 
rule,  and  it  is  resorted  to  generally  where  the  person  accused  of  crime 
offers  himself  as  a  witness  in  his  own  behalf.  There  is  no  rule  by  which 
the  exercise  of  that  discretionary  power  of  the  Court  can  be  guarded  with 
exactness.  The  range  is  necessarily  broad  in  order  to  fit  the  facts  of 
particular  cases,  but  there  is  a  limit  beyond  which  it  cannot  go.  That 
limit  is  clearly  reached  and  passed  when  questions  are  asked,  manifestly, 
for  the  mere  purpose  of  creating  prejudice  in  the  minds  of  the  jurors, 
or  the  examination  is  carried  on  to  such  an  extent  and  in  such  a  manner 
as  to  become  oppressive,  and  is  not  warranted  by  anything  in  the  case. 
Questions  as  to  previous  convictions  of  criminal  offenses,  or  serving 


No.  211  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  311 

terms  in  prison  or  in  jail  from  which  convictions  will  be  presumed,  are 
uniformly  permitted  when  the  instances  are  not  too  remote,  upon  the 
theory  that  a  person  of  that  character  will  not  be  as  likely  to  testify 
truthfully  as  a  man  whose  life  has  not  been  thus  blackened.  Our  statute 
(§  4073,  Stats.  1898)  expressly  allows  that  kind  of  cross-examination. 
Questions  relating  to  mere  criminal  charges,  or  acts  which  might  be  the 
foundation  for  criminal  prosecutions,  are  usually  rejected.  They  should 
not  be  permitted  unless  there  are  circumstances  in  the  case  suggesting 
that  justice  will  or  may  be  promoted  thereby. 

It  would  be  a  clear  abuse  of  judicial  discretion  to  permit  such  questions 
where  the  indications  are  plain  that  the  purpose  is  not  to  bring  out  the 
truth  in  regard  to  the  witness's  life  and  character,  and  to  thereby  discredit 
his  testimony,  but  for  the  purpose  of  discrediting  the  witness  regardless 
of  whether  there  is  any  warrant  for  the  questions  or  not,  and  if  he  be  a 
party,  in  that  way  to  influence  the  minds  of  the  jurors  into  a  verdict 
against  him.  The  administration  of  justice  requires  that  trial  Courts 
shall  not  have  their  discretionary  powers  circumscribed  by  any  very 
narrow  boundaries,  but  does  require  that  such  limit  shall  be  placed  upon 
them  as  will  prevent  any  mere  prejudice  to  be  built  up  in  the  course  of  a 
trial,  especially  in  an  important  case  like  this,  which  will  tend  to  influence 
a  jury  to  determine  the  facts  otherwise  than  from  the  legitimate  evidence 
produced  in  Court.  It  seems  clear  that  such  limit  was  passed  in  allowing 
the  cross-examination  in  question,  to  the  extent  to  which  it  was  carried. 
It  is  one  thing  to  honestly  ask  questions  on  cross-examination  for  the 
purpose  of  discrediting  a  witness,  and  quite  another  to  ask  questions  of 
a  witness  who  is  a  party,  especially  in  a  serious  criminal  case,  for  the  pur- 
pose of  injuring  his  cause  in  the  eyes  of  the  jury,  and  leading  them  to 
believe  he  was  likely,  because  of  his  bad  character,  to  have  committed 
the  offense  charged. 

A  reading  of  the  questions  under  consideration  leads  to  the  irresistible 
conclusion  that  no  idea  was  entertained  by  the  cross-examiner  that  proof 
would  be  elicited  of  the  matters  implied  by  them.  We  say  "implied"; 
because  the  asking  of  the  direct  questions  in  the  manner  in  which  they 
were  asked  implied  to  some  degree  that  the  examiner  was  possessed  of 
information  upon  which  the  questions  were  based;  and  although  the 
answers  were  in  the  negative,  the  bad  effect  of  the  insinuations  thrown 
out  by  the  questions  was  not  and  could  not  have  been  removed  entirely 
from  the  minds  of  the  jurors.  .  .  .  The  general  rule,  that  the  previous 
life  and  character  of  a  witness  can  be  inquired  into,  must  be  preserved, 
and  the  broad  discretionary  power  of  trial  Courts  in  administering  such 
rule  fully  recognized.  The  trouble  here  is  that  the  cross-examination 
was  allowed  to  be  carried  on  manifestly  without  any  reason  except  to 
create  prejudice  against  the  accused  in  the  minds  of  the  jurors.  It 
was  well  calculated  to  have  that  effect  and  to  bear  materially  on  the 
ultimate  result,  especially  since  the  whole  case  rested  on  circumstantial 
evidence. 


312  BOOK   i:     RULES   OF   .ADMISSIBILITY  Xo.  211 

It  is  clearly  reversible  error,  that  cannot  be  overlooked  without 
lowering  the  standard  of  justice  which  it  is  the  duty  of  the  Court  to  rigor- 
ouslv  maintain. 


212.   PEOPLE   V.     CRANDALL 
Supreme  Court  of  California.     1899 

125  Cal.  129;  57  Pac.  785 

Appeal  from  a  judgment  of  the  Superior  Court  of  Los  Angeles  County 
and  from  an  order  denying  a  new  trial.  B.  N.  Smith,  Judge.  The  facts 
are  stated  in  the  opinion  of  the  Court. 

W.  H.  Shinn,  and  Earl  Rogers,  for  appellant.  IF.  F.  Fitzgerald, 
Attorney-General,  for  respondent. 

Van  Dyke,  J.  —  The  defendant  was  tried  upon  a  charge  of  murder 
and  convicted  of  manslaughter.  He  appeals  from  the  judgment  and  from 
an  order  refusing  a  new  trial.  .  .  . 

The  defendant's  wife  was  called  as  a  witness  and  gave  important 
evidence  in  his  behalf.  On  cross-examination,  for  the  avowed  purpose  of 
impeaching  her,  the  district  attorney,  against  continuous  objection  and 
protest  on  the  part  of  the  defendant,  was  allowed  to  ask  a  series  of 
questions  which,  if  answered  affirmatively,  would  disgrace  and  degrade 
the  witness.  They  were  all  wholly  collateral  and  outside  the  issues  in 
the  case,  and  did  not  refer  to  the  relation  of  the  witness  to  the  parties, 
to  the  subject  of  the  action,  or  to  the  previous  testimony  of  the  witness. 
The  asking  of  the  questions  implied,  at  least,  an  assertion  of  a  belief  on. 
the  part  of  the  attorney  that  the  witness  had  been  guilty  of  gross  im- 
morality. It  is  charged  by  the  defense  that  the  questions  were  not  asked 
for  the  purpose  of  getting  before  the  jury  the  testimony  of  the  witness 
upon  the  subject  of  investigation,  but  to  insinuate  damaging  charges 
against  the  witness,  which,  by  the  rules  of  evidence,  neither  the  witness 
nor  the  party  could  rebut,  save  by  the  denials  of  the  witness,  whose 
credibility  was  affected  by  the  insinuations.  That  this  charge  was  well 
founded  is  proven  beyond  cavil  by  the  record.  She  was  asked  by  a  great 
variety  of  questions  if  she  did  not  live  by  prostitution.  She  was  ques- 
tioned in  reference  to  particular  times  and  places,  and  to  particular  men, 
and  as  to  whether  she  did  not  practice  special  modes  of  solicitation  for 
immoral  purposes.  To  all  these  questions  the  witness  answered  in  the 
negative. 

The  defendant's  contention,  that  by  the  decisions  in  this  State  this 
line  of  cross-examination  is  not  allowable,  is  correct.  Sec.  2051  of  the  Code 
of  Civil  Procedure  says: 

"A  witness  may  be  impeached,  by  the  party  against  whom  he  was  called, 
by  contradictory  evidence,  or  by  evidence  that  his  general  reputation  for  truth, 
honesty  or  integrity  is  bad,  but  not  by  evidence  of  particular  ^Tongful  acts, 


No.  212  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  313 

except  that  it  may  be  shown  by  the  examination  of  the  witness,  or  the  record 
of  the  judgment,  that  he  had  been  convicted  of  a  felony." 

In  other  States  there  is  apparently  a  conflict  of  decisions  upon  the 
subject.  (See  Carroll  v.  State,  32  Tex.  Crim.  App.  431,  40  Am.  St.  Rep. 
786,  where  the  matter  is  discussed,  and  the  cases  cited.)  But  while  there 
is  a  contro\ersy  as  to  whether  such  questions  can  be  permitted,  there  is 
no  difference  in  holding  that  when  allowed  the  answer  of  the  witness  must 
be  accepted  as  conclusive.  In  asking  such  questions  the  questioner  takes 
that  risk,  and  justly  so,  because  under  the  rules  of  evidence  no  other 
witness  can  be  allowed  to  testify  upon  the  subject.  ...  It  has  further 
been  repeatedly  held  [in  this  State]  that  such  collateral  matters  cannot 
be  gone  into,  even  upon  cross-examination.  Sec.  2051  of  the  Code  of  Civil 
Procedure  expressly  forbids  the  impeachment  of  a  witness  "  by  evidence 
of  particular  wrongful  acts."  .  .  . 

In  the  case  under  consideration,  after  the  prosecuting  officers  had  gone 
out  of  their  way  in  putting  such  questions,  which  were  negatively  an- 
swered, and  which  answers  under  all  rules  are  made  conclusive  of  the 
facts,  they  proceeded  in  their  argument  to  insinuate  to  the  jury  that  the 
answers  were  not  true.  This  demonstrated  conclusively  that  the  purpose 
of  asking  the  improper  questions  was  to  make  insinuations  against  the 
character  of  the  witness,  and  not  to  impeach  her  testimony,  and  by  this 
improper  mode  of  procedure  to  prejudice  the  defendant.  .  .  . 

Judgment  and  order  reversed  and  cause  remanded  for  a  new  trial. 

Garoutte,  J.,  McFarland,  J.,  and  Harrison,  J.,  concurred. 

Temple,  J.,  concurring.  —  I  concur  in  the  judgment  and  in  the 
opinion  of  Mr.  Justice  Van  Dyke,  except  that  I  do  not  agree  that  ques- 
tions irrelevant  to  the  issues  in  a  case,  asked  for  the  purpose  of  discrediting 
a  witness,  can  never,  in  the  discretion  of  the  trial  judge,  be  asked  of  a 
witness. 

It  is  said  that  §§  2051  and  2052  of  the  Code  of  Civil  Procedure  pro- 
hibit such  evidence.  In  express  terms  these  sections  certainly  do  not. 
It  is  stated  that  a  witness  may  be  impeached:  1.  By  contradictory 
evidence;  2.  By  evidence  that  his  general  reputation  for  honesty  and 
integrity  is  bad;  and  3.  By  proving  inconsistent  statements.  Other 
modes  of  impeachment  are  not  expressly  prohibited,  and  ever  since  the 
existence  of  the  statute  other  modes  have  been  freely  resorted  to.  .  .  . 
The  statute  has,  in  fact,  never  been  treated  as  prohibiting  other  usual 
modes  of  impeachment.  .  .  . 

We  all  agree  that  a  witness  cannot  be  asked  questions  merely  for  the 
purpose  of  degrading  him;  and  while  there  has  been  much  controversy 
as  to  admissibility  of  such  evidence,  no  one  contends  that  a  party  has 
an  absolute  right  to  indulge  in  such  examination.  It  is  not  permissible 
to  go  into  the  former  life  of  a  witness  and  unnecessarily  drag  to  light 
ancient  scandals.  The  matter  is  almost  entirely  within  the  discretion 
of  the  trial  Court,  and  such  examination  should  be  permitted  only  when 
and  so  far  as  it  seems  to  be  required  for  the  ends  of  justice.  .  .  .  Rice  in 


314  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  212 

his  work  on  Evidence  considers  the  question  quite  elaborately.  He 
states  the  rule  to  be  that:  "Such  questions  should  be  allowed  when 
there  is  reason  to  beliexe  it  may  tend  to  promote  the  ends  of  justice; 
but  they  may  be  properly  excluded  when  a  disparaging  course  of  exami- 
nation seems  unjust  to  the  witness  or  uncalled  for  by  the  circumstances 
of  the  particular  case."  He  cites  the  case  of  Great  Western  etc.  Co.  v. 
Loomis,  32  N.  Y.  127,  where  the  discretion  of  the  trial  Court  is  asserted 
[in  the  following  language,  by  Porter,  J. : 

"  It  has  been  understood,  that  the  range  of  irrelevant  inquiry,  for  the  purpose 
of  degrading  a  witness,  was  subject  to  the  control  of  the  presiding  judge;  who 
was  bound  to  permit  such  inquiry,  when  it  seemed  to  him,  in  the  exercise  of  a 
sound  discretion,  that  it  w'ould  promote  the  ends  of  justice,  and  to  exclude  it, 
when  it  seemed  unjust  to  the  witness,  and  uncalled  for  by  the  circumstances  of 
the  case.  The  judgment  now  under  review  was  rendered,  on  the  assumption, 
that  it  is  the  absolute  legal  right  of  a  litigant  to  assail  the  character  of  every 
adverse  wntness,  to  subject  him  to  degrading  inquiries,  to  make  inquisition  into 
his  life,  and  drive  him  to  take  shelter  under  his  privilege,  or  to  self-vindication 
from  unworthy  imputations,  wholly  foreign  to  the  issue  on  which  he  is  called 
to  testify.     See  Elliott  r.  Boyles,  31  Penn.  St.  66-7. 

"The  practical  effect  of  svich  a  rule  would  be,  to  make  every  witness  depend- 
ent on  the  forbearance  of  adverse  counsel,  for  that  protection  from  personal 
indignity  which  has  been  hitherto  secured  from  the  Courts,  unless  the  circum- 
stances of  the  particular  case  made  collateral  inquiries  appropriate.  This  rule, 
if  established,  will  be  applicable  to  every  tribunal  having  original  jurisdiction. 
It  will,  perhaps,  operate  most  oppressively  in  trials  before  inferior  magistrates, 
where  the  parties  appear  in  person,  or  are  represented  V>y  those  who  are  free  from 
a  sense  of  professional  responsibility.  But  it  may  well  be  questioned,  whether, 
even  in  our  courts  of  record,  it  would  be  safe  or  wise,  to  withdraw  the  control 
of  irrelevant  inquiry  from  the  judge,  and  commit  it  to  the  discretion  of  adverse 
counsel.  The  interposition  of  the  Court  has  often  been  necessary  to  protect 
witnesses  from  the  rigor  of  examinations,  conducted  on  the  supposition  that 
they  were  entitled  to  such  protection.  When  this  power  of  protection  is  with- 
drawn, is  it  to  be  expected,  that  counsel,  deeply  enlisted  for  their  clients,  and 
zealous  to  maintain  their  rights,  would  feel  bound  to  exercise  toward  witnesses 
a  forbearance  which  the  courts  themselves  refuse?  .  .  .  Few  men  of  character, 
or  women  of  honor,  could  suppress,  even  on  the  witness-stand,  the  spirit  of  just 
resentment,  which  such  an  examination,  on  points  alien  to  the  case,  would  natu- 
rally tend  to  arouse.  The  indignation  with  which  sudden  and  unworthy  imputa- 
tions are  repelled,  often  leads  to  injurious  misconstruction.  A  question,  which 
it  is  alike  degrading  to  answer  or  decline  to  answer,  should  never  be  put,  unless, 
in  the  judgment  of  the  Court,  it  is  likely  to  promote  the  end  of  justice.  .  .  . 

"Much  confusion  and  conflict  in  the  treatment  of  this  subject  is  apparent  in 
the  English  text-books,  as  well  as  our  own.  This  is  mainly  due  to  the  fact,  that 
the  question  usually  arises  only  at  nisi  prius.  .  .  .  The  decisions  in  these,  as  in 
all  other  cases,  resting  in  mere  discretion,  have  been,  of  coiu-se,  inharmonious, 
according  to  the  views  of  different  judges,  and  the  varying  circumstances  of  the 
cases  in  which  the  question  was  presented.  The  text-\\Titers,  as  well  as  the 
judges,  differ  in  their  views  as  to  the  rules  which  should  control  the  exercise  of 
this  discretion;    some  being  predisposed  in  favor  of  the  liberal  allowance  of 


No.  213  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  315 

Irrelevant  erimination,  and  others  preferring  the  practice  of  rigid  exclusion.  .  .  . 
But  when  we  reflect,  tliat  hoth  authors,  in  what  they  wrote,  had  in  view  the  exist- 
ing practice  of  England,  by  which  the  limits  of  collateral  examination  were  under 
the  control  of  the  presiding  judge,  the  seeming  conflict  disappears,  and  their 
respective  conclusions  harmonize  with  each  other,  and  with  the  cases  on  which 
they  rest.  It  is  entirely  true,  as  affirmed  by  Roscoe,  that  inquiries  on  irrelevant 
topics,  to  discredit  the  witness,  may  be  permitted  on  the  trial,  in  the  discretion 
of  the  judge;  and  ecjually  true,  as  affirmed  by  Peake,  that  such  incjuiries  may  be 
excluded,  without  infringing  any  legal  right  of  the  parties."] 

Nor  do  I  admit  that  a  different  rule  has  been  established  here.  Most 
of  the  cases  cited  have  no  bearing  upon  the  general  proposition.  Of 
course,  such  examination  is  not  allowable  in  every  case.  Where  it  is 
manifest,  as  in  People  v.  Wells,  100  Cal.  462,  and  in  People  v.  Un  Dong, 
106  Cal.  88,  that  the  examination  was  not  for  the  purpose  of  proving  the 
immorality,  but  to  prejudice  by  insulting  questions,  it  should  not  be 
tolerated,  and  it  would  be  error  to  permit  it.  .  .  . 

Henshaw,  J.,  and  Beatty,  C.  J.,  concurred. 


213.   STATE  V.   GREENBURG 

Supreme  Court  of  Kansas.     1898 

.59  Knn.  404;   53  Pac.  61 

Appeal  from  Bourbon  District  Court.  Walter  L.  Simons,  Judge. 
Opinion  filed  May  7,  1898.     Affirmed. 

J.  I.  Sheppard,  County  Attorney,  for  the  State.  IF.  R.  Biddle  and 
Perry  &  Grain,  for  appellant. 

Johnston,  J.  —  Jacob  Greenburg  was  convicted  in  the  District 
Court  of  Bourbon  County  of  feloniously  receiving  stolen  goods,  knowing 
them  to  have  been  stolen.  The  punishment  imposed  was  imprisonment 
in  the  State  Penitentiary  for  a  period  of  two  and  one-half  years.  Upon 
this  appeal  he  complains : 

1.  Of  rulings  made  in  the  admission  of  testimony.  The  county 
attorney  was  a  witness  for  the  State  and  gave  considerable  testimony 
in  narrative  form,  some  of  which  may  have  been  open  to  objection,  but 
no  objection  thereto  was  made  nor  was  any  exception  saved.  Me^er 
Berkson,  who  testified  in  behalf  of  the  defendant,  was  cross-examined 
as  to  his  past  life  and  conduct,  with  a  view  of  impairing  his  credit,  and, 
after  he  had  stated  that  he  had  been  under  arrest,  he  was  asked  what  he 
had  been  arrested  for,  when  an  objection  was  made  that* the  record  was 
the  best  evidence,  and  further  that  it  was  only  a  civil  arrest.  No  other 
or  more  specific  objection  was  made.  The  defendant  went  upon  the 
witness-stand  and  testified  in  his  own  behalf.  He  stated  in  answer  to  an 
inquiry,  without  objection,  that  he  had  previously  been  under  arrest  in 
Fort  Scott.     When  asked  the  cause  for  his  arrest,  an  ol^iection  was  made 


316  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  213 

that  it  was  a  civil  arrest  and  that  his  testimony  was  not  the  best  exddence 
of  it.  These  were  the  only  objections  made,  and  in  both  instances  they 
were  overruled.  Each  of  the  witnesses  testified  that  he  had  been  arrested 
several  times  upon  charges  of  fraud. 

Granting  that  the  objections  were  sufficient  to  raise  the  question, 
the  testimony  was  permissible  under  the  rule  which  has  long  been  recog- 
nized in  this  State.  For  the  purpose  of  judging  the  character  and  credit 
of  a  witness,  he  may  be  cross-examined  as  to  specific  facts  tending  to 
disgrace  or  degrade  him,  although  collateral  to  the  main  issue  and  touch- 
ing on  matters  of  record.  Such  questions  are  allowed  when  there  is 
reason  to  believe  that  allowing  them  will  tend  to  the  ends  of  justice  and 
they  are  asked  for  the  purpose  of  honestly  discrediting  the  witness.  It 
is  the  duty  of  the  Court  to  see  that  the  rule  is  not  abused  or  the  cross- 
examination  unreasonably  extended,  ^^^len  the  defendant  became  a 
witness  in  his  own  behalf  he  took  the  hazard  of  such  questions,  and  could 
be  subjected  to  the  same  tests  and  be  discredited  in  the  same  way  as  any 
other  witness.  The  State  v.  Pfefferle,  36  Kan.  90;  The  State  v.  Probasco, 
46  id.  310;  The  State  v.  Wells,  54  id.  161;  The  State  v.  Park,  57  id.  431; 
Hanoff  V.  The  State,  37  Ohio  St.  178;  Brandon  v.  The  People,  42  N.  Y. 
265.  .  .  . 

The  judgment  of  the  District  Court  will  be  affirmed. 

DosTER,  C.  J.  (dissenting).  —  I  dissent  from  the  application  of  the 
first  syllabus  to  the  facts  of  this  case.  ...  As  raising  the  question  whether, 
for  the  purpose  of  judging  of  the  character  and  credit  of  a  witness,  he 
may  be  asked  if  he  had  been  formerly  arrested.  I  have  positive  con- 
victions that  he  cannot  be  so  asked. 

An  arrest  is  nothing  more  than  an  accusation  of  crime  or  other  act  of 
turpitude.  That  it  is  made  in  the  form  of  a  forcible  restraint  of  the 
person,  based  upon  a  sworn  complaint,  makes  it,  for  purposes  of  disgrace 
or  discredit,  no  stronger  evidence  of  the  truth  of  the  accusation  than  an 
oral  statement  by  the  accuser  would  be.  No  one  would  contend  that  a 
witness  could  be  asked  whether  another  person  had  not  orally  accused 
him  of  crime.  Why  should  the  rule  be  different  when  the  accusation 
has  been  written  out  and  sworn  to?  It  is  but  an  accusation  in  each  case. 
Why  should  it  be  different  when  the  sworn  accusation  is  followed  by  an 
arrest?  The  arrest  is  but  a  reassertion  of  the  accusation  in  another  form. 
It  is  quite  different,  however,  when  the  accusation  has  been  proved. 
When  the  proceeding  has  passed  from  accusation  to  conviction,  evidence 
of  the  turpitude  of  the  witness  exists;  —  not  what  somebody  said  of  him, 
but  what  the  judicial  tribunals  sitting  in  judgment  upon  the  accusation 
have  found  against  him.  He  may  be  asked  whether  he  has  been  con- 
victed of  crime ;  but  he  ought  not  to  be  asked  whether  he  has  been  accused 
of  crime.  Conviction  is  evidence  of  his  baseness.  Accusation  is  only  an 
insinuation  against  his  character.  Three  of  the  four  former  decisions  of 
this  Court  cited  in  the  foregoing  opinion  of  the  majority  were  cases  in 


No.  214  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  317 

which  the  admissibiUty  of  convictions,  not  accusations,  was  upheld. 
In  the  other  one  the  witness  was  asked  as  to  the  fact  of  his  commission 
of  an  offense.  That,  of  course,  was  equally  permissible  as  a  question 
relating  to  conviction  would  be.  There  has  been,  therefore,  up  to  this 
time,  no  rule  upon  the  subject  in  this  State;  and  in  my  judgment  there 
are  no  well  considered  decisions  in  other  States  sustaining  the  majority 
opinion  in  this  case. 

214.  Sir  James  Stephen.  History  of  the  Criminal  Law.  (1883.  Vol.  I,  p. 
433).  The  most  difficult  point  as  to  cross-examination  is  the  question  how  far  a 
witness  may  be  cross-examined  to  his  credit  by  being  asked  about  transactions 
irrelevant  to  the  matter  at  issue,  except  so  far  as  they  tend  to  show  that  the  wit- 
ness is  not  to  be  believed  upon  his  oath.  No  doubt  such  questions  may  be  oppress- 
ive and  odious.  They  may  constitute  a  means  of  gratifying  personal  malice 
of  the  basest  kind,  and  of  deterring  witnesess  from  coming  forward  to  discharge 
a  duty  to  the  public.  At  the  same  time  it  is  impossible  to  devise  any  rule  for 
restricting  the  latitude  which  at  present  exists  upon  the  subject,  without  doing 
cruel  injustice.  I  have  frequently  known  cases  in  which  evidence  of  decisive 
importance  was  procured  by  asking  people  of  apparent  respectability  questions 
which,  when  first  put,  appeared  to  be  offensive  and  insulting  in  the  highest  degree. 
I  remember  a  case  in  which  a  solicitor's  clerk  was  indicted  for  embezzlement. 
His  defence  was  that  his  employer  had  brought  a  false  charge  against  him  to 
conceal  (I  think)  forgery  committed  by  himself.  The  employer  seemed  so  re- 
spectable and  the  prisoner  so  discreditable  that  the  prisoner's  coimsel  returned 
his  brief  rather  than  ask  the  questions  suggested  by  his  client.  The  prisoner 
thereupon  asked  the  questions  himself,  and  in  a  very  few  minutes  satisfied  every 
person  in  court  that  what  he  had  suggested  was  true.  ...  It  is  also  to  be  remem- 
bered that  cross-examination  to  credit  may  be  conducted  in  very  different  ways. 
It  is  one  thing  to  throw  an  insulting  question  coarsely  and  roughly  in  the  face  of 
a  witness.  It  is  quite  another  thing  to  follow  up  a  point  by  questions  jvistified 
by  the  circumstances.  .  .  . 

The  most  difficult  cases  of  all  are  those  in  which  the  imputation  is  wek 
founded,  but  is  so  slightly  connected  with  the  matter  in  issue  that  its  truth  ought 
not  to  affect  the  credibility  of  the  witness  in  reference  to  the  matter  on  which  he 
testifies.  The  fact  that  a  woman  had  an  illegitimate  child  at  eighteen  is  hardly 
a  reason  for  not  believing  her  at  forty,  when  she  swears  that  she  locked  up  her 
house  safely  when  she  went  to  bed  at  night,  and  found  the  kitchen  window  broken 
open  and  her  husband's  boots  gone  when  she  got  up  in  the  morning.  Cases, 
however,  may  be  imagined  in  which  a  real  connection  may  be  traced  between 
acts  of  profligacy  and  a  man's  credibility  on  matters  in  no  apparent  way  con- 
nected with  them.  Seduction  and  adultery  usually  involve  as  gross  a  breach  of 
faith  as  perjury,  and  if  a  man  claimed  credit  on  any  subject  of  importance,  the 
fact  that  he  had  been  convicted  of  perjury  would  tend  to  discredit  him. 

No  general  rule  can  be  laid  down  in  matters  of  this  sort.  All  that  can  be 
said  is  that  whilst  the  power  of  cross-examining  to  a  witness's  credit  is  essential 
to  the  administration  of  justice,  it  is  of  the  highest  importance  that  both  judges 
and  counsel  should  bear  in  mind  the  abuse  to  which  it  is  liable,  and  should  do 
their  best  not  to  ask,  or  permit  to  be  asked,  questions  conveying  reproaches  upon 
character,  except  in  cases  in  which  there  is  a  reasonable  ground  to  believe  that 
they  are  necessary. 


318  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  214 

The  Same  Author.  Digest  of  the  Law  of  Evidence,  3rd  ed.  Note  XLVI  to 
Artiele  129,  Limits  of  Cross-examination.  This  article  states  a  practice  which 
is  now  common,  and  which  never  was  more  strikingly  illustrated  than  in  the 
case  referred  to  in  the  illustration  [R.  v.  Castro,  ante,  No.  210].  But  the  prac- 
tice which  it  represents  is  modern;  and  I  submit  that  it  requires  the  qualification 
suggested  in  the  text  [i.e.,  that  the  Court  has  discretion  to  set  limits].  I  shall 
not  believe,  unless  and  until  it  is  so  decided  upon  solemn  argument,  that  by  the 
law  of  England  a  person  who  is  called  to  prove  a  minor  fact,  not  really  disputed, 
in  a  case  of  little  importance,  thereby  exposes  himself  to  having  every  transac- 
tion of  his  past  life,  however  private,  inquired  into  by  persons  who  may  wish 
to  serve  the  basest  purposes  of  fraud  or  revenge  by  doing  so.  .  .  .  If  this  is  the 
law,  it  should  be  altered.  The  following  section  of  the  Indian  Evidence  Act 
(I  of  1872)  may  perhaps  be  deserving  of  consideration.  After  authorising  in 
§  147,  questions  as  to  the  credit  of  the  witness,  the  Act  proceeds  as  follows,  in 
§148:- 

"If  any  such  question  relates  to  a  matter  not  relevant  to  the  suit  or  proceed- 
ing, except  so  far  as  it  affects  the  credit  of  the  witness  by  injuring  his  character, 
the  Court  shall  decide  whether  or  not  the  witness  shall  be  compelled  to  answer 
it,  and  may,  if  it  thinks  fit,  warn  the  witness  that  he  is. not  obliged  to  answer  it. 
In  exercising  this  discretion,  the  Court  shall  have  regard  to  the  following  con- 
siderations : 

"  (1)  Such  questions  are  proper  if  they  are  of  such  a  nature  that  the  truth  of 
the  imputation  conveyed  by  them  would  seriously  affect  the  opinion  of  the  Court 
as  to  the  credibility  of  the  witness  on  the  matter  to  which  he  testifies. 

"  (2)  Such  questions  are  improper  if  the  imputation  which  they  convey  relates 
to  matters  so  remote  in  time  or  of  such  a  character  that  the  truth  of  the  imputa- 
tion would  not  affect,  or  would  affect  in  a  slight  degree,  the  opinion  of  the  Court 
as  to  the  credibility  of  the  witness  on  the  matter  to  which  he  testifies. 

"  (3)  Such  questions  are  improper  if  there  is  a  great  disproportion  between 
the  importance  of  the  imputation  made  against  the  witness's  character  and  the 
importance  of  his  evidence." 

Order  XXXVL,  rule  38  [Rules  of  Court,  1883],  expressly  gives  the  judge  a 
discretion  which  was  much  wanted,  and  which  I  believe  he  always  possessed. 


Sub-topic  C.     Contradiction  and  Self-Contradiction  ^ 

216.  Whitebread's  Trial.  (1679.  Howell's  State  Trials,  VII,  311,  374). 
[The  Popish  Plot.  The  defendant  offered  to  prove  that  the  principal  crown  wit- 
ness, Oates,  had  made  a  false  statement  as  to  his  companions,  in  his  testimony 
at  a  prior  trial  of  one  Ireland  for  the  same  Popish  Plot.] 

L.  C.  J.  North.  —  That  is  nothing  to  the  piu-pose.  If  you  can  contradict 
him  in  anything  that  hath  been  sworn  here,  do. 

Defendant.  —  If  we  can  prove  him  a  perjured  man  at  any  time,  we  do  our 
business. 

L.  C.  J.  North.  —  How  can  we  prove  one  cause  in  another?  .  .  .  Can  he 
come  prepared  to  make  good  everything  that  he  hath  said  in  his  life? 

^  For  the  principles  of  Logic  and  Psychology  applicable  to  this  topic,  with 
copious  further  illustrations,  see  the  present  Compiler's  "Principles  of  Proof" 
(1913),  Nos.  314-355. 


No.  218  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  319 

Another  defendant.  —  All  that  I  say  is  this,  If  he  be  not  honest,  he  can  be 
witness  in  no  case. 

L.  C.  J.  North.  —  But  how  will  you  prove  that?  Come  on,  I  will  teach  you 
a  little  logic.  If  you  will  come  to  contradict  a  witness,  you  ought  to  do  it  in  a 
matter  which  is  the  present  debate  here;  for  if  you  would  convict  him  of  any- 
thing that  he  said  in  Ireland's  trial,  we  must  try  Ireland's  cause  over  again. 

217.  Earl  of  Castlemaine's  Trial.  (1680.  Howell's  State  Trials,  VII, 
1067,  1101.)  [Treason.  The  chief  witness  for  the  prosecution,  Titus  Gates,  was 
cross-examined  as  to  having  said  things  about  the  accused's  divorce,  and  wit- 
nesses were  then  called  by  the  defendant  to  contradict  his  answers.]  Attorney- 
General  (objecting).  If  he  may  ask  questions  about  such  foreign  matters  as  this, 
no  man  can  justify  himself;  .  .  .  any  man  may  be  catched  thus.  Defendant. 
How  can  a  man  be  catched  in  the  truth? 

L.  C.  J.  ScROGGS.  —  We  are  not  to  hearken  to  it.  The  reason  is  this,  first: 
You  must  have  him  perjured,  and  Ave  are  not  now  to  try  whether  that  thing  sworn 
in  another  place  be  true  or  false;  because  that  is  the  way  to  accuse  whom  you 
please,  and  that  may  make  a  man  a  liar  that  cannot  imagine  this  will  be  put  to 
him;  and  so  no  man's  testimony  that  comes  to  be  a  witness  shall  leave  himself 
safe. 

218.   ATTORNEY-GENERAL  v.  HITCHCOCK 
Exchequer.  1847 
1  Exch.  91 

Information  at  the  suit  of  the  Attorney-General,  which  charged  the 
defendant,  a  maltster,  with  having  used  a  certain  cistern  for  making  malt 
without  having  previously  entered  it,  as  required  by  statute. 

At  the  trial,  before  Pollock,  C.  B.,  a  witness  of  the  name  of  Spooner, 
who  deposed  to  the  fact  of  the  cistern  having  been  used  by  the  defendant, 
w^as  asked,  on  cross-examination  by  the  defendant's  counsel,  whether  he 
had  not  said  that  the  officers  of  the  Crown  had  offered  him  £20  to  say 
that  the  cistern  had  been  used.  Spooner  denied  having  said  so,  and 
thereupon  the  defendant's  counsel  proposed  to  ask  another  witness  of 
the  name  of  Cook,  whether  Spooner  had  not  said  so.  The  Attorney- 
General  objected  to  this  question,  and  the  Lord  Chief  Baron,  being  of 
opinion  that  the  question  was  irrelevant  to  the  issue,  and  that  it  also 
tended  to  raise  a  collateral  issue,  held  the  objection  good,  and  ruled  that 
it  could  not  be  put. 

Borill  obtained  a  rule  for  a  new  trial,  on  the  ground  that  this  evidence 
was  improperly  rejected,  and  cited  Meagoe  v.  Simmons,  3  C.  &  P.  75,  and 
Yewin's  Case,  2  Campb.  638,  note. 

The  Attorney-General  (J.  Wilde  with  him)  showed  cause.  —  This  is  a 
very  important  question,  and  one  which  is  not  directly  affected  by  any 
decided  cases;  for  such  as  are  applicable  to  it,  which  are  mere  Nisi  Prius 
decisions,  cannot  be  said  to  lay  down  any  definite  principle  or  fixed  rule 
by  which  this  case  can  be  governed.     The  principle  upon  which  it  must 


320  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  218 

depend  is  correctly  laid  down  in  Phillipps  on  Evidence,  where  it  is  stated 
that  "  it  is  a  general  rule  that  a  witness  cannot  be  cross-examined  as  to 
any  fact,  which,  if  admitted,  would  be  wholly  collateral,  and  wholly 
irrelevant  to  the  matters  in  issue,  for  the  purpose  of  contradicting  him 
by  other  evidence,  and  in  this  manner  to  discredit  his  testimony.  And 
if  the  witness  answer  such  an  irrelevant  question  before  it  is  disallowed 
or  withdrawn,  evidence  cannot  afterwards  be  admitted  to  contradict  his 
testimony  on  the  collateral  matter.  The  point  for  consideration,  there- 
fore, is,  what  ciuestion,  or  what  matter  is  wholly  irrelevant?"  2  Phillipps 
on  Evidence,  9th  ed.  p.  398.  This  is  the  correct  rule,  and  the  criterion 
of  relevancy  depends,  as  it  is  submitted,  upon  this,  —  Could  the  defend- 
ant substantially  have  proved,  as  a  part  of  his  own  case,  that  the  witness 
had  said  what  was  imputed  to  him  by  the  question?  .  .  . 

Bovill,  in  support  of  the  rule.  —  The  evidence  was  improperly  re- 
jected. It  was  admissible  to  show  the  motives  of  the  witness,  and  also 
to  contradict  his  statements  made  upon  oath,  and  thereby  to  show  that 
he  was  guilty  of  perjury.  A  witness  may  be  contradicted  on  any  matter, 
provided  it  be  not  collateral  to  the  subject  of  inquiry,  and  this  is  the  only 
limitation.  .  .  .  The  case  of  Spencely  v.  De  Willot,  7  East  108,  was  a 
penal  action  for  usury,  where  the  defendant's  counsel  were  not  permitted 
to  cross-examine  as  to  other  contracts  made  on  the  same  day  with  other 
persons,  in  order  to  show  that  the  contracts  in  question  were  of  the  same 
nature,  and  not  usurious,  if  the  witness  answered  one  way,  or  to  contra- 
dict him  if  he  answered  the  other,  —  proceeds  thus :  —  "  And  should 
such  questions  be  answered,  evidence  cannot  afterwards  be  adduced  for 
the  purpose  of  contradiction.  The  same  rule  obtains,  if  a  question  as  to 
•  a  collateral  fact  be  put  to  a  witness  for  the  purpose  of  discrediting  his 
testimony;  his  answer  must  be  taken  as  conclusive,  and  no  evidence  can 
afterwards  be  admitted.  This  rule  does  not  exclude  the  contradiction 
of  the  witness  as  to  any  facts  immediately  connected  with  the  subject 
of  the  inquiry."  .  .  .  There  must,  no  doubt,  be  some  connection  with 
the  particular  matter  of  inquiry,  in  order  to  give  the  power  of  contra- 
dicting the  witness.  Here  the  question  is  sufficiently  connected,  both 
with  reference  to  the  motives  which  influence  and  act  upon  the  mind  of 
the  witness,  and  as  impeaching  his  testimony  on  a  point  which  is 
materially  connected  with  the  inquiry.  The  question  in  dispute  is  the 
use  of  the  cistern,  and  this  person  being  a  witness  to  prove  the  use  of  it, 
and  being  on  his  trial  as  to  his  veracity  on  that  subject,  every  expression 
uttered  by  him,  as  to  its  use,  is  not  collateral,  but  is  most  materially 
connected  with  the  matter  in  dispute.  It  is  submitted,  therefore,  that 
for  these  reasons  the  evidence  should  have  been  received.  .  .  .  Yewin's 
Case  is  an  authority  to  show  that  the  witness  is  interested  by  some  motive 
which  may  influence  his  testimony.  In  Lord  Stafford's  Case,  7  How. 
St.  Tr.  1400,  proof  w^as  admitted,  on  the  part  of  the  prisoner,  that  Dug- 
dale,  one  of  the  witnesses  for  the  prosecution,  had  endeavored  to  suborn 
witnesses  to  give  false  evidence.     (Pollock,  C.  B.  —  If  it  had  been 


No.  218  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  321 

sought  to  inquire  from  tlie  witness  Spooner  whether  he  had  offered  a 
bribe  to  another  witness,  the  cases  would  have  been  parallel.  Alderson, 
B.  —  You  endeavor  to  fix  the  corrupt  state  of  mind  upon  the  person  to 
whom  the  offer  is  made,  and  not  upon  him  who  makes  the  offer.  The 
offer,  without  the  acceptance,  is  nothing,  as  regards  the  person  to  whom 
the  offer  is  made.)  It  is  not  contended  that  the  acceptance  has  any 
bearing  on  the  present  issue. 

Pollock,  C.  B.  —  I  am  of  opinion  that  this  rule  should  be  discharged; 
and  I  may  also  add,  that  my  brother  Parke,  expressed  himself  to  be  of 
that  opinion  before  he  left  the  Court.  The  question  is,  whether  the 
witness  Spooner,  who  had  been  asked  if  he  had  not  said  that  the  officer 
had  offered  him  a  bribe  for  the  purpose  of  saying  that  the  cistern  had 
been  used,  and  who  stated  that  he  had  not  said  so,  could  be  contradicted 
by  asking  the  other  witness.  Cook,  if  Spooner  had  not  made  that  state- 
ment to  him?  .  .  . 

In  this  case  it  is  admitted,  that,  with  reference  to  the  offering  of  a 
bribe,  it  could  not  originally  have  been  proved  that  the  offer  of  the  bribe 
had  been  made  to  the  witness  to  make  a  particular  statement,  the  bribe 
not  having  been  accepted  by  him.  And  the  reason  is,  that  it  is  totally 
irrelevant  to  the  matter  in  issue,  that  some  person  should  have  thought 
fit  to  offer  a  bribe  to  the  witness  to  give  an  untrue  account  of  a  trans- 
action, and  it  is  of  no  importance  whatever,  if  that  bribe  was  not 
accepted.  It  is  no  disparagement  to  a  man  that  a  bribe  is  offered  to 
him:  it  may  be  a  disparagement  to  the  person  who  makes  the  offer. 
If,  therefore,  the  witness  is  asked  the  fact,  and  denies  it,  or  if  he  is 
asked  whether  he  said  so  and  so,  and  denies  it,  he  cannot  be  contra- 
dicted as  to  what  he  has  said.  Lord  Stafford's  Case  was  totally  dif- 
ferent. There  the  witness  himself  had  been  implicated  in  offering  a 
bribe  to  some  other  person.  That  immediately  affected  him,  as  prov- 
ing that  he  had  acted  the  part  of  a  suborner  for  the  purpose  of  per- 
verting the  truth. 

My  view  has  alwa^-s  been  that  the  test  whether  the  matter  is  collateral 
or  not  is  this:  If  the  answer  of  a  witness  is  a  matter  which  you  would  be 
allowed  on  your  part  to  prove  in  evidence,  if  it  have  such  a  connection 
with  the  issue  that  you  would  be  allowed  to  give  it  in  evidence,  then  it 
is  a  matter  on  which  you  may  contradict  him.  ...  I  think  the  expres- 
sion "as  to  any  matters  connected  with  the  subject  of  inquiry"  is  far 
too  vague  and  loose  to  be  the  foundation  of  any  judicial  decision.  And 
I  may  say  I  am  not  at  all  prepared  to  adopt  the  proposition  in  those  gen- 
eral terms,  that  a  witness  may  be  contradicted  as  to  anything  he  denies 
having  said,  provided  it  be  in  any  way  connected  with  the  subject 
before  the  jury.  It  must  be  connected  with  the  issue  as  a  matter 
capable  of  being  distinctly  given  in  evidence,  or  it  must  be  so  far  con- 
nected with  it  as  to  be  a  matter  which,  if  answered  in  a  particular  way, 
would  contradict  a  part  of  the  witness'  testimony;  and  if  it  is  neither 
the  one  nor  the  other  of  these,  it  is  collateral  to,  though  in  some  sense 


322  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  218 

it  may  be  considered  as  connected  with,  the  subject  of  the  inquiry.  A 
distinction  should  be  observed  between  those  matters  which  may  be 
given  in  evidence  by  way  of  contradiction  as  directly  affecting  the 
story  of  the  witness  touching  the  issue  before  the  jury,  and  those 
matters  which  affect  the  motives,  temper,  and  character  of  the  wit- 
ness, not  with  respect  to  his  credit,  but  with  reference  to  his  feelings 
towards  one  party  or  the  other.  It  is  certainly  allowable  to  ask  a  wit- 
ness in  what  manner  he  stands  affected  toward  the  opposite  party  in 
the  cause,  and  whether  he  does  not  stand  in  such  a  relation  to  that 
person  as  is  likely  to  affect  him  and  prevent  him  from  having  an 
unprejudiced  state  of  mind,  and  whether  he  has  not  used  expressions 
importing  that  he  would  be  revenged  on  some  one  or  that  he  would  give 
such  evidence  as  might  dispose  of  the  cause  in  one  way  or  the  other.  If 
he  denies  that,  you  may  give  evidence  as  to  what  he  said,  —  not  with  the 
view  of  having  a  direct  effect  on  the  issue,  but  to  show  what  is  the  state 
of  mind  of  that  witness  in  order  that  the  jury  may  exercise  their  opinion 
as  to  how  far  he  is  to  be  believed.  But  those  cases,  where  you  may  show 
the  condition  of  a  witness  or  his  connection  with  either  of  the  parties,  are 
not  to  be  confounded  with  other  cases  where  it  is  proposed  to  contradict 
a  witness  on  some  matter  unconnected  with  the  question  at  issue.  .  .  . 

Alderson,  B.  —  The  question  is  this.  Can  you  ask  a  witness  as  to 
what  he  is  supposed  to  have  said  on  a  previous  occasion?  You  may  ask 
him  as  to  any  fact  material  to  the  issue,  and  if  he  denies  it  you  may 
prove  that  fact,  as  you  are  at  liberty  to  prove  any  fact  material  to  the 
issue.  .  .  .  The  witness  may  also  be  asked  as  to  his  state  of  equal  mind 
or  impartiality  between  the  two  contending  parties,  —  questions  which 
would  have  a  tendency  to  show  that  the  whole  of  his  statement  is  to  be 
taken  with  a  qualification,  and  that  such  a  statement  ought  really  to 
be  laid  out  of  the  case  for  want  of  impartiality;  [and  these  answers  may 
be  contradicted].  .  .  .  Such,  again,  is  the  case  of  an  offer  of  a  bribe  by 
a  witness  to  another  person,  or  the  offer  of  a  bribe  accepted  by  a  witness 
from  another  person;  the  circumstance  of  a  witness  having  offered  or 
accepted  a  bribe  shows  that  he  is  not  equal  and  impartial.  .  .  .  But 
with  these  exceptions  I  am  not  aware  that  you  can  with  propriety  permit 
a  witness  to  be  examined  first  and  contradicted  afterwards  on  a  point 
which  is  merely  and  purely  collateral.  .  .  .  Perhaps  it  ought  to  be 
received,  but  for  the  inconvenience  that  would  arise  from  the  witness 
being  called  upon  to  answer  to  particular  acts  of  his  life,  which  he  might 
have  been  able  to  explain  if  he  had  had  reasonable  notice  to  do  so,  and 
to  have  shown  that  all  the  acts  of  his  life  had  been  perfectly  correct  and 
pure,  although  other  witnesses  were  called  to  prove  the  contrary.  The 
reason  why  a  party  is  obliged  to  take  the  answer  of  a  witness  is,  that  if 
he  were  permitted  to  go  into  it,  it  is  only  justice  to  allow  the  witness  to 
call  other  evidence  in  support  of  the  testimony  he  has  given,  and  as  those 
witnesses  might  be  cross-examined  as  to  their  conduct,  such  a  course 
would  be  productive  of  endless  collateral  issues. 


No.  219  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  323 

RoLFE,  B.  —  I  am  of  the  same  opinion.  The  laws  of  evidence  on 
this  subject  as  to  what  ought  and  what  ought  not  to  l)e  received,  must  be 
considered  as  founded  on  a  sort  of  comparative  consideration  of  the  time 
to  be  occupied  in  examinations  of  this  nature,  and  the  time  which  it  is 
practicable  to  bestow  upon  them.  If  we  lived  for  a  thousand  years 
instead  of  about  sixty  or  seventy,  and  every  case  were  of  sufficient  im- 
portance, it  might  be  possible,  and  perhaps  proper,  to  throw  a  light  on 
matters  in  which  every  possible  question  might  be  suggested,  for  the 
purpose  of  seeing  by  such  means  whether  the  whole  was  unfounded,  or 
what  portion  of  it  was  not,  and  to  raise  every  possible  inquiry  as  to  the 
truth  of  the  statements  made.  But  I  do  not  see  how  that  could  be;  in 
fact,  mankind  find  it  to  be  impossible.  Therefore  some  line  must  be 
drawn.  ... 

It  is  proposed  to  contradict  the  witness  by  showing,  not  that  he  had 
received  a  bribe,  —  not  that  he  had  said  that  he  had  received  a  bribe 
(which  might  have  had  a  bearing  on  the  bias  of  his  mind,)  —  but  by 
showing  that,  on  some  occasion,  he  had  said  he  had  been  offered  a  bribe. 
If  that  were  to  be  allowed,  as  my  brother  Alderson  has  pointed  out, 
endless  inquiries  might  be  entered  into.  It  has  not  the  smallest  bearing 
on  earth  on  the  question  as  to  the  credibility  of  his  testimony,  as  even 
the  offer  would  be  nothing  if  rejected ;  therefore  I  think  it  had  no  bearing 
on  the  subject  of  inquiry,  and  was  very  properly  rejected.  ...  I  am, 
therefore,  of  the  same  opinion  with  the  rest  of  the  Court,  that  this  rule 
ought  to  be  discharged.  Rule  discharged. 


219.   CHICAGO  CITY  R.   CO.   v.   ALLEN 

Supreme  Court  of  Illinois.     1897 

169  ///.  287;  48  N.  E.  414 

Appeal  from  the  Appellate  Court  for  the  First  District;  —  heard  in 
that  Court  on  appeal  from  the  Superior  Court  of  Cook  County;  the 
Hon.  John  Barton  Payne,  Judge,  presiding.  This  was  an  action  on 
the  case,  instituted  in  the  Superior  Court  of  Cook  County  by  appellee, 
against  the  appellant  company,  to  recover  damages  for  personal  injuries 
alleged  to  have  been  sustained  by  him  by  reason  of  the  negligence  of  the 
servants  of  the  appellant  company.  The  declaration  alleged  that  while 
the  appellee,  with  all  due  care,  was  endeavoring  to  enter  one  of  appellant's 
cars,  which  had  stopped  at  the  crossing  of  Thirty-second  street  and  Cot- 
tage Grove  avenue  for  the  purpose  of  receiving  passengers,  the  servants 
of  the  company  in  charge  of  the  car  negligently  and  recklessly  caused  the 
car  to  be  suddenly  and  violently  started  and  put  into  rapid  motion, 
whereby  the  appellee  was  jerked  and  thrown  from  the  car  to  and  upon 
the  ground  with  great  force  and  violence,  his  collar-bone  broken  and 
other  injuries  to  his  person  inflicted. 


324  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  219 

The  trial  Court  refused  to  allow  a  witness  produced  on  behalf  of  the 
appellee  to  answer  the  following  question  propounded  by  the  appellant: 
"In  what  polling  precinct  was  the  corner  of  South  Park  avenue  and 
Thirty-second  street  on  September  6,  1892?"  And  also  refused  to  allow 
the  same  witness  to  answer  another  question,  viz.:  "Can  you  tell  me 
now  which  of  those  precincts  the  corner  of  South  Park  avenue  and 
Thirty-second  street,  —  any  corner,  —  is?"  The  exclusion  of  the  evi- 
dence sought  to  be  elicited  by  these  questions  is  urged  as  ground  for  the 
reversal  of  the  judgment. 

Whether  the  car  in  question  came  to  a  stop  at  the  intersection  of 
Thirty-second  street  and  Cottage  Grove  avenue  for  the  purpose  of  per- 
mitting passengers  to  enter  it,  or  whether  appellee  endeavored  to  get 
aboard  the  car  while  it  was  in  motion,  was  a  material  fact  to  be  determined 
by  the  jury.  Louis  Hutt,  a  witness  introduced  on  behalf  of  the  appellee, 
testified  he  was  at  the  place  in  question  and  saw  the  car  stop  and  soon 
after  start  again,  and  immediately  thereafter  saw  the  appellee  lying  on 
the  ground,  apparently  injured.  The  witness  accounted  for  his  presence 
at  the  crossing  by  stating  he  had  gone  there  and  voted  at  a  primary  for 
the  election  of  delegates  to  a  convention.  He  also  stated  he  lived  at  the 
south-west  corner  of  South  Park  avenue  and  Thirty-second  street,  and 
had  lived  there  for  more  than  forty  years.  Appellant  contends,  if 
answers  had  been  permitted  to  have  been  made  to  the  questions  herein- 
before set  out,  it  would  have  been  disclosed  the  residence  of  the  witness 
Hutt  was  not  in  the  voting  precinct  within  which  the  primary  election 
was  being  held,  on  Cottage  Grove  avenue  near  Thirty-second  street, 
and  hence  it  would  have  appeared  he  was  not  entitled  to  vote  at  the 
primary  at  which  he  testified  he  cast  his  ballot.  The  argument  of 
appellant  is,  such  testimony  would  have  tended  to  contradict  the  state- 
ment of  the  witness  Hutt  that  he  was  present  at  the  time  when  and  place 
where  appellee  received  the  injury. 

The  trial  before  the  Court  and  jury  resulted  in  a  judgment  in  favor 
of  the  appellee  in  the  sum  of  $2000.  That  judgment  was  affirmed  by 
the  Appellate  Court  for  the  First  District,  and  the  appellant  company 
perfected  this  appeal  to  this  Court. 

William  J.  Hynes,  for  appellant.     Case  &  Hogan,  for  appellee. 

Mr.  Justice  Boggs  (after  stating  the  case  as  above),  delivered  the 
opinion  of  the  Court: 

It  is  competent  for  a  party  to  produce  testimony  to  contradict 
material  statements  of  an  adverse  witness,  though  such  statements  do 
not  relate  directly  to  the  matter  in  issue  between  the  litigants.  The 
purpose  of  such  testimony  is  to  discredit  the  witness,  and  therefore  direct 
contradiction  of  the  statement  of  the  witness  as  to  any  fact  or  circum- 
stance which  tended  to  corroborate  or  strengthen  his  testimony  is  admissi- 
ble. (Butler  V.  Cornell,  148  111.  276;  29  Am.  and  Eng.  Ency.  of  Law, 
783.)  In  the  case  at  bar  it  was  competent  for  the  appellant  company 
to  contradict  the  statement  of  the  witness  Hutt  that  he  was  at  the 


No.  220  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  325 

crossing  where  the  injury  is  alleged  to  have  occurred  at  the  time  in  ques- 
tion, and  also  that  he  voted  at  the  primary.  The  latter  statement  offered 
a  reason  for  his  presence  there,  and  tended  to  strengthen  his  assertion 
that  he  was  there  at  the  time  and  place  of  appellee's  injury.  He  did  not 
state  he  lived  in  the  precinct  for  which  the  primary  election  was  being 
held,  and  therefore  the  excluded  testimony  would  not  have  directly  con- 
tradicted any  statement  made  by  him. 

It  was  not,  of  course,  proper  to  receive  it  for  the  purpose  of  showing 
the  witness  had  illegally  voted  at  the  primary,  for  that  in  nowise  con- 
cerned the  issue  to  be  determined  by  the  jury.  The  questions,  answers 
to  which  were  excluded,  called  upon  this  witness  to  state  in  what  precinct 
any  corner  of  the  intersection  of  Thirty* -second  street  and  South  Park 
avenue  was  in,  and  an  answer  thereto,  if  permitted,  might  have  had  no 
relation  whatever  to  the  question  whether  the  witness  lived  in  the 
precinct  wherein  the  primary  in  question  was  being  held. 

Altogether,  we  think  no  sufficient  reason  appears  for  reversing  the 
judgment  because  of  the  rulings  under  consideration.  .  .  . 

Judgment  affirmed. 

220.   HOAG  V.   WRIGHT 

Court  of  Appeals  of  New  York.     1903 

174  iV.  Y.  36;  66  N.  E.  579 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  March  17,  1902,  affirm- 
ing a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict  and  an  order 
denying  a  motion  for  a  new  trial. 

The  plaintiff  was  the  son  and  sole  surviving  descendant  of  the  defend- 
ants' testatrix,  Hester  Hoag,  who  died  on  the  15th  of  February,  1895, 
in  the  eighty-first  year  of  her  age.  The  action  was  upon  two  promissory 
notes  —  one  for  $2,000,  dated  October  16,  1890,  payable  to  the  order  of 
the  plaintiff;  and  the  other  for  $4,000,  dated  November  13,  1894,  payable 
to  the  plaintiff  —  without  words  of  negotiability.  The  complaint  w^as 
in  the  usual  form,  and  by  their  answer  the  defendants  denied  the  making 
and  delivery  of  both  notes,  and  alleged  that,  if  made  or  delivered,  they 
were  without  consideration.  .  .  . 

Experts  were  called  by  both  parties  to  give  their  opinions  as  to  the 
genuineness  of  the  signatures  to  the  notes  after  comparing  them  with  the 
indorsement  of  the  decedent  upon  certain  checks  read  in  evidence  as 
standards  of  comparison.  Upon  the  cross-examination  of  an  expert 
named  Reed,  called  by  the  plaintiff,  it  appeared  that  during  his  testimony 
upon  a  previous  trial  of  this  action  he  had  been  shown  two  papers  so 
folded  as  to  disclose  only  what  purported  to  be  the  signature  of  the  dece- 
dent upon  each.  He  testified,  in  substance,  that  upon  the  other  trial, 
after  comparing  these  signatures  with  the  standards  in  evidence,  he  had 


326  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  220 

pronounced  them  genuine,  and  had  sworn  that  all  were  written  by  the 
same  hand.  Each  of  the  papers,  when  unfolded,  was  a  total  blank,  and 
the  signatures  were  obviously  spurious.  The  witness  was  thus  compelled 
to  admit  that  he  had  been  mistaken  in  his  opinion  as  an  expert,  upon  the 
previous  trial,  in  relation  to  the  signature  of  the  decedent,  and  had 
testified  that  the  spurious  signatures  were  genuine. 

After  this  witness  had  left  the  stand,  another  expert  was  called  by 
the  plaintiff,  who,  also  testifying  by  comparison,  stated  that  the  signatures 
to  the  notes  were  genuine.  Upon  cross-examination  an  effort  was  made 
by  the  defendants'  counsel  to  show  that  he  had  made  the  same  mistake 
upon  the  previous  trial  as  Mr.  Reed.  For  this  purpose  he  was  shown  the 
two  papers,  folded  so  as  to  expose  only  the  spurious  signatures,  and  was 
asked  if  he  remembered  that  these  signatures  had  been  shown  him  on 
the  former  trial.  The  counsel  for  the  plaintiff  objected  to  "showing  the  wit- 
ness any  papers  which  are  not  in  evidence."  The  Court  thereupon  said: 
"  The  objection  is  sustained.  I  think  it  is  incompetent.  On  reflection, 
I  will  strike  out  the  testimony  in  regard  to  these  two  papers  which  has 
been  given  by  Mr.  Reed.  (To  the  jury)  I  will  strike  it  out  and  you  will 
pay  no  attention  to  it."  The  defendants'  counsel  duly  excepted  and 
thereupon  asked :  "  Do  you  not  remember  that  you  testified  before 
Judge  Jenks,  when  the  papers  that  I  now  show  you  were  presented,  that 
in  your  opinion  the  same  hand  wrote  the  words  '  Hester  Hoag '  before 
the  seals  on  those  papers  that  wrote  the  words  'Hester  Hoag'  upon  the 
indorsement  upon  the  checks."  This  was  objected  to  as  incompetent 
and  immaterial,  "and  especially  that  these  papers  are  not  in  evidence." 
The  objection  was  sustained,  and  the  defendants,  after  duly  excepting, 
offered  the  papers  in  evidence  "to  obviate  that  objection."  This  was 
objected  to  "  on  the  grounds  that  they  have  not  been  proven  so  as  to  be 
admitted  as  standards  of  comparison,  and  the  papers  themselves  are 
wholly  immaterial."  The  objection  was  sustained  and  the  defendants 
excepted.  Afterward  the  same  rulings  in  substance  were  made  when  the 
third  expert  of  the  plaintiff  was  upon  the  stand,  and  similar  exceptions 
were  taken. 

James  M.  Hunt,  for  appellants.  .  .  .  Error  was  committed  upon  the 
trial  in  refusing  to  permit  a  full  cross-examination  of  plaintiff's  handwrit- 
ing experts.   ... 

Isaac  N.  Mills  and  Joseph  Hover,  for  respondent.  .  .  .  The  plaintiff 
was  properly  permitted  to  testify  that  the  signatures  attached  to  the 
notes  were  in  the  genuine  handwriting  of  the  testatrix.  .  .  .  The  testi- 
mony, upon  cross-examination  of  several  expert  witnesses  for  the  plaintiff, 
as  to  two  spurious  signatures  of  decedent,  was  properly  excluded. 

Per  Curl\m  (after  stating  the  case  as  above).  The  opinions  of 
experts  upon  handwriting,  who  testify  from  comparison  only,  are  regarded 
by  the  Courts  as  of  uncertain  value,  because  in  so  many  cases  where  such 
evidence. is  received,  witnesses  of  equal  honesty,  intelligence  and  experi- 
ence reach  conclusions  not  only  diametrically  opposite,  but  always  in 


No,  220  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  327 

favor  of  the  party  who  called  them.  The  right  to  cross-examine  such 
witnesses  is  of  great  importance,  and,  while  it  should  be  confined  within 
reasonable  limits,  it  should  not  be  so  restricted  as  to  deprive  it  of  all  value. 

The  evidence  stricken  out  in  this  case  was  not  only  competent  and 
material,  but  was  of  decided  value,  and  might  have  turned  the  scale 
toward  the  defendants  upon  an  issue  so  closely  contested.  It  tended  to 
cast  doubt  upon  the  credibility  of  the  witness  and  his  skill  as  an  expert. 
It  suggested  the  question  whether,  if  the  witness  was  at  fault  as  to  the 
spurious  signatures,  he  was  not  at  fault  as  to  the  signatures  in  question. 
It  made  a  direct  attack  upon  the  value  of  his  opinion.  The  maxim  "falsus 
in  uno  falsus  in  omnibus"  applies,  but  with  less  force,  to  the  statements 
of  a  witness  which,  although  not  intentionally  false,  are  in  fact  untrue, 
especially  when  they  involve  matters  of  judgment  and  skill.  Each 
witness  was  asked  in  substance,  "  Did  you  not  on  another  trial  swear  that 
these  bogus  signatures  were  genuine?"  What  better  test  could  be 
applied?  The  effort  was  to  show,  not  that  the  witness  had  been  mistaken 
as  to  the  signature  of  some  third  person,  or  even  as  to  some  signature  of 
the  decedent  not  in  evidence,  but  with  reference  to  the  very  signatures 
which  were  then  the  subject  of  investigation,  for  by  confounding  the 
spurious  with  the  genuine  he  demonstrated  that  he  could  not  tell  one  from 
the  other.  One  witness  virtually  confessed  his  error,  so  that  there  was 
no  necessity  for  contradiction  as  to  him,  and  the  other  two  might  have 
been  forced  into  the  same  situation  if  the  trial  judge  had  not  intervened. 

.  .  .  Owing  to  the  dangerous  nature  of  expert  evidence,  and  the 
necessity  of  testing  it  in  the  most  thorough  manner  in  order  to  prevent 
injustice,  we  are  disposed  to  go  farther,  and  to  hold  that,  where  a  witness 
makes  a  mistake  in  his  effort  to  distinguish  spurious  from  genuine  signa- 
tures, and  he  does  not  acknowledge  his  error,  it  may  be  shown  by  other 
testimony.  The  test  sought  to  be  applied  in  this  case  was  one  of  the 
most  practical  and  conclusive  that  can  be  employed  to  determine  whether 
the  witness  is  really  an  expert  or  not.  It  bears  not  only  upon  his  com- 
petency to  express  an  opinion,  but  upon  the  value  of  his  opinion  when 
expressed.  .  .  .  The  good  sense  of  the  trial  judge  will  confine  it  within 
proper  bounds,  and  prevent  an  unnecessary  consumption  of  time.  It 
is  better  to  take  a  little  time  to  see  whether  the  opinion  of  the  witness  is 
worth  anything,  rather  than  to  hazard  life,  liberty,  or  property  upon  an 
opinion  that  is  worth  nothing.  The  evils  and  injustice  arising  from  the 
use  and  abuse  of  opinion  evidence  in  relation  to  handwriting  are  so  grave 
that  we  feel  compelled  to  depart  from  our  own  precedents  to  some  extent, 
and  to  establish  further  safeguards  for  the  protection  of  the  public.  As 
the  hostility  of  witnesses  to  a  party  may  be  shown  as  an  independent 
fact,  although  it  protracts  the  trial  by  introducing  a  new  issue,  so,  as  we 
think,  the  incompetency  of  a  professed  expert  may  be  shown  in  the  same 
way  and  for  the  same  reason ;  that  is,  because  it  demonstrates  that  testi- 
mony, otherwise  persuasive,  cannot  be  relied  upon.  We  think  that  any 
testimony  of  an  alleged  expert  upon  handwriting  which  bears  on  his 


328  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  220 

competency  to  express  an  opinion,  may,  within  reasonable  limits,  be 
contradicted  by  the  testimony  of  other  witnesses.  We  deem  it  our  duty 
to  limit  such  cases  as  People  v.  Murphy  (135  N.  Y.  450)  and  Van  Wyck  v. 
Mcintosh  (14  N.  Y.  439)  in  so  far  as  the  conclusion  thus  announced  is 
inconsistent  with  the  views  therein  expressed. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with  costs 
to  abide  event. 

Parker,  Ch.  J.,  Bartlett,  Haight,  Martin,  Vann,  Cullen  and 
Werner,  JJ.,  concur. 


221.   LAMBERT  v.   HAMLIN 
Supreme  Court  of  New  Hampshire.     1905 

73  A^  //.  138;  59  Atl.  941 

Case  for  personal  injuries.  Trial  by  jury,  and  verdict  for  the  plain- 
tiff. Transferred  from  the  May  Term,  1904,  of  the  Superior  Court  by 
Spike,  J.  The  defendant's  exceptions  to  the  exclusion  of  evidence,  and 
the  argument  of  the  plaintiff's  counsel,  are  sufficiently  stated  in  the 
opinion. 

The  plaintiff  is  seventy-one  years  old.  When  injured,  on  the  evening 
of  August  21,  1903,  she  was  keeping  a  small  store,  which  she  rented  of 
the  defendant,  and  in  which  she  sold  bread,  milk,  etc.  The  negligence 
complained  of  is  the  defendant's  failure  to  use  ordinary  care  in  the 
removal  of  the  doorsteps  while  repairing  the  underpinning  of  the  store, 
in  that  he  did  not  notify  the  plaintiff  that  they  had  been  removed. 
She  alleges  that,  in  ignorance  of  their  removal,  and  while  in  the  exercise 
of  due  care,  she  attempted  to  step  out  of  doors  to  get  a  bill  changed,  and 
fell  and  sustained  her  injuries.  The  defendant  admits  removing  the 
steps  while  repairing  the  underpinning,  but  claims  that  they  were  replaced 
before  the  accident  occurred.  He  also  claims  that  the  plaintiff  sustained 
her  injuries  by  walking  off  the  side  of  the  steps  while  descending,  and  that 
she  was  intoxicated  at  the  time. 

Doyle  &  Lucier  and  Ivory  C.  Eaton,  for  plaintiff.  George  IV.  Clyde, 
Henry  B.  Atherton,  and  Wason  &  Moran,  for  defendant. 

Bingham,  J.  —  One  of  the  issues  in  the  case  bearing  upon  the  plain- 
tiff's exercise  of  care  was  whether  she  was  intoxicated  when  she  went 
out  of  her  store  on  the  evening  of  August  21,  1903.  The  plaintiff  claimed 
that  the  defendant  had  removed  the  steps  over  which  she  was  to  pass  in 
going  from  the  store,  and  that  he  was  negligent  in  failing  to  inform  her 
that  he  had  removed  them.  The  defendant  claimed  that  the  steps  were 
in  position,  and  that  the  plaintiff  was  intoxicated,  and  sustained  her 
injuries  by  stepping  off  the  side  of  the  steps.  The  plaintiff  called  the 
defendant  as  a  witness.  He  testified  that  the  plaintiff  sold  beer  in 
the  store  at  or  about  the  time  of  the  accident.     The  plaintiff,  being  subse- 


No.  221  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  329 

quently  called  in  her  own  behalf,  testified  in  her  examination  in  chief, 
and  without  objection,  that  she  never  sold  beer  in  the  store.  In  reply 
to  this  the  defendant  offered  to  show  that  she  had  been  convicted  four 
times  for  selling  beer,  the  last  conviction  being  in  1898;  that  she  pleaded 
guilty  to  the  charges;  and  that  during  the  time  covered  by  the  sales  she 
was  occupying  the  store.  This  evidence  the  Superior  ( 'ourt  excluded,  both 
as  a  matter  of  law  and  in  the  exercise  of  its  discretion,  and  the  defend- 
ant excepted.  The  defendant  now  ur^es  (1)  that  the  evidence  offered  by 
him  was  relevant  and  material  to  the  issue,  and  (2)  that,  if  that  portion 
of  the  plaintiff's  evidence  which  he  offered  to  contradict  was  collateral 
and  irrelevant,  she  ought  not  for  that  reason  to  be  heard  to  object,  as  it 
was  testified  to  in  her  direct  examination;  that  the  rule  preventing  the 
contradiction  of  immaterial  evidence,  brought  out  on.  cross-examination 
for  the  purpose  of  impeaching  a  witness,  does  not  apply  in  such  a  case. 

1.  If  the  evidence  offered  by  the  defendant  was  relevant  to  the  issue, 
still  it  was  of  so  remote  a  character  as  to  be  properly  excluded  by  the 
Court  in  the  exercise  o"  its  discretion.  Kendall  v.  Flanders,  72  N.  H. 
11;   Pattee  v.  Whitcomb,  72  N,  H.  249. 

2.  In  the  cases  adopting  the  view  contended  for  by  the  defendant  in 
his  second  proposition,  it  seems  to  have  been  considered  that  the  main 
reason  for  the  rule  which  prevents  a  cross-examination  upon  immaterial 
matters,  for  the  mere  purpose  of  contradicting  a  witness,  is  that  he  cannot 
be  presumed  to  come  prepared  to  defend  himself  on  such  collateral  ques- 
tions, and,  as  this  reason  fails  when  the  testimony  is  voluntarily  given, 
the  rule  itself  does  not  in  that  case  apply.  But,  as  said  in  Blakey's 
Heirs  v.  Blakey's  Ex'x,  33  Ala.  611,  620: 

"The  reason  referred  to  is  dovibtless  one  of  those  on  which  the  rule  is  founded, 
but  it  is  not  the  only,  or  even  the  chief,  one.  The  principal  reasons  of  the  rule 
are,  undoubtedly,  that  but  for  its  enforcement  the  issues  in  a  cause  would  be 
multiplied  indefinitely,  the  real  merits  of  the  controversy  would  be  lost  sight 
of  in  the  mass  of  testimony  to  immaterial  points,  the  minds  of  jurors  would  thus 
be*  perplexed  and  confused  and  their  attention  wearied  and  distracted,  the  costs 
of  litigation  would  be  enormously  increased,  and  judicial  investigations  would 
become  almost  interminable." 

Similar  reasons  are  assigned  for  the  rule  in  Seavy  v.  Dearborn,  19 
N.  H.  351,  356.  See,  also,  Attorney-General  v.  Hitchcock,  1  Exch.  91, 
104;  Powers  v.  Leach,  26  Vt.  270,  277.  According  to  the  weight  of 
authority,  the  reasons  above  assigned  apply  equally  whether  the  evidence 
on  such  collateral  matters  is  brought  out  on  the  examination  in  chief  or 
upon  cross-examination,  and  whether  the  witness  gives  it  voluntarily 
or  in  response  to  questions  calling  for  it.  Blakey's  Heirs  v.  Blakey's 
Ex'x,  supra;  Commonwealth  v.  Buzzell,  16  Pick.  163,  168;  1  Greenleaf, 
Evidence,  §  461e;  2  Wigmore,  Evidence,  §  1007.  The  portion  of  the 
plaintiff's  testimony  which  related  to  sales  prior  to  and  including  1898 
was  collateral  and  immaterial  to  the  issue,  and  applying  the  above 
principle,  the  defendant  was  not  entitled  to  contradict  it  for  the  purpose 


330  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  221 

of  impeaching  the  credibility  of  the  plaintiff,  though  it  was  introduced  by 
her  on  direct  examination.  ... 

Exceptions  overruled.     All  concurred. 


222.   SIMMS  V.   FORBES 

Supreme  Court  of  Mississippi.     1905 

86  Miss.  412;  38  So.  546 

Appeal  from  Circuit  Court,  Adams  County;  M.  H.  Wilkinson, 
Judge.  Action  by  Miss  Oelean  E.  Forbes  against  A.  P.  Simms  to  recover 
the  sum  of  $10,000  damages  for  injuries  sustained  by  her  in  falling  into  an 
open  elevator  shaft  in  defendant's  store.  Defendant  pleaded  the  general 
issue,  and  gave  notice  that  evidence  would  be  introduced  to  show  that 
plaintiff's  damage  was  caused  by  her  contributory  negligence.  .  .  . 

From  a  verdict  and  judgment  for  plaintiff  for  $1,741,  defendant 
appeals.     Reversed. 

Brown  <fc  Martin,  for  appellant.     Dabney    &  McCabe,  for  appellee. 

Cox,  Special  Judge.  .  .  .  The  plaintiff,  after  having  testified  in  her 
own  behalf,  was  recalled  and  questioned  touching  a  conversation  with 
W.  J.  Foster,  a  witness  for  defendant,  some  days  before  trial,  at  plaintiff's 
home.  Foster  was  the  clerk  in  defendant's  store  who  was  showing 
plaintiff  the  bookcases  at  the  time  she  fell  in  the  elevator  opening,  and 
had  testified  that  he  called  plaintiff's  attention  to  the  opening  a  few 
moments  before  she  fell.  Plaintiff  was  asked  by  her  counsel:  "When 
Mr.  Foster  came  down  to  see  you,  as  a  part  of  the  conversation  he  had 
with  you,  did  you  say  to  him  that  you  heard  that  they  intended  to  say 
that  you  were  warned  about  that  place?"  This  was  objected  to,  and 
objection  sustained.  She  was  then  asked:  "As  a  part  of  that  conversa- 
tion, did  you  say  to  him  that  you  had  not  been  warned?"  This  question 
was  objected  to,  objection  overruled,  and  defendant  excepted.  Plaintiff 
replied:  "I  looked  him  right  in  the  face  most  impressively,  and  said  it 
very  slowly:  'I  hear  your  people  say  that  I  was  warned.  I  wasn't 
warned.'     And  he  said  nothing." 

There  is  no  ground  upon  which  this  testimony  was  admissible.  It  is 
clearly  nothing  but  hearsay,  and  not  within  any  of  the  exceptions  to  the 
rule  which  excludes  hearsay  evidence.  It  is  true  that  when  Foster  was  on 
the  stand  a  predicate  was  laid  for  contradicting  him  upon  this  point. 
But  the  rule  is  well  established  that  a  witness  may  not  on  cross-examina- 
tion be  questioned  as  to  collateral  and  irrelevant  matters  with  a  view  to 
self-contradiction  of  his  answer.  In  such  cases  the  cross-examiner  is 
bound  by  his  answer.  The  rule  against  hearsay  would  be  of  but  little 
value  if  it  could  be  evaded  by  the  transparent  device  of  introducing  it  in 
contradiction  of  the  adversary's  witness  upon  collateral  matters.  Unless 
a  party  has  the  right  to  offer  a  conversation  or  statement  directly,  he 


No.  223  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  331 

cannot  get  it  before  the  jury  merely  l)y  way  of  contradicting  a  witness 
on  matters  brought  out  on  cross-examination. 

Again,  plaintiff  was  asked:  "When  Mr.  Foster  came  down  to  see  you, 
did  he  make  a  statement  to  you  in  which  he  said,  'I  take  great  blame  for 
that  accident  myself?'"  To  this  she  replied:  "I  cannot  say  whether 
he  did  say  that,  exactly,  but  he  said,  'I  take  great  blame/  or  he  said, 
'I  blame  myself  for  the  accident,'  and  my  reply  was,  'Somebody  was  to 
be  blamed,  certainly.' "  Defendant  moved  to  strike  out  the  last  question 
and  answer.  Motion  was  overruled,  and  exception  taken.  The  last 
answer  was  obnoxious  to  the  same  objection  as  the  former.  It  was  mere 
hearsay.  Plaintiff  could  not  have  availed  of  it  as  a  part  of  her  case, 
nor  could  she  have  shown  it  in  evidence  for  any  purpose,  independently 
of  the  self-contradiction  of  Foster.  Such  being  the  case,  it  was  not 
available  in  any  form  or  for  any  purpose.  Wigmore  on  Evidence, 
§  1020;  V.  &  M.  R.  Co.  v.  McGowan,  62  Miss.  698,  52  Am.  Rep.  205; 
Williams  v.  State,  73  Miss.  821,  19  South.  826. 

This  evidence  must  have  been  highly  prejudicial  to  defendant.  For 
the  error  of  the  Court  in  admitting  it,  the  judgment  must  be  reversed. 

Reversed  and  remanded. 


223.   THE   QUEEN'S   CASE 

House  of  Lords.     1820 
2  B.  &  B.  313 

Abbott,  C.  J.  [answering  a  question  put  to  the  Judges  by  the  Lords.] 
...  If  it  be  intended  to  bring  the  credit  of  a  witness  into  question  by 
proof  of  anything  he  may  have  said  or  declared  touching  the  cause,  the 
witness  is  first  asked,  upon  cwfts-c.vaminafion,  ivhethcr  or  no  he  has  said  or 
declared  that  which  is  intended  to  be  proved.  If  the  witness  admits  the 
words  or  declarations  imputed  to  him,  the  proof  on  the  other  side  becomes 
unnecessary,  and  the  witness  has  an  opportunity  of  giving  such  reason, 
explanation,  or  exculpation  of  his  conduct,  if  any  there  may  be,  as  the 
particular  circumstances  of  the  transaction  may  happen  to  furnish;  and 
thus  the  whole  matter  is  brought  before  the  Court  at  once,  which  in  our 
opinion  is  the  most  convenient  course.  .  .  . 

[If  the  witness  denies  the  utterance  or  claims  the  privilege  of  silence], 
the  proof  in  contradiction  will  be  received  at  the  proper  season.  But 
the  possibility  that  the  witness  may  decline  to  answer  the  question  affords 
no  sufficient  reason  for  not  giving  him  the  opportunity  of  answering  and 
of  offering  such  explanatory  or  exculpatory  matter  as  I  have  before 
alluded  to;  .  .  .  not  only  for  the  purpose  already  mentioned,  but  because, 
if  not  given  in  the  first  instance,  it  may  be  wholly  lost,  for  a  witness  who 
has  been  examined  and  has  no  reason  to  suppose  that  his  further  attend- 
ance is  requisite  often  departs  the  Court,  and  may  not  be  found  or  brought 


332  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  223 

back  until  the  trial  be  at  an  end.  So  that,  if  evidence  of  this  sort  could 
be  adduced  on  the  sudden  and  by  surprise,  without  any  previous  intima- 
tion to  the  witness  or  to  the  party  producing  him,  great  injustice  might 
be  done,  .  .  .  and  one  of  the  great  objects  of  the  course  of  proceeding 
established  in  our  Courts  is  the  prevention  of  surprise,  as  far  as  practi- 
cable, upon  any  person  who  may  appear  therein. 


224.   DOWNER  v.   DANA 

Supreme  Court  of  Vermont.     1847 

19  Vt.  346 

Debt  upon  a  jail  bond.  Plea,  non  est  factum,  with  notice  of  special 
matter  of  defense,  and  trial  by  jury,  March  Term,  1845,  Hebard,  J., 
presiding.  On  trial  it  appeared  that  the  defendant  Dana  had  heretofore 
been  committed  to  the  common  jail  in  Orange  county,  upon  execution  in 
favor  of  the  plaintiffs,  and  that  the  bond  in  suit  was  executed,  in  common 
form,  upon  his  being  admitted  to  the  liberties  of  the  prison.  .  .  .  The 
plaintiffs  also  gave  in  evidence  the  deposition  of  one  Smith,  taken  ex 
parte,  and  the  deposition  of  one  Rutter,  taken  with  notice  to  the  defend- 
ants, but  at  the  taking  of  which  the  defendants  did  not  attend,  —  which 
depositions  tended  to  prove  a  breach  of  the  condition  of  the  bond  declared 
upon.  .  .  . 

The  defendants  also,  for  the  purpose  of  impeaching  the  witness 
Rutter,  offered  to  prove  declarations  made  by  him  previous  to  the  giving 
of  the  deposition  used  in  the  case  by  the  plaintiffs,  but  in  reference  to 
which  no  preliminary  inquiry  had  been  made  of  him.  To  this  the  plain- 
tiffs objected ;  but  the  evidence  was  admitted  by  the  Court.  .  .  .  Verdict 
for  defendants.     Exceptions  by  plaintiffs. 

Hunton  and  Tracy  &  Converse,  for  plaintiffs.  .  .  .  The  Court  erred 
in  admitting  the  evidence  as  to  the  witness  Rutter.  The  deposition  was 
taken  with  notice,  and  the  defendants  had  an  opportunity  to  inquire  of 
the  witness  as  to  the  conversation  concerning  which  the  evidence  was 
given,  but  did  not  do  so.  Queen's  Case  [ante.  No.  223],  Angus  v.  Smith, 
1  M.  &  M.  473;   1  Stark.  Ev.  145,  146. 

0.  P.  Chandler  and  L.  B.  Vilas,  for  defendants.  .  .  .  The  testimony 
admitted  to  impeach  the  deposition  of  Rutter  was  properly  received. 
We  recognize  the  rule  contended  for  by  the  plaintiffs,  when  applied  to 
witnesses  in  Court;  but  in  reference  to  depositions  it  is  inapplicable. 
There  can  be  no  distinction  between  ex  parte  depositions  and  those  taken 
with  notice. 

The  opinion  of  the  Court  was  delivered  by  Davis,  J. : 

The  first  question  which  arises  is,  whether  the  decision  of  the  County 
Court  was  right  in  admitting  the  defendant  to  show  the  previous  declara- 
tions of  Rutter,  with  a  view  to  impeach  his  deposition  introduced  by 


No.  224  TESTIMONIAL   EVIDENCE:     IMPE.VCIIMENT  333 

the  plaintiff,  —  it  appearing,  that,  at  the  time  of  taking  the  same,  no 
person  appeared  on  behalf  of  the  defendants,  although  they  had  due  notice, 
and  that  consequently  the  deponent  was  not  interrogated  in  respect  to 
such  declarations. 

It  is  indeed  an  established  rule  of  practice  in. this  State,  that  testimony 
of  this  kind  cannot  be  received  to  impeach  a  witness  produced  upon  the 
stand,  unless  an  opportunity  be  first  afforded  to  the  Avitness,  whose  testi- 
mony it  is  proposed  to  impeach,  to  explain  or  qualify  the  imputed  declara- 
tions. This  rule  is  carried  so  far  in  England,  as  to  admit  of  no  exception, 
in  cases  where,  when  the  cross-examination  was  closed,  the  party  wishing 
to  impeach  had  no  knowledge  of  the  variant  declarations,  or  inconsistent 
conduct,  and  the  witness  has  departed  from  Court  and  cannot  be  recalled. 
Queen's  Case,  in  House  of  Lords,  2  Brod.  &  Bing.  284  [ante,  No.  223]. 
This  Court  have  fully  sanctioned  the  rule  as  existing  in  England.  In 
Massachusetts  it  has  never  been  adopted.  Tucker  v.  Welsh,  17  Mass. 
160.  I  infer,  also,  that  it  has  never  been  adopted  in  New  Hampshire; 
French  v.  Merrill,  6  N.  H.  465;  nor  in  Connecticut;  Judson  v.  Blanchard, 
3  Conn.  557. 

As  observed  by  Ch.  J.  Parker,  in  Tucker  i\  Welsh,  the  rule  seems 
to  be  of  recent  origin  in  England,  as  no  mention  is  made  of  it  by  either 
Peake,  or  Phillips,  in  their  treatises  upon  the  law  of  evidence.  Starkie 
recognizes  it  in  his  text  as  settled  law.  He  is,  I  think,  the  first  English 
writer  that  does  so.  3  Starkie,  Evidence,  1753-4.  Ch.  J.  Parker  says, 
it  has  never  been  adopted  in  this  country.  This  remark  was  made  as 
long  ago  as  1821.  At  that  time  I  think  no  lawyer  in  Vermont  had  heard 
of  such  a  rule  here;  and  even  now  I  do  not  find  it  naturalized  anv-w'here, 
except  here.  It  is  not  adopted  in  Maine.  Ware  v.  Ware,  8  Greenl. 
42.  Prof.  Greenleaf,  in  his  valuable  treatise  on  evidence,  (1  Greenleaf 
Evidence,  514),  adopts  the  English  law  in  his  text,  without  scruple,  and 
in  a  note  adds,  that  in  this  country  the  same  course  is  understood  generally 
to  have  been  adopted,  except  in  Maine,  and  perhaps  iMassachusetts. 

Were  the  question  "res  integra,"  I  confess  I  could  see  no  advantages 
to  the  cause  of  truth  and  justice,  from  the  adoption  of  this  rule  of  evidence, 
which  are  not  equally  well  secured  by  the  old  practice  of  allowing  the 
party  whose  witness  has  in  that  way  been  attacked  to  recall  him,  if  he 
choose,  for  the  purpose  of  contradicting  or  explaining  the  conduct  or 
declarations  imputed  to  him.  Indeed,  I  have  seen  no  objections  of  conse- 
quence to  that  course,  except  that  it  may  sometimes  happen  that  the 
witness  may  have  departed  from  Court  supposing  his  attendance  no 
longer  necessary.  Such  an  objection  practically  is  entitled  to  A-ery  little 
weight,  as  it  would  be  provided  against  b}'  requiring,  as  is  in  fact  generally 
done  for  other  reasons,  witnesses  to  remain  in  court  until  the  testimony 
is  finished.  On  the  other  hand,  this  rule  would  be  productive  of  intoler- 
able mischiefs,  were  it  not  mitigated  by  the  somewhat  awkward  and 
inconvenient  expedient  of  suspending  the  regular  course  of  testimony 
for  the  purpose  of  recalling  the  witness  proposed  to  be  impeached  and 


334  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  224 

laying  a  foundation  for  the  impeaching  testimony  by  interrogating  him 
whether  he  did  or  said  the  things  proposed  to  be  proved.  Besides,  the 
privilege  of  doing  this  will  be  lost  in  all  those  cases  where  the  witness  has 
left  Court  and  cannot  be  found ;  the  opposite  party  has  every  inducement 
to  cut  off  this  opportunity  by  immediately  discharging  all  such  as  he 
may  have  reason  to  suspect  are  liable  to  be  impugned.  In  addition  to 
this,  the  avowed  attempt  to  produce  self-impeachment,  made  of  course 
in  a  tone  and  manner  evincing  distrust  of  the  general  narrative,  too  often 
both  surprises  and  disconcerts  a  modest  witness.  He  answers  hastily 
and  confusedly,  as  is  natural  from  ha\'ing  such  a  collateral  matter  hastily 
sprung  upon  him.  Every  one  conversant  with  judicial  proceedings  must 
have  often  observed  with  pain  an  apparent  contradiction  produced  in 
this  way,  when  he  is  satisfied  none  would  have  existed  under  a  different 
mode  of  proceeding. 

Although  to  my  mind  these  considerations  present  very  formidable 
objections  to  the  practice  first  authoritatively  developed  on  the  trial  of 
the  Queen  in  the  House  of  Lords,  yet  I  acquiesce  in  it  as  the  settled 
practice  in  this  State. 

It  remains  to  be  considered,  whether  it  can  be  properly  applied  in 
the  case  of  depositions. 

In  the  case  of  Tucker  v.  Welsh,  already  cited  from  Massachusetts, 
the  Court  were  urged  to  adopt  the  practice  in  respect  to  testimony  taken 
in  that  form,  though  they  should  not  be  disposed  to  do  so  in  other  cases. 
The  Court,  however,  could  perceive  no  special  reasons  in  favor  of  such  a 
discrimination.  We  think  there  are  substantial  reasons  why  a  discrimi- 
nation should  be  made  the  other  way.  The  rule  thus  applied  would 
impose  on  a  party,  wishing  the  privilege  of  impeachment,  the  necessity 
of  attending  in  person,  or  by  counsel,  at  the  taking  of  every  deposition 
to  be  used  against  him,  within  or  without  the  State,  which,  on  any  other 
account,  he  might  not  be  disposed  to  do.  Besides,  in  many  cases  the 
deponent  may  be  wholly  unknown  to  him;  he  may  have  no  knowledge 
of  the  matter  to  be  testified  to,  until  actually  given;  the  notice  of  the 
taking  may  be  barely  sufficient  to  enable  him  to  reach  the  place,  perhaps 
hundreds  of  miles  distant,  in  season  to  be  present.  It  would  be  idle, 
under  such  circumstances,  to  expect  a  party  to  be  prepared  to  go  through 
with  this  preliminary  ceremony.  The  result  would  be,  he  would  be 
least  able  to  shield  himself  against  partial  or  false  testimony,  precisely 
when  such  protection  is  most  needed.  It  is  true,  the  deponent,  being 
absent  from  the  trial,  hears  not  the  impeaching  testimony,  and  cannot  be 
called  upon  to  contradict  or  explain  it.  This  may  be  an  evil,  but  is 
unavoidable  from  the  nature  of  the  case.  It  would  be  a  worse  evil  to 
deny  the  right  of  impeaching  depositions,  unless  under  regulations,  which 
would  reduce  the  right  to  a  nullity. 

We  attach  no  importance  to  the  circumstance,  that  the  defendants, 
though  notified,  were  not  present  at  the  taking  of  Rutter's  depositions. 
Had  they  been  present,  the  result  would  have  been  the  same.     In  our 


No.  225  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  335 

opinion  the  rule  adverted  to  has  no  proper  application  to  testimony 
taken  in  the  form  of  depositions.  The  impeaching  testimony  was  there- 
fore properly  admitted.  .  .  . 

On  the  whole  the  judgment  of  the  County  Court  is  affirmed. 

225.  Unis  r.  Charlton's  Adahnistrator.  (1855.  Virginia.  12  Gratt. 
495).  Daniel,  J.  In  the  case  of  Downer  v.  Dana,  19  Verm.  R.  338  [ante,  No. 
224]  a  distinction  is  taken  between  the  case  of  a  witness  examined  in  court  and 
one  who  has  given  his  testimony  in  the  form  of  a  deposition.  In  that  case  the 
Court  sanctions,  and  expresses  a  determination  to  adhere  to,  the  rule,  that 
testimony,  as  to  the  previous  declarations  of  a  witness  produced  upon  the  stand, 
offered  for  the  purpose  of  impeaching  him,  is  not  to  be  received,  unless  an  oppor- 
tunity be  first  offered  him  to  explain  or  qualify  the  imputed  declaration.  But 
it  still  decides  that  the  rule  has  no  application  to  testimony  in  the  shape  of 
depositions,  whether  taken  with  or  without  notice,  and  whether  the  adverse 
party  attended  at  the  taking  or  not,  and  that  the  adverse  party  may  in  such 
case,  without  previous  inquiry,  prove  any  inconsistent  declarations  or  conduct 
of  the  witness. 

After  a  careful  examination  of  the  opinion  in  which  this  distinction  is  taken, 
I  have  been  imable  to  perceive  the  force  of  the  reasoning  on  which  it  is  made  to 
rest.  The  principal  reason  assigned  by  the  learned  judge  who  delivered  the 
opinion  of  the  Court  for  refusing  to  apply  the  rule  to  depositions  is  that  such 
a  practice  would  impose  on  a  party  wishing  the  privilege  of  impeachment  the 
necessity  of  attending  in  person  or  by  attorney  at  the  taking  of  every  deposition 
to  be  used  against  him,  within  or  without  the  State,  which  on  any  other  account 
he  might  be  disposed  to  do.  This  argument  ab  inconvmirnti  is  not  wholly  without 
show  of  reason  when  urged  in  behalf  of  the  exercise  of  the  privilege  of  impeach- 
ment by  a  party  who  had  had  no  notice  of  the  taking,  or  who,  though  notified, 
did  not  attend  at  the  taking  of  a  deposition  which  he  seeks  to  discredit,  but  seems 
to  me  devoid  of  weight  when  extended  to  the  case  of  a  party  who  was  present  at 
the  taking  of  the  deposition,  and  had  thus  the  same  opportunity  of  cross-examin- 
ing the  witness  and  calling  his  attention  to  the  imputed  inconsistent  statements 
that  he  would  or  might  have  had  in  case  the  witness  had  been  examined  in  court. 
.  .  .  The  rule  proceeds  from  a  sense  of  justice  to  the  witness;  .  .  .  these  reasons, 
it  is  obvious,  apply  just  as  forcibly  to  depositions  as  to  oral  examinations  in  court. 
And  indeed  there  are  considerations  which  urge  the  application  of  the  rule  to 
the  case  of  an  impeachment  of  a  witness  who  has  given  his  testimony  in  the  form 
of  a  deposition,  which  may  not  arise  in  an  effort  to  discredit  a  witness  who  has 
been  examined  in  court.  In  the  latter  case  the  witness  usually  remains  in  or 
about  the  court  till  the  trial  is  concluded;  and  if  an  assault  is  made  upon  him  by 
proof  of  inconsistent  statements,  he  might,  even  before  the  adoption  of  the  rule 
requiring  him  to  be  first  examined  as  to  such  statements,  be  recalled  and  re- 
examined by  the  party  in  whose  favor  he  had  testified;  and  he  may  thus  have  an 
opportunity  of  repelling  or  explaining  away  the  force  of  the  assault;  whereas 
the  witness  whose  deposition  has  been  taken  is  usually  absent  from  the  scene  of 
the  trial,  and  has  no  shield  against  attacks  on  his  veracity  other  than  tliat  pro- 
vided by  the  rule.  .  .  .  There  are  no  peculiar  considerations  calling  upon  us  to 
exempt  this  case  from  the  operation  of  the  rule;  for  it  appears  from  the  deposi- 
tion that  the  plaintifl^'s  counsel  was  not  only  present  at  the  taking,  but  exercised 
on  the  occasion  his  privilege  of  cross-examining  the  witness. 


336  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  226 

226.   ADAMS  v.   HERALD   PUBLISHING   CO. 

Supreme  Court  of  Errors  of  Connecticut.     1909 

82  Conn.  448;   74  Ati  755 

Appeal  from  Court  of  Common  Pleas,  Hartford  County;  John 
Coats,  Judge.  Action  for  breach  of  contract  by  Eugene  Adams  against 
the  Herald  Publishing  Company.  From  a  judgment  for  defendant, 
plaintiff  appeals.     Affirn^ed. 

The  defendant  is  a  corporation  engaged  in  the  publication  of  a  news- 
paper and  doing  printing.  ...  A  business  office  was  maintained  in  the 
building  where  the  paper  was  printed  and  issued.  .  .  .  One  Schmidt 
was  employed  as  the  head  of  this  office.  His  duties  consisted  in  ascer- 
taining and  carrying  out  the  directions  of  the  directors,  except  in  routine 
matters  concerning  which  there  could  be  no  reasonable  doubt.  On  the 
morning  upon  which  Schmidt  first  went  to  work,  the  plaintiff  visited 
the  office,  inquired  for  the  business  manager,  and  by  some  one  was 
referred  to  Schmidt.  .  .  .  He  proposed  to  Schmidt  to  enter  into  a  con- 
tract with  the  defendant  for  the  canvass  of  New  Britain  for  four-line 
advertisements,  .  .  .  his  proposal  to  be  signed  by  the  defendant.  Schmidt 
expressed  a  desire  to  think  over  the  matter  and  to  consult  others,  and  the 
plaintiff  left,  leaving  the  forms  of  contract  with  him.  Schmidt  later 
accepted  the  proposition  and  signed  the  contract  in  the  name  of  the 
defendant  by  himself  as  business  manager.  .  .  .  Schmidt  in  fact,  did 
not  consult  with  either  of  the  directors  or  officers  in  relation  thereto,  and 
had  no  authority  to  enter  into  such  a  contract  on  behalf  of  the  defendant, 
and  it  was  not  within  the  apparent  scope  of  his  authority  to  do  so.  .  .  . 
None  of  the  proposed  advertisements  were  ever  published,  and  no  benefit 
therefrom  ever  accrued  to  the  defendant,  who  repudiated  the  contract 
entered  into  by  Schmidt  when  its  existence  became  known  to  it,  and 
refused  to  pay  the  plaintiff  thereunder.  The  other  pertinent  facts  are 
stated  in  the  opinion. 

Charles  S.  Hamilton  and  James  Roche,  iox  appellant.  Bernard  F. 
Gaffney,  for  appellee. 

Prentice,  J.  (after  stating  the  facts  as  above).  The  plaintiff  seeks 
to  enforce  against  the  defendant  the  terms  of  a  written  contract  which 
was  not  otherwise  executed  on  the  latter's  behalf  than  by  one  who  at  the 
time  of  its  execution  was  known  to  the  plaintiff  to  be  an  agent.  .  .  . 

The  plaintiff  offered  evidence  in  chief  tending  to  show  that  Schmidt 
submitted  the  contract  to  the  two  officers  of  the  corporation,  who  were 
also  its  only  directors,  before  it  was  executed,  and  that  it  was  approved 
by  them.  This  the  two  persons  concerned  denied.  L'pon  rebuttal  a 
witness  was  called  for  the  purpose  of  contradicting  one  of  these  directors 
—  the  president,  one  Cochran.  This  witness  was  asked  concerning  a 
conversation  which  he  testified  he  had  with  Cochran  within  a  few  days 


No.  226  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  337 

after  the  contract  was  entered  into,  for  the  purpose  of  showing,  as 
claimed,  that  Cochran  then  informed  the  witness  about  it.  Counsel  for 
the  defendant  objected  to  the  inquiry,  upon  the  ground  that  Cochran's 
attention  had  not  been  called  to  the  claimed  conversation,  and  the  proper 
course,  as  outlined  in  22  Conn.,  58  Am.  Dec,  pursued,  and  the  inquiry 
was  not  permitted.  The  case  to  which  counsel  thus  appealed  for  the 
exclusion  of  the  proffered  testimony  was  that  of  Hedge  v.  Clapp,  22 
Conn.  2G2,  58  Am.  Dec.  424,  wherein  the  question  of  the  power  and  duty 
of  a  Court  in  dealing  with  a  situation  like  that  before  the  Court  in  the 
present  case  was  fully  discussed  and  clearly  defined.  In  that  case  it  was 
contended  that  it  was  reversible  error  to  receive  evidence  of  the  declara- 
tions of  a  witness,  made  out  of  Court,  contradictory  of  his  statements 
sworn  to  on  the  trial,  without  requiring  that  the  attention  of  the  witness 
should  have  been  first  called  upon  cross-examination  to  the  claimed 
contradictory  declarations.  Such  is  the  unbending  rule  of  law  in  many, 
if  not  most,  jurisdictions  to-day.     Wigmore  on  Evidence,  §  1028. 

This  Court,  however,  refused  to  join  in  the  procession  of  those  who 
have  created,  out  of  the  decision  of  the  judges  in  The  Queen's  Case,  2 
B.  &  B.  313  [afite,  No.  223],  any  such  inflexible  principle.  But,  while  this 
is  true,  it  gave  no  encouragement  to  a  general  practice  on  the  part  of  the 
Courts  of  admitting  such  contradictory  declarations  quite  regardless  of 
whether  or  not  the  attention  of  the  witness  sought  to  be  contradicted 
had  been  first  directed  to  them.  Much  less  did  that  authority  hold  or 
suggest  that  the  refusal  to  hear  such  contradictory  testimony  under  any 
and  all  circumstances  would  be  reversible  error.  The  conclusion  of  the 
Court  was  that  there  was  no  inflexible  rule  to  govern  the  conduct  of  a 
trial  Court  under  the  conditions  suggested,  that  the  practice  sought  to 
be  established  as  an  unyielding  rule  by  the  plaintiff  in  error  was  a  safe 
and  conservative  one  to  pursue  in  many,  if  not  most,  cases,  and  one  very 
proper  to  be  adhered  to  in  such  cases,  but  that  it  was  one  from  which  a 
Court  in  the  exercise  of  that  discretion,  with  which  it  is  liberally  endowed, 
might  well  and  properly  depart,  if,  with  the  circumstances  before  it,  it 
was  of  the  opinion  that  the  ends  of  fairness  and  justice  would  thereby 
be  best  subserved.  The  principles  of  this  leading  case  have  been  strictly 
adhered  to  in  this  jurisdiction,  and  they  embody  familiar  law.  State 
ex  rel.  Woodford  v.  North,  42  Conn.  79;  Tomlinson  v.  Derby,  43  Conn. 
562,  565;  Bradley  v.  Gorham,  77  Conn.  211,  213.  It  is  clear  therefore 
that  the  ruling  of  the  Court  was  not  one  which  deprived  the  plaintiff  of 
any  right,  and  that  it  was  one  which  lay  within  the  domain  of  the  judicial 
discretion.  .  .  . 

We  have  said  that  error  cannot  be  predicated  upon  a  ruling  made  in 
the  exercise  of  this  discretion.  State  ex  rel.  Woodford  v.  North,  42  Conn. 
79;  Tomlinson  v.  Derby,  43  Conn.  562,  565.  If,  however,  it  be  assumed 
that  a  case  might  arise  which  disclosed  such  a  clear  abuse  of  discretion 
as  to  warrant  a  review  this  clearly  is  not  such  a  case.  .  .  .  There  is  no 
error.  The  other  Judges  concur. 


338  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  228 

Sub-topic  D.     Who  may  be  Impeached 

228.  History}  —  The  history  of  the  rule  is  singularly  obscure,  considering 
its  practical  frequency  and  importance.  But  the  following  stage  of  its  develop- 
ment are  fairly  clear: 

In  the  primitive  modes  of  trial,  persons  who  attended  on  behalf  of  the  parties 
were  not  witnesses,  in  the  modern  sense  of  the  word.  They  were  "oath-helpers," 
by  whose  mere  oath,  taken  by  the  prescribed  number  of  persons  and  in  the  proper 
form,  the  issue  of  the  cause  was  determined.  They  were  chosen,  naturally  and 
usually,  from  among  the  relatives  and  adherents  of  either  party.  They  went 
up  to  the  court  literally  to  "swear  him  off,"  and  the  two  sets  of  oath-takers 
were  marshalled  in  opposing  bands.  This  traditional  notion  of  a  witness,  that 
of  a  person  ex  officio  a  partisan  pure  and  simple,  persisted  as  a  tradition  long 
past  the  time  when  their  function  had  ceased  to  be  that  of  a  mere  oath-taker 
and  had  become  that  of  a  testifier  to  facts.  So  long  as  such  a  notion  persisted, 
it  was  inconceivable  that  a  party  should  gainsay  his  own  witness;  he  had  been 
told  to  bring  a  certain  number  of  persons  to  swear  for  him;  if  one  or  more  did 
not  do  so,  that  was  merely  his  loss;  he  should  have  chosen  better  ones  for  his 
purpose.  This  notion  that  a  party  must  stand  or  fall  by  what  his  partisan 
afl&rms  was  long  in  disappearing. 

It  was  a  natural  consequence  of  this  notion  that  the  party  should  not  be 
allowed  to  dispute  what  his  own  chosen  witness  says.  Such  (presumably)  w'as 
the  instinctive  thought  all  through  the  earlier  periods  of  our  recorded  trials,  and 
long  after  the  time  when  witnesses  in  the  modern  sense  had  taken  the  place  of 
compurgators.  Its  beginnings  are  seen  at  the  end  of  the  1600s,  in  criminal 
trials.  Until  that  time,  the  accused  had  no  legal  right  to  summon  witnesses 
{ante,  §  575),  and  apparently  the  prosecution  was  not  before  then  hampered  by 
any  rule  against  impeachment.  In  that  period  a  rule  begins  to  be  hinted  at, 
as  against  the  accused's  witnesses,  though  the  prosecution  is  still  exempt. 

By  the  beginning  of  the  1700s  a  general  rule  makes  a  casual  appearance,  and  is 
applied  in  civil  cases  equally.  But  it  had  not  yet  received  common  acceptance; 
for  it  is  not  mentioned  in  any  of  the  early  editions  of  the  treatises  on  trial  practice. 
By  the  end  of  the  1700s,  however,  it  is  notorious  and  unquestioned.  Its  enforce- 
ment in  the  trial  of  Warren  Hastings,  in  1788,  seems  to  have  been  the  immediate 
cause  of  its  general  cm-rency;   for  thereafter  it  receives  mention  in  the  treatises. 

229.  Stephen  Colledge's  Trial.  (1681.  Howell's  State  Trials,  VIII, 
637.)  [Treason.  The  accused  was  a  Protestant  joiner,  said  to  have  shared  in 
a  Presbyterian  Plot  against  the  King.  A  principal  witness  against  him  was 
one  Turbervile.     Colledge  now  calls  witnesses  to  discredit  Tiu-bervile.] 

Colledge.  —  Pray,  my  lord,  give  me  leave  to  call  IVIr.  Ivy. 

Serj.  Jeff.  —  Do,  if  you  will.     (He  stood  up.) 

Colledge.  —  What  was  that  you  heard  Turbervile  say  of  me,  or  of  any  presby- 
terian  Plot? 

Icy.  —  I  never  heard  him  say  any  thing  of  a  Presbyterian  Plot  in  my  life. 

Colleged.  —  Did  you  not  tell  Zeal  of  such  a  thing? 

Iry.  —  No,  I  never  did.  .  .  . 

Colledge.  —  Did  not  you  call  me  out  with  Macnamarra  and  Haynes,  to  the 
Hercules  Pillars? 


Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§  896). 


No.  231  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  339 

,  L.  C.  J.  ScROGGS.  — Look  you,  Mr.  Colledge,  I  will  tell  you  something  for 
law,  and  to  set  you  right;  whatsoever  witnesses  you  call,  you  call  them  as  wit- 
nesses to  testify  the  truth  for  you ;  and  if  you  ask  them  any  questions,  you  must 
take  what  they  have  said  as  truth.  Therefore,  you  must  not  think  to  ask  him 
any  questions,  and  afterward  call  another  witness  to  disprove  your  own  witness. 

Colledge.  —  I  ask  him,  was  he  the  first  time  with  us,  when  I  was  called  out 
of  the  coffee-house  to  hear  Haynes's  discovery? 

L.  C.  J.  — Let  him  answer  you  if  he  will;  but  you  must  not  afterwards  go 
to  disprove  him.  .  .  . 

Colledge.  —  I  ask  whether  he  hath  given  any  evidence  against  me  any  where? 

Ivy.  —  I  am  not  bound  to  answer  you. 

L.  C.  J.  —  Tell  him,  if  you  have. 

Ivy.  —  Yes,  my  lord,  I  have. 

Colledge.  —  Then  I  think  he  is  no  good  witness  for  me,  when  he  hath  sworn 
against  me.  .  .  .  Call  Mr.  Lewes.     (Who  appeared.) 

L.  C.  J.  —  What  is  your  Christian  name? 

Lewes.  —  William. 

Colledge.  —  Pray,  Mr.  Lewes,  what  do  you  know  about  Turbervile? 

Lewes.  —  I  know  nothing  at  all,  I  assure  you,  of  him  that  is  ill. 

Colledge.  —  Do  you  know  anything  concerning  any  of  the  evidence  that 
hath  been  given  here? 

Lewes.  —  If  I  knew  any  thing  relating  to  you,  I  would  declare  it;  but  I  know 
something  of  Mr.  Ivy;  it  has  no  relation  to  you,  as  I  conceive,  but  against  my 
lord  of  Shaftesbury. 

L.  C.  J.  —  You  would  call  Ivy  for  a  witness,  and  now  you  call  one  against 
him;   and  that  I  told  you,  you  must  not  do. 

230.  BuLLER,  J.  Trials  at  Nisi  Pri^is.  {Ante  1767.  p.  297).  A  party  shall 
never  be  permitted  to  produce  general  evidence  to  discredit  his  own  witness,  for 
that  would  be  to  enable  him  to  destroy  the  witness  if  he  spoke  against  him, 
and  to  make  him  a  good  witness  if  he  spoke  for  him,  with  the  means  in  his 
hands  of  destroying  his  credit  if  he  spoke  against  him. 


231.   EWER  V.   AMBROSE 

King's  Bench.     1825 

S  B.  &C.  746 

Assumpsit  for  money  had  and  received,  and  on  an  account  stated. 
John  Baker  suffered  judgment  by  default,  and  afterwards  died,  and 
his  death  was  suggested  on  the  roll.  Plea,  in  abatement  by  Ambrose, 
that  the  promises  were  made  by  him  jointly  with  John  and  Samuel  Baker. 
Replication  that  they  were  made  jointly  by  defendant  and  J.  Baker,  and 
not  by  the  three,  and  issue  thereon.  At  the  trial  before  Gaselee,  J., 
at  the  Summer  assizes,  for  the  county  of  Suffolk,  1824,  the  defendant 
called  Samuel  Baker,  the  alleged  joint  contractor,  to  prove  the  plea  in 
abatement.  He  denied  that  he  ever  was  a  partner,  but  he  admitted  that 
articles  of  partnership  were  prepared,  but  not  executed,  by  which  he  was 
to  have  been  a  partner The  defendant's  counsel,  in  order  to  prove 


340  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  231 

that  S.  Baker  was  a  partner,  proposed  to  read  in  evidence,  an  answer- in 
Chancery  of  John  and  S.  Baker,  to  a  bill  filed  against  them  by  Ambrose, 
in  1821,  for  a  dissolution  of  the  partnership  and  an  account.  The 
learned  judge  inclined  to  think  that  the  evidence  was  not  admissible,  on 
the  ground  that  it  was  produced  in  order  to  contradict  the  defendant's 
own  witness;  but,  in  order  to  prevent  the  cause  coming  down  again, 
he  received  it,  reserving  liberty  to  the  plaintiffs,  in  case  the  verdict 
should  be  against  them,  to  move  the  Court  to  enter  the  verdict  for  them. 
By  the  answer  it  appeared  that  in  1816,  Samuel  Baker  had  become  a 
partner  with  his  father,  John  Baker,  and  Ambrose,  and  that  that  partner- 
ship continued  down  to  the  time  when  the  answer  was  filed  in  April, 
1821.  The  defendant  then  called  two  other  witnesses  to  prove  that 
Samuel  Baker  was  a  partner.  This  evidence  was  objected  to  on  the 
ground  the  that  defendant  could  not  contradict  his  own  witness.  .  .  . 
The  learned  judge  left  it  to  the  jury  to  find  for  the  plaintiff  or  defendant 
according  as  they  gave  credit  to  Samuel  Baker's  answer  in  Chancery, 
or  to  his  testimony  given  in  Court.  They  found  a  verdict  for  the  defend- 
ant. A  rule  nisi  having  been  obtained  in  Michaelmas  term,  to  enter  a 
verdict  for  the  plaintiff,  on  the  objections  taken  at  the  trial. 

Storks,  and  Dover,  now  showed  cause.  Alexander  v.  Gibson,  2  Camp. 
555,  is  an  authority  to  show  that  if  a  witness  proves  facts  in  a  cause  which 
make  against  the  party  who  calls  him,  the  party  may  call  other  witnesses 
to  contradict  him  as  to  those  facts.  In  such  case  the  facts  are  evidence 
in  the  cause,  and  the  other  witnesses  are  not  called  directly  to  discredit 
the  first  witness,  the  impeachment  of  his  credit  is  incidental  and  conse- 
quential only. 

Rolfc,  contra.  The  effect  of  the  answer  was  to  impeach  the  credit 
of  the  witness  called  by  the  defendant,  and  upon  whose  credit  he  rested 
his  case.  Now  that  was  clearly  inadmissible.  The  same  observation 
applies  to  the  other  witnesses.  They  were  called  to  prove  the  fact  of 
Samuel  Baker,  being  a  partner,  he  himself  having  disproved  it.  .  .  . 

Bayley,  J.  —  There  have  been  cases  in  which,  when  a  witness  called 
to  make  out  a  substantive  case  disproved  that  case,  the  party  calling 
him  has  been  allowed  to  prove  it  by  other  witnesses.  But  those  were 
cases  where  a  witness  was  forced  upon  the  party  by  law;  as,  for  instance, 
a  subscribing  witness  to  a  deed  or  will.  Thus  in  Lowe  v.  Joliffe,  1  Black. 
365,  the  subscribing  witness  to  a  will  swore  to  the  testator's  insanity, 
yet  the  plaintiff  was  allowed  to  examine  other  witnesses  in  support  of  his 
case,  to  prove  that  the  testator  was  sane.  So  in  Pike  v.  Badmering,  cited 
in  2  Strange  1096,  where  the  three  subscribing  witnesses  to  a  will  denied 
their  hands,  the  plaintiff  was  permitted  to  contradict  that  evidence. 
This  case  differs  from  those,  inasmuch  as  the  witness  was  not  forced 
on  the  party.  But  I  have  no  doubt  that  if  a  witness  gives  evidence 
contrary  to  that  which  the  party  calling  him  expects,  the  party  is  at 
liberty  afterwards  to  make  out  his  own  case  by  other  witnesses,  Richard- 
son V.  Allan,  2  Stark.  334. 


No.  232  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  341 

I  doubt,  however,  whether  the  defendant  was  at  Hberty  to  put  in  the 
answer  in  Chancery  of  the  witness  in  order  to  discredit  him.  .  .  , 

I  think,  however,  that  the  evidence  of  Wing  and  Spark,  was  admissible 
to  prove  the  fact  of  the  partnership,  and  that  it  ought  to  have  been  left 
to  the  jury  to  consider  whether  they  were  not  satisfied  from  their  evidence, 
coupled  with  the  other  facts  of  this  case,  that  there  was  an  ostensible 
partnership  between  the  two  Bakers,  and  Ambrose. 

HoLROYD,  J.  —  I  also  think  there  ought  to  be  a  new  trial.  I  take  the 
rule  of  law  to  be,  that  if  a  witness  proves  a  case  against  the  party  calling 
him,  the  latter  may  show  the  truth  by  other  witnesses.  But  it  is  un- 
doubtedly true,  that  if  a  party  calls  a  witness  to  prove  a  fact,  he  cannot, 
when  he  finds  the  witness  proves  the  contrary,  give  general  evidence  to 
show  that  that  witness  is  not  to  be  believed  on  his  oath.  .  .  . 

It  may  admit  of  doubt  whether  the  answer  were  admissible  at  all. 
It  certainly  was  not  admissible  to  prove  generally  that  the  witness  was 
not  worthy  of  any  credit.  It  might,  perhaps,  be  admissible  if  the  effect 
of  it  were  only  to  show  that,  as  to  the  particular  fact  sworn  to  at  the  trial, 
the  witness  was  mistaken.  But  if  its  effect  were  only  to  show  that  the 
witness  was  not  worthy  of  credit,  then  it  was  not  admissible.  .  .  . 

LiTTLEDALE,  J.  —  Where  a  witness  is  called  by  a  party  to  prove  his 
case,  and  he  disproves  that  case,  I  think  the  party  is  still  at  liberty  to 
prove  his  case  by  other  witnesses.  It  would  be  a  great  hardship  if  the 
rule  were  otherwise,  for  if  a  party  had  four  witnesses  upon  whom  he  relied 
to  prove  his  case,  it  would  be  very  hard,  that  by  calling  first  the  one  who 
happened  to  disprove  it,  he  should  be  deprived  of  the  testimony  of  the 
other  three.  If  he  had  called  the  three  before  the  other  who  had  dis- 
proved the  case,  it  would  have  been  a  question  for  the  jury  upon  the 
evidence  whether  they  would  give  credit  to  the  three  or  to  the  one.  The 
order  in  which  the  witnesses  happen  to  be  called  ought  not  therefore  to 
make  any  difference. 

It  may  be  a  doubtful  question,  whether  the  answer  in  Chancery  was 
properly  received  to  prove  a  different  state  of  facts  from  that  which  the 
witness  had  sworn  to  at  the  trial.  At  all  events  it  could  only  be  admissi- 
ble to  contradict  the  particular  fact  to  which  the  witness  had  then  sworn; 
and  whether  it  was  admissible  in  the  latter  point  of  view,  it  is  not  neces- 
sary to  decide.  Rule  absolute  for  a  new  trial. 


232.   SELOVER  v.   BRYANT 

Supreme  Court  of  Minnesota.     1893 

54  Mi7m.  434;  56  N.  W.  58 

Appeal  by  defendant,  John  W^  Bryant,  from  an  order  of  the  District 
Court  of  Hennepin  County,  C.  B.  Elliott,  J.,  made  March  1,  1893, 
denying  his  motion  for  a  new  trial. 


342  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  232 

The  plaintiffs,  George  H.  Selover  and  Charles  D.  Gould,  were  attor- 
neys at  law,  practicing  at  Minneapolis.  Between  July  15,  and  September 
23,  1892,  they  rendered  professional  services  for  Lucia  A.  Bryant.  She 
employed  them  to  bring  suit  against  her  husband,  George  M.  Bryant, 
for  divorce,  and  for  a  share  of  his  property.  They  did  so,  and  conducted 
the  case  to  an  amicable  settlement  on  the  latter  date.  They  brought  this 
action  on  October  25,  1892,  to  recover  for  their  services.  They  alleged 
that  on  the  settlement  the  husband  agreed  with  his  wife  to  pay  them 
their  reasonable  fees  and  charges  in  the  divorce  suit.  That  the  value  of 
their  services  was  $500,  of  which  $90  only  had  been  paid.  They  asked 
judgment  for  the  residue.  Defendant  denied  the  agreement  to  pay  his 
wife's  attorneys,  and  denied  that  their  services  were  worth  more  than  the 
$90  she  had  paid. 

On  the  trial  November  17,  1892,  plaintiffs  called  Lucia  A.  Bryant  as 
a  witness  and  asked  her  as  to  the  agreement  of  her  husband  to  pay  her 
attorneys.  She  testified  that  she  did  not  hear  anything  said  on  the 
settlement  about  the  fees  of  her  attorneys;  that  her  husband  did  not 
agree  with  her  to  pay  them.  She  further  testified  that  she  did  not  state 
to  Mr.  Gould,  the  day  before,  that  her  husband  had  so  agreed.  Plaintiffs 
then  called  Mr.  Gould  and  offered  to  prove  by  him  that  she  did  so  state 
to  him  on  the  previous  day  Defendant  objected,  but  the  objection  was 
overruled.     Defendants  excepted,  and  the  witness  so  testified.  .  .  . 

The  jury  foimd  a  verdict  for  plaintiffs  and  assessed  their  damages  at 
$345.  Defendant  died  January  23,  1893,  and  John  W.  Bryant,  the 
administrator  of  his  estate,  was  substituted  as  defendant  in  his  stead. 
He  moved  for  a  new  trial,  and,  being  denied,  appeals. 

George  R.  Robinson,  for  appellant.  The  plaintiffs,  knowing  that  the 
wife  could  not  testify  against  her  husband  without  his  consent  (1878, 
G.  S.  ch.  73,  §  10),  placed  her  upon  the  stand,  and,  after  having  her 
testimony,  they  were  allowed,  not  only  to  contradict  and  discredit  their 
witness,  but  to  show,  by  the  testimony  of  other  witnesses,  her  alleged 
statements  against  her  husband  made  when  not  under  oath.   .   .   . 

Boardman  &  BouteUe,  for  respondents.  Plaintiffs  had  the  right  to 
show  contradictory  statements  of  their  own  witness.  This  is  sustained 
by  the  great  weight  of  authority  in  cases  where  the  witness  has  been 
called,  upon  the  strength  of  his  prior  statements,  and  upon  the  supposi- 
tion that  he  will  testify  in  accordance  therewith,  and  when  upon  the 
stand  he  surprises  the  party  calling  him,  by  testifying  directly  to  the 
contrary,  and  in  the  interest  of  the  adverse  party.  .  .  . 

Dickinson,  J.  .  .  .  The  case  justified  the  conclusion  of  the  Court 
that  the  plaintiffs  were  surprised  by  the  adverse  testimony.  It  is  one 
of  the  controverted  questions  in  the  law  of  evidence  whether  a  party 
calling  a  witness,  and  who  is  surprised  by  his  adverse  testimony,  may  be 
permitted  to  show  that  he  had  made  previous  statements  contrary  to 
his  testimony.  A  learned  writer  has  said  that  the  w^eight  of  authority 
seems  to  be  in  favor  of  admitting  such  proof.    1  Greenleaf ,  Evidence,  §  444. 


No.  232  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  343 

We  are  in  doubt  whether  the  weight  of  authority  is  not  the  other  way; 
but  we  feel  confident  that  the  well-recognized  reasons  and  principles  of 
the  law  of  evidence  support  the  proposition  that,  at  least  in  the  discretion 
of  the  trial  Court,  such  evidence  is  admissible.  It  is  perfectly  well 
settled,  and  upon  satisfactory  reasons,  that  if  the  defendant  had  called 
the  witness  to  the  stand,  and  she  had  testified  as  she  did  as  to  the  fact  in 
issue,  the  plaintiffs,  after  proper  preliminary  proof,  would  have  been 
allowed  to  show  by  other  witnesses  that  she  had  made  statements  con- 
trary to  her  testimony.  This  rule,  now  everywhere  recognized,  rests 
upon  the  obvious  propriety  and  necessity  of  informing  the  jury  of  cir- 
cumstances so  directly  bearing  upon  the  credibility  of  the  witness  and  the 
value  of  his  testimony  as  do  contradictory  statements  by  him  of  the 
controverted  facts  concerning  which  he  testifies,  and  which  the  jury  must 
determine.  But  this  controlling  reason  for  allowing  such  discrediting 
evidence  exists,  and  with  precisely  the  same  force,  whether  the  witness 
has  been  called  to  stand  by  the  opposite  party  or  by  the  party  who  offers 
the  impeaching  proof;  and  if  the  witness  may  be  thus  discredited  by  the 
party  who  did  not  call  him,  but  may  not  be  discredited  by  the  party  who 
called  him,  the  reason  must  be  that  by  calling  the  witness  to  the  stand 
the  party  holds  him  forth  as  being  worthy  of  credit,  and  hence  he  should 
not  be  allowed  afterwards  to  impeach  his  credibility.  And  this  is  the 
proposition  which,  in  one  form  or  another,  is  generally  assigned  as  the 
reason  of  the  rule  disallowing  such  impeachment  wherever  that  rule  has 
prevailed.  This  rule  and  the  reason  for  it  has  been  so  generally  accepted 
and  applied  with  reference  to  an  impeachment  by  a  party  of  the  general 
reputation  of  a  witness  whom  he  has  called  that  it  is  perhaps  not  now  to 
be  questioned;  but  as  respects  the  particular  discrediting  proof  which 
we  are  considering,  the  practice  has  been  less  uniform,  and  the  excluding 
of  the  discrediting  proof  has  been  more  strenuously  opposed  by  the  best 
authorities. 

The  reason  upon  which  it  rests  is,  we  think,  plainly  fallacious.  The 
fault  in  the  reason  lies  in  the  premise  that,  by  calling  the  witness,  the 
party  presents  him  as  being  worthy  of  credit,  or,  in  any  sense,  vouches 
for  his  truthfulness.  In  some  sense  and  measure  this  may  be  true.  But 
laying  aside  the  subject  of  general  impeachment,  and  directing  our  atten- 
tion only  to  the  question  of  allowing  proof  of  statements  contrary  to  the 
testimony  by  which  a  party  is  surprised  at  the  trial,  the  above-stated 
reason  is  of  no  controlling  force,  except  as  it  includes  and  implies  such  a 
degree  of  responsibility  for  the  credit  of  the  witness  —  such  a  personal 
voucher  of  his  truthfulness  —  that  it  would  be  bad  faith,  double  dealing, 
trifling  with  the  Court,  or  something  akin  thereto,  for  the  party  to  after- 
wards throw  discredit  upon  his  testimony.  The  premise  is  not  tenable. 
A  party  is  not  to  be  held  to  have  assumed  any  such  responsibility  as  to 
the  truthfulness  of  a  witness,  and  ordinarily,  at  least,  there  can  be  no 
imputation  of  bad  faith,  or  anything  like  it,  when,  tlie  party  being  sur- 
prised by  his  own  witness  testifying  directly  in  favor  of  the  adverse  party, 


344  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  232 

he  offers  to  show  his  preHminary  statements  to  the  contrary,  as  impeach- 
ing his  credibihty.  One  has  not  all  the  world  from  which  to  choose  the 
witnesses  by  whose  testimony  he  must  prove  his  case.  He  has  not  the 
freedom  of  choice  that  one  has  in  the  selection  of  an  agent.  He  can  only 
call  those  who  are  supposed  to  know  the  facts  in  issue.  He  is  entitled 
to  have  their  testimony  placed  before  the  jury,  not  as  the  statements  of 
his  agents  or  representatives  by  which  he  is  to  be  concluded,  but  as  the 
testimony  of  witnesses  whose  credibility  he  cannot  be  expected  to  vouch 
for,  but  which  the  jury  are  to  determine. 

It  is  everywhere  admitted  that  a  party  whose  witness  testifies  against 
him  is  not  concluded  thereby.  He  may  prove  the  fact  to  be  contrary  to 
such  testimony,  although  that  does  discredit  a  witness  whom  he  has  called. 
We  deny  that,  by  calling  a  witness  to  the  stand,  a  party  becomes  responsi- 
ble for  his  credibility  in  any  such  sense  that  he  is  absolutely  precluded, 
when  surprised  by  adverse  testimony,  from  showing  that  the  witness  had 
made  statements  of  the  facts  contrary  to  his  testimony.  It  is  at  least 
within  the  discretion  of  the  Court  to  allow  this.  It  has  been  suggested 
that  this  affords  an  opportunity  to  fraudulently  get  before  the  jury  the 
unsworn  statement  of  a  witness  which  the  jury  may  accept  as  evidence 
of  the  fact.  But  the  same  objection  may  be  urged  in  opposition  to 
allowing  a  party  to  discredit  in  this  way  a  witness  called  by  the  adverse 
party;  yet  this  is  always  allowed.  The  direct,  certain,  and  obvious  effect 
of  such  evidence,  in  enabling  the  jury  to  rightly  weigh  the  testimony, 
should  prevail  over  the  far  more  remote,  improbable,  and  collateral 
considerations  that  opportunity  may  be  thus  afforded  to  a  dishonest 
party  to  collude  with  a  dishonest  witness  to  make  a  false  statement  of 
facts,  which  the  witness  would  not  swear  to,  in  order  that,  after  the 
witness  shall  have  testified  the  truth,  the  false  unsworn  statement  to 
the  contrary  may  be  shown.  There  are  so  many  contingencies  in  the 
way  of  such  barely  possible  results  that  the  remote  possibility  is  not 
of  much  weight,  as  against  the  plain  practical  considerations  opposed 
to  it. 

^Tiile,  perhaps,  the  weight  of  authority  is  in  favor  of  excluding  such 
evidence,  Ave  feel  that,  in  holding  it  to  be  within  the  discretion  of  the 
Court  to  receive  it,  we  are  justified,  not  only  by  reason,  but  by  a  sufficient 
array  of  authority.  In  the  English  Courts  both  views  have  been  sanc- 
tioned. A  strong  presentation  of  the  rule  allowing  such  proof  was  made 
by  Lord  Chief  Justice  Denman  in  Wright  v.  Beckett,  1  Moody  &  R.  414. 
This  view  is  preferred  in  Starkie,  Evidence  (Sharswood's  Ed.)  245;  2 
Phillips  Evidence,  pp.  985-995;  1  Greenleaf,  Evidence,  444;  Cowden  i'. 
Reynolds,  12  Serg.  &  R.  281,  283;  Bank  of  the  Northern  Liberties  v. 
Davis,  6  Watts  &  S.  285;  Smith  v.  Briscoe,  65  Md.  561,  (5  Atl.  Rep.  334) ; 
Campbell  v.  State,  23  Ala.  44,  76;  Hemingway  v.  Garth,  51  Ala.  530; 
Moore  v.  Chicago,  St.  L.  &  N.  O.  Railroad  Co.,  59  Miss.  243;  and  see 
Johnson  v.  Leggett,  28  Kan.  590,  606.  See,  also,  a  discussion  of  this 
subject  in  11  Am.  Law  Rev.  261.     It  may  be  added,  as  indicating  what 


No.  234  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  345 

it  has  been  considered  the  rule  ought  to  be,  that  in  England  and  in  several 
of  our  States  statutes  have  been  enacted  allowing  such  proof  to  be  made. 
Our  conclusion  on  this  point  is  that  the  Court  did  not  err  in  receiving  the 
evidence.  .  .  .  Order  affirmed. 

GiLFiLLAN,  C.  J.  —  On  the  point  of  the  admissibility  of  the  evidence 
of  contradictory  statements  made  by  the  witness  Bryant,  I  dissent. 

233.  Statutes.  England.  (1854,  St.  17  &  IS  Vict.  c.  125  §  22).  [1]  A  party 
producing  a  witness  shall  not  be  allowed  to  impeach  his  credit  by  general  evidence 
of  bad  character;  [2]  but  he  may,  in  case  the  witness  shall  in  the  oi)inion  of  the 
judge  prove  adverse,  [3]  contradict  him  by  other  evidence,  [4]  or  by  leave  of  the 
judge  prove  that  he  has  made  at  other  times  a  statement  inconsistent  with  his 
present  testimony. 

California  (C.  C.  P.  1872,  §  2049).  The  party  producing  a  witness  .  .  .  may 
also  show  that  he  has  made  at  other  times  statements  inconsistent  with  his 
present  testimony. 


234.   STATE   v.   SLACK 

SuPEEME  Court  of  Vermont.     1897 

69  Vt  486;  38  All.  311 

Indictment  for  assault  with  intent  to  rob.  Plea,  not  guilty.  Trial 
by  jury  at  the  December  Term,  1896,  Windsor  County.  Munson,  J., 
presiding.     Verdict,  guilty.     The  respondents  excepted. 

In  the  cross-examination  of  Orson  Sargent,  he  was  asked  in  behalf 
of  the  State  whether  he  had  not  been  convicted  in  the  United  States 
Circuit  Court  for  selling  liquor  without  a  government  license,  and 
replied  that  he  had  not,  that  the  matter  had  been  settled  up  in  some 
other  way,  but  exactly  how  he  did  not  remember. 

G.  A.  Davis  and  D.  A.  Pingrce,  for  the  respondent  Slack;  W.  E. 
Johnson  and  Wm.  Batcheldcr,  for  the  respondent  Clough.  .  .  .  The 
general  rule  precluding  parties  from  impeaching  their  own  witnesses 
applies  to  this  State.  .  .  . 

J.  G.  Harvey,  State's  Attorney,  and  W.  W.  Siickncy,  for  the  State.  • 

RowELL,  J.  —  The  State,  in  its  opening,  called  Orson  Sargent  as  a 
witness,  to  prove  flight.  The  prisoners  called  him  in  defense,  to  prove 
innocence.  On  cross-examination,  to  impeach  him,  the  State  was  allowed 
to  ask  him  if  he  was  not  convicted  in  the  United  States  Circuit  Court  for 
selling  liquor  without  a  license,  and  he  said  he  was  not,  that  he  settled  it, 
but  could  not  tell  just  how  it  was  done.  The  State  was  also  allowed, 
for  the  same  purpose,  to  introduce  a  copy  of  the  record  of  his  conviction 
in  1883  for  selling  liquor  contrary  to  law,  and  to  prove  by  him  that  he 
was  the  person  convicted.  Before  said  copy  of  record  was  offered  and 
Sargent  inquired  of  concerning  it,  the  prisoners,  on  cross-examination 
of  the  State's  witness  Armstrong,  had  shown  by  him  without  objection 


346  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  234 

that  he  had  been  convicted  at  that  term  of  selHng  Hquor  contrary 
to  law.  .  .  . 

1.  The  principal  question  is,  whether  the  prisoners  can  object  to  the 
State's  impeaching  Sargent  in  the  same  way,  provided  it  could  impeach 
him  at  all.  They  say  that  the  State  could  not  impeach  him  at  all,  save  as 
allowed  by  statute,  because  it  first  called  him,  wherefore  he  was  its  witness 
throughout.  This  is  the  general  rule;  but  the  question  is,  whether  it  is 
applicable  to  the  State  in  a  criminal  case. 

As  reason  is  the  soul  of  the  law,  the  maxim  is  that  when  the  reason  of 
a  law  ceases  the  law  itself  ceases.  Or,  as  Willes,  C.  J.,  puts  it  in  Davies 
V.  Powell,  referred  to  in  argument  in  Morgan  v.  The  Earl  of  Abergaveny, 
8  C.  B.  786,  "when  the  nature  of  things  changes,  the  rules  of  law  must 
change  too."  Now  the  reason  of  the  rule  that  a  party  cannot  impeach 
his  own  witness  is,  that  by  calling  him  in  proof  of  his  case,  he  represents 
him  to  be  worthy  of  belief,  and  that  to  attack  his  general  character  for 
truth  after  that,  would  be  not  only  bad  faith  to  the  Court,  but,  in  the 
language  of  Buller,  J.,  [ante,  No.  230]  would  enable  the  party  to  destroy 
him  if  he  spoke  against  him,  and  to  make  him  a  good  witness  if  he  spoke 
for  him.  But  cases  of  what  are  called  instrumental  witnesses  do  not 
come  within  that  rule,  certainly  not  fully  if  at  all;  for  there  the  reason  of 
the  law  fails,  as  the  law  compels  the  party  to  call  such  witness,  and  there- 
fore they  are  the  witnesses  of  the  law  rather  than  of  the  party,  and  it 
would  be  absurd  to  say  that  the  party  accredits  a  witness  whom  the  law 
compels  him  to  call.  .  .  . 

In  Thornton's  Executors  v.  Thornton's  Heirs,  39  Vt.  122,  where  it 
was  held  that  a  party  calling  a  subscribing  witness  to  prove  a  will  could 
impeach  him  by  showing  prior  contradictory  statements,  as  the  law 
compelled  the  party  to  call  him,  the  Court  said  that  many,  but  not  all, 
of  the  reasons  for  permitting  that  kind  of  impeachment  applied  to  an 
impeachment  of  a  general  nature.  .  .  .  We  think  no  such  distinction 
can  logically  be  made,  for  the  same  reason  that  makes  the  rule  inapplica- 
ble to  one  mode  of  impeachment  makes  it  equally  inapplicable  to  all 
modes,  as  the  different  modes  are  but  different  ways  of  doing  the  same 
thing,  namely,  discrediting  the  witness,  and  they  are  equal  in  degree  and 
alike  in  essence.  The  reason  of  the  rule  does  not  fail  in  part  and  stand 
in  part  —  fail  as  to  one  mode  of  impeachment  and  stand  as  to  another 
mode  —  it  is  indivisible,  and  stands  or  falls  as  a  whole.  .   .  . 

As  the  public,  in  whose  interest  crimes  are  prosecuted,  has  as  much 
interest  that  the  innocent  should  be  acquitted  as  that  the  guilty  should 
be  convicted,  we  hold  it  to  be  the  duty  of  the  State  to  produce  and  use 
all  witnesses  within  reach  of  process,  of  whatever  character,  whose  testi- 
mony will  shed  light  upon  the  transaction  under  investigation  and  aid 
the  jury  in  arriving  at  the  truth,  whether  it  makes  for  or  against  the 
accused,  and  that  therefore  the  State  is  not  to  be  prejudiced  by  the 
character  of  the  witnesses  it  calls.  State  v.  Magoon,  50  Vt.  333;  State 
V.  Harrison,  66  Vt.  523.     This  doctrine,  carried  to  its  logical  result, 


No.  235  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  347 

exempts  the  State  in  criminal  cases  from  the  operation  of  the  rule  in 
question,  and  places  it  in  the  position  of  a  party  calling  an  instrumental 
witness,  and  for  the  same  reason. 

We  are  avare  that  in  many,  if  not  most,  jurisdictions  the  rule  is  applied 
to  the  State  in  criminal  cases;  but  it  is  upon  the  ground  that  the  State 
stands  like  any  other  party,  and  accredits  a  witness  by  calling  him; 
from  which  we  infer  that  they  do  not  hold,  as  we  do,  that  the  State  is 
bound  to  call  all  witnesses,  but  is  at  liberty  to  choose  and  to  call  whomso- 
ever it  will. 

We  are  the  more  satisfied  with  the  conclusion  here  reached,  because 
we  think  the  State  ought  not  to  be  hampered  by  such  a  rule.  Prosecu- 
tions are  carried  on  by  the  government,  through  the  agenc}^  of  sworn 
officers  elected  for  that  purpose,  who  have  no  private  interests  to  serve 
nor  petty  spites  to  gratify,  but  whose  sole  and  only  duty  is,  to  faithfully 
execute  their  trust,  and  do  equal  right  and  justice  to  the  State  and  to 
the  accused.  The  course  of  public  justice,  thus  directed,  ought  not  to 
be  obstructed  by  a  rule  without  a  reason.  The  ascertainment  of  the 
truth,  which  is  the  object  of  the  prosecution,  is  of  more  consequence  than 
the  instrumentalities  by  which  it  is  sought  to  be  ascertained;  and  when 
an  instrumentality  becomes  an  obstruction  to  the  course  of  justice, 
the  State  should  be  at  liberty  to  remove  it,  and  by  trampling  upon  it  if 
necessary. 

2.  But  the  prisoners  further  say  that  if  the  State  was  at  liberty  to 
impeach  the  witness,  it  could  not  do  it  by  showing  that  he  had  been  con- 
victed of  selling  liquor,  for  that  is  not  an  infamous  crime.  But  whether 
an  infamous  crime  or  not,  the  prisoners,  against  objection,  were  allowed 
to  impeach  the  State's  witness  Armstrong  in  the  same  way,  and  therefore 
they  cannot  be  heard  to  say  that  the  State  could  not  afterwards  impeach 
in  that  way.  This  is  a  just  application  of  the  maxim  that  he  is  not  to 
be  heard  who  alleges  things  contradictory  to  each  other;  or,  as  Lord 
Ken  YON  once  said,  a  man  cannot  be  permitted  to  "blow  hot  and  cold" 
concerning  the  same  transaction.  .  .  . 

Judgment  that  there  is  no  error  in  the  proceedings  of  the  County 
Court. 

235.   STURGIS  v.   STATE 

Court  of  Criminal  Appeals  of  Oklahoma.     1909 

2  Old.  Cr.  362;   102  Pac.  57 

Appeal  from  Tulsa  County  Court;   N.  J.  Gubser,  Judge. 

Norman  Sturgis  was  convicted  under  an  information  charging  the 
selling  of  intoxicating  liquor  and  the  conveying  of  intoxicating  liquor 
from  one  place  to  another  in  the  state,  and  appeals.  Reversed  and 
remanded. 

On  the  31st  of  December,  1907,  a  prosecution  was  instituted  against 


348  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  235 

Norman  Sturgis,  Arthur  Sturgis,  and  Walter  Sturgis,  by  information, 
charging  them  with  the  commission  of  two  separate  and  distinct  offenses, 
viz. :  First.  SeUing  intoxicating  Hquors  to  certain  parties  whose  names 
were  unknown.  Second.  With  transporting  and  conveying  intoxicating 
hquors  from  one  place  in  the  state  to  another  place  in  the  state,  but  not 
designating  such  places.  The  case  being  called  for  trial,  the  defendants 
assailed  the  information  upon  the  ground  of  duplicity,  in  that  it  attempted 
to  charge  two  offenses  based  upon  separate  and  distinct  acts  of  the  defend- 
ants. This  motion  was,  by  the  Court,  overruled,  and  the  defendants  then 
obtained  a  severance.  Walter  Steen  was  placed  upon  trial  first.  Nor- 
man Sturgis,  who  will  hereinafter  be  called  the  defendant,  was  placed 
upon  trial  and  found  guilty  by  the  jury.  A  motion  for  a  new  trial  was 
filed  and  overruled,  and  the  case  is  regularly  before  us  on  appeal. 

Sleeper  &  Davidson,  for  appellant. 

Fred  S.  Caldwell,  for  appellee. 

FuRMAN,  P.  J.  (after  stating  the  facts  as  above).  .  .  . 

Fourth.  The  twelfth  assignment  of  error  presents  two  questions  as 
to  the  admissibility  of  evidence:  .  .  .  Second.  As  to  the  circumstances 
and  conditions  under  which  a  party  can  contradict  or  impeach  his  own 
witness.  The  proper  presentation  of  these  questions  requires  a  statement 
of  the  e\'idence  admitted  upon  the  trial. 

John  McKinley,  on  behalf  of  the  state,  testified  that  on  the  31st  day 
of  December,  1907,  he  went  to  the  iron-roofed  building  mentioned,  for 
the  purpose  of  securing  work  there;  that  Joe  Holmes  had  told  him  that 
if  he  would  come  around  there  on  that  day  he  thought  he  could  get  a  job; 
that  he  didn't  find  Joe  Holmes  there  at  that  time,  but  some  one  in  the 
building,  whom  he  did  not  know,  handed  him  a  sack  and  asked  him  to  go 
across  the  wagon  yard  to  the  "  old  stone  jail "  and  to  go  into  that  building, 
and  out  of  an  empty  barrel  which  he  would  find  there  get  six  bottles  of 
beer,  put  them  in  the  sack,  and  bring  them  back  to  him;  that  he  took  the 
sack  and  went  across  to  the  "  old  stone  jail,"  and,  by  means  of  a  key  which 
had  been  given  him  by  the  man  who  sent  him,  entered  it;  that  he  found 
the  barrel  referred  to,  and  took  one  bottle  of  beer  out  of  it  and  put  it  in 
the  sack,  and  was  in  the  act  of  passing  a  second  bottle  from  the  barrel 
into  the  sack  when  he  was  arrested  by  Deputy  Gilchrist;  that  it  was  his 
intention,  if  he  had  not  been  disturbed  by  the  officer,  to  get  the  six  bottles 
of  beer,  and  take  them  back  to  the  man  who  had  sent  him.  Defendant 
objected  to  this  testimony  because  incompetent,  irrelevant,  and  im- 
material, but  the  Court  overruled  his  objection,  to  which  he  excepted. 
The  witness  also  testified  on  direct  examination  that  he  did  not  tell 
Deputy  Gilchrist  when  he  was  arrested,  or  at  any  other  time,  that  he 
was  working  for  Sturgis  and  Steen,  or  that  he  was  getting  one  dollar  per 
day  from  them  for  washing  and  repacking  beer  bottles,  or  that  in  sub- 
stance; that  he  did  not  tell  him  that  he  had  been  sent  for  the  beer  by 
defendant,  or  either  of  the  other  defendants,  or  any  one  else  whom  he 
knew.     He  also  testified  that  on  the  31st  day  of  December,  1907,  he  was 


No.  235  TESTIMONIAL   EVIDENCE:     IMPEACHMENT  349 

not  in  the  employment  of  defendant  or  either  of  the  other  defendants, 
and  did  not  even  know  the  defendant  or  Arthur  Stur^is.  .  .  . 

The  county  attorney,  M.  A.  Breckinridge,  then  introduced  himself  as 
a  witness  on  behalf  of  the  state  to  contradict  and  impeach  the  witness 
McKinley,  alleging  that  McKinley  had  taken  him  by  surprise  in  testifying 
that  he  was  not  in  the  employment  of  defendant  and  Arthur  Sturgis  and 
Walt  Steen  on  December  31,  1907,  and  did  not  wash  empty  beer  bottles 
or  repack  them  in  barrels  for  them,  and  did  not  get  a  dollar  a  day  for  his 
services,  and  testified  that  on  December  31,  1907,  in  his  ofKce,  the  witness 
McKinley  stated  to  him,  in  the  presence  of  Lon  Lewis  and  A.  C.  Gilchrist 
and  others,  that  on  December  31,  1907,  he  was  working  for  Sturgis  and 
Steen  and  got  a  dollar  a  day  from  them  for  his  services,  which  were  to 
wash  empty  beer  bottles  and  repack  them  in  barrels.  Defendant  objected 
to  this  testimony,  because  incompetent,  irrelevant,  and  immaterial, 
and  tending  to  impeach  McKinley,  but  the  Court  overruled  his  objection, 
to  which  he  excepted. 

By  leave  of  Court,  counsel  for  defendant  then  examined  the  witness 
touching  his  being  taken  by  surprise,  and  he  stated  under  this  examination 
that  a  few  days  before,  on  the  trial  of  Walt  Steen  on  this  same  informa- 
tion, McKinley  had  testified  and  had  stated  on  that  trial  that  he  was  not 
in  the  employment  of  defendant  or  Arthur  Sturgis  or  Walt  Steen  on 
December  31,  1907,  and  did  not  wash  empty  beer  bottles  or  repack  them 
in  barrels  for  them  or  either  of  them,  and  did  not  get  a  dollar  a  day  for 
his  services;  and  that  he  had  denied  on  that  trial  that  he  made  such 
statements  to  the  county  attorney  in  his  office  on  December  31,  1907, 
in  the  presence  of  Lon  Lewis  or  A.  C.  Gilchrist,  or  any  one  else. 

The  defendant  then  moved  the  Court  to  exclude  the  testimony  of  this 
witness  from  the  jury,  and  instruct  them  not  to  consider  it  for  any 
purpose;  but  the  Court  overruled  this  motion,  and  refused  to  so  ex- 
clude said  testimony  to  so  instruct  the  jury,  to  which  ruling  defendant 
excepted. 

The  county  attorney  then  introduced  Lon  Lewis  and  A.  C.  Gilchrist 
to  contradict  and  impeach  McKinley  by  testifying  that  McKinley  had 
said  in  their  presence  in  the  county  attorney's  office  on  December  31,  1907, 
that  on  that  day  he  was  in  the  employment  of  Sturgis  and  Steen,  and  got 
a  dollar  a  day  for  his  services  washing  empty  beer  bottles  and  repacking 
them  in  barrels.  They  each  so  testified  over  the  objection  of  defendant, 
because  incompetent,  irrelevant,  and  immaterial,  who  saved  his  excep- 
tions to  the  Court's  ruling  thereon. 

Was  the  introduction  of  this  impeaching  testimony  proper?  Origi- 
nally the  law  was  that,  when  a  party  voluntarily  introduced  a  witness  in 
proof  of  his  case,  he  thereby  represented  him  as  worthy  of  belief.  The 
parties  were  presumed  to  know  the  character  of  the  witnesses  they  pro- 
duced and  the  facts  to  which  they  would  testif}^,  and,  having  thus  pre- 
sented them,  the  law  would  not  permit  the  party  afterwards  to  impeach 
them.     All  of  the  earlier  decisions  are  to  this  effect,  and  some  later 


350  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  235 

authorities  still  adhere  to  this  rule.  But  law,  while  conservative,  is  a 
progressive  science,  and  keeps  even  step  with  the  progress  of  mental 
development,  and  adapts  itself  to  the  changing  conditions  among  men  in 
their  relations  to  each  other,  and  the  requirements  of  justice  owing  to 
these  changes.  If  it  were  not  for  this,  the  world  would  be  ruled  by  the 
dead  and  not  by  the  living.  The  former  rule  is  that  of  China ;  the  latter 
rule  is  that  of  America. 

So  the  ancient  rule  prohibiting  a  party  from  impeaching  his  own 
witness  has  been  modified  in  those  particulars  wherein  experience  and 
reason  have  shown  it  to  be  unjust.  A  party  cannot  now  impeach  his 
own  witness  by  proving  the  bad  character  of  such  witness  for  truth, 
because  this  is  something  of  which  the  party  can  and  should  inform  him- 
self before  placing  a  witness  upon  the  stand.  But  suppose  a  witness 
makes  a  statement  to  a  party  which  would  be  highly  beneficial  to  such 
party,  and  the  party,  thus  having  reasonable  ground  to  believe  that  the 
testimony  of  the  witness  would  be  in  substance  the  same  as  the  statement 
made,  in  good  faith  places  the  witness  upon  the  stand,  and  the  witness, 
instead  of  swearing  to  the  statement  previously  made,  testifies  to  matters 
which  are  injurious  to  the  party  calling  him,  it  would  be  a  manifest 
perversion  of  justice  to  say  that  the  party  so  surprised,  deceived,  and 
imposed  upon  is  bound  by  such  testimony.  Under  these  conditions  the 
great  weight  of  modern  authority  is  that  a  party,  upon  grounds  of  surprise 
at  and  injury  from  the  testimony  so  given  may,  in  the  discretion  of  the 
trial  Court,  offer  in  evidence  previous  statements  of  such  witness  which 
contradict  the  injurious  portion  of  his  testimony.  This  rule  is  necessary 
for  the  protection  of  litigants  against  the  contrivance  of  artful  and 
designing  witnesses.  If  a  witness  had  deceived  the  party  calling  him 
(to  the  injury  of  such  party),  it  would  be  manifestly  unjust  to  hold  the 
party  to  be  bound  by  such  deception  and  to  prevent  him  from  relieving 
himself  of  such  injury.  This  is  the  philosophy  of  the  law,  upon  which 
parties  are  permitted  to  offer  contradictory  statements  made  by  their 
witnesses,  for  the  purpose  of  impeaching  them. 

But  this  rule  is  subject  to  certain  conditions:  First.  The  party  must 
be  surprised  at  the  testimony  of  the  witness  sought  to  be  so  impeached, 
and  this  surprise  must  exist  as  a  matter  of  fact;  that  is,  it  must  be  based 
upon  such  facts  as  would  give  the  party  reasonable  ground  to  believe  that 
the  witness  would  testify  favorably  to  such  party.  If  the  facts  were 
such  that  the  party  had  no  reasonable  ground  to  believe,  when  he  placed 
such  witness  on  the  stand,  that  the  witness  would  so  testify,  then  no 
surprise  could  exist  at  the  failure  of  the  witness  to  give  such  testimony, 
and  statements  previously  made  by  the  witness,  contradicting  the  testi- 
mony given,  would  not  be  admissible.  Second.  It  is  not  enough  that  the 
witness  failed  to  testify  favorably  to  the  party  calling  him,  in  order  that 
previous  contradictory  statements  made  by  such  witness  may  be  intro- 
duced in  evidence,  but  the  witness  must  have  testified  to  facts  injurious 
to  the  party  calling  him  before  he  can  be  so  impeached.     In  other  words, 


No.  235  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  351 

such  contradictory  statements  are  permissible  alone  for  the  purpose  of 
impeaching  the  witness,  and  are  not  original  substantive  evidence  against 
the  adverse  party.  Third.  When  such  contradictory  statements  are 
admitted  in  evidence,  under  proper  conditions,  the  Court  should  clearly 
inform  the  jury  that  such  contradictory  statements  can  only  be  considered 
by  them  for  the  purpose  of  affecting  the  credibility  of  the  witness,  and 
that  it  is  for  the  jury  alone  to  determine  whether  they  do  have  this 
effect  or  not,  and  that  such  contradictory  statements  are  in  no  case  to  be 
considered  as  original  evidence  against  the  adverse  party. 

In  the  case  at  bar  there  is  no  testimony  in  the  record  that  the  county 
attorney  had  reasonable  ground  for  surprise  at  the  testimony  of  the  wit- 
ness McKinley.  This  witness  had  testified  on  the  trial  of  Steen,  only  a 
few  days  prior  to  this  trial,  substantially  as  he  testified  in  this  case. 
This  put  the  county  attorney  upon  notice  of  what  he  would  swear. 
With  a  full  knowledge  of  this  fact,  the  county  attorney  placed  McKinley 
on  the  stand  as  a  witness  for  the  State.  He  is  therefore  not  in  a  position 
to  claim  surprise.  He  made  no  showing  that  anything  had  occurred 
since  the  Steen  trial  which  gave  him  the  least  right  to  expect  that  the 
testimony  of  McKinley  would  in  this  case  be  different  from  the  testimony 
which  he  gave  in  the  Steen  trial.  The  testimony  of  the  county  attorney 
entirely  shuts  out  the  idea  of  surprise.  Again,  when  McKinley  was 
examined  in  chief  by  the  county  attorney,  and  before  the  effort  to  impeach 
him  had  been  made,  the  witness  had  not  stated  a  single  fact  favorable 
to  the  defendant  or  anything  inconsistent  with  the  testimony  of  the  other 
witnesses  for  the  State.  His  evidence  was  negative,  and  he  only  failed 
to  swear  what  the  county  attorney  desired  him  to  testify  to.  Under 
these  conditions,  the  statements  made  by  the  witness  out  of  court, 
injurious  to  defendant,  were  not  admissible  in  evidence,  because  he  had 
not  testified  to  a  single  fact  which  injured  the  State's  case. 

The  defendant  requested  the  Court  to  instruct  the  jury  that  they 
would  consider  said  testimony  for  no  other  purpose  than  that  of  impeach- 
ing or  contradicting,  if  it  in  any  wise  did  impeach  or  contradict,  the 
witness  John  McKinley.  The  Court  overruled  this  n^.otion  and  refused 
to  instruct  the  jury.  This  was  error.  If  this  testimony  was  competent 
at  all,  it  was  competent  for  no  other  purpose  than  that  of  impeaching 
and  contradicting  McKinley,  and  the  Court  should  have  so  instructed 
the  jury.  Who  can  say  but  that  the  jury  did  not  consider  this  testimony 
as  original  substantive  evidence,  showing  that  McKinley  and  the  defend- 
ant were  connected  or  acting  together  in  committing  the  acts  charged 
in  the  information?  They  would  be  warranted  in  so  considering  it  after 
the  Court  had  refused  in  their  presence  to  limit  the  scope  to  that  of 
impeaching  and  contradicting  McKinley. 

The  restrictions,  above  stated,  upon  the  right  of  a  party  to  impeach 
his  own  witness  by  showing  contradictory  statements  made  by  such 
witness,  are  supported  by  the  soundest  reasons,  and  are  based  upon  the 
highest  considerations  of  public  policy.     If  the  State  has  the  right,  upon 


352  BOOK  l:    RULES  OF  ADMISSIBILITY  No.  23;j 

the  plea  of  impeaching  its  own  witness,  to  introduce  statements  made  by 
such  witness  contradictory  of  his  testimony  given  in  Court,  and  thus  get 
hearsay  before  the  jury,  as  original  substantive  evidence  against  a  defend- 
ant, then  in  all  fairness  and  justice  we  would  be  compelled  to  hold  that 
the  defendant  had  the  same  right.  The  far-reaching  and  ruinous  conse- 
quences of  such  a  rule  are  manifest.  A  defendant  could  place  a  witness 
upon  the  stand  and,  after  asking  him  a  few  general  questions,  could  then 
ask  the  witness  if  he  had  not  made  a  statement  (giving  the  statement  in 
full)  to  the  defendant,  and  other  persons,  which  would  constitute  a  com- 
plete defense.  Upon  the  denial  of  the  witness  that  he  had  made  such  a 
statement,  the  defendant  could  then  place  the  parties  named  upon  the 
witness  stand  and  prove  that  the  first  witness  had  made  such  statements. 
If  a  defendant  could  do  as  was  permitted  to  be  done  by  the  State  in  this 
case,  it  would  be  impossible  to  secure  a  single  conviction,  and  no  one 
would  be  subject  to  the  pains  and  penalties  of  perjury.  There  are  already 
too  many  loopholes  for  the  escape  of  the  guilty.  This  court  will  not  add 
to  or  enlarge  these  avenues  of  escape;  on  the  contrary,  it  is  our  purpose 
to  close  them  up  as  far  as  possible. 

For  the  reasons  hereinbefore  given,  the  Court  erred  in  permitting  the 
State  to  introduce  evidence  to  impeach  its  own  witness  McKinley,  and 
erred  again  in  refusing  to  give  the  instruction  requested  by  the  defendant 
with  reference  to  such  evidence.  We  are  supported  in  this  view  by 
many  eminent  authorities  and  well-reasoned  cases.  .  .  . 

Reversed  and  remanded. 


236.  JOHNSTON  v.   MARRIAGE 

Supreme  Court  of  Kansas.     1906 

74  Kan.  208;  86  Pac.  461 

Error  from  District  Court,  Kiowa  County;  E.  H.  Madison,  Judge. 
Action  by  P.  A.  Johnston  against  John  Marriage,  Jr.  Judgment  for 
defendant,  and  plaintiff  brings  error.     Affirmed. 

P.  A.  Johnston  suffered  severe  loss  from  a  fire  which  apparently 
originated  upon  or  near  the  premises  of  John  Marriage  and  spread  over 
a  large  tract  of  country.  He  sued  Marriage  to  recover  compensation, 
alleging  that  his  injury  was  occasioned  by  Marriage's  having  "  negligently 
and  carelessly  set  fire  to  the  dry  grass  of  the  prairie"  while  engaged  in 
charring  posts.  A  jury  trial  was  had,  which  resulted  in  a  verdict  and 
judgment  for  the  defendant.     The  plaintiff  prosecutes  error.  .  .  . 

J.  W.  Davis,  for  plaintiff  in  error.     L.  M.  Day,  for  defendant  in  error. 

Mason,  J.  (after  stating  the  case  as  above).  The  only  remaining 
specification  of  error  requiring  discussion  relates  to  an  attempt  made  by 
the  plaintiff  to  impeach  one  T.  M.  Ellsworth,  a  witness  called  by  the 
defendant,  by  showing  that  he  had  made  a  statement  out  of  Court 


No.  237  TESTIMONIAL  EVIDENCE:     IMPEACHMENT  353 

inconsistent  with  his  testimony.  This  witness  was  originally  called  by 
the  plaintiff'.  He  was  an  employee  of  the  defenflant,  both  when  the 
fire  occurred,  and  at  the  time  of  the  trial.  There  is  nothing  in  the  record, 
however,  to  indicate  that  this  circumstance  affected  either  his  manner 
upon  the  stand  or  what  he  there  said,  or  that  the  plaintiff  was  misled  by 
him.  He  told  at  the  instance  of  the  plaintiff  what  he  knew  of  the  occur- 
rences on  the  day  of  the  fire,  but  showed  no  personal  knowledge  as  to  how 
it  originated.  Later  he  was  called  by  the  defendant,  and  went  over  much 
the  same  ground,  giving  additional  particulars  as  to  physical  conditions 
observed  by  him  before,  during,  and  after  the  fire.  On  cross-examination 
he  was  asked  if  he  had  not,  at  a  time  and  place  specified,  told  two  persons 
that  Marriage  had  been  charring  posts,  and  had  let  the  fire  get  out. 
He  answered  that  he  had  not.  Upon  the  rebuttal  the  plaintiff  produced 
these  two  persons,  and  offered  to  show  by  them  that  Ellsworth  had  made 
such  a  statement  to  them.  An  objection  to  the  offer  was  made  by  the 
defendant,  and  the  Court  sustained  the  objection.  This  ruling  is  the  one 
involved  in  the  specification  of  error  now  under  consideration.  Mani- 
festly the  evidence  offered  was  incompetent,  except  as  it  might  be  deemed 
admissible  for  the  purpose  of  impairing  the  credibility  of  Ellsworth; 
that  is,  of  impeaching  him.  The  question  is  therefore  presented  whether 
a  litigant  who  first  uses  a  witness  may  afterwards  attempt  to  impeach 
him  if  in  the  meantime  he  has  been  called  upon  to  testify  in  behalf  of  the 
adverse  party. 

This  question  is  considered  in  Wigmore  on  Evidence,  where  the  whole 
subject  of  the  impeachment  of  witnesses  is  discussed  historically,  with 
the  painstaking  thoroughness,  and  in  the  light  of  reason,  with  the  dis- 
criminating insight  characteristic  with  that  work.  The  conclusion  is 
there  reached  (volume  2,  §  913)  that  the  usual  rule  which  forbids  a  party 
to  impeach  his  own  witness  operates  to  prevent  an  attempted  impeach- 
ment by  one  who  has  first  used  a  witness,  notwithstanding  that  the 
opposite  party  afterwards  calls  him.  The  rule  referred  to  is  enforced  in 
this  State,  where  there  are  no  special  circumstances  which  would  make 
its  application  work  an  injustice.  State  v.  Keefe,  54  Kan.  197;  38  Pac. 
302.  No  such  circumstances  are  here  shown.  We  think  that  for  the 
purpose  of  this  rule  Ellsworth  was  to  be  deemed  the  plaintiff's  witness, 
and  that  it  was  not  error  for  the  Court  to  refuse  to  admit  the  impeaching 
evidence.     The  judgment  is  affirmed.     All  the  Justices  concurring. 


237.   KOESTER  v.   ROCHESTER  CANDY  WORKS 

Court  of  Appeals  of  New  York.     1909 

194  N.  Y.  92;  87  N.  E.  77 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  November  16,  1907, 


354  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  237 

affirming  a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict  and  an 
order  denying  a  motion  for  a  new  trial.  .  .  .  The  action  is  brought, 
servant  against  master,  to  recover  damages  for  personal  injuries  caused 
by  the  defendant's  negligence.  The  complaint  charged  the  defendant, 
which  conducted  a  candy  factory,  with  employing  the  plaintiff,  who  at 
the  time  was  an  infant  under  the  age  of  fourteen  years,  in  the  operation 
of  dangerous  machinery  in  violation  of  §  70  of  the  Labor  Law  (L.  1897, 
eh.  415),  and  that  the  machinery  was  not  protected  by  proper  safeguards 
as  required  by  §  81  of  that  law.  The  answer  put  in  issue  the  extent  of  the 
plaintiff's  injuries  and  the  other  allegations  of  the  complaint,  except 
plaintiff's  employment  and  the  character  of  the  business  carried  on  by 
the  defendant.  The  plaintiff  recovered  a  verdict  at  the  Trial  Term, 
which  has  been  affirmed  by  the  Appellate  Division  by  a  divided  Court. 

On  the  trial,  evidence  was  given  by  the  plaintiff's  parents  as  to  the 
date  of  his  birth,  which  established  that  at  the  time  of  the  accident  he  was 
a  few  months  less  than  fourteen  years  of  age.  The  defendant  gave  evi- 
dence to  the  effect  that  when  the  plaintiff  sought  employment  he  repre- 
sented that  he  was  more  than  sixteen  years  old.  .  .  . 

On  the  trial  the  plaintiff  did  not  testify  in  his  own  behalf  as  to  his  age. 
The  question,  however,  was  asked  him  by  the  defendant  on  cross-exami- 
nation. His  testimony  was  in  accord  with  that  given  by  his  parents. 
For  the  defense  it  was  sought  to  prove  various  declarations  made  by  the 
plaintiff  as  to  his  age.  That  made  to  the  defendant  at  the  time  of  his 
employment  was  admitted,  but  those  made  to  third  parties  at  other  times 
were  excluded.  The  ruling  is  sought  to  be  justified  ...  on  the  further 
ground  that  the  defendant  by  examining  the  plaintiff  as  to  his  age  made 
him  its  own  witness  and  could  not  impeach  him. 

P.  M.  French,  for  appellant.  .  .  .  The  trial  court  erred  in  rejecting 
evidence  of  admissions  and  other  representations  of  plaintiff  as  to  his 
age.  ... 

George  H.  Harris,  for  respondent.  .  .  .  The  trial  Court  committed 
no  error  in  rejecting  evidence  of  other  alleged  representations  of  plaintiff 
as  to  his  age.  .  .  . 

CuLLEN,  Ch.  J.  (after  stating  the  facts  above).  The  limitations  of 
the  rule  which  forbids  a  party  to  impeach  his  own  witness  (assuming  the 
plaintiff  to  have  been  such,  which  we  do  not  decide)  are  well  settled. 
He  may  not  thereafter  introduce  witnesses  to  prove  that  his  general 
reputation  is  bad  and  that  he  is  unworthy  of  credit;  nor  can  he  prove 
statements  made  out  of  Court  in  contradiction  of  his  testimony  on  the 
stand,  and  he  cannot  contradict  him  as  to  collateral  facts.  But  he  may 
prove  by  competent  testimony  that  the  facts  material  to  the  issue  are  the 
exact  reverse  of  those  testified  to  by  his  witness,  and  may  ask  the  jury  to 
disbelieve  his  statement,  and  credit  that  of  the  later  witnesses. 

When,  however,  it  is  said  that  one  cannot  impeach  his  own  witness  by 
contradictory  statements  made  out  of  Court,  this  statement  must  be 
limited  to  the  case  of  a  witness  who  is  not  the  adverse  party.     The 


No.  23S  TESTIMONIAL    EVIDENCE:     IMPEACHMENT  355 

effect  of  such  contradictory  statements  in  the  case  of  other  witnesses  is 
merely  to  impeach  the  witness,  because  they  are  mere  hearsay  and  are 
not  proof  of  the  fact  stated.  The  case  of  an  adverse  party  is  the  exact 
reverse.  In  a  civil  action  the  admissions  by  a  party  of  any  fact  material 
to  the  issue  are  always  competent  evidence  against  him,  wherever, 
whenever  or  to  whomsoever  made,  excepting,  of  course,  confidential 
communications  the  disclosure  of  which  is  prohibited  by  statute,  such  as 
from  client  to  counsel,  from  patient  to  physician,  from  penitent  to  clergy- 
man or  priest,  and  the  like. 

The  cases  relied  upon  by  the  learned  counsel  for  the  plaintiff  as  assert- 
ing a  contrary  doctrine  are  not  in  point.  ...  In  Coulter  v.  American 
M.  U.  Ex.  Co.  (56  N.  Y.  585)  the  witness  whom  it  was  sought  to  con- 
tradict was  not  the  adverse  party.  The  situation  was  the  same  in  Fall 
Brook  Coal  Co.  v.  Hewson  (158  N.  Y.  150).  The  misconception  as  to 
the  rule  arises  from  the  failure  to  distinguish  between  declarations  and 
the  admissions  of  a  party,  which  latter,  though  undoubtedly  declarations, 
are  also  very  much  more.  Declarations,  as  a  general  rule,  are  mere 
hearsay,  and,  therefore,  incompetent,  while  admissions  of  a  party  are 
original  evidence  against  the  party  making  them,  and  are  as  a  rule  suffi- 
cient to  establish  a  cause  of  action  or  defense  without  further  evidence 
of  the  fact. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with  costs 
to  abide  the  event. 

Edward  T.  Bartlett,  Haight,  Vann,  Hiscock  and  Chase,  JJ,, 
concur;  Werner,  J.,  not  sitting.  Judgment  reversed,  etc. 

238.  John  H.  Wigmore.  A  Treatise  on  the  System  of  Evidence,  etc.  (1905. 
Vol.  II,  §899).  The  truth  is  that  many  Courts  affecting  to  find  reasons  for  this 
rule  against  impeaching  one's  own  witness  have  sought  too  much  in  the  realm  of 
objective  arguments.  They  have  thought  of  '-isiting  punishment  on  the  head 
of  offending  parties,  or  of  leaving  them  to  suffer  the  consequences  of  their  mis- 
takes. This  is  not  a  high-minded  nor  a  practical  attitude  for  a  tribunal  seeking 
truth,  nor  is  it  in  harmony  with  the  policy  of  other  rules  of  Evidence.  This 
whole  attitude  must  be  abandoned.  Wliat  we  are  to  ask  is,  Is  there  anything 
in  the  process  of  impeaching  one's  own  witness  which  tends  to  restrict  or  impair 
the  sources  of  evidence,  to  make  competent  evidence  less  plentiful  or  less  trust- 
worthy? We  should  ask,  not  what  the  conduct  of  the  party  is,  but  what  the  effect 
is  upon  the  witness.  Taking  this  subjective  point  of  view,  we  find  that  there  is 
something  of  a  reason  —  a  reason  easy  to  grasp,  founded  on  reality,  not  on  cant, 
legitimate  in  its  policy,  orthodox  in  its  history,  though  narrow  in  its  scope,  — 
the  reason  that  the  party  ought  not  to  have  the  means  to  coerce  his  witnesses.  It  was 
laid  down  by  Mr.  Justice  Buller,  a  century  and  a  half  ago,  in  terms  which  have 
been  frequently  quoted,  —  more  often  quoted  than  acknowledged  (as  Serjeant 
Evans  once  said  of  his  own  wt! tings). 

The  true  foundation  of  policy  (so  far  as  there  is  any)  is  thus  manifest.  If  it 
were  permissible,  and  therefore  common,  to  impeach  the  character  of  one's  wit- 
ness whose  testimony  had  been  disappointing,  no  witness  would  care  to  risk  the 
abuse  of  his  character  which  might  then  be  launched  at  him  by  the  disappointed 


356  BOOK   i:     RULES    OF    ADMISSIBILITY  No.  238 

party.  This  fear  of  the  possible  consequences  would  operafc  subjectively  to 
prevent  a  repentant  witness  from  recanting  a  previously  falsified  story,  and 
would  more  or  less  affect  every  witness  who  knew  that  the  party  calling  him 
expected  him  to  tell  a  particular  story.  Of  this  sort  of  abuse  from  the  opposite 
side  the  witness  is  even  now  sufficiently  afraid;  were  he  liable  to  it  from  either 
side  indiscriminately,  the  terrors  of  the  witness-box  would  be  doubled.  Specu- 
lative as  this  danger  may  be,  it  furnishes  the  only  shred  of  reason  on  which  the 
rule  may  be  supported.  Moreover,  it  is  the  only  reason  which  allows  the  details 
of  the  rule  to  be  worked  out  consistently.  What  is  this  fear  which  we  desire  to 
save  the  witness?  It  must  be  a  fear  that  would  operate  upon  the  ordinary 
witness  honestly  inclined.  The  fear  that  his  character  will  be  abused,  —  this  is 
certainly  a  tangible  and  sufficient  consideration.  On  the  other  hand,  the  fear 
that  he  will  be  shown  to  be  affected  by  bias  or  interest,  —  this  involves  nothing 
disgraceful  or  derogatory  to  character,  and  is  hardly  worth  considering.  Thus 
this  reason  tests  efficiently  the  various  details  of  the  rule. 

But,  after  all,  it  is  a  reason  of  trifling  practical  weight.  It  cannot  appre- 
ciably affect  an  honest  and  reputable  witness.  The  only  person  whom  it  could 
really  concern  is  the  disreputable  and  shifty  witness;  and  what  good  reason  is 
there  why  he  should  not  be  exposed?  That  he  would  adhere  to  false  testimony 
solely  for  fear  of  exposure  by  the  party  calling  him  is  unlikely;  because  his  repu- 
tation would  in  that  case  equally  be  used  against  him  by  the  opponent.  It  there- 
fore becomes  merely  a  question  which  of  the  two  parties  may  properly  expose 
him.  Is  there  any  reason  of  moral  fairness  which  forbids  this  to  the  party  calling 
him?     The  rational  answer  must  be  in  the  negative. 

There  is  no  substantial  reason  for  preserving  this  rule  —  the  remnant  of  a 
primitive  notion.  Except  the  Opinion  rule,  no  other  rule  of  evidence  does  so 
much  harm  and  so  little  good.     It  ought  to  be  completely  discarded. 


Topic  3.    Rules  Limiting  Corroboration  of  Witnesses 

240.   BATE   V.   HILL 

Nisi  Prius.     1823 

1  C.  &  P.  100 

This  was  an  action  for  seducing  the  plaintiff's  daughter.  .  .  . 

The  whole  of  the  cross-examination  went  to  show,  that  the  plaintiff's 
daughter  had  conducted  herself  immodestly  towards  the  defendant 
before  the  seduction,  and  that  she  kept  improper  company.  Several 
witnesses  were  then  called,  on  the  part  of  the  plaintiff,  to  prove  the 
general  good  character,  and  modest  deportment  of  the  plaintiff's  daughter, 
and  the  general  respectability  of  the  family.  The  defendant  called  no 
witnesses. 

Verdict  for  the  plaintiff,  damages,  50£. 

Reporter's  Note.  This  controverts  the  case  of  Dodd  v.  Norris,  3 
Camp.  N.  P.  C.  519,  where  Lord  Ellenborough  ruled,  that  witnesses 
to  show  the  general  good  character  of  the  daughter,  could  only  be  called, 
if  her  character  had  been  attacked  by  witnesses  called  for  the  defendant. 


No.  241  TESTIMONIAL  EVIDENCE:     CORROBORATION  357 

to  prove  her  general  bad  character;  hut  if  her  character  was  only  attacked 
in  her  cross-examination,  the  plaintiff's  counsel  were  only  entitled  to  set 
it  right  by  her  re-examination,  and  not  to  call  witnesses  to  give  her  a 
good  character;  and  in  that  case,  her  character  having  been  attacked 
only  in  her  cross-examination.  Lord  Ellenborough  refused  to  allow 
witnesses  to  be  called  by  the  plaintiff's  counsel  in  favor  of  her  general 
character.  The  course  allowed  by  Mr.  Justice  Park,  in  the  present  case, 
is  much  more  conducive  to  the  attainment  of  justice;  for  it  can  signify 
very  little,  whether  the  daughter's  character  is  attacked  by  witnesses, 
or  by  cross-examination ;  and  if  it  is  right  in  one  case,  where  it  is  attacked, 
to  give  further  evidence,  so  it  must  be  in  the  other.  Lord  Ellenborough 
says,  that  it  is  to  be  set  right  in  re-examination.  This  looks  very  well  in 
theory.  Those  used  to  Courts  of  Justice  well  know,  that  if  the  character 
of  a  party  seduced  is  attacked  in  her  cross-examination,  though  the 
witness  may  deny  the  things  insinuated,  a  jury  very  often  believe,  that, 
though  denied,  there  is  some  foundation  for  the  insinuation,  if  witnesses 
are  not  called  to  convince  them  of  the  contrary.  It  is  a  little  too  much, 
to  allow  a  defendant  to  blast  the  character  of  a  person  he  has  seduced  by 
insinuations,  and  then  not  to  allow  her  to  clear  her  character  by  the  best 
means  in  her  power. 


24L   TEDENS  v.   SCHUMERS 

Supreme  Court  of  Illinois.     1884 

112  ///.     263 

Appeal  from  the  Appellate  Court  for  the  First  District;  —  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon. 
John  G.  Rogers,  Judge,  presiding. 

Mr.  Edward  F.  Comstock,  and  Mr.  ./.  Edwards  Fay,  for  the  appellants. 
As  a  general  rule  it  is  not  competent  to  give  evidence  of  the  general 
character  of  a  witness  for  truth  and  veracity,  unless  an  attempt  has  been 
made  to  impeach  him.  A  mere  contradiction  in  the  testimony  of  wit- 
nesses does  not  necessarily  involve  their  moral  character,  and  does  not, 
alone,  authorize  the  admission  of  evidence  in  support  of  their  general 
reputation  for  truth.  .  .  . 

Mr.  W.  C.  Minard,  and  Mr.  W.  H.  Skclly,  for  the  appellee.  After 
the  defendants  had  assailed  the  character  of  the  plaintiff  by  an  effort  to 
prove  that  he  was  a  thief,  and  attempted  to  impeach  him  by  proof  that 
he  had  made  contradictory  statements  out  of  Court  to  his  testimony, 
the  admission  of  evidence  of  his  good  character  was  proper.  Craig  v. 
Rohrer,  63  111.  335.  .  .  . 

Mr.  Justice  Walker  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  assumpsit,  brought  by  Schumers,  in  the  Circuit 
Court  of  Cook  County,  against  J.  H.  Tedens  and  J.  Thormahlm.     There 


358  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  241 

was  filed  the  general  issue,  under  which  a  trial  was  had,  resulting  in  a 
verdict  and  judgment  against  defendants  for  .11379.  .  .  . 

It  appears  from  the  evidence  that  appellants  owned  a  general  store, 
which  was  kept  by  them  in  Lemont,  in  Cook  County.  Appellee,  after 
being  in  their  employment  for  thirteen  or  fourteen  years,  commenced 
business  on  his  own  account;  but,  it  proving  unsuccessful,  he  soon 
abandoned  it,  and  returned  to  the  employment  of  appellants,  and  he  so 
remained  until  on  the  1st  of  June,  1879,  when,  on  a  settlement,  they  were 
found  to  be  indebted  to  him  in  the  sum  of  $2100,  to  evidence  which  they 
drew  and  gave  to  him  a  due  bill,  drawing  eight  per  cent,  interest.  Appel- 
lee continued  in  their  employment  until  in  March,  1880,  when  defendants 
claimed  to  have  discovered  that  appellee  was  secretly  removing  goods 
from  the  store  without  either  paying  for  or  charging  them  to  himself. 
They  also  claimed  that  he  confessed  that  he  had  so  acted  for  near  four 
years  past.  They  claimed  the  amount  so  taken  aggregated  $4000,  and, 
after  several  interviews,  they  claim  that  it  was  arranged  that  to  satisfy 
their  demand  he  surrendered  the  due  bill,  and  they  cancelled  it,  and  have 
since  held  it.  Appellee  insists  that  he  did  not  surrender  the  due  bill  as  a 
satisfaction  of  such  claim  on  the  part  of  appellants,  but  that  it  was 
agreed  that  they  should  hold  it  until  they  could  examine  and  ascertain 
the  amount  he  owed  them  for  goods  thus  taken,  credit  the  amount  on 
the  due  bill,  and  pay  him  the  balance,  if  any,  which  they  have  never  done. 

On  the  trial,  appellee  testified  to  his  theory  of  the  case.  Appellants, 
on  the  stand,  contradicted  him,  and  testified  to  their  version  of  the 
matter.  In  some  portions  of  their  evidence  they  are  corroborated  by 
other  witnesses.  Appellee,  to  support  his  testimony,  called  a  number 
of  witnesses  to  prove  his  general  character  for  truth  and  veracity,  to 
which  appellants  objected,  but  the  Court  admitted  the  evidence,  and  they 
excepted,  and  urge  its  admission  as  error. 

Appellee  claims  this  evidence  was  admissible,  on  the  ground  that  his 
character  for  truth  and  veracity  was  attacked  by  being  contradicted  by 
other  witnesses.  This  is,  we  think,  a  misconception  of  the  rule.  As  we 
understand  the  rules  of  evidence,  a  witness  cannot  call  witnesses  to  sup- 
port his  general  character  for  truth  and  veracity  until  it  is  assailed. 
Mere  contradictions,  or  different  versions  by  witnesses,  do  not  justify  the 
application  of  the  rule  that  he  may  call  witnesses  to  support  his  character 
for  truth.  When  witnesses  are  called  who  say  his  general  char- 
acter is  bad,  then  he  may  call  witnesses  in  support  of  his  general 
character.  Before  he  can  do  so  his  general  character  must  be  attacked. 
If  the  practice  sanctioned  the  calling  of  witnesses  to  prove  general 
character  whenever  a  witness  is  contradicted,  it  would  render  trials 
interminable.  The  greater  portion  of  the  time  of  Courts  would  be 
liable  to  be  engaged  in  the  attack  and  support  of  the  characters  of 
witnesses.  If  permitted,  each  of  the  contradicting  witnesses  would 
have  the  same  right,  and  not  only  so,  but  all  of  the  supporting  witnesses 
on  each  side  contradicting  each  other  would  be  entitled  to  the  same 


No.  242  TESTIMONIAL   EVIDENCE:     CORROBORATION  359 

privilege.  It  is  thus  seen  that  the  rule  must  be  limited  to  cases  where 
witnesses  are  called  to  impeach  the  general  character  of  a  witness;  other- 
wise, instead  of  reaching  truth  by  the  verdict,  it  would  tend  to  stifle  it 
under  a  large  number  of  side  issues,  calculated  to  obscure  and  not  to 
elucidate  them.  It  may  be  that  some  Courts  have  made  exceptions  to 
the  rule,  but  we  are  not  inclined  to  adopt  them  as  the  rule.  Many  cases 
referred  to  were  where  the  witness  was  charged  with  crime  by  other 
witnesses,  when  it  was  held  he  might  call  witnesses  to  support  his  char- 
acter for  honesty.  .  .  . 

For  the  errors  indicated*,  the  judgment  of  the  Appellate  Court  is 
reversed,  and  the  cause  remanded.     Judgment  reversed. 

ScoHLFiELD,  Ch.  J.,  and  Dickey  and  Mulkey,  JJ.,  dissenting. 


242.   GERTZ  v.   FITCHBURG   R.   CO. 

Supreme  Judicial  Court  of  Massachusetts.     1884 

137  Mass.  77 

Tort,  for  personal  injuries  received  by  the  plaintiff  while  in  the 
defendant's  employ.  At  the  trial  in  the  Superior  Court,  before  Aldrich, 
J.,  the  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff 
alleged  exceptions  to  the  exclusion  of  certain  evidence,  which  appears 
in  the  opinion. 

J.  J.  Myers,  for  the  plaintiff.     C.  A.  Welch,  for  the  defendant. 

Holmes,  J.  —  In  this  case,  the  plaintiff  having  testified  as  a  witness, 
the  defendant  put  in  evidence  the  record  of  his  conviction  in  1876,  in 
the  United  States  District  Court,  of  the  crime  of  falsely  personating  a 
United  States  revenue  officer.  The  plaintiff  then  offered  evidence  of 
his  character  and  present  reputation  for  veracity,  which  was  excluded, 
subject  to  his  exception. 

We  think  that  the  evidence  of  his  reputation  for  truth  should  have 
been  admitted,  and  that  the  exception  must  be  sustained.  There  is  a 
clear  distinction  between  this  case  and  those  in  which  such  evidence  has 
been  held  inadmissible,  for  instance,  to  rebut  evidence  of  contradictory 
statements;  Russell  v.  Coffin,  8  Pick.  143;  Brown  v.  Mooers,  6  Gray  451 ; 
or  where  the  witness  is  directly  contradicted  as  to  the  principal  fact  by 
other  witnesses.     Atwood  v.  Dearborn,  1  Allen  483. 

In  such  cases,  it  is  true  that  the  result  sought  to  be  reached  is  the  same 
as  in  the  present,  —  to  induce  the  jury  to  disbelieve  the  witness.  But 
the  mode  of  reaching  the  result  is  different.  For,  while  contradiction 
or  proof  of  contradictory  statements  may  very  well  have  the  incidental 
effect  of  impeaching  the  character  for  truth  of  the  contradicted  witness 
in  the  minds  of  the  jury,  the  proof  is  not  directed  to  that  point.  The 
purpose  and  only  direct  effect  of  the  evidence  are  to  show  that  the 
witness  is  not  be  to  believed  in  this  instance.     But  the  reason  why  he  is 


360  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  242 

not  to  be  believed  is  left  untouched.  That  may  be  found  in  forgetfulness 
on  the  part  of  the  witness,  or  in  his  having  been  deceived,  or  in  any  other 
possible  cause.  The  disbelief  sought  to  be  produced  is  perfectly  con- 
sistent with  an  admission  of  his  general  good  character  for  truth,  as  well 
as  for  the  other  virtues;  and  until  the  character  of  a  witness  is  assailed, 
it  cannot  be  fortified  by  evidence. 

On  the  other  hand,  when  it  is  proved  that  a  witness  has  been  convicted 
of  a  crime,  the  only  ground  for  disbelieving  him  which  such  proof  affords 
is  the  general  readiness  to  do  evil  which  the  conviction  may  be  supposed 
to  show.  It  is  from  that  general  dispositioii  alone  that  the  jury  is  asked 
to  infer  a  readiness  to  lie  in  the  particular  case,  and  thence  that  he  has 
lied  in  fact.  The  evidence  has  no  tendency  to  prove  that  he  was  mistaken, 
but  only  that  he  has  perjured  himself,  and  it  reaches  that  conclusion 
solely  through  the  general  proposition  that  he  is  of  bad  character  and 
unworthy  of  credit.  1  Gilbert,  Evidence  (6th  ed.)  126.  The  conviction 
in  the  United  States  District  Court  was  for  a  felony  punishable  with 
imprisonment.  .  .  .  And  when  a  conviction  is  admitted  for  that  purpose, 
it  always  may  be  rebutted  by  evidence  of  good  character  for  truth. 
Commonwealth  v.  Green,  ubi  supra.  Russell  v.  Coffin,  8  Pick.  143,  154. 
Rex  V.  Clarke,  2  Stark.  241.     Webb  v.  State,  29  Ohio  St.  351. 

It  is  true  that  a  doubt  is  thrown  upon  this  doctrine  in  Harrington  v. 
Lincoln,  4  Gray  563,  568;  but  that  case  was  decided  on  the  ground  that 
the  cross-examination  which  showed  that  the  witness  had  been  charged 
with  a  crime  also  showed  that  he  had  been  acquitted,  and  cannot  be 
regarded  as  an  authority  against  our  decision,  whether  the  "ratio  deci- 
dendi" adopted  be  reconcilable  with  later  cases  or  not.  Commonwealth 
■».  Ingraham,  7  Gray  46.  .  .  .  Whether  any  different  rule  would  apply 
when  the  fact  is  only  brought  out  on  cross-examination  we  need  not 
consider. 

The  exception  to  the  exclusion  of  evidence  that  the  witness  was 
innocent  of  the  oflFence  of  which  he  was  convicted,  and  explaining  why 
he  was  convicted,  is  not  much  pressed,  and  is  overruled.  Commonwealth 
V.  Gallagher,  126  Mass.  54.  Exceptions  sustained. 


243.  Knox's  AND  Lane's  Trial.  (1679.  Howell's  State  Trials,  VII,  763,  787). 
[The  defendants  were  charged  with  libelling  Messrs.  Oates  and  Bedlow,  who  had 
been  witnesses  for  the  Crown  in  the  Popish  Plot  trial.] 

Recorder.  —  Call  Henry  Wiggins  and  his  mother.     (Who  were  both  sworn.) 

Att.  Gen.  —  Come  on,  Mr.  Wiggins,  what  do  you  know  of  any  endeavors  of 
Knox  or  Lane,  or  any  of  these  persons,  to  take  off  or  scandalize  Mr.  Oates's  or 
Mr.  Bedlow's  testimony? 

L.  C.  J.  —  What  is  this  man's  name? 

Att.  Gen.  —  Henry  Wiggins. 

Wiggins.  —  About  the  latter  end  of  February  last,  Mr.  Knox  and  I  met  at 
Charing  Cross,  and  we  went  in  and  drank  together;  and  he  proposed  several 
things  to  me;  first  he  desired  that  I  would  get  for  him  a  copy  of  the  papers  my 
master  had. 


No.  245  TESTIMONIAL  EVIDENCE:     CORROBORATION  361 

L.  C.  J.  —  Who  is  your  master? 

Wiggins.  —  Mr.  Bedlow.  And  especially  what  concerned  my  Lord  Treas- 
urer; as  also  to  take  a  journal  of  all  my  master's  actions;  and  the  names  of  the 
persons  that  came  to  him.  .  .  .  And  he  said,  moreover,  my  lord,  Mr.  Oates  and 
Mr.  Bedlow  were  two  great  rogues;  that  the  king  believed  not  a  word  they  said; 
and  as  soon  as  he  had  heard  all  they  could  say,  they  should  be  hanged.  .  .  . 

Mr.  Williams.  —  Call  Mr.  Palmer.  (Who  was  sworn.)  We  call  him  to 
corroborate  what  that  young  man  Wiggins  hath  said. 

Palmer.  —  What  he  hath  told  here,  he  discovered  first  to  me,  and  I  discov- 
ered to  his  master,  that  Mr.  Knox  would  have  had  him  to  take  a  journal  of  his 
master's  actions,  and  to  give  it  him  every  day.  My  lord,  I  am  one  of  the  yeomen 
of  the  guard,  and  I  waited  upon  Mr.  Bedlow,  and  he  desired  me  to  help  him  to  a 
clerk;  and  I  helped  him  to  Wiggins,  this  young  man.  He  had  not  been  there 
three  weeks,  or  a  very  little  time,  when  Knox  came  to  him  to  tempt  him;  and 
being  a  stranger  to  his  master  he  knew  not  how  to  discover  it  to  him,  and  told 
me,  "such  a  thing  is  offered  to  me,  but  I  am  a  stranger  to  my  master,  and  I 
know  not  how  to  break  it  to  him." 

L.  C.  J.  —  The  use  you  make  of  this,  is  no  more,  but  only  to  corroborate 
what  he  hath  said,  that  he  told  it  him  while  it  was  fresh,  and  that  it  is  no  new 
matter  of  his  invention  now. 

Mr.  Recorder.  —  It  is  very  right,  my  lord,  that  is  the  use  we  make  of  it. 

244.  Chief  Baron  Gilbert.  Evidence.  {Ante  1726.  fol.  68,  150).  Though 
hearsay  may  not  be  allowed  as  direct  evidence,  yet  it  may  be  in  corroboration 
of  a  witness'  testimony,  to  show  that  he  affirmed  the  same  thing  before  on  other 
occasions  and  that  the  witness  is  still  consistent  with  himself;  .  .  .  [he  then  makes 
an  exception  for  former  sworn  testimony,]  for  if  a  man  be  of  that  ill  mind  to  swear 
falsely  at  one  trial,  he  may  well  do  the  same  on  the  other  on  the  same  inducements; 
but  what  a  man  says  in  discourse  without  premeditation  or  expectation  of  the 
cause  in  question  is  good  evidence  to  support  him. 


245.   STOLP  V.   BLAIR 

Supreme  Court  of  Illinois.     1873 

68  ///.     541 

Appeal  from  the  Court  of  Common  Pleas  of  the  city  of  Aurora;  the 
Hon.  Richard  G.  Montony,  Judge  presiding. 

Mr.  B.  F.  Parks,  for  the  appellant.  Messrs.  Wheaton,  Smith  & 
McBole,  for  the  appellee. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  assumpsit,  brought  by  Blair  against  Stolp,  to 
recover  $500,  money  alleged  to  have  been  loaned  by  the  former  to  the 
latter.  The  plaintiff  below  recovered,  and  the  defendant  appealed. 
Three  certain  rulings  of  the  Court  below  in  the  admission  of  evidence 
are  assigned  for  error,  as  also  that  the  verdict  was  contrary  to  the  evi- 
dence. 

The  first  ruling  excepted  to  was,  in  allowing  Blair  to  testify  as  to  his 


362  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  245 

manner  of  doing  business  with  other  persons  in  the  respect  of  making 
loans  of  money  without  taking  notes.  He  had  testified  that,  on  the  18th 
of  September,  1871,  he  lent  Stolp  $500  for  six  months,  and  that  he  took 
no  note.  The  uncommonness  of  making  a  loan  of  money,  of  such  an 
amount,  for  so  long  a  time,  might  have  afforded  ground  for  an  unfavorable 
inference  against  the  truth  of  thfe  statement  of  the  witness.  .  .  . 

The  other  ruling  excepted  to  was,  in  the  admission  of  the  following 
testimony  of  the  witness  Bailes:  "I  borrowed  $10  of  Blair;  am  not 
positive  about  date,  but  I  think  it  was  on  Friday  of  that  week  (of  Sept. 
18,  1871).  I  spoke  of  giving  a  note  for  the  money  I  borrowed,  and  Blair 
said:  ' I  loaned  $500  to  Mr.  Stolp,  and  did  not  take  a  note;  I  would  not 
think  of  taking  a  note  of  you  for  $10.'"  The  witness  further  stated, 
Blair  said  he  let  Henry  Stolp  have  $500.  The  18th  day  of  September, 
the  day  of  the  alleged  loan,  was  Monday.  It  is  contended  by  appellee's 
counsel  that  this  statement  of  Blair,  of  his  loan  of  $500  to  Stolp,  was 
properly  admitted  as  rebutting  testimony  to  sustain  Blair,  after  the 
defendant  below  had  attempted  to  impair  the  credibility  of  Blair  on  cross- 
examination,  and  by  testimony  contradicting  him. 

This  Court,  in  Gates  v.  The  People,  14  111.  434,  recognized  the  exist- 
ence of  a  conflict  of  authority  upon  the  question  whether  the  former 
declarations  of  a  witness,  whose  credibility  is  attacked,  may  be  given  in 
evidence  to  corroborate  his  testimony,  but  did  not  find  it  necessary  in 
that  case  to  determine  in  regard  to  the  general  rule,  as  that  case  came 
within  one  of  the  admitted  exceptions  to  the  rule  of  exclusion.  We  find 
the  decided  weight  of  authority  to  be,  that  proof  of  declarations  made  by 
a  witness  out  of  court,  in  corroboration  of  testimony  given  by  him  on 
the  trial  of  a  cause,  is,  as  a  general  rule,  inadmissible,  even  after  the 
witness  has  been  impeached  or  discredited ;  and  we  are  satisfied  with  the 
correctness  of  the  rule.  The  following  may  be  referred  to  among  the 
authorities  sustaining  such  rule:  2  Phillipps,  Evidence,  5th  Ed.  973, 
marginal;  1  Starkie,  Evidence,  147;  1  Greenleaf,  Evidence,  §  469; 
Robb  et  al.  v.  Hackley  et  al.,  23  Wend.  50;  Gibbs  v.  Tinsley,  13  Verm. 
208;  Ellicott  v.  Pearl,  10  Pet.  412;  Conrad  v.  Griffey,  11  How.  480.  .  .  . 

In  some  places,  as  in  England  and  New  York,  the  rule  has  been 
adopted  in  the  place  of  a  prior  contrary  one.  As  recognized  in  Gates  v. 
The  People,  supra,  the  authorities  agree  that  the  former  statements  of 
the  witness  may,  in  some  instances,  be  introduced  for  the  purpose  of 
sustaining  his  testimony;  as,  where  he  is  charged  with  testifying  under 
the  influence  of  some  motive  prompting  him  to  make  a  false  statement, 
it  may  be  shown  that  he  made  similar  statements  at  a  time  when  the 
imputed  motive  did  not  exist,  or  when  motives  of  interest  would  have 
induced  him  to  make  a  different  statement  of  facts.  So,  in  contradiction 
of  evidence  tending  to  show  that  the  witness'  account  of  the  transaction 
was  a  fabrication  of  a  recent  date,  it  may  be  shown  that  he  gave  a  similar 
account  before  its  effect  and  operation  could  be  foreseen.  In  some  cases 
the  admission  of  the  confirmatory  statement  has  been  confined  to  the  sole 


No.  246  TESTIMONIAL   EVIDENCE:     CORROBOKATION  363 

case  of  an  impeachment  by  a  contradictory  statement  of  the  witness;  and 
again,  such  confirmatory  statements  have  been  held  to  be  especially  not 
admissible,  if  they  were  made  subsequent  to  the  contradictions  proved  on 
the  other  side,  as  in  Ellicott  v.  Pearl,  supra,  and  Conrad  v.  Griffey,  supra. 

In  the  case  under  consideration,  there  were  no  contradictory  state- 
ments of  Blair  introduced  in  evidence.  There  was  nothing  further  in  the 
way  of  impeachment  than  that  it  was  sought  to  impeach  him  on  cross- 
examination,  and  that  there  was  contradictory  testimony  to  his  in  the 
case.  The  statement  of  Blair,  which  was  admitted,  does  not  come  within 
any  of  the  admitted  exceptions  to  the  general  rule  of  inadmissibility. 
It  was  his  mere  declaration  of  the  fact  made  not  under  oath,  which  was 
not  evidence.  We  are  of  opinion  that,  on  principle  and  authority,  it 
was  not  competent,  and  was  wrongly  received.  As  we  find  this  a  suf- 
ficient ground  for  reversal,  we  will  express  no  opinion  upon  the  weight 
of  the  evidence. 

The  judgment  is  reversed  and  the  cause  remanded.  Judgment 
reversed. 

246.   STATE  v.   PARISH 

Supreme  Court  of  North  Carolina.     1878 

79  N.  C.  610 

Indictment  for  larceny,  tried  at  May  Term,  1878,  of  Wake  Criminal 
Court,  before  Strong,  J. 

It  was  in  evidence  that  John  Jones  had  lost  two  sheep  between  the 
20th  and  28th  of  August,  1876,  and  that  the  defendant  at  that  time 
owned  no  sheep.  One  Dick  Young,  a  witness  for  the  State,  testified  that 
soon  after  Jones  lost  them  he  saw  the  sheep  shut  up  in  an  old  out-house 
in  possession  of  defendant,  and  a  short  distance  from  his  residence ;  that 
when  he  saw  them  he  was  in  company  with  his  son,  Thomas  Young,  the 
witness  next  introduced,  whose  testimony  corroborated  the  above,  and 
during  whose  examination  he  was  ordered  by  the  Court  to  stop,  but 
failing  to  do  so,  was  ordered  several  times  by  the  defendant's  counsel 
in  a  loud  and  disrespectful  manner,  to  stop.  The  State  next  proposed 
to  prove  by  one  Lewis  Jones,  in  order  to  confirm  the  evidence  of  the  two 
first  witnesses,  that  Thomas  Young,  shortly  after  the  loss  of  the  sheep  and 
before  the  defendant  had  been  accused  of  the  larceny  or  receiving,  etc., 
had  made  the  same  statement  to  the  witness  that  he  had  given  to  the 
jury.  The  defendant  objected  to  the  evidence,  the  Court  overruled  the 
objection,  and  the  witness  said  that  Young  had  made  the  same  statement 
to  him.  .  ,  . 

There  was  a  verdict  of  not  guilty  of  larceny,  but  guilty  of  receiving, 
etc.     Judgment.     Appeal  by  the  defendant.  ^ 

Attorney-General,  D.  G.  Foicle  and  W.  H.  Pace,  for  the  State.  Mr. 
T.  M.  Argo,  for  the  defendant. 


364  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  246 

Reade,  J.:  It  can  scarcely  be  satisfactory  to  any  mind  to  say  that 
if  a  witness  testifies  to  a  statement  to-day  under  oath,  it  strengthens  the 
statement  to  prove  that  he  said  the  same  thing  yesterday  when  not  under 
oath.  If  the  proposition  were  reversed,  as  if  one  make  a  statement 
to-day  not  under  oath,  it  strengthens  the  statement  to  show  that  he  said 
the  same  yesterday  under  oath,  it  would  be  conceded  because  of  the 
sanction  of  the  oath.  And  yet  it  must  be  conceded  that  it  is  settled  by 
the  weight  of  authority  both  of  text  writers  and  decided  cases,  that  when 
a  witness  testifies  to  a  statement  under  oath,  and  the  witness  is  impeached, 
he  may  be  supported  by  proving  that  on  a  former  occasion  he  had  made 
the  same  statement,  although  not  under  oath.  As  first  administered, 
the  rule  was  sensible  and  useful.  A  witness  was  called  and  testified  and 
impeached  upon  the  ground  of  some  new  relation  to  the  cause  or  to  the 
parties,  and  then  other  witnesses  were  called  to  prove  that  he  had  made 
the  same  statement  prior  to  such  new  relation  or  supposed  influence,  or 
where  from  lapse  of  time  his  memory  was  impeached  it  was  proved  that 
he  made  the  same  statement  when  the  memory  was  fresh.  All  that  was 
sensible  and  useful.  But  the  idea  that  the  mere  repetition  of  a  story 
gives  it  any  force  or  proves  its  truth,  is  contrary  to  common  observation 
and  experience  that  a  falsehood  may  be  repeated  as  often  as  the  truth. 
Indeed  it  has  never  been  supposed  by  any  writer  or  judge  that  the 
repetition  had  any  force  as  substantive  evidence  to  prove  the  facts,  but 
only  to  remove  an  imputation  upon  the  witness.  It  is  like  to  evidence 
of  character  which  only  affects  the  witness. 

For  illustration:  Thomas  Young,  one  of  the  witnesses  for  the  State, 
swore  that  he  saw  the  stolen  property  in  the  possession  of  the  defendant. 
He  was  not  cross-examined,  not  contradicted,  his  character  was  not 
assailed,  nor  was  he  in  any  way  impeached,  but  stood  before  the  Court  as 
any  other  witness  upon  his  merits.  And  the  State,  lest  his  story  might 
not  be  believed,  proved  by  another  witness  that  he  had  heard  him  tell 
the  same  story  before.  Now  suppose  Thomas  Young  had  not  been  a 
witness  at  all,  would  it  have  been  competent  for  the  State  to  prove  that 
he  had  said  upon  some  occasion  that  he  had  seen  the  stolen  property  in 
the  defendant's  possession?  Of  course  not.  It  would  have  been  nothing 
but  hearsay.  If  then  it  would  not  have  been  evidence  to  prove  the  fact, 
if  Thomas  Young  had  not  been  a  witness,  how  was  it  evidence  to  prove 
the  fact,  he  being  a  witness?  It  was  not  evidence  to  prove  the /ad  in  the 
one  case  more  than  in  the  other.  He  being  a  witness,  such  testimony 
would  have  been  competent  to  remove  some  imputation  upon  him  if  any 
had  been  cast,  and  for  that  purpose  only;  and  as  no  imputation  had  been 
cast  upon  him,  there  was  no  purpose  for  which  it  was  competent.  If  he 
stood  before  the  Court  unimpeached,  it  was  unnecessary  and  mischievous 
to  encumber  the  Court  and  oppress  the  defendant  with  his  garrulousness 
out  of  Court  and  when  not  on  oath 

But  a  more  palpable  error  than  this  was  committed.  The  former 
declarations  of  Thomas  Young  were  admitted  not  only  to  "  confirm  his 


No.  247  TESTIMONIAL   EVIDENCE:     CORROBORATION  365 

own  evidence"  but  to  "confirm  the  evidence"  of  another  witness,  Dick 
Young.  This  is  without  precedent.  As  well  might  it  be  said  that  to 
prove  one  of  a  dozen  witnesses  to  be  of  good  character  is  to  prove  all  to 
be  so,  or  to  sustain  one  is  to  sustain  all.  This  is  put  upon  the  ground 
that  both  witnesses  testified  as  to  the  same  facts,  and  therefore,  if  one 
was  to  be  believed,  so  was  the  other.  Let  us  see  if  that  is  so:  —  A  and 
B  both  swore  that  they  were  in  the  city  of  New  York  on  the  4th  of  July 
last  and  witnessed  the  celebrations  of  the  day  which  they  describe.  A 
was  in  fact  there,  but  it  is  proved  by  a  dozen  witnesses  that  B  was  not 
there  but  was  in  Raleigh;  would  it  " confirm  the  evidence"  of  B  to  prove 
that  A  had  given  the  same  account  of  the  celebration  before  the  trial  as 
upon  the  trial?  Clearly  not.  No  more  does  the  former  consistent 
account  of  Thomas  Young  "confirm  the  evidence"  of  Dick  Young.  .  .  . 
Error, 

Venire  de  novo. 

247.   HEWITT  v.   COREY 

Supreme  Judicial  Court  of  Massachusetts.     1890 

150  Mass.  445;  23  N.  E.  223 

Tort  by  a  married  woman  against  a  deputy  sheriff  for  the  conversion 
of  a  horse.  Trial  in  the  Superior  Court,  before  Dunbar,  J.,  who  allowed 
a  bill  of  exceptions,  which  appear  in  the  opinion. 

Mrs.  Hewitt  sued  for  the  conversion  of  a  horse,  which  the  defendant 
had  attached  as  property  of  her  husband.  The  question  was,  whether 
the  horse  belonged  to  her  or  to  her  husband.  He  testified  in  her  behalf 
that  he  was  not  the  owner.  In  order  to  discredit  his  testimony,  it  was 
shown  on  his  cross-examination  that  he  had  formerly  included  it  in  a. 
mortgage  of  personal  property  given  by  him;  but  he  added,  that  he  did 
not  know  that  the  horse  was  included  when  he  signed  the  mortgage, 
and  that  as  soon  as  he  found  that  it  was,  he  went  to  the  mortgagee  and 
told  him  that  the  horse  did  not  belong  to  him,  and  ought  not  to  be  em- 
braced in  the  mortgage.  This  testimony  came  in  without  objection,  and 
the  defendant  made  no  motion  to  strike  it  out  as  irresponsive  or  incom- 
petent. The  plaintiff,  afterwards,  called  one  of  the  mortgagees,  by  way 
of  confirmation  of  her  husband's  explanation,  who  testified,  that  a  day 
or  two,  perhaps  longer,  after  the  mortgage  was  signed,  the  husband  came 
to  him  and  told  him  the  horse  did  not  belong  to  him  and  ought  not  to 
be  in  the  mortgage.  This,  according  to  the  testimony,  was  before  the 
attachment  by  the  defendant.  The  defendant's  exception  is  to  this 
testimony  by  the  mortgagee. 

The  case  was  argued  at  the  bar  in  October,  1889,  and  afterwards  was 
submitted  on  the  briefs  to  all  the  judges  except  Morton,  C.  J. 

W.  H.  Fox,  for  the  defendant.     S.  *M.  Thomas,  for  the  plaintiff. 

C.   Allen,  J.   (after  stating  the  case  as  above).     It  was  lield   in 


366  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  247 

Commonwealth  v.  Wilson,  1  Gray  337,  340,  that  the  rule  excluding  such 
testimony  does  not  apply  to  a  case  where  the  other  party  has  sought  to 
impeach  the  witness  on  cross-examination.  This  decision  was  affirmed 
in  Commonwealth  v.  Jenkins,  10  Gray  485,  489,  490,  where  it  is  said  that 
such  confirmatory  evidence  is  competent  where  a  witness  is  sought  to  be 
impeached  by  evidence  tending  to  show  that,  at  the  time  of  giving  his 
evidence,  he  is  under  a  strong  bias,  or  in  such  a  situation  as  to  put  him 
under  a  sort  of  moral  duress  to  testify  in  a  particular  way;  or  where  an 
attempt  is  made  to  impeach  the  credit  of  a  witness  by  showing  that  he 
formerly  withheld  or  concealed  the  facts  to  which  he  has  now  testified. 
In  the  present  case,  the  witness  had  done  an  act  which,  unexplained, 
appeared  to  be  inconsistent  with  his  testimony,  and  to  show  that  at  the 
time  of  giving  the  mortgage  he  claimed  to  own  the  horse.  His  explana- 
tion, if  believed,  went  to  show  that  he  did  not  consciously  do  anything 
which  amounted  to  an  assertion  of  title  in  himself.  His  statement  to  the 
mortgagee,  made  before  the  present  controversy  arose,  would  have  a 
legitimate  tendency  to  confirm  his  explanation,  and  if  he  might  himself 
testify  to  this  statement,  there  can  be  no  good  reason  why  the  mortgagee 
might  not  also  testify  to  the  same  thing. 

Clearly  distinguishable  from  this  is  a  case  where  it  appears  that  the 
witness  has  at  other  times  made  statements  inconsistent  with  his  testi- 
mony, and  where  it  is  plain  that  he  must  have  been  false  at  one  time  or 
the  other.  In  such  case  he  is  discredited  by  reason  of  his  contradictory 
statements  at  different  times,  and  it  is  no  restoration  of  his  credit  to  show 
that  at  still  other  times  he  has  made  statements  in  accordance  with  his 
testimony.  This  distinction  is  clearly  pointed  out  and  dwelt  upon  in 
Commonwealth  v.  Jenkins,  ubi  supra.  In  the  present  case,  let  it  be 
assumed,  by  way  of  making  a  strong  illustration,  that  the  witness  when 
signing  the  mortgage  was  the  victim  of  imposition  or  fraud,  whereby  the 
horse  was  inserted  therein  without  his  knowledge,  he  being  blind,  or 
illiterate,  and  that  he  made  a  great  outcry  as  soon  as  he  discovered  the 
fact,  and  took  steps  to  correct  the  mistake  and  to  punish  the  perpetrators; 
certainly  this  would  be  fair  testimony  for  the  consideration  of  any 
tribunal  which  might  have  to  pass  upon  the  facts.  The  testimony  of  the 
mortgagee  in  the  present  case  does  not  differ  in  principle,  and  its  com- 
petency is  supported,  not  only  by  the  authorities  cited,  but  by  the  deci- 
sions of  other  courts,  and  by  various  text-books.  Robb  v.  Hackley,  23 
Wend.  50.     Hester  v.  Commonwealth,  85  Penn.  St.  139,  158.  .  .  . 

For  these  reasons,  in  the  opinion  of  a  majority  of  the  Court,  the  entry 
must  be  Exceptions  overruled. 


No.  252         TESTIMONIAL   EVIDENCE:     PARTY'S  ADMISSIONS  367 

Topic  4.    Rules  Excluding  Party's  Admissions  and  Confessions 
Sub-topic  A.     In  General 

250.  Theori/.^  (1)  Just  as  a  witness'  testimony  is  discredited  when  it  appears 
that  on  another  occasion  he  has  made  a  statement  inconsistent  with  that  testi- 
mony, so  also  the  party  is  discredited  when  it  appears  that  on  some  other  occa- 
sion he  has  made  a  statement  inconsistent  with  his  present  claim.  This  is  the 
simple  theory  upon  which  a  party's  admissions —  of  the  informal  sort,  which  might 
better  be  termed  "quasi-admissions"  ^ — are  every  day  received  in  evidence 
on  behalf  of  his  opponent.  A  witness  speaks  in  court  through  his  testimony 
only,  and  hence  his  testimony  forms  the  sole  basis  upon  which  the  incon- 
sistency of  his  other  statement  is  predicated.  But  the  party,  whether  he  him- 
self takes  the  stand  or  not,  speaks  always  through  his  pleadings  and  through  the 
testimony  of  his  witnesses  put  forward  to  support  his  pleadings;  hence  the  basis 
upon  which  may  be  predicated  a  discrediting  inconsistency  on  his  part  includes 
the  whole  range  of  facts  asserted  in  his  pleadings  and  in  the  testimony  relied  on 
by  him.  Thus,  in  effect,  and  broadly,  anything  said  by  the  party  may  he  used 
against  him  as  an  admission,  provided  it  exhibits  the  quality  of  inconsistency 
with  the  facts  now  asserted  by  him  in  pleading  or  in  testimony. 

(2)  It  follows  that  the  subject  of  an  admission  is  not  limited  to  facts  against 
the  party's  interest  at  the  time.  No  doubt  the  weight  of  credit  to  be  given  to  such 
statements  is  increased  when  the  fact  stated  is  against  the  person's  interest  at 
the  time;  but  that  circumstance  has  no  bearing  upon  their  admissibility.  On 
principle,  it  is  plain  that  every  prior  statement  of  the  party,  exhibiting  an  incon- 
sistency with  his  present  claim,  tends  to  throw  doubt  upon  it,  whether  he  was  at 
the  time  speaking  apparently  in  his  own  favor  or  against  his  own  interest.  For 
example,  a  plaintiff  who  now  claims  a  debt  of  $100  is  clearly  discredited  by 
having  made  a  demand  a  month  ago  for  only  $50,  even  if  at  the  time  the  debtor 
conceded  only  $25  and  thus  put  the  demandant  in  the  position  of  making  an  as- 
sertion purely  in  his  own  favor  and  for  the  aggrandizement  of  his  claim.  If  the 
principle  upon  which  admissions  were  received  rested  at  all  upon  the  disserving 
quality  of  the  fact  asserted  at  the  time  of  assertion,  all  such  statements  would  be 
as  certainly  rejected  when  offered  by  the  opponent  as  they  would  be  when  offered 
by  the  party  himself  in  his  own  favor. 

251.  State  v.  Willis.  (1898.  Connecticut.  71  Conn.  293,  41  Atl.  820).  Ham- 
ERSLEY,  J.  Admissions  are  not  admitted  as  testimony  of  the  declarant  in  respect 
to  any  facts  in  issue.  .  .  .  They  are  admitted  because  conduct  of  a  party  to  the 
proceeding,  in  respect  to  the  matter  in  dispute,  whether  by  acts,  speech,  or  writ- 
ing, which  is  clearly  inconsistent  with  the  truth  of  his  contention,  is  a  fact  rele- 
vant to  the  issue. 

252.   HEANE  v.   ROGERS 

King's  Bench.     1829 

9  5.  c&  C.  577 

Trover  for  goods  and  chattels.  Plea,  not  guilty.  At  the  trial  before 
Gaselee,  J.,  at  the  Summer  assizes  for  the  county  of  Gloucester,  1828, 

^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§  1048). 


368  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  252 

it  appeared  that  in  August,  1826,  a  commission  of  bankrupt  had  issued 
against  the  plaintiff,  under  which  he  was  declared  a  bankrupt.  The 
defendants  were  his  assignees,  and  in  that  character  had  possessed  them- 
selves of  and  sold  the  goods  mentioned  in  the  declaration.  The  action 
was  brought  to  try  the  validity  of  the  commission,  the  plaintiff  contend- 
ing that  he  was  not  a  trader  within  the  meaning  of  the  bankrupt  laws.  .  .  . 

The  defendants  contended  that  even  if  the  plaintiff  was  not  a  trader 
within  the  meaning  of  the  bankrupt  law,  he  was  estopped  by  his  conduct 
from  disputing  the  validity  of  the  commission.  The  evidence  to  that 
point  was  as  follows:  About  a  week  before  the  sale  of  the  goods,  the 
plaintiff,  the  auctioneer,  and  the  assignees,  met  and  consulted  together 
as  to  the  best  means  of  disposing  of  the  property.  The  plaintiff,  at  the 
time  when  the  commission  issued,  was  in  possession  of  a  farm,  which 
he  held  under  a  lease  from  Messrs.  Wilkins,  at  an  annual  rent  of  350£,  for 
a  term  of  which  more  than  a  year  and  a  half  was  unexpired.  The  farm 
had  not  yielded  him  any  profit  for  the  two  preceding  years.  On  the 
12th  of  September,  1826,  the  plaintiff,  pursuant  to  the  statute  6  G.  4,  t;. 
16,  s.  75,  gave  the  following  notice  to  W.  Wilkins,  Esq.,  and  W.  Wilkins, 
Esq.,  the  younger:  —  "I,  the  undersigned,  James  Heane,  of  the  city  of 
Gloucester,  brickmaker,  dealer,  and  chapman,  a  bankrvpt,  do  hereby  give 
you  notice  that  I  am  ready  and  willing,  and  hereby  offer  to  give  up  and 
deliver  unto  you  a  certain  indenture  purporting  to  be  a  lease  of  W^als- 
worth  Hall  estate,  dated  the  17th  of  September,  1817,  made  between  you 
the  said  W.  Wilkins  and  W.  Wilkins  the  younger,  of  the  one  part,  and 
myself  of  the  other  part,  and  also  the  possession  of  the  messuages,  lands, 
hereditaments,  and  premises  therein  comprised."  In  consequence  of 
this  notice  the  lessors  accepted  the  lease,  and  received  possession  of  the 
premises.  Upon  this  evidence  it  was  contended  ...  by  the  defendant's 
counsel,  that  assuming  the  commission  to  be  invalid,  the  plaintiff,  who 
had  availed  himself  of  it  to  get  rid  of  his  lease,  and  his  liability  thereon, 
was  estopped  from  disputing  the  validity  of  the  commission  under  which 
the  defendants  acted;  and  Watson  v.  Wace,  5  B.  &  C.  155,  was  cited.  .  .  . 
The  learned  judge  told  the  jury  that,  in  his  opinion,  the  defendants  were 
entitled  to  a  verdict;  but  he  desired  them  to  find  specially  whether  the 
land  had  or  had  not  been  taken  for  the  express  purpose  of  making  bricks, 
and  they  found  that  it  had.  He  then  directed  the  verdict  to  be  entered 
for  the  defendants,  but  reserved  liberty  to  the  plaintiff  to  move  to  enter 
a  verdict  for  440£.,  the  value  of  the  goods,  if  the  Court  should  be  of 
opinion  that  he  was  not  estopped,  and  also  that  he  was  not  a  person  liable 
to  become  bankrupt  within  the  meaning  of  the  6  G.  4,  c.  16,  s.  2.  A  rule 
nisi  having  been  obtained  for  that  purpose, 

Taunton,  Campbell,  and  Phillpotts,  showed  cause.  The  plaintiff  was 
a  trader  within  the  meaning  of  the  6  G.  4,  c.  16,  s.  2.  .  .  .  But  assuming 
that  the  commission  cannot  be  supported  in  that  respect,  the  bankrupt 
is  estopped  by  his  own  acts  from  disputing  its  validity,  for  he  interfered 
in  the  sale  of  the  goods.  ... 


No.  252        TESTIMONIAL  EVIDENCE:     PARTY'S  ADMISSIONS  369 

Ludlow  and  Russell,  Serjts.,  contra.  The  plaintiff's  interference  in 
the  sale  was  such  as  to  show,  not  that  he  assented  to  the  commission, 
but  that  he  intended  to  take  care  of"  tlie  property,  so  that  the  most  should 
be  made  of  it.  .  .  . 

Bayley,  J.,  now  delivered  the  judgment  of  the  Court: 
Upon  the  report  in  this  case,  two  questions  arise  for  our  consideration 
first,  Whether  the  plaintiff  was  estopped  from  disputing  the  validity  of 
the  commission  under  which  the  defendant  acted;    and,  secondly,  if 
he  was  not,  whether  the  commission  was  valid. 

1.  The  circumstances  relied  upon  at  the  trial,  and  by  the  defendant's 
counsel  in  argument,  as  precluding  the  plaintiff  from  contesting  his 
bankruptcy,  were,  first,  his  interference  relative  to  the  sale  of  his  effects, 
for  the  conversion  of  which  by  such  sale,  this  action  was  brought;  and, 
secondly,  his  having  given  notice  to  the  landlords  of  a  farm  which  he 
held  (Messrs.  Wilkins),  describing  himself  as  a  brickmaker,  dealer  and 
chapman,  and  a  bankrupt,  and  offering  to  give  up  his  lease,  which  appears 
to  have  been  afterwards  accepted.  The  learned  Judge  thought  on  the 
trial,  that  the  interference  of  the  plaintiff  in  the  sale  was  referable  to  an 
intention  on  his  part,  to  take  care  of  the  property,  and  see  that  the  most 
was  made  of  it ;  and  that  it  did  not  amount  to  a  consent  to  the  sale,  and 
that  he  was  not  estopped  on  that  ground;  but  he  thought  that  as  he  had 
availed  himself  of  the  commission  to  derive  a  benefit  from  it,  by  the 
surrender  of  his  lease,  he  was  estopped  by  that  act  from  saying  that  he 
was  not  a  bankrupt;  though  he  reserved  the  point  for  the  consideration 
of  the  Court.  In  the  former  opinion  we  entirely  concur,  in  the  latter  we 
are  not  able  to  acquiesce.  There  is  no  doubt  but  that  the  express  admis- 
sions of  a  party  to  the  suit,  or  admissions  implied  from  his  conduct,  are 
evidence,  and  strong  evidence,  against  him.  But  we  think  that  he  is  at 
liberty  to  prove  that  such  admissions  were  mistaken  or  were  untrue, 
and  is  not  estopped  or  concluded  by  them,  unless  another  person  has  been 
induced  by  them  to  alter  his  condition;  in  such  a  case  the  party  is 
estopped  from  disputing  their  truth  with  respect  to  that  person  (and 
those  claiming  under  him),  and  that  transaction;  but  as  to  third  persons 
he  is  not  bound.  It  is  a  well  established  rule  of  law,  that  estoppels  bind 
parties  and  privies,  not  strangers.  (Coke  on  Littleton,  352  a.  Comyn's 
Digest,  Estoppel  (C.).)  The  offer  of  surrender  made  in  this  case,  was 
to  a  stranger  to  this  suit.  .  .  . 

2.  The  second  question  is,  Whether  the  commission  was  invalid. 
The  objection  is,  that  the  bankrupt  was  not  a  trader,  and  we  are  of  opinion 
that  he  was  not.  .  .  . 

Therefore,  we  are  of  opinion  that  the  plaintiff  was  not  a  trader;  and  as 
he  was  not  estopped  from  resisting  this  commission  against  him,  the 
rule  to  enter  a  verdict  for  the  plaintiff  for  440£.  must  be  made  absolute. 

Rule  absolute. 


370  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  253 

253.  CoRSEU  V.  Paul.  (1860.  New  Hampshire.  31  N.  H.  24,  31).  Bell.  J,  C. 
There  is  a  class  of  admissions  which  may  be  either  express  or  implied  from  silence, 
or  acquiescence,  which  are  conclusive.  Such  are  admissions  which  have  been 
acted  upon,  or  those  which  have  been  made  to  influence  the  conduct  of  others, 
or  to  derive  some  advantage  to  the  party,  and  which,  therefore,  cannot  be  denied 
without  a  breach  of  good  faith.  As  if,  for  example,  in  the  present  case,  the 
defendant  had  stood  by  and  seen  this  note  offered  to  the  bank  for  discount;  and, 
being  aware  of  what  was  doing,  had  been  silent;  or  if,  before  the  discount  he  had 
been  spoken  to  by  any  of  the  officers  of  the  bank  in  relation  to  the  note,  and, 
being  aware  of  the  facts,  had  forborne  to  deny  the  signature  —  by  these  tacit 
admissions  he  would  be  forever  concluded  to  deny  the  note  to  be  his,  in  case  the 
bank  discounted  it.  This  is  but  an  application  of  the  same  principle  that  is 
applied  in  the  case  of  deeds  of  real  estate,  that  he  who  stands  by,  at  the  sale  of  his 
property  by  another  person,  without  objecting,  will  be  precluded  from  contesting 
the  purchaser's  title. 


254.   KITCHEN  v.   ROBBINS 

Supreme  Court  of  Georgia.      1860 

29  Ga.  713 

Certiorari,  in  Richmond  Superior  Court.  Decision  by  Judge  Holt, 
at  October  Term,  1859. 

This  cause  arose  in  the  City  Court  of  Augusta,  being  an  action  on 
the  case  brought  by  WiUiam  K.  Kitchen,  against  Stephen  B.  Robbins,  to 
recover  the  value  of  a  gold  watch  and  eighty-five  dollars  in  money, 
alleged  to  have  been  stolen  from  plaintiff,  on  the  night  of  the  27th  day  of 
December,  1858,  from  the  room  occupied  by  him  in  the  inn  or  hotel, 
kept  by  defendant  in  the  city  of  Augusta,  and  while  plaintiff  was  asleep 
in  the  room.  After  proving  that  the  defendant  kept  a  common  inn  in 
the  city  of  Augusta,  on  or  about  the  27th  day  of  December,  1858,  and 
that  on  or  about  that  day,  plaintiff  and  his  family  were  guests  at  said  inn, 
plaintiff  proved  by  Curtis  H.  Shockley,  who  was  examined  by  commission, 
that  during  the  month  of  December,  1858,  the  defendant,  Stephen  B. 
Robbins,  informed  him,  that  the  plaintiff  had  lost  some  money  and  (as 
witness  thought)  a  gold  watch  also. 

Plaintiff,  by  his  attorneys,  then  offered  as  evidence,  his  own  testimony, 
taken  by  commission,  for  the  purpose  of  proving  his  actual  loss.  .  .  .  The 
Court  ruled  out  the  testimony  of  the  plaintiff,  who  excepted  at  the  time 
to  the  decision.  The  plaintiff  then  placed  the  defendant,  Stephen  B. 
Robbins,  on  the  stand;  by  whom  he  proved  that  on  the  night  of  the  27th 
day  of  December,  1858,  the  plaintiff,  his  wife  and  daughter  were  guests 
at  his  inn,  and  that  he  had  been  paid  in  full  for  their  board.  Plaintiff's 
counsel  then  asked  of  the  defendant,  whether  or  not  he  believed  that  the 
plaintiff  was  robbed  of  said  watch  and  money  on  said  niglit,  and  requested 
him  to  give  the  reasons  of  his  belief.  The  defendant  replied  that  he  had 
no  belief  except  what  was  founded  upon  the  statements  of  the  plaintiff 


No.  254        TESTIMONIAL  EVIDENCE:     PARTY'S  ADMISSIONS  371 

to  him.  The  Court  refused  to  allow  the  defendant  to  give  his  belief, 
though  insisted  upon  by  plaintiff's  counsel ;  to  which  refusal  the  plaintiff 
excepted.  Plaintiff'  again  offered  in  evidence  his  own  testimony,  upon 
the  grounds  aforesaid,  which  the  Court  refused  to  allow  as  e^•idence,  and 
plaintiff  again  excepted.  The  case  was  then  submitted  to  the  jury,  who 
found  for  the  defendant. 

Upon  this  statement  of  facts,  a  writ  of  certiorari  was  granted;  and 
after  argument  on  both  sides  in  the  Superior  Court  for  said  county,  the 
Judge  of  that  Court  ordered  a  new  trial,  upon  the  grounds  that  "  the  loss 
having  been  proven  by  the  admissions  of  the  defendant,"  the  "  testimony 
of  the  plaintiff  was  admissible  to  prove  the  amount  and  value  of  the 
property  lost."  And,  secondly,  that  the  plaintiff,  when  the  defendant 
was  put  upon  the  stand,  "was  entitled,  on  the  direct  examination,  to 
have  his  belief,  and  the  reasons  of  his  belief." 

To  which  decision  defendant,  by  his  counsel  excepted,  and  tenders 
this  bill  of  exceptions,  and  says  that  Court  erred:  1st.  In  holding  that 
the  admission  of  the  defendant,  founded  upon  the  statements  of  the 
plaintiff,  was  sufficient  evidence  of  the  fact  of  loss,  to  admit  any  evidence 
©f  the  value  of  the  loss.  .  .  .  3rd.  In  deciding  that  the  defendant  when 
placed  upon  the  stand  by  the  plaintiff  as  his  witness,  might  be  compelled, 
on  the  direct  examination,  to  give  his  belief,  and  the  reasons  of  his 
belief,  as  to  any  fact  not  within  his  own  knowledge. 

John  H.  Hull,  and  Edward  J.  Wallcer,  for  plaintiff  in  error.  Millers 
&  Jackson,  contra. 

By  the  Court,  —  Stephens,  J.,  delivering  the  opinion: 

(1)  The  first  error  assigned  is  on  the  ruling  that  the  admissions  of  the 
defendant  founded  on  statements  to  him  by  the  plaintiff,  were  sufficient 
proof  of  the  fact  of  loss,  to  authorize  the  introduction  of  evidence  con- 
cerning the  amount  of  the  loss.  I  remark  in  the  first  place,  the  admission 
did  not  appear  to  have  been  founded  on  statements  of  the  plaintiff,  so 
far  as  was  disclosed  by  Mr.  Shockley,  who  was  the  witness  that  testified 
to  the  admissions.  He  stated  the  admissions  to  have  been  made  without 
any  qualification  or  suspicion  expressed  as  to  their  truth,  and  without 
any  mention  of  the  source  from  which  the  defendant's  knowledge  of  the 
facts  had  been  derived.  We  think  the  testimony  of  this  witness  was 
sufficient  proof  of  the  fact  of  loss,  to  authorize  the  introduction  of  evidence 
to  show  its  amount,  and  it  was  not  for  the  Judge  to  pronounce  that  the 
testimony  of  this  witness  was  to  be  weakened  or  destroyed  by  the  subse- 
quent statement  of  the  defendant,  that  all  his  knowledge  had  been 
derived  from  the  plaintiff.  The  jury  was  the  tribimal  to  compare  the 
witnesses,  and  weigh  the  evidence.  But  why  should  not  the  admissions 
be  good  evidence  even  if  founded  on  the  statements  of  the  other  party? 
Are  no  admissions  good  against  a  party,  unless  founded  on  his  personal 
knowledge?  The  admissions  would  not  be  made  except  on  evidence 
which  satisfies  the  party  who  is  making  them  against  his  own  interest, 
that  they  are  true,  and  that  is  evidence  to  the  jury  that  they  are  true. 


372  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  254 

Admissions  do  not  come  in  on  the  ground  that  the  party  making  them  is 
speaking  from  his  personal  knowledge,  but  upon  the  ground  that  a  party 
will  not  make  admissions  against  himself  unless  they  are  true.  The  fact 
that  he  makes  them  against  his  interest  can  be  reasonably  explained  only 
on  the  supposition  that  he  is  constrained  to  do  so  by  the  force  of  the 
evidence.  The  source  from  which  a  knowledge  of  the  facts  is  derived, 
is  a  circumstance  for  the  party  to  consider,  in  estimating  the  value  of 
the  evidence,  but  that  is  all. 

(2)  And  on  the  same  principle  as  well  as  on  another,  we  think  the 
plaintiff  had  a  right  to  the  belief  of  the  defendant  when  the  latter  was  on 
the  stand  as  a  witness,  under  our  statute.  He  was  a  party  as  well  as  a 
witness,  and  on  the  principle  just  stated,  the  plaintiff  would  have  been 
permitted  to  prove,  that  the  defendant  had  said,  he  believed  the  plaintiff 
had  lost  the  watch  and  money.  He  would  have  been  permitted  to  prove 
that  the  plaintiff  had  said  so,  in  the  presence  of  the  defendant,  and  that 
the  latter  did  not  deny  it.  This  evidence  would  show  no  personal 
knowledge  of  the  fact  stated,  on  the  part  of  the  silent  party,  but  it  raises 
a  presumption  that  he  believed  it.  The  belief  of  a  man  against  his  own 
interest  is  a  fact  for  the  jury  to  consider  as  evidence,  and  if  this  belief 
may  be  proven  by  admissions  before  witnesses  or  inferred  from  silence, 
surely  it  may  be  proven  by  the  oath  of  a  witness  who  knows,  as  the  party 
does  know,  what  his  belief  is.  Courts  of  equity  will  require  parties  to 
answer  not  only  according  to  their  knowledge,  but  also  according  to 
their  belief;  and  our  Act,  which  permits  one  party  to  put  the  other  on 
the  stand  as  a  witness,  is  stated  in  its  very  caption  to  be  a  mode  of  obtain- 
ing a  discovery  at  common  law,  in  lieu  of  going  into  equity.  And  this 
is  the  additional  principle  on  which  the  belief  of  the  defendant  was 
admissible  evidence,  .  .  .  Judgment  affirmed. 


Sub-topic  B.    Third  Person's  Admissions 

255.  THE  KING  v.  THE  INHABITANTS  OF  HARDWICK 

King's  Bench.     1809 

11  East  578 

An  appeal  against  an  order  for  the  removal  of  Joseph  Vipond,  Mary 
his  wife,  and  their  children,  by  name,  was  entered  at  the  sessions  in  the 
name  of  "The  Churchwardens  and  Overseers  of  the  Poor  of  the  Parish 
of  Hardwick  in  the  County  of  Norfolk,  Appellants,  and  the  Church- 
wardens and  Overseers  of  the  Poor  of  the  Parish  of  Fulham  Saint  Mary 
the  Virgin,  in  the  same  County,  Respondents."  And  upon  the  hearing 
of  the  appeal,  the  Sessions  confirmed  the  order,  subject  to  the  opinion  of 
this  Court  upon  a  case  which  stated, 

That  John  Vipond,  the  father  of  the  pauper  Joseph,  was  a  settled 


No.    255      TESTIMONIAL  EVIDENCE:     PARTY'S   ADMISSIONS  373 

inhabitant  of  the  parish  of  Forncett  St.  Mary,  in  Norfolk,  and  about 
forty  years  ago  came  to  reside  in  the  parish  of  Hardwick,  in  the  same 
county,  on  a  tenement  at  the  rent  of  5  £.  10  s.  per  annum.  The  pauper, 
Joseph  Vipond,  who  is  now  thirty-seven  years  of  age,  was  born  in  that 
parish.  .  .  .  The  respondents,  in  order  to  prove  the  pauper's  settlement 
in  Hardwick,  called  the  father,  who,  being  a  settled  inhabitant  of  that 
parish,  refused  to  be  examined.  They  then  called  the  pauper  himself, 
who  proved  from  his  knowledge,  that  his  father  had  resided  on  the  tene- 
ment at  Hardwick  for  twenty-five  years,  and  that  it  was  now  worth 
more  than  10  £.  per  annum.  And  the  Court  admitted  the  pauper  to  give 
evidence  of  his  father's  declarations  to  him,  that  he  (the  father)  had 
purchased  the  house  when  the  pauper  was  sixteen  years  of  age  for  87  £. 
and  that  he  had  about  ten  years  ago  laid  out  above  100  £.  on  the  premises. 
The  Court  were  of  opinion,  that  the  pauper  was  not  emancipated  by  his 
residing  in  Besthorpe  under  the  indenture  of  apprenticeship,  nor  by  any 
other  act  subsequent  to  it;  and  therefore  confirmed  the  order. 

Alderson,  in  support  of  the  orders,  said,  .  .  .  The  declarations  of  the 
father,  that  this  estate  was  his  own  by  purchase  for  87  £.,  would  be  let  in, 
upon  the  authority  of  The  King  v.  Woburn,  10  East  395,  402,  as  the 
declaration  of  one  of  the  parties  to  the  cause,  objection  having  been  made 
on  that  ground  to  his  examination  by  the  adverse  party.  .  .  . 

Garrow  and  Frere,  Serjt.,  contra,  contended  .  .  .  that  it  did  not 
necessarily  follow  from  the  determination  in  The  King  v.  Woburn,  10 
East  395,  that  because  a  payer  of  the  parish  might  refuse  to  answer  as  a 
witness  when  called  by  the  adverse  party,  therefore  his  declarations  upon 
the  subject  might  be  given  in  evidence.  .  .  .  The  common  case,  where 
declarations  of  parties  have  been  given  in  evidence,  is  where  they  are 
parties  on  the  record;  whereas  the  nominal  parties  to  an  appeal  of  this 
sort  are  the  parish  officers.  The  rule  was  considered  to  be  so  technical  in 
Bauerman  v.  Radenius,  7  Term  Rep.  663,  that  the  declaration  of  a 
trustee,  who  was  the  nominal  plaintiff  on  the  record,  was  admitted  to 
defeat  the  action  of  his  cestui  que  trust,  the  real  party.  (Bayley,  J. 
That  case  only  decided  that  the  declarations  of  the  nominal  party  on 
the  record  were  evidence  against  him;  but  not  that  the  declarations  of 
the  real  party  would  not  also  have  been  evidence.  Then,  taking  the 
inhabitants  of  the  parish  to  be  the  real  parties  to  the  appeal,  still  they 
are  not  such  parties  whose  declarations  are  adrnissible  within  the  true 
meaning  and  sense  of  the  rule;  which  is  founded  upon  a  reasonable 
presumption  that  no  person  will  make  any  declaration  against  his  interest, 
unless  it  be  founded  in  truth;  but  the  interest  of  all  aggregate  bodies, 
such  as  corporators,  hundreds,  parishioners,  and  the  like,  upon  a  matter 
affecting  the  whole  community  alike,  is  too  minute  to  insure  an  accurate 
attention  to  declare  nothing  but  the  truth.  Upon  this  ground  of  the 
minuteness  of  their  interest,  they  have  in  some  cases  been  held  to  be 
witnesses.  Le  Blanc,  J.  In  The  King  v.  Woburn,  the  parishioner  was 
not  rejected  as  a  witness  on  the  ground  of  interest;   for  his  interest  was 


,374  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  255 

opposed  to  that  of  the  party  who  wished  to  call  him;  but  he  was  held 
to  be  privileged  from  answering,  on  the  ground  of  his  being  one  of  the 
real  parties  to  the  suit.)  .  .  .  Considering  him  as  a  party,  yet  as  the 
interest  of  each  inhabitant  is  several,  his  declarations  would  not  be 
evidence  to  charge  the  others;  as  an  admission  made  by  one  of  the 
defendants  in  trespass  is  no  evidence  against  the  others.  The  incon- 
venience of  letting  in  this  evidence  will  be  very  great  in  practice. 

Lord  Ellenborough,  C.  J.  Evidence  of  an  admission  made  by  one 
of  several  defendants  in  trespass  will  not,  it  is  true,  establish  the  others 
to  be  co-trespassers;  but  if  they  be  established  to  be  co-trespassers  by 
other  competent  evidence,  the  declaration  of  the  one,  as  to  the  motives 
and  circumstances  of  the  trespass,  will  be  evidence  against  all  who  are 
proved  to  have  combined  together  for  the  common  object. 

With  respect  to  the  case  at  the  bar,  two  questions  have  been  made; 
but  that  which  has  been  argued  most  at  length,  and  is  considered  to  be 
of  most  importance,  is.  Whether  the  declarations  of  the  father,  as  proved 
by  the  son,  were  admissible  evidence?  .  .  .  The  question  then  is.  Whether 
the  declaration  of  a  parishioner  respecting  the  circumstances  of  a  settle- 
ment, of  which  he  could  not  be  compelled  to  give  evidence  as  a  party  to 
the  appeal  depending,  be  admissible  in  evidence?  I  consider  all  appeals 
against  orders  of  removal,  though  technically  carried  on  in  the  names  of 
the  churchwardens  and  overseers  of  the  respective  parishes,  yet  in  sub- 
stance and  effect  to  be  the  suits  of  the  parishioners  themselves,  who  are 
to  contribute  to  the  expense  of  maintaining  the  paupers.  The  parish- 
ioner, therefore,  being  a  party,  could  not  be  called  upon  as  a  witness. 

Then  what  is  there  to  differ  this  from  other  cases  of  aggregate  bodies, 
who  are  parties  to  a  suit?  In  general  cases  it  cannot  be  questioned  that 
the  declarations  of  the  parties  to  a  suit  are  evidence  against  them ;  and 
how  is  this  case  distinguishable  from  those  upon  principle?  What 
credit  is  due  to  such  evidence  is  another  consideration.  His  declaration 
does  not  conclude  the  parish;  but  will  be  more  or  less  weighty  according 
to  his  means  of  knowledge,  the  genuineness  of  the  declaration,  and  other 
circumstances  of  which  the  Court  would  judge.  A  declaration  made 
by  such  a  party  loosely,  and  without  competent  grounds  of  knowledge  of 
the  fact,  would  not  be  entitled  to  weight ;  but  the  credibility  of  such  evi- 
dence is  quite  a  different  question  from  its  competency;  and  it  is  always 
open  to  contradiction  like  other  evidence.  Here,  however,  the  father 
had  very  competent  means  of  knowledge  as  to  the  fact  declared  by  him; 
but  it  is  sufficient  for  us  to  say,  that  the  evidence  was  competent  to 
be  received.  .  .  . 

Le  Blanc,  J.  .  .  .  The  point  comes  now  to  be  judicially  considered, 
for  the  first  time,  whether  such  a  declaration  be  receivable  in  evidence : 
whether  when  a  suit  be  pending  against  a  great  number  of  persons  who 
have  a  common  interest  in  the  decision,  a  declaration  made  by  one  of 
those  persons  concerning  a  material  fact  within  his  knowledge  be  e\'idence 
against  him  and  all  the  other  parties  with  him  to  the  suit?     And  it  still 


No.  256        TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  375 

seems  to  me  to  follow  as  a  corollary  from  the  decision  of  the  Court  in  the 
former  case,  that  such  a  person,  not  being  liable  to  be  called  upon  to 
give  evidence  upon  oath  of  the  fact,  as  being  a  party  to  the  suit,  his 
declaration  of  it  must  be  evidence  for  the  opposite  party.  .  .  . 

Bayley,  J.  .  .  .  The  declaration  of  every  such  rated  inhabitant,  as 
to  the  matters  in  question,  made  at  the  time  he  was  a  rated  inhabitant, 
is  evidence.  .  .  .  Orders  confirmed. 


256.   GIBBLEHOUSE  v.   STONG 

Supreme  Court  of  Pennsylvania.     1832 

3  Rawle  437 

Frederick  Stong,  the  defendant  in  error,  brought  an  ejectment 
against  the  plaintiffs  in  error,  John  Gibblehouse  and  John  Brandt,  to 
recover  two  lots  of  ground  in  Whitpain  township,  one  of  them  containing 
three-quarters  of  an  acre,  with  a  dwelling-house,  and  other  buildings 
erected  on  it,  and  the  other  containing  five  acres.  The  plaintiff  below 
claimed  under  a  deed  dated  1st  of  April,  1813,  from  David  Johnson,  in 
whom  it  was  admitted  the  legal  title  to  both  the  lots  was  vested,  one  of 
them  by  deed  dated  the  1st  of  April,  1811,  from  S.  Slingluff,  and  wife, 
the  other  by  deed  dated  the  13th  of  May,  1811,  from  Samuel  Ashmead 
to  him.  Gibblehouse  was  the  tenant  of  Brandt,  who  alleged  that  David 
Johnson  was  the  mere  trustee  of  his  brother  Edward  Johnson,  for  whose 
use  he  held  the  legal  title  to  the  lots  in  dispute,  and  that  he,  Brandt,  had 
purchased  them  as  the  property  of  Edward  Johnson  at  a  sheriff's  sale 
under  an  execution  upon  a  judgment  obtained  b}^  Brandt  against  Edward 
Johnson. 

George  Gregor  was  produced  and  affirmed  as  a  witness,  for  the 
plaintiffs  in  error.  He  testified  as  follows:  "Edward  Johnson  bought 
the  three-quarter  acre  lot  from  Slingluff.  David  Johnson  and  Edward 
Johnson  told  me  so."  The  counsel  for  the  plaintiff  below,  then  objected 
to  this  evidence,  when  the  defendant's  counsel  offered  to  give  in  evidence, 
"declarations  made  by  David  Johnson,  after  the  purchase  of  the  property 
in  dispute  from  Slingluff  and  Ashmead,  and  while  he  held  the  legal  title 
to  it,  and  before  it  was  afterwards  sold  to  any  one,  that  he  had  never 
paid  any  part  of  the  purchase-money,  but  that  he  held  the  title  for  the 
property  as  the  trustee  of  Edward  Johnson,  and  that  EdAvard  Johnson 
had  paid  the  purchase-money  for  it."  To  this  evidence  the  counsel  of 
the  plaintiff  below  objected;  upon  which  the  Court  decided  "that  the 
witness  could  not  give  any  evidence  of  any  declarations  made  by  David 
Johnson,  unless  such  declarations  were  made  at  the  time  or  immediately 
before,  or  immediately  after,  the  execution  of  the  deeds  to  him,  or  by  him 
to  the  plaintiff,  Frederick  Stong,  or  in  the  presence  of  the  opposite 
party;  the  said  David  Johnson  being  a  competent  witness,  and  from  any- 


376  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  256 

thing  which  appears  to  the  contrary,  in  full  life,  and  within  reach  of  the 
process  of  the  court."  To  this  opinion  the  counsel  of  the  defendant  below 
excepted,  and  assigned  it  for  error  in  this  Court. 

The  cause  was  argued  by  T.  Sergeant,  for  the  plaintiff  in  error,  and 
by  Kittcra,  for  the  defendant  in  error;   after  which 

The  opinion  of  the  Court  was  delivered  by 

Rogers,  J.  1.  The  declarations  of  a  person,  while  in  the  possession 
of  the  premises,  against  his  title,  are  always  admissible,  not  only  against 
him,  but  against  those  who  claim  under  him.  The  general  principle 
is  conceded;  but  with  this  qualification,  that  when  the  person  whose 
acknowledgment  is  relied  on  is  alive  and  a  competent  witness,  that 
then  he  must  be  examined:    that  his  declarations  cannot  be  received. 

1  have  examined  all  the  cases,  and  I  cannot  perceive  a  trace  of  any  such 
exception.  In  most  cases  it  is  true  the  party  was  dead,  and  this  is  usually 
the  case  in  fact,  for  it  is  the  declarations  of  an  ancestor  that  are  most 
commonly  offered  in  evidence.  It  has  in  no  case  however  been  made  a 
subject  of  inquiry  whether  the  person  was  dead  or  alive,  a  competent 
witness  or  otherwise,  and  this  surely  would  have  been  the  case  had  any 
such  qualification  of  the  general  rule  existed.  The  reason  of  the  rule  is 
at  war  with  the  exception.  The  point  falls  within  the  well-established 
principle  that  although  a  man's  declarations  are  not  evidence  for  him, 
they  are  strong  evidence  against  him.  The  principle  is  founded  on  a 
knowledge  of  human  nature.  Self-interest  induces  men  to  be  cautious  in 
saying  anything  against  themselves,  but  free  to  speak  in  their  own  favor. 
We  can  safely  trust  a  man  when  he  speaks  against  his  own  interest.  It 
is  not  conclusive,  but  is  unquestionable  evidence,  entitled  to  some  weight 
against  himself,  and  those  who  claim  under  him.     Bassler  v.  Neisly  et  al., 

2  Serg.  &  Rawle  353. 

2.  The  defendant's  counsel  offered  to  prove  declarations  made  by 
David  Johnson,  after  the  purchase  from  Slingluff  and  Ashmead,  and 
before  the  sale  of  the  property  to  any  person,  that  he,  David  Johnson, 
never  paid  any  part  of  the  purchase-money,  but  that  he  held  the  title  as 
trustee  for  Edward  Johnson,  and  that  Edward  Johnson  had  paid  the 
purchase-money  for  it.  The  Court  decided  that  the  witness  could  not 
give  any  evidence  of  any  declarations  made  by  David  Johnson,  unless 
such  declarations  were  made  at  the  time,  or  immediately  before,  or 
immediately  after  the  execution  of  the  deeds  to  him,  or  by  him  to  the 
plaintiff,  or  in  the  presence  of  the  opposite  party;  David  Johnson  being 
a  competent  witness,  and  from  anything  which  appears  to  the  contrary, 
in  full  life,  and  within  reach  of  the  process  of  the  Court.  Suppose  this 
declaration  had  been  in  writing,  can  David  Johnson  by  a  subsequent 
conveyance,  prevent  the  party  in  whose  favor  the  declaration  was  made, 
from  giving  it  in  evidence  against  the  party  who  claims  under  him? 
And  where  is  the  difference  between  written  and  parol  testimony,  except 
in  the  certainty;  and  particularly  in  cases  of  personal  property,  which 
may  pass  by  parol,  and  to  which  the  principle  also  applies?  .  .  . 


No.  25G        TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  377 

We  think  there  was  error  in  rejecting  the  testimony,  and  that  the 
judgment  should  be  reversed. 

Huston,  J.:  The  only  error  assigned  in  this  record  is  contained  in 
a  bill  of  exceptions  to  the  opinion  of  the  Court  in  rejecting  certain  testi- 
mony-. .  .  .  The  Court  decided  that  the  witness  could  not  give  any 
evidence  of  any  declaration  made  by  David  Johnson,  unless  it  were 
made  at  the  time,  or  immediately  before  or  after  the  execution  of  the 
deed  to  him,  or  by  him  to  the  plaintiff,  Frederick  Stong,  or  in  the 
presence  of  the  opposite  party,  he,  David  elohnson,  being  a  compe- 
tent witness,  in  full  life,  and  within  reach  of  the  process  of  the  Court. 
To  this  exception  was  taken;  and  I  see  no  error,  at  least  against  the 
defendants. 

It  has  been  contended  that  by  a  series  of  decisions  in  this  State  it  is 
settled,  that  the  declarations  of  a  former  owner  of  property,  made  while 
he  was  owner,  are  evidence  against  the  party  claiming  under  him;  and 
that  this  rule  is  uni\'ersal,  and  applies  to  cases  where  such  former  owner 
is  alive,  is  entirely  disinterested  in  the  matter  trying,  and  is  standing  in 
Court  and  there  is  no  objection  to  examining  him  as  a  witness.  On  the 
other  hand,  it  is  contended  that  the  rule  is  not  universal:  That  declara- 
tions of  a  former  owner  are  only  evidence  to  establish  boundary,  pedigree, 
and  custom:  That  it  does  not  extend  to  permit  parol  evidence  to  con- 
tradict written  and  recorded  deeds,  and  destroy  titles  good  by  such 
deeds,  and  proved  by  those  who  never  heard  of  such  parol  declarations : 
and  at  all  events  it  is  limited  to  cases  in  which  the  person  whose  declara- 
tions are  proved  is  interested,  and  cannot  be  examined,  or  is  dead,  or 
out  of  the  reach  of  the  process  of  the  Court;  but  that  if  he  is  alive,  in 
Court,  or  can  be  brought  there,  and  is  totally  disinterested,  he  must  be 
examined  on  oath,  an  opportunity  given  to  cross-examine,  and  his 
declarations  not  on  oath,  are  not  in  such  case  to  be  proved ;  and  that  the 
statute  of  frauds  forbids  that  a  title  depending  by  law  on  written  and 
recorded  deeds,  should  be  destroyed  by  parol  evidence  of  parol  declara- 
tions, which  may  have  been  made,  or  may  not,  and  which  if  made,  did 
not  at  all  affect  the  rights  of  him  who  uttered  them,  except  as  to  those 
who  may  have  purchased  on  the  faith  of  such  declarations.  .  .  . 

The  opinion  of  the  Court  in  all  the  cases  cited,  and  most  if  not  all 
those  in  our  reports,  which  I  have  found,  were  delivered  by  the  late 
Chief  Justice.  And  in  Buchannan  v.  Moore,  10  Serg.  &  Rawle  275,  the 
same  judge  in  delivering  the  opinion  of  the  Court,  quoting  Phillipps' 
Evidence, 

"In  all  cases  which  have  been  mentioned  on  this  subject  (parol  evidence  of 
declarations)  the  person  who  made  the  declaration  was  deceased  at  the  time  of 
trial;"  and  he  adds,  "  there  is  great  reason  for  the  law  being  so  held.  WTiy  should 
the  declarations  without  oath  of  a  person  who  may  be  produced  and  examined 
on  oath,  be  evidence?  Why  should  the  party  against  whom  the  evidence  is 
offered  be  deprived  of  the  opportunity  of  cross-examining?  In  the  case  of  death 
there  is  a  necessity.     But  while  the  witness  is  living  there  is  no  pretence  for 


378  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  256 

dispensing  with  the  general  rule  which  rejects  all  testimony  except  on  oath,  and 
in  the  presence  of  the  parties  to  the  suit."  .  .  . 

Believing,  then,  the  law  to  have  been  settled  in  this  state  by  Buchan- 
nan  v.  Moore,  10  Serg.  &  Rawle  275,  and  so  considered  \>y  the  profession, 
and  by  the  several  Courts  of  Common  Pleas,  as  well  as  the  one  which 
tried  this  cause,  I  would  not  lightly  change,  but,  on  full  reflection,  I 
believe,  it  was  then  settled  on  principle,  and  ought  not  to  be  changed. 
.  .  .  The  Court  admitted  declarations  to  the  plaintiff,  rejected  parol 
declarations  to  others,  and,  I  think,  rightly,  whether  the  former  owner 
was  dead  or  alive,  unless  they  went  to  prove  boundary  in  the  sense  I 
have  stated,  or  pedigree  or  custom ;  and  further,  that  where  such  declara- 
tions can  be  proved,  it  is  only  when  the  person  who  used  them  was  owner 
when  he  used  them,  and  is  dead,  or  out  of  the  reach  of  the  process  of  the 
Court,  or  interested. 

Kennedy,  J.  ...  It  is  argued  that  the  declarations  of  David 
Johnson  were  rightly  rejected,  upon  the  principle  that  they  were  not 
made  upon  oath  or  affirmation,  nor  yet  in  the  presence  and  hearing  of 
the  adverse  party>  but  made  in  his  absence  when  no  opportunity  was 
afforded  of  a  reply,  much  less  of  a  cross-examination,  and  as  David 
Johnson  was  within  the  jurisdiction  of  the  Court,  and  was  a  competent 
witness,  he  might  have  been  produced  to  testify  to  the  facts,  which  would 
have  been  better  evidence  than  his  declarations  or  admissions.  And  in 
support  of  this,  Buchannan  and  others  v.  Moore,  10  Serg.  &  Rawle  281, 
is  cited.  .  .  .  The  decision  of  the  Court  here  was  not  only  correct,  but 
I  am  willing  to  admit  that  everything  said  by  the  Chief  Justice  is  likewise 
so.  But  it  will  be  seen  in  the  sequel,  I  think,  that  it  is  not  applicable 
to  the  case  before  us. 

The  testimony  in  Buchannan  v.  Moore  was  purely  of  hearsay  char- 
acter, with  regard  to  which  the  general  rule  is  well  settled,  as  there 
stated,  that  it  cannot  be  received  except  in  certain  cases  from  necessity, 
when  the  facts  offered  to  be  proved  from  their  very  nature  are  incapable 
of  the  ordinary  means  of  proof ;  such  as  questions  of  pedigree,  character, 
prescription,  custom,  boundary,  and  the  like.  It  is  manifest  that  some 
of  these  matters  from  their  very  nature,  and  others  from  their  antiquity, 
do  not  admit  of  the  ordinary  and  direct  means  of  proof  by  living  witnesses; 
and  hearsay  would  seem  to  be  the  next  best  evidence  to  which  recourse 
must  therefore  be  had.  1  Stark.  Evi.  54,  part  I.;  Bull.  N.  P.  by  Bridg. 
294,  b,  n.  (d). 

But  in  the  case  before  us  the  testimony  offered  and  rejected,  was 
not  of  that  character,  which  in  a  technical  and  legal  sense,  comes  under 
the  denomination  of  hearsay.  It  comes  under  what  is  considered  the 
declarations  or  admissions  of  the  party  to  the  suit  or  his  privies,  that  is, 
those  under  whom  he  claims;  in  respect  to  which  the  general  rule  of  law 
is  just  as  well  settled  that  they  shall  be  received  in  evidence  as  that  hear- 
say shall  not.  All  a  man's  own  declarations  and  acts,  and  also  the 
declarations  and  acts  of  others  to  which  he  is  privy,  are  evidence,  so  far 


No.  256        TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  379 

as  they  afford  any  presumption  against  him,  whether  such  declarations 
amount  to  an  admission  of  any  fact,  or  such  acts  and  declarations  of 
others  to  which  he  is  privy  afford  any  presumption  or  inference  against 
him.  .  .  .  The  confessions  of  the  party  himself  (which  I  do  not  under- 
stand to  be  denied)  have  always  been  considered  good  and  admissible 
evidence  of  any  fact  admitted  by  them  to  be  true,  and  may  be  given  in 
evidence  to  prove  it,  notwithstanding  the  confessions  might  be  such  as 
to  show  that  twenty  witnesses  were  present  who  could  all  testify  to  its 
existence  or  non-existence,  and  who  might  all  appear  to  be  in  the  Court- 
house at  the  time  when  such  confessions  should  happen  to  be  offered  in 
evidence  against  the  party  making  them.  And  this  rule  of  admitting 
the  confessions  or  declarations  of  the  party  extends  not  only  to  the 
admission  of  them  against  himself,  but  against  all  who  claim  or  derive 
their  title  from  him ;  in  other  words,  between  whom  and  himself  there  is 
a  privity.  There  are  four  species  of  privity :  privity  in  blood,  as  between 
heir  and  ancestor;  privity  in  representation,  as  between  testator  and 
executor,  or  tiie  intestate  and  his  administrators;  privity  in  law,  as 
between  the  commonwealth  by  escheat  and  the  person  dying  last  seised 
without  blood  or  privity  of  estate;  and  privity  in  estate  as  between  the 
donor  and  the  donee,  lessor  and  the  lessee,  vendor  and  the  vendee, 
assignor  and  the  assignee,  etc.  .  .  .  Upon  this  same  principle  it  is,  that 
executors  and  administrators,  as  also  devisees,  legatees,  heirs  and  the 
next  of  kin,  are  all  bound  by  the  promises,  whether  written  or  verbal, 
of  their  respective  testators  or  intestates,  so  far  as  they  may  have  received 
estates  from  them  that  are  liable,  and  the  declarations  and  admissions 
of  such  testators  and  intestates  are  uniformly  received  in  evidence  against 
their  devisees,  legatees,  heirs,  and  next  of  kin,  so  as  to  affect  the  estates 
which  have  passed  to  them.  Privies  in  estates,  such  as  vendee  and  ven- 
dor, assignee  and  assignor,  stand  upon  the  same  footing  in  this  respect 
to  each  other  that  privies  in  blood  do.  I  know  of  no  distinction.  That 
which  is  binding  upon  the  vendor  will  generally  be  equally  so  upon  his 
vendee;  and  whatever  would  have  been  admissible  as  evidence  against 
the  former,  ought  not  only  to  be  so  against  the  latter,  but  ought  to  have 
the  same  effect  too. 

Lord  Ellenborough  has  given  the  true  reason  of  the  rule  for  admit- 
ting the  declarations  of  a  party  in  evidence,  1 1  East  584,  where  he  says, 
it  "is  founded  upon  a  reasonable  presumption  that  no  person  will  make 
any  declaration  against  his  interest,  unless  it  be  founded  in  truth."  If 
true  when  made,  and  therefore  receivable  in  evidence,  his  selling  or 
disposing  of  the  property  afterwards  cannot  make  his  former  declaration 
in  respect  to  it  untrue,  nor  furnish  any  reason,  that  I  can  perceive, 
which  ought  to  derogate  from  its  character  as  evidence.  But  I  cannot 
avoid  believing  that  as  long  as  the  great  object  of  receiving  testimony 
is  to  aid  in  and  to  promote  the  investigation  of  truth,  the  declarations 
or  admissions  of  a  vendor  or  assignor  against  his  interest,  made  before 
the  sale  or  assignment,  may  be  more  safely  relied  on  and  received  in 


380  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  256 

evidence  against  his  vendee  or  assignee,  than  the  testimony  that  would 
be  given  by  such  vendor  or  assignor  himself,  if  the  party  claiming  in 
opposition  to  his  vendee  or  assignee,  must  be  compelled  to  resort  to  him. 
.  .  .  Is  it  not  most  apparent  from  what  we  know  by  experience  of  human 
nature,  that  a  vendor  who  had  placed  himself  in  such  a  situation  would 
in  many,  if  not  most  instances,  swerve  from  the  truth,  in  order  to  rescue 
himself  from  the  imputation  that  was  about  to  be  made  against  his 
integrity?  His  temptation,  to  say  the  least  of  it,  would  frequently  be 
very  strong  to  give  such  a  coloring,  to  the  whole  transaction  as  he  might 
think  would  present  his  own  conduct  in  the  most  favorable  point  of  view, 
without  much  regard  to  the  truth  of  the  case.  .  .  . 

The  judgment  of  the  Court  below  ought  to  be  reversed  and  a  venire 
de  novo  awarded. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


257.  FRANKLIN  BANK  v.  PENNSYLVANIA,  DELAWARE  & 
MARYLAND  STEAM  NAVIGATION  CO. 

Court  of  Appeals  of  Maryland.     1839 

11  G.  &  J.  28 

In  an  action  for  the  loss  of  a  package  sent  by  the  plaintiffs  through 
the  defendant,  the  cashier,  Mitchell,  of  the  bank  to  which  the  package 
was  consigned  testified :  that  he  was  absent  from  Philadelphia  from  about 
the  10th  until  the  27th  of  November,  1834;  that  on  his  return  he  found 
two  letters  at  the  Mechanics'  Bank,  addressed  to  him  from  the  cashier 
of  the  plaintiffs;  the  first  of  the  17th  of  November,  1S34,  advising  him 
of  the  forwarding  of  the  package  by  the  steam  boat  line  of  the  defendant, 
which  had  been  received  at  the  bank,  and  opened  in  his  absence,  which 
it  was  the  duty  of  the  president  to  do;  and  the  second  of  the  21st  of  the 
same  month,  requesting  him  to  make  inquiry  at  the  office  of  the  steam 
boat  line,  by  which  the  package  had  been  forwarded;  that  within  a  day 
or  two  after  his  return,  he  applied  at  the  office,  to  Davidson  the  agent  of 
the  defendants,  for  the  package,  and  thinks  he  showed  him  the  letter 
from  the  cashier  of  the  plaintiffs  of  the  21st  of  November,  1834,  who  told 
him,  that  on  the  evening  of  the  18th  of  November,  1834,  there  were  a  num- 
ber of  persons  in  the  office,  when  the  trunk  was  opened  by  the  clerk, 
and  the  packages  handed  out  by  the  porter  to  the  clerk;  that  there  was 
a  package  addressed  to  Mr.  Mitchell;  but  whether  to  Mr.  Mitchell  the 
witness,  or  to  a  dry  goods  merchant  of  that  name,  he  did  not  know,  nor 
did  he  know  that  it  contained  bank  notes;  and  that  the  package  was 
thrown  upon  the  desk,  and  which  was  the  last  that  he,  Davidson,  knew 
of  it. 

In  the  progress  of  the  trial,  the  defendant's  counsel  objected  to  the 
admissibility  of  a  part  of  the  plaintiff's   proof,  and   the  Court   below 


No.  257        TESTIMONIAL   EVIDENCE:     PAKTV's  ADMISSIONS  381 

(Archer,  C.  J.,  Purviance,  A.  J.)  sustained  the  objection  and  excluded 
it.  The  plaintiffs  excepted,  and  the  verdict  and  judgment  being  against 
them,  they  prosecuted  the  present  appeal. 

The  cause  was  argued  before  Buchanan,  C.  J.,  Stephen,  and 
Chambers,  JJ. 

By  Meredith,  for  the  appellants,  and  by  McMahon,  for  the  appellees. 

Buchanan,  C.  J.,  delivered  the  opinion  of  the  Court: 

The  suit  is  to  recover  the  value  of  a  package  of  bank  notes,  which  it 
is  alleged,  the  defendants  undertook  to  carry  safely  from  Baltimore, 
and  deliver  at  Philadelphia,  and  which  is  charged  to  have  been  lost  by 
reason  of  gross  negligence. 

The  evidence  offered  in  this  case  and  rejected  by  the  Court  below,  is 
of  a  conversation  alleged  to  have  taken  place  between  Davidson,  the 
agent  of  the  defendants,  and  the  witness,  some  eight  or  ten  days  after  the 
transaction  to  which  it  relates,  and  after  the  loss  of  the  package  in 
question,  when  the  agency  for  the  delivery  of  it  to  the  person  to  whom 
it  was  addressed  had  ceased,  not  constituting  a  part  of  the  transaction, 
but  a  subsequent  account  only  of  what  had  before  occurred  respecting 
it.  It  cannot  therefore  be  treated  as  a  statement  or  admission  by  the 
defendants,  and  as  such  binding  upon  them,  and  admissible  in  evidence; 
but  must  be  considered  as  a  mere  narrative  of  facts  by  Davidson,  of  his 
own  authority,  to  be  proved  by  him  on  oath,  if  within  his  own  knowledge, 
or  by  some  other  witness,  and  not  by  evidence  of  his  statement  of  them, 
which  is  forbidden  by  the  general  rule  of  law  rn  relation  to  hearsay  evi- 
dence. The  principle  upon  which  the  declarations  or  representations  of 
an  agent,  within  the  scope  of  his  authority,  are  permitted  to  be  proved, 
is,  that  such  declarations,  as  well  as  his  acts,  are  considered  and  treated 
as  the  declarations  of  his  principal.  What  is  so  done  by  an  agent,  is 
done  by  the  principal  through  him,  as  his  mere  instrument.  So  whatever 
is  said  by  an  agent,  either  in  the  making  a  contract  for  his  principal,  or 
at  the  time,  and  accompanying  the  performance  of  any  act,  within  the 
scope  of  his  authority,  having  relation  to,  and  connected  with,  and  in 
the  course  of  the  particular  contract  or  transaction  in  which  he  is  then 
engaged,  is,  in  legal  effect,  said  by  his  principal,  and  admissible  in  evi- 
dence; not  merely  because  it  is  the  declaration  or  admission  of  an  agent; 
but  on  the  ground,  that  being  made  at  the  time  of  and  accompanying 
the  contract  or  transaction,  it  is  treated  as  the  declaration  or  admission 
of  the  principal,  constituting  a  part  of  the  "res  gestae,"  a  part  of  the 
contract  or  transaction,  and  as  binding  upon  him  as  if  in  fact  made  by 
himself.  But  declarations  or  admissions  by  an  agent,  of  his  own  author- 
ity, and  not  accompanying  the  making  of  a  contract,  or  the  doing  of 
an  act,  in  behalf  of  his  principal,  nor  made  at  the  time  he  is  engaged  in 
the  transaction  to  which  they  refer,  are  not  binding  upon  his  principal, 
not  being  part  of  the  "res  gestae,"  and  not  admissible  in  evidence,  but 
come  within  the  general  rule  of  law,  excluding  hearsay  evidence;  being 
but  an  account  or  statement  by  an  agent  of  what  has  passed  or  been  done 


382  BOOK   i:     RULES   OF  .ADMISSIBILITY  No.  257 

or  omitted  to  be  done,  —  not  a  part  of  the  transaction,  but  only  state- 
ments or  admissions  respecting  it. 

This  distinction  between  the  declarations  or  admissions  of  an  agent, 
accompanying  the  making  of,  and  constituting  therefore  a  part  of  the 
contract  or  transaction,  and  such  as  are  made  at  another  time,  runs 
through  the  books,  and  is  clearly  settled.  ...  In  Biggs  and  others  v. 
Lawrence,  3  Term.  Rep.  454,  Justice  Buller  permitted  a  receipt  given 
by  an  agent  for  goods  directed  to  be  given  to  him,  to  be  read  in  evidence 
against  the  principal.  But  that  decision  is  condemned  by  Dallas,  Ch. 
J.,  in  Betham  v.  Benson,  5  Eng.  Com.  Law  Rep.  and  disapproved  of  in 
Fairlie  v.  Hastings,  10  \^esey  Jr. ;  and  in  Bauerman  v.  Radenius,  7  Term. 
Rep.  665,  it  is  said  to  have  passed  ^without  much  observation,  and  that 
Lord  Ken  YON,  who  was  on  the  bench  at  the  time,  had  since  frequently 
ruled  the  contrary,  without  its  having  ever  been  questioned.  Biggs  et 
al.  V.  Lawrence,  may  therefore  be  considered  as  overruled.  .  .  . 

That  portion  therefore  of  Mitchell's  evidence,  which  was  objected 
to  at  the  trial,  was  properly  rejected,  as  inadmissible  to  bind  or  affect 
the  defendants.  .  .  .  The  judgment  must  therefore  be  affirmed. 

Judgment  affirmed. 


258.    ASHMORE    v.    PENNSYLVANIA   STEAM   TOWING    & 
TRANSPORTATION  CO. 

Supreme  Court  of  New  Jersey.     1875 

38  A".  J.  L.U 

Argued  at  February  Term,  1875,  before  Beasley,  Chief  Justice, 
and  Justices  Dalrimple,  Depue  and  Knapp. 

For  the  motion,  E.  T.  Green.     Contra,  Alfred  Reed. 

The  opinion  of  the  Court  was  delivered  by 

Beasley,  Ch.  J. : 

This  suit  was  for  damage  caused  by  the  carelessness  of  the  defendant 
in  towing  a  boat  of  the  plaintiff's.  The  alleged  want  of  care  consisted 
in  running  upon  a  snag,  whereby  the  plaintiff's  boat  was  injured  and 
sunk;  and,  at  the  trial,  the  central  fact  in  dispute  was,  whether  the 
existence  of  the  snag  in  question  was  known  to  the  agent  of  the  defendant. 
To  prove  this  fact  of  knowledge,  several  witnesses  testified  that  the  agent 
in  charge  of  the  boats  of  the  defendant,  and  who  is  here  to  be  regarded 
as  the  general  agent  in  charge  of  this  business  of  towing,  admitted  to 
them  that  he  knew  of  this  snag  before  the  happening  of  the  accident. 
These  conversations,  embracing  these  admissions,  were  entirely  casual, 
and  were  not  connected  with  the  doing  of  any  act  within  the  scope  of 
the  agent's  authority.  It  is  now  insisted  that  these  conversations  were 
not  admissible  in  evidence. 

At  the  trial,  the  alternative  was  between  letting  in  this  evidence, 


No.  258         TESTIMONIAL  EVIDENCE:     PARTY'S  ADMISSIONS  383 

or  non-suiting  the  plaintiff;  and  as  some  of  the  books  intimate  that  a 
distinction  exists  with  respect  to  tlie  rules  of  evidence  between  the 
statements  made  by  a  general  agent  and  those  made  by  a  special  agent, 
whereby  the  former  are  placed  on  a  broader  principle  than  the  latter, 
it  was  thought  best,  though  with  much  misgiving,  not  to  rule  out  the 
offered  testimony.  Favorable  to  the  view  thus  taken  at  Nisi  Prius,  is 
the  statement  in  note  2.39,  appended  to  Phillipps'  Evidence,  to  the  effect 
that  some  of  the  cases  put  the  power  of  the  general  agent  to  make  admis- 
sions on  the  same  footing  as  the  power  of  the  principal  himself.  But 
upon  carefully  examining  the  authorities  referred  to,  they  do  not  support 
this  doctrine,  except  in  a  very  loose  sense.  I  do  not  find  any  of  them 
rule  the  point.  And  even  if  any  of  them  maintained  such  a  rule,  they 
ought  not  to  be  followed,  for  such  a  rule  would,  as  it  seems  to  me,  be 
inconsistent  with  true  policy  and  correct  principle.  With  regard  to 
the  law  of  evidence,  I  think  there  should'  be  no  difference,  whatever, 
between  the  binding  effect  of  the  admissions  of  a  general  and  a  special 
agent.  In  both  cases  alike,  the  rule  should  be  that  the  admission,  to  be 
evidence,  was  made  in  pursuance  of  the  power  conferred.  In  this  particu- 
lar there  is  no  difference  between  the  acts  and  the  words  of  the  agent; 
with  respect  to  the  first,  he  must  be  authorized  to  do  them ;  with  respect 
to  the  latter,  he  must  be  authorized  to  speak  them.  In  each  set  of  in- 
stances it  is  a  question  of  authority.  Upon  the  basis  of  this  rule,  then, 
the  authority  of  the  general  agent  to  bind  his  principal  by  his  statements, 
would  be  broader  than  that  of  the  special  agent,  in  the  ratio  of  the 
transcendence  of  the  power  of  the  former  over  that  of  the  latter,  but 
the  right  of  each  to  speak  for  his  principal  would  rest  on  the  same  ground, 
that  is,  his  authority  to  conduct  the  business  confided  to  him.  All 
statements  made  in  the  conduct  of  such  business,  are  evidence  against 
the  principal;  all  others  are  inadmissible,  because  they  are  unauthorized. 
By  considering  the  words  of  the  agent  in  the  light  of  acts  —  verbal  acts  — 
the  subject  will  be  cleared  of  all  obscurity,  and  there  will  be  no  more 
difficulty  in  deciding  when  such  words  are  admissible,  than  there  is  in 
concluding  what  acts  of  the  agent  can  be  proved.  When  the  word  or  the 
act  is  done  in  pursuance  of  the  agent's  duty,  it  can  be  proved  against  the 
principal,  otherwise,  not.  Upon  this  ground,  I  think  all  the  cases  can 
be  made  to  stand.  I  shall  not  mention  particularly  these  decisions; 
many  of  them  will  be  found  upon  turning  to  the  note  in  Phillipps  on  Evi- 
dence, already  referred  to,  and  to  Story  on  Agency,  sec.  134,  et  seq. 
The  doctrine  is  also  very  clearly  stated,  and  its  limits  defined,  in  the 
latest  English  case  upon  the  subject,  being  that  of  The  Kirkstall  Brewery 
Co.  V.  The  Furness  Railway  Co.,  L.  R.,  9  Q.  B.  468. 

Manifestly,  then,  the  rule  thus  defined  does  not  embrace  statements, 
declarations,  or  admissions  of  the  agent,  which  are  not  made  in  the 
execution  of  the  agency.  That  they  relate  to  the  business  of  the  agency, 
is  not  sufficient;  but  they  must  be  in  performance  of  it.  This  test 
excludes  mere  narrations  and  casual  conversations,  having  a  reference  to, 


384  BOOK   i:     RULES    OF   ADMISSIBILITY  No,  258 

but  no  effect  in  the  discharge  of  the  delegated  duty.  For  the  purpose 
of  illustration:  In  the  case  of  Morse  v.  Connecticut  River  Railroad. Co., 
6  Gray  450,  it  was  correctly  held  that,  in  an  action  against  the  corporation 
for  the  loss  of  a  trunk,  the  admissions  of  the  condj.ctor,  baggage  master, 
or  station  master,  as  to  the  manner  of  the  loss,  made  in  answer  to  inquiries 
of  the  passenger,  the  next  morning  after  the  loss,  are  admissible  in  evi- 
dence against  the  corporation,  for  the  reason,  in  the  words  of  the  Court 
that,  "  it  was  part  of  the  duty  of  those  agents  to  deliver  the  baggage  of 
passengers,  and  to  account  for  the  same,  if  missing,  provided  inquiries 
for  it  were  made  within  a  reasonable  time."  While,  in  the  case  of  The 
Michigan  Central  Railroad  Company  v.  Gougar,  55  111.  503,  it  was 
decided  that  the  declarations  of  an  engineer  in  charge  of  an.  engine, 
made  subsequently  to  the  happening  of  the  accident,  at  a  time  when  he 
was  not  doing  any  business  of  the  company  in  relation  thereto,  could 
not  be  received  as  evidence  against  the  corporation.  These  two  examples 
place  in  a  clear  light  the  line  of  demarcation  between,  in  cases  of  this 
class,  such  admissions  of  the  agent  as  will  bind,  and  such  as  will  not  bind 
the  principal,  showing,  that  to  make  them  receivable,  they  must  not  only 
refer  to  the  business  of  the  principal,  but  must  be  made  in  pursuance, 
and  as  a  part  of  such  business. 

Applying  this  test,  the  evidence  in  question  in  the  present  instance 
should  have  been  overruled.  It  was  a  statement  made  by  a  general 
agent  with  respect  to  the  business  of  his  principal;  but  it  was  a  mere 
voluntary  statement,  made  to  a  person  having  no  interest  in  the  subject 
to  which  it  referred,  and  was  not  in  the  performance  of  any  part  of  the 
duty. 

A  new  trial  should  be  granted. 


259.    RUDD    V.    ROBINSON 

Court  of  Appeals  of  New  York.     1891 

126  iV.  Y.  113 

[Printed  post,  as  No.  280] 

260.  STARR  BURYING  GROUND  v.  NORTH  LANE  CEMETERY 

ASSOCIATION 

Supreme  Court  of  Errors  of  Connecticut.     1904 

11  Conn.  83;  h%  Atl.  467 

Action  to  condemn  certain  land  for  the  enlargement  of  a  cemetery, 
and  for  an  adjudication  that  the  defendant  was  not  organized  in  good 


No.  2G0         TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  385 

faith  but  to  prevent  the  plaintiff  from  acquiring  said  land,  brought 
to  the  Superior  Court  in  New  London  County,  where  a  demurrer  to  the 
complaint  was  overruled  (Thayer,  J.)  and  the  cause  was  afterwards 
tried  to  the  Court,  Ralph  Wheeler,  J.;  facts  found  and  judgment 
rendered  for  the  plaintiff,  and  appeal  by  the  defendant.     No  error. 

Abel  P.  Tanner  and  Christopher  L.  Avery,  for  the  appellant  (defendant). 
Hadlai  A.  Hull,  for  the  appellee  (plaintiff). 

Hamersley,  J.  .  .  .  The  plaintiff  is  an  association  formed  and 
incorporated  in  1857,  in  pursuance  of  the  statute  of  1841,  and  has  since 
maintained  an  ancient  burying-ground,  enlarged  at  different  times 
through  the  purchase  of  adjoining  land.  In  1897  the  plaintiff"  association 
found  it  necessary  and  desired  to  enlarge  its  burying-ground  by  adding 
thereto  the  adjoining  land  of  John  J.  Copp.  It  passed  the  necessary 
vote  for  obtaining  this  enlargement  through  purchase  or  condemnation. 
In  1898  the  plaintiff  attempted  to  agree  with  said  Copp  for  the  purchase 
of  said  land.  The  negotiation  was  postponed,  to  be  renewed  at  a  meeting 
of  the  parties  at  a  time  agreed  upon.  Before  this  time  arrived  said  Copp, 
on  May  25,  1898,  with  his  two  brothers,  formed  an  association  called 
the  North  Lane  Cemetery  Association  for  the  declared  purpose  of 
establishing  and  permanently  maintaining  a  cemetery  for  the  burial  of 
the  dead  and  of  procuring  land  for  that  purpose,  and  on  the  same  day 
John  J.  Copp  conveyed  to  the  association  the  land  required  for  the 
enlargement  of  the  plaintiff's  burying-ground,  for  the  purchase  of  which 
negotiations  between  him  and  the  plaintiff  were  then  pending.  .  .  . 

The  plaintiff  being  unable  to  agree  with  the  defendant  as  to  the 
purchase  of  the  land  required,  brought  this  application  to  the  Superior 
Court  alleging,  among  other  things,  that  the  plaintiff's  burying-ground 
is  maintained  as  a  public  burial  ground,  and  asking  the  condemnation  of 
the  land  described.  .  .  .  The  defendant  then  answered,  admitting  the 
ownership  of  the  land  described,  and  denying  the  other  material  allega- 
tions of  the  application,  and  also  alleging  .  .  .  that  the  land  mentioned 
is  now  held  and  appropriated  by  the  defendant  to  the  uses  of  a  public 
cemetery.  .  .  .  The  defendant  claims  that  the  Court  erred  in  overruling 
the  demurrer,  as  well  as  in  overruling  various  claims  of  law  made  upon 
the  trial,  and  in  the  admission  of  certain  testimony.   .   .   . 

There  remain  for  consideration  the  questions  of  evidence.  I  j)on  the 
trial  the  witness  Hull  was  permitted,  against  the  objections  of  the 
defendant,  to  testify  to  certain  declarations  made  by  J.  J.  Copp  —  who 
conveyed  the  land  in  question  to  the  defendant  association  and  who  was 
its  secretary  and  treasurer  —  and  by  his  brother,  Belton  A.  Copp, 
president  of  the  defendant  association,  as  to  their  purpose  in  organizing 
the  association;  J.  J.  and  B.  A.  Copp,  with  their  brother  William  Copp, 
being  the  only  persons  who  organized  the  association  and  its  only  mem- 
bers. It  is  now  urged  that  the  purpose  or  intention  of  a  corporation  is 
properly  shown  by  its  charter  and  corporate  votes,  and  that  an  admission 
made  by  the  members  of  a  corporation  in  respect  to  its  purpose  or  inten- 


386  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  260 

tion  cannot  be  shown  in  a  suit  against  a  corporation,  because  it  is  the 
admission  of  natural  persons  not  parties  to  the  suit  and  not  of  the  entity 
consisting  of  those  natural  persons  which  is  the  party. 

This  distinction  between  a  corporation  as  being  an  impalpable  entity, 
and  a  corporation  as  being  the  living  persons  of  whom  it  consists,  is,  for 
many  purposes,  a  substantial  distinction  necessarily  involved  in  the 
creation  and  use  of  corporations;  but  for  some  purposes  it  is  not  only  a 
fiction  but  a  useless  and  unreasonable  fiction;  and  it  is  a  settled  principle 
that  in  certain  cases  where  the  fiction  can  serve  no  purpose  but  to  accom- 
plish injustice  and  to  screen  the  corporation  from  the  just  consequences 
of  its  wrongs,  the  Court  will  not  permit  this  legal  fiction  to  prevail  against 
real  substance.  It  is  certainly  true,  as  a  general  proposition,  that  the 
admissions  of  individuals  affecting  the  interests  of  a  corporation  of  which 
they  are  members  cannot  have  the  effect  of  an  admission  by  the  corpora- 
tion. But  the  distinction  between  the  interest  of  the  corporate  entity 
and  that  of  the  corporate  members  may  become  a  difficult  one  to  draw 
in  certain  kinds  of  corporations,  and  this  is  especially  true  of  one  like 
the  defendant.  In  speaking  of  a  similar  corporation,  we  have  said: 
"It  is  impossible  to  separate  the  interest  of  the  individual  members,  in 
such  a  corporation  as  this,  from  the  interest  of  the  corporation  itself." 
Edwards  v.  Stonington  Cemetery  Asso.,  20  Conn.  466,  478.  If  this 
evidence  were  material  only  as  tending  to  show  a  corporate  purpose, 
we  are  not  prepared  to  say  that  the  admission  of  the  organizers  and 
members  of  the  corporation,  as  to  their  purpose  in  organizing  it,  must  be 
excluded  because  the  corporate  entity  is  the  party  to  the  suit. 

It  is  not,  however,  necessary  to  determine  this  question.  The 
testimony  was  material  and  admissible  for  other  purposes  than  to  prove 
a  technical  corporate  intention.  This  proceeding  is  one  to  condemn  a 
particular  piece  of  land  owned  by  the  defendant  association.  It  is 
immaterial  whether  the  defendant  is  a  voluntary  association  or  a  corpora- 
tion. .  .  .  The  defendant  association  was  organized  as  a  cemetery 
association  when  its  articles  were  signed  by  the  three  Copp  brothers. 
The  intention  and  purpose  the  Court  has  to  find  is  that  involved  in  this 
act  of  the  Copp  brothers.  ...  As  tending  to  prove  that  the  North  Lane 
Cemetery  Association,  whether  or  not  it  remained  a  voluntary  association 
or  subsequently  became  a  corporation,  was  organized  by  the  three  Copp 
brothers  with  the  intent  and  purpose  designated,  the  declarations  of 
each  against  his  interest  would  be  admissible,  against  him,  to  show  his 
purpose  in  joining  in  the  formation  of  the  association.  The  objection 
taken  to  the  reception  of  these  declarations  was,  in  each  instance,  a 
general  one.  It  was  that  they  were  not  admissible  at  all ;  not  that  they 
were  not  admissible  as  against  any  of  the  parties  in  interest  other  than 
the  person  who  made  them.  This  general  objection  was  properly  over- 
ruled. 

The  testimony  of  the  witness  Hull  as  to  his  negotiations  on  behalf 
of  the  plaintiff  with  the  president,  secretary  and  treasurer  of  the  defendant 


No.  261        TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  387 

association  for  the  purpose  of  reaching  an  agreement  as  to  the  acquire- 
ment of  the  land  in  question  by  purchase,  was  properly  admitted. 

There  is  no  error  in  the  judgment  of  the  Superior  Court. 

In  this  opinion  the  other  judges  concurred. 

261.   STATE  V.   WALKER 

Supreme  Court  of  Iowa.     1904 

124  la.  414;   100  N.  W.  354 

Appeal  from  District  Court,  Polk  County;   Josiah  Given,  Judge. 

Defendant  was  indicted  for  the  crime  of  murder  in  the  first  degree,  and 
on  trial  by  a  jury  he  was  convicted  of  manslaughter,  and  sentenced  to 
imprisonment  in  the  penitentiary  for  the  term  of  eight  years.  From  this 
sentence  he  appeals.     Reversed. 

About  10  o'clock  in  the  evening  of  August  5,  1902,  one  Isaac  Finkel- 
stein  was  found  lying  on  the  north  side  of  East  Walnut  street,  in  the 
mouth  of  the  alley  between  East  Sixth  and  Seventh  streets,  in  Des 
Moines,  with  one  side  of  his  head  mashed,  apparently  by  a  club  of  some 
kind,  and  he  died  within  a  few  minutes  after  he  was  found.  One  Harris 
Levich,  and  the  defendant,  John  Walker,  the  latter  being  a  colored  man, 
were  indicted  for  the  crime  of  murder  in  causing  the  death  of  Finkelstein. 
Levich  was  tried  first  and  acquitted.  Subsequently,  when  this  defendant 
was  tried,  the  prosecution,  after  proving  the  corpus  delicti,  and  introdu- 
cing evidence  tending  to  show  that  the  mortal  wound  on  the  head  of  the 
deceased  had  probably  been  inflicted  with  a  singletree  (found  lying  in  the 
alley  near  the  body  of  Finkelstein)  that  had  apparently  been  taken  from 
a  wagon  belonging  to  Harris  Levich,  which  was  discovered  in  an  alley 
about  a  block  away,  and  showing  the  facts  as  to  the  arrest  of  the  defend- 
ant Walker,  the  next  morning  in  West  Des  Moines,  and  before  any 
evidence  whatever  had  been  introduced  tending  directly  to  connect 
defendant  with  the  commission  of  the  crime,  sought  to  show  by  witnesses, 
prior  to  the  time  of  the  commission  of  the  crime,  that  Levich  had  made 
declarations,  not  in  the  presence  of  Walker,  indicating  the  employment 
by  him  of  Walker  to  do  "  up"  Finkelstein.  This  testimony  was  objected 
to,  on  the  ground  that,  in  the  absence  of  evidence  tending  to  show  con- 
spiracy between  Levich  and  the  defendant,  the  declarations  of  Levich 
were  not  admissible  as  against  the  defendant.  The  following  colloquy 
was  then  had,  as  appears  from  the  record,  between  the  trial  judge  and 
the  attorney  for  the  prosecution:  State:  "We  claim  two  grounds  upon 
which  we  have  a  right  to  declarations  of  Levich  in  the  absence  of  Walker: 
First,  that  this  was  just  a  short  time  preceding  the  murder;  second,  they 
having  been  much  together,  and  having  been  seen  together  at  so  short 
a  time  before  the  fatal  blow  was  struck.  Court:  Will  the  evidence 
sought  to  be  elicited  here  have  any  tendency  to  prove  conspiracy  itself? 
State:  We  think  it  would,  and  that  is  the  object  and  purpose  of  this 


388  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  261 

evidence.  Court:  Then  we  need  not  trouble  much  about  other  rules. 
I  think  the  rule  is  this:  that  where  the  prosecution  relies,  in  part  at  least, 
upon  conspiracy,  before  we  can  charge  either  party  with  the  declarations 
of  the  other,  the  State  may  be  required  to  first  give  in  evidence  some 
testimony  of  the  conspiracy,  or  it  may  be  permitted  to  introduce  the 
evidence,  and  it  will  be  left  or  taken  from  the  jury  according  as  they 
follow  it  with  evidence  of  some  conspiracy.  Whether  there  be  evidence 
to  go  to  the  jury  may  be  a  question.  But  if  the  declaration  itself  preceded 
the  act,  and  tends  to  establish  conspiracy,  then  it  is  admissible,  regard- 
less of  either  of  the  rules.  Therefore  the  objection  will  be  overruled." 
The  prosecution  was  then  allowed,  over  the  defendant's  objections,  to 
show  declarations  of  Levich  tending  to  establish  the  fact  that  Levich  had 
arranged  with  the  defendant  to  inflict  death  or  severe  bodily  injury  upon 
Finkelstein,  and  that  Levich  made  this  arrangement  in  a  spirit  of  revenge, 
by  reason  of  real  or  fancied  injuries  done  to  him  and  his  business  by 
Finkelstein. 

Charles  Mackenzie,  J.  B.  Rush,  and  John  T.  Mulvaney,  for  appellant. 
Charles  Mullan,  Atty.  Gen.,  Jesse  A.  Miller  and  Robert  0.  Brennan,  for 
the  State. 

McClain,  J.  (after  stating  the  case  as  above).  It  seems  from  the 
colloquy  above  set  out  that  the  prosecution  was  contending  that  the  fact 
that  such  a  declaration  was  made  by  Levich  just  a  short  time  preceding 
the  commission  of  the  crime  would  render  the  declaration  admissible,  and 
that  the  trial  judge  seemed  to  entertain  the  view  that  the  fact  of  conspir- 
acy, which  must  be  established  to  make  the  declarations  of  Levich 
admissible,  might  be  taken  as  established  by  such  declaration  alone, 
although  no  other  evidence  of  conspiracy  should  be  introduced.  Perhaps 
the  position  taken  by  the  prosecution  and  the  trial  judge  are  not  accu- 
rately represented  in  the  colloquy.  However  this  may  be,  it  is  plain  that 
unless  the  declarations  were  part  of  the  res  gestae  they  were  not  admissible 
as  independent  evidence,  and  could  not  be  considered  at  all  without 
there  was  some  evidence,  apart  from  the  declarations  themselves,  tending 
to  show  a  conspiracy  previously  entered  into  between  Levich  and  defend- 
ant with  reference  to  the  commission  of  the  crime. 

The  first  contention  on  behalf  of  defendant  is  that  the  Court  should 
have  required  the  conspiracy  to  be  proven  by  independent  evidence  before 
receiving  the  declarations.  With  reference  to  this  question,  the  conten- 
tion for  the  State  is  that  it  is  within  the  discretion  of  the  trial  Court  to 
admit  proof  of  acts  and  declarations  of  joint  conspirators  even  before  a 
prima  facie  case  of  conspiracy  has  been  made,  provided  the  State  promises 
in  the  further  progress  of  the  trial  to  introduce  such  prima  facie  evidence; 
and  such  a  rule  seems  to  have  been  announced  in  broad  terms  in  State  v. 
Grant,  86  Iowa,  216,  53  N.  W.  120,  and  State  v.  Mushrush,  97  Iowa,  44, 
66  N.  W.  746.  We  have  no  occasion  to  question  the  correctness  of  this 
general  proposition,  but  in  the  first  place  it  does  not  appear  from  the 
record  that  in  this  case  the  State  made  any  such  promise.     So  far  as  we 


No.  261        TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  389 

can  gather,  the  assertion  on  the  part  of  the  prosecution  was  that  the 
declarations  of  Levich  which  were  to  be  proven  would  tend  to  show  a 
conspiracy.  This  clearly  would  not  be  enough,  for,  as  already  stated,  and 
as  the  rule  unquestionably  is,  the  evidence  tending  to  show  a  conspiracy 
must  be  outside  of  and  in  addition  to  the  declarations  of  the  co-con- 
spirators whose  declarations  are  sought  to  be  introduced.  The  safer  rule, 
undoubtedly,  is  to  require  the  proof  of  conspiracy  to  be  made  before  the 
declarations  are  allowed  to  be  shown.  .  .  .  Those  declarations  were  so 
likely  to  prejudicially  affect  the  minds  of  the  jury  with  reference  to  the 
defendant  that  no  subsequent  acts  of  the  court  in  striking  them  out  and 
directing  the  jury  not  to  consider  them  could  free  the  jurors'  minds  of 
the  prejudicial  result,  should  it  subsequently  appear  that  there  was  no 
evidence  whatever,  aside  from  the  declaration  of  Levich  himself,  that 
defendant  had  entered  into  an  arrangement  with  Levich  to  do  violence 
to  Finkelstein.  We  would  not  reverse  the  case  on  this  ground  alone, 
had  there  been  independent  evidence  of  a  conspiracy  such  as  to  make 
out  a  prima  facie  case,  but  in  view  of  a  new  trial  we  feel  justified  in  sug- 
gesting that  it  will  be  difficult  to  adequately  protect  the  right  of  defendant 
to  be  tried  only  on  competent  evidence  without  requiring  a  prima  facie 
case  of  conspiracy  to  be  made  out  before  the  declarations  of  Levich  are 
received. 

It  is  further  contended  for  the  defendant  that,  without  regard  to  the 
order  of  procedure,  there  is  no  competent  evidence  in  the  record  to  show 
a  conspiracy  between  Levich  and  Walker,  aside  from  the  declarations  of 
Levich  himself.  .  .  .  We  concede  that  it  is  not  necessary  on  the  one 
hand  that  such  a  conspiracy  be  shown  by  direct  evidence,  and  that  cir- 
cumstantial evidence  may  be  sufficient  for  the  purpose.  Gardner  v. 
Preston,  2  Day  205,  2  Am.  Dec.  91;  State  v.  Thompson,  69  Conn.  720, 
38  Atl.  868;  Roscoe,  Criminal  Ev.  430.  But,  on  the  other  hand,  it  is 
well  said  that  it  is  not  enough  that  the  evidence  introduced  tends  to  raise 
a  suspicion.  "The  humane  presumption  of  the  law  is  against  guilt,  and 
though  a  conspiracy  must  ordinarily  be  proved  by  circumstantial  evi- 
dence, yet  it  is  not  to  be  forgotten  that  the  charge  of  conspiracy  is  easily 
made.  .  .  .  Mere  suspicion,  possibility  of  guilty  connection,  is  not  to  be 
received  as  proof  n  such  a  case,  and  especially  in  such  a  case,  because, 
when  the  connection  is  proved,  the  acts  and  declarations  of  others  become 
evidence  against  the  party  accused."  Benford  v.  Sanner,  40  Pa.  9,  80  Am. 
Dec.  545,  549.  And  see  People  v.  Stevens,  68  Cal.  113,  8  Pac.  712. 
We  reac]i  the  conclusion  that,  had  the  trial  Court  required  that  the  evi- 
dence tending  to  show  the  conspiracy  between  Levich  and  defendant  been 
introduced  before  allowing  the  declarations  of  Levich  to  be  proven,  and 
no  further  evidence  of  the  fact  had  been  introduced  than  appears  in  this 
record,  it  would  have  been  error  to  overrule  defendant's  objection  to  the 
introduction  of  such  declarations,  for  whatever  may  be  the  rule  in  some 
States,  we  have  recognized  the  rule  here  to  be  that  the  sufficiency  of  the 
proof  of  conspiracy,  to  justify  introduction  of  the  declarations  of  one 


390  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  261 

conspirator  against  another,  in  the  first  instance,  is  to  be  determined 
by  the  trial  judge  ruHng  on  the  admissibiHty  of  such  declarations.  State 
V.  Nash,  7  Iowa,  347,  384;  State  v.  Crofford  (Iowa)  96  N.  W.  889.  And 
this  is  the  general  rule.  .  .  .  Therefore  the  Court  should  not  have  left 
it  to  the  jury  to  say  in  the  first  instance  whether  or  not  there  was  suffi- 
cient evidence  of  conspiracy,  aside  from  the  declarations  of  Levich,  to 
justify  them  in  considering  such  declarations  in  determining  whether 
defendant  was  guilty  of  the  crime.  ... 

We  think  there  is  another  good  reason  why  the  declarations  of  Levich 
should  have  been  excluded  from  the  consideration  of  the  jury.  What 
Levich  said,  as  testified  to  by  the  witnesses,  was,  in  substance,  that  he 
had  a  grudge  or  grievance  against  Finkelstein,  and  that  he  had  hired 
defendant  to  do  him  an  injury.  This  declaration  was  not  made  in  further- 
ance of  the  unlawful  plan;  it  had  no  relevancy  to  the  carrying  out  of  that 
plan;  but  it  was  a  mere  narrative  of  a  fact,  made  by  Levich  upon  his 
own  responsibility,  and  not  purporting  in  any  way  to  represent  the 
defendant.  The  rule,  as  usually  stated,  with  reference  to  the  admissi- 
bility of  the  declarations  of  one  conspirator  as  against  another,  is  that 
such  declarations  are  admissible  only  where  they  are  made  pending  the 
conspiracy,  and  in  furtherance  of  its  unlawful  purpose.  State  v.  Crofford 
(Iowa)  96  N.  W.  889.  ...  It  is  true  that  in  many,  if  not  all  the  cases 
cited,  the  rule  as  thus  stated  is  invoked  to  exclude  declarations  made 
after  the  conspiracy  had  been  completed,  or  abandoned  with  reference 
to  what  took  place  while  the  conspiracy  was  in  existence,  but  in  principle 
the  same  reasons  are  applicable  to  declarations  made  while  the  con- 
spiracy is  pending,  but  not  in  furtherance  of  the  unlawful  purpose.  The 
declarations  of  one  conspirator  are  admissible  against  another  on  the 
theory  that  each  is  acting  for  all  —  that  is,  on  the  principle  of  agency  — - 
and  certainly  an  alleged  conspirator  is  not  to  be  charged  with  statements 
made  by  another  which  have  no  relation  to  the  carrying  out  of  the  com- 
mon design.  The  fact  appears  to  be  that  Levich  made  the  declarations, 
to  which  the  witnesses  testified,  in  a  spirit  either  of  bravado,  or,  as  one  of 
the  witnesses  says,  in  a  joking  way,  and  his  declarations  were  not  taken 
seriously,  nor  did  they  apparently  receive  any  attention  until  after  the 
death  of  Finkelstein,  when  it  was  sought  through  them  to  connect  defend- 
ant with  the  crime.  If  these  declarations  were  of  any  significance,  they 
were  much  more  incriminating  as  against  Levich  himself  than  as  against 
defendant.  It  is  also  to  be  noticed  that  some  of  the  declarations  to 
which  the  witnesses  testified  were  made  at  a  time  prior  to  any  connection 
or  relation  between  Levich  and  defendant,  so  far  as  the  other  evidence  in 
the  case  tends  to  establish  it.  Of  course,  declarations  of  Levich  made 
prior  to  the  formation  of  the  conspiracy,  and  not  in  furtherance  of  any 
plan  with  which  defendant  was  shown  to  have  been  connected,  were  not 
admissible.  .  .  . 

For  the  errors  pointed  out,  the  case  is  remanded  for  a  new  trial. 
Reversed. 


No.  267        TESTIMONIAL  EVIDENCE:     PARTY'S   ADMISSIONS  391 

262.   PIEDMONT  SAVINGS  BANK  v.   L'EYY 

Supreme  Court  of  North  Carolina.     1905 

138  N.  C.  274;  50  S.  K.  657 

[Printed  post,  as  No.  471] 

Sub-topic  C.     Implied  Admissions 
(a)  Sundry  Conduct 

265.  Foxley's  Case  (1607?  5  Coke's  Rep.  109b).  For  although  he  be 
found  Not  Guilty,  yet  he  shall  forfeit  his  goods  by  the  flying,  "quia  fatetur 
facinus  qui  judicium  fugit,"  and  the  law  will  not  admit  any  proof  against  this 
presumption. 

266.  Armory  y.  Delamirie  (1722.  King's  Bench,  1  Str.  505).  In  Middlesex, 
coram  Pratt,  C.  J.  The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel 
and  carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what  it 
was,  and  delivered  it  into  the  hands  of  the  apprentice,  who,  under  pretence  of 
weighing  it,  took  out  the  stones;  and  calling  to  the  master  to  let  him  know, 
it  came  to  tliree  halfpence,  the  master  offered  the  boy  the  money,  who  refused 
to  take  it,  and  insisted  to  have  the  thing  again;  whereupon  the  apprentice  de- 
livered him  back  the  socket  without  the  stones.  And  now  in  trover  against  the 
master  these  points  were  ruled:  .  .  . 

As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined  to  prove 
what  a  jewel  of  the  finest  water  that  would  fit  the  socket  would  be  worth;  and 
the  Chief  Justice  directed  the  jiu-y,  that  unless  the  defendant  did  produce  the 
jewel,  and  show  it  not  to  be  of  the  finest  water,  they  should  presume  the  strongest 
against  him,  and  make  the  value  of  the  best  jewels  the  measure  of  their  damages; 
which  they  accordingly  did. 

267.   CRAIG  DEM.  ANNESLEY  v.   ANGLESEA 

King's  Bench,  Ireland.     1743 

17  Howell's  State  Trials,  1217 

[In  this  celebrated  case  the  plaintiff  claimed  to  be  the  legitimate  son 
of  the  defendant's  brother,  and  the  true  heir  to  the  estates  and  peerage. 
He  showed  that  at  the  age  of  fourteen  he  had  been  kidnapped  by  the 
defendant's  procurement  and  transported  to  Pennsylvania,  and  after 
fifteen  years'  slavery  had  escaped  back  to  England  and  instituted  a  suit 
to  obtain  his  rights;  while  on  the  way  to  begin  proceedings,  he  joined 
the  gamekeeper  of  a  friend  in  catching  some  poachers,  and  one  of  them 
was  killed  by  a  shot  from  his  gun,  which  he  claimed  went  off  accidentally; 
he  had  been  prosecuted  and  tried  for  murder  and  acquitted.     He  now 


392  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  267 

proposed  to  show  the  defendant's  conduct  towards  him  in  those  pro- 
ceedings.] 

Mr.  John  Giffard  sworn,  for  the  plaintiff. 

Q.  —  Do  you  know  tlie  plaintiff,  Mr.  James  Annesley?  Giffard.  —  Yes, 
Sir. 

Q.  —  Did  you  know  when  it  was  that  he  arrived  in  England  from  the 
West  Indies?     Giffard.  —  No,  Sir. 

Q.  —  Do  you  know  of  any  prosecution  carried  on  against  the  plaintiff 
by  the  defendant  for  murder? 

(The  question  is  objected  to  by  the  counsel  for  the  defendant.) 

Mr.  Fitz-Gibbon,  of  counsel  for  the  plaintiff.  —  My  lord,  this  witness 
is  brought  to  show  that  the  lord  Anglesea,  knowing  that  the  plaintiff 
claimed  the  estate  of  the  family,  as  son  and  heir  to  the  late  lord  Altham, 
expended  vast  sums  of  money  on  a  prosecution,  which  he  set  on  foot 
against  him  for  the  murder  of  an  unfortunate  man  at  Staines,  in  Middle- 
sex, though  the  person  killed  stood  in  no  degree  of  relation  to  my  lord 
Anglesea  that  could  have  engaged  him  to  have  taken  up  this  matter; 
and  that  the  relations  of  the  deceased  being  convinced  that  the  killing 
was  only  accidental,  had  intended  a  very  slight  prosecution;  but  that 
the  defendant,  who  was  no  way  related  to,  or  acquainted  with  the  person 
killed,  employed  a  solicitor,  and  carried  on  a  severe  prosecution  against 
Mr.  Annesley  at  a  very  great  expense,  and  declared  "he  would  spend 
£10,000  to  get  him  hanged." 

It  will  also  appear,  that  while  he  labored  to  convict  the  plaintiff  for 
murder,  he  knew  the  person,  whose  death  gave  occasion  for  the  prosecu- 
tion, was  killed  by  accident.  And  this  we  apprehend  to  be  a  circum- 
stance proper  to  be  laid  before  the  jury,  to  show  that  my  lord  Anglesea, 
conscious  of  the  plaintiff's  title,  took  these  methods  to  cut  him  off. 

Mr.  Recorder  {Eaton  Stannard,  Esq.),  of  counsel  for  the  defendant. 
.  .  .  This  evidence  is  offered,  as  I  apprehend,  to  raise  a  presumption  that 
the  plaintiff  is  the  legitimate  son  of  the  lord  Altham,  because  the  defend- 
ant endeavored  to  destroy  him ;  and  then  the  question  will  be.  Whether 
such  evidence  is  proper  to  be  admitted?  It  would  be  a  question  whether 
any  improper  measure  taken  to  affect  the  life  of  the  plaintiff  would  be 
evidence ;  but  where,  from  their  own  opening  the  case,  it  does  appear  to 
your  lordship  nothing  more  than  a  proceeding  according  to  the  regular 
and  open  course  of  the  law,  with  humble  submission,  that  in  this  case 
or  any  case  whatsoever,  is  not  to  be  imputed  to  a  man  as  a  crime.  .  .  . 
Mr.  Harward,  for  the  plaintiff.  —  My  lord,  T  apprehend,  that  every 
matter  which  in  any  degree  tends  to  show  whether  the  plaintiff  was  the 
lawful  son  of  the  late  lord  Altham,  or  no,  is  proper  evidence  to  be  laid 
before  the  jury.  This  evidence  now  offered,  is  to  show  that  the  present 
lord  Anglesea,  conscious  of  the  plaintiff's  legitimacy,  undertook  the 
prosecution  to  take  away  his  life,  and  spent  great  sums  of  money  in  it. 
If  it  is  an  act  of  the  defendant's,  it  is  proper  for  the  jury  to  consider, 
quo  animo  he  undertook  it,  whether  from  a  public  spirit  of  justice,  or  a 


No.  267         TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  393 

private  view  to  take  away  the  life  of  this  rival  to  his  estate;  for  every  act 
of  the  defendant  that  can  give  light  to  the  jury  of  the  opinion  that  my 
lord  himself  had  of  the  plaintiff's  right,  is  proper  evidence  to  be  offered 
to  them.  We  have  already  laid  evidence  before  the  jury  that  we  appre- 
hend clearly  shows  that  the  lord  Anglesea  had,  several  years  ago,  spirited 
away  this  plaintiff,  to  prevent  his  asserting  his  right  to  the  estate.  This 
now  offered  is  a  further  proof  of  my  lord  Anglesea's  opinion  concerning 
his  right;  and  to  corroborate  that  evidence  that  has  already  been  laid 
before  the  Court,  we  have  a  right  to  produce  it,  as  a  further  instance  of 
this  lord's  own  opinion,  that  it  was  necessary  for  him  to  come  at  his  life 
at  any  rate.  The  question  is  not  now',  whether  the  prosecution  was  just 
or  not?  Whether  Mr.  Annesley  was  guilty  or  not  of  the  murder  charged 
on  him?  He  has  been  acquitted.  I  must  beg  leave  to  say,  if  he  had 
been  found  guilty,  and  got  a  pardon,  and  came  to  seek  his  right  in  this 
Court,  my  lord's  carrying  on  the  prosecution  might  have  been  imputed 
to  a  zeal  for  justice;  but  being  acquitted,  there  is  room  for  the  jury  to 
consider,  whether  his  interfering  was  not  owing  to  some  other  motive, 
and  some  other  end  than  that  of  public  justice.  .  .  . 

L.  C.  Baron  Bowes.  —  This  witness  was  produced  to  show  that  the 
prosecution  against  the  plaintiff,  for  killing  a  man  at  Staines,  was  pro- 
moted and  carried  on  by  the  defendant,  and  at  his  expense;  which,  as 
it  was  an  attempt  to  take  away  the  plaintiff's  life,  his  counsel  have  insisted 
is  proper  to  be  laid  before  the  jury,  as  further  proof  of  the  present  defend- 
ant's distrust  of  his  own  title,  and  his  opinion  of  the  now  plaintiff's 
right.  .  .  . 

This  is  a  new  attempt,  and  were  it  necessary  for  me  now  to  give  my 
opinion,  I  should  think  it  ought  not  to  be  admitted. 

The  prosecution  in  itself  was  not  unlawful;  on  the  contrary,  it  is  the 
duty  of  every  man,  especially  in  the  case  of  blood,  to  take  care  that  the 
offender  be  put  upon  his  trial.  And  therefore,  without  entering  into  the 
merits  of  that  case,  the  motives  of  the  prosecution  cannot  appear;  and 
those  alone  can,  in  my  apprehension,  introduce  this  evidence  as  pertinent 
to  the  matter  in  issue  in  this  cause :  who,  without  going  farther,  can  say, 
this  prosecution,  though  lawful,  was  carried  on  with  an  unlawful  inten- 
tion? I  apprehend  the  Court  cannot  judge  whether  the  prosecution  was 
frivolous  or  malicious,  unless  the  indictment  was  tried  over  again  here. 
But  as  it  is  a  matter  worthy  of  deliberate  consideration,  and  this  trial 
will  last  another  day,  the  counsel  for  the  plaintiff  may  proceed  to  some 
other  evidence,  and  we,  if  it  be  insisted  on,  will  give  you  our  opinions  in 
the  morning. 

Mr.  Baron  Mounteney.  .  .  .  My  present  opinion  is,  that  the 
evidence  now  offered  ought  to  be  admitted.  .  .  .  The  foundation  of  my 
opinion  is  this :  Every  act  done  by  the  defendant,  which  hath  a  tendency 
to  show  a  consciousness  in  him  of  title  in  the  lessor  of  the  plaintiff,  must 
I  think  be  admitted,  beyond  all  controversy,  to  be  pertinent  and  legal 
evidence  in  the  present  cause.     I  think  that  the  evidence  now  offered  hath 


394  BOOK  i:     RULES   OF  .-VDMISSIBILITY  No.  267 

that  tendency,  and  consequently  is  proper  to  be  admitted.  This  evi- 
dence of  the  prosecution,  in  my  apprehension,  stands  exactly  on  the  same 
footing  with  the  evidence  of  the  kidnapping,  .  .  .  for  I  can  by  no  means 
enter  into  the  distinction  of  lawful  and  unlawful  acts,  which  seems  to 
have  so  much  weight  with  my  lord  chief  baron.  That  unlawful  act  was 
not  therefore,  in  my  apprehension,  to  be  admitted  in  evidence  because 
unlawful,  but  because  it  had  a  tendency  to  show  such  a  consciousness  as 
I  have  mentioned  in  the  defendant;  and  if  the  carrying  on  the  prosecution 
(which  must  be  admitted  to  be  a  very  extraordinary,  though  lawful,  act 
of  the  defendant)  hath  the  same  tendency,  it  ought  upon  the  same  principle 
to  be  admitted.  ^ 

[The  evidence  was  admitted.]  .  .  . 

Bowes,  C.  B.  [charging  the  jury]:  .  .  .  You  will  also  consider  whether 
these  acts  [above  testified  to]  are  not  evidence  to  satisfy  you  that  the 
defendant,  in  his  own  thoughts  and  way  of  reasoning,  considered  the 
staying  of  the  boy  here  as  what  might  some  way  prejudice  his  title.  But 
whether,  as  insisted  upon  by  the  plaintiff's  counsel,  you  ought  to  take 
this  as  an  admission  on  the  part  of  the  defendant  that  the  plaintiff  was 
the  lawful  son  of  Lord  Altham  [earl  of  Anglesea],  will  deserve  further 
consideration.  Undoubtedly,  there  is  a  violent  presumption,  because  no 
man  is  supposed  to  be  wicked  without  design,  and  the  design  in  this  act 
must  be  some  way  or  other  relative  to  the  title;  but  whether  or  no  it  was 
the  opinion  of  the  trouble  he  might  have  from  this  lad  that  induced  him 
to  do  the  act,  or  a  consciousness  that  the  lad  was  the  son  of  Lord  Altham, 
must  be  left  to  your  determination. 

268.  ROE  DEM.  HALDAXE  &  URRY  v.   HARVEY 

King's  Bench.     1769 

4  Burr.  2484 

In  ejectment  for  certain  premises  in  Newton,  alias  Frankville,  in 
the  Isle  of  Wight.  The  demises  were  laid  on  the  6th  of  October,  1768. 
The  cause  was  tried  before  Mr.  Justice  Aston  at  Winchester. 

He  reported,  that  the  title  opened  for  the  plaintiff  was  under  Mrs. 
Haldane,  as  devisee  of  Robert  Holmes.  .  .  .  Then  the  will  of  Robert 
Holmes  was  produced  and  proved,  dated  24th  of  January,  1738.  It 
appeared  that  he  died  the  9th  of  April,  1751,  and  by  his  will  devised  all 
the  rest  and  residue  of  his  estate  whatsoever  and  wheresoever  to  his  wife 
Elizabeth,  her  heirs,  executors,  and  administrators.  It  was  proved  that 
Mrs.  Elizabeth  Holmes  married  Captain  Haldane,  and  that  he  was  dead. 
There  was  no  proof  of  any  receipt  of  rents  since  the  Blachfords:  and 
William  Clark,  a  witness  produced  for  the  plaintiff,  upon  his  cross-examina- 
tion, said,  "that  Mrs.  Haldane  had,  before  the  6th  of  October,  1768, 
conveyed  away  heij  interest  in  the  premises  to  Mr.  Thomas  Urry,  and 
that  the  deed  was  in  Court." 


No.  268        TESTIMONIAL    EVIDENCE:     PARTY'S   ADMISSIONS  395 

Upon  this  it  was  insisted  by  Mr.  Serjeant  Burland,  for  the  defendant, 
"  That  the  plaintiff's  own  witness  proving  the  title  out  of  Mrs.  Haldane, 
and  that  the  deed  of  conveyance  to  Urry  was  in  Court,  it  ought  to  be 
produced  in  evidence,  to  show  a  title  in  Thomas  Urry,  the  other  lessor  of 
the  plaintiff."  The  deeds  being  in  Court,  or  at  least  in  the  plaintiff's 
power,  was  not  controverted.  But,  for  the  plaintiff,  it  was  insisted  "  that 
no  notice  having  been  given  by  the  defendant,  for  the  plaintiff  to  produce 
this  deed,  they  were  not  obliged  to  do  it.  .  .  .  It  was  answered,  "  That 
this  was  not  a  case  which  required  notice,  that  the  defendant  did  not 
claim  under  this  deed;  it  was  only  then  disclosed  by  the  plaintiff's  own 
evidence;  and  to  be  produced,  to  complete  his  title  derived  from  Urry." 

Under  the  above  circumstances,  Mr.  Justice  Aston  thought  "the 
plaintiff  ought  to  give  further  evidence,  to  ascertain  the  title,  under 
which  he  was  to  recover  the  term."  But  the  plaintiff  rested  his  case, 
and  was  nonsuited;  the  defendant  agreeing  "that  the  plaintiff  should 
be  at  liberty  to  move  for  a  new  trial,  without  payment  of  costs." 

A  motion  was  accordingly  made;  a  rule  to  show  cause,  and  cause 
now  shown.  This  case  was  strenuously  argued  at  the  bar,  by  several 
eminent  counsel  on  both  sides. 

It  was  urged,  on  behalf  of  the  defendant,  that  the  deed  being  con- 
fessedly in  Court,  and  in  the  power  of  the  plaintiff,  ought  to  have  been 
produced  by  him,  in  order  to  show  that  Urry  had  a  title.  For,  his  own 
witness  (William  Clark)  had  proved  that  no  title  remained  in  Mrs. 
Haldane;  she  having  conveyed  it  away:  and  none  appeared  in  Urry; 
as  they  refused  to  produce  the  deed,  though  actually  in  Court,  upon 
which  they  pretended  that  his  title  was  founded.  So  that  instead  of 
showing  that  Urry  had  a  title,  this  refusal  to  produce  the  deed  was  a 
good  ground  of  presumption  "that  in  fact  he  had  none;"  and  that  there 
was  "some  defect  in  this  deed,  or  something  or  other  contained  in  it, 
which,  if  it  had  been  produced,  would  have  shown  that  he  had  none; 
and  that  they  did  not  dare  to  produce  it,  because  it  would  destroy  their 
title  instead  of  proving  it."  .  .  . 

On  the  other  hand,  it  was  argued  by  the  plaintiff's  counsel  —  That 
even  admitting  "that  there  was  no  need  of  their  having  had  notice  to 
produce  it,"  or  taking  it  upon  the  same  footing  as  if  such  notice  had  been 
actually  given  to  them ;  yet  they  were  not  under  any  obligation  to  pro- 
duce it.  They  laid  it  down  as  a  known  and  established  rule  of  evidence, 
"  That  though  a  party  had  regular  and  full  notice  to  produce  a  deed,  the 
only  consequence  of  his  not  producing  it,  was,  that  the  adverse  party 
should  be  let  in  to  prove  the  contents  of  it  by  an  inferior  species  of  proof, 
as,  for  instance,  by  reading  a  copy  of  it,  or  by  parol  evidence;"  which  the 
defendants  had  not,  in  the  present  case,  either  done  or  attempted  to  do. 
And  as  to  the  pretended  presumption  "  that  there  might  be  some  defect 
in  it,  or  something  contained  in  it  which  destroyed  the  validity  or  effect 
of  it,"  it  was  grounded  upon  mere  imagination.  .  .  .  They  insisted,  with 
great  vehemence,  that  instead  of  being  nonsuited,  the  plaintiff  ought 


396  BOOK  i;     RULES   OF  ADMISSIBILITY  No.  268 

to  have  had  a  verdict;  for,  that  his  title  appeared  to  be  a  good  one, 
without  the  assistance  of  this  deed.  He  had  laid  a  double  demise;  one 
from  Mrs.  Haldane,  the  other  from  Urry.  The  evidence  given  by 
William  Clark  was,  "  that  Mrs.  Haldane  had  had  an  interest,  but  had 
conveyed  it  to  Mr.  Urry."  Therefore,  most  manifestly,  there  was  an 
interest  remaining  in  one  of  the  two  lessors  of  the  plaintiff;  and  it  was 
indifferent  to  the  plaintiff,  in  which  of  the  two  it  subsisted.  .  .  .. 

Lord  Mansfield,  C.  J.,  reasoned  from  the  nature  of  an  ejectment, 
and  the  course  of  proceeding  upon  it.  He  laid  it  down  as  a  position, 
"  that  in  this  action,  the  plaintiff  cannot  recover,  but  ujjon  the  strength 
of  his  own  title."  He  cannot  found  his  claim  upon  the  weakness  of  the 
defendant's  title.  .  .  . 

He  principally  laid  stress  upon  the  plaintiff's  refusing  to  produce  the 
conveyance  from  Mrs.  Haldane,  which  was  in  Court.  The  want  of 
notice  was  no  objection  in  this  case;  because  they  had  the  deed  in  Court. 
The  refusal  to  produce  it  was  an  unfair  attempt  to  recover,  contrary  to 
the  real  merits;  and  being  a  deliberate  refusal,  by  the  advice  of  counsel, 
contrary  to  the  recommendation  of  the  judge,  warranted  the  strongest 
presumption  "  that  the  deed  would  show  that  neither  of  the  lessors  of  the 
plaintiff  had  any  title." 

Mr.  Justice  Yates  thought  the  plaintiff  sought  to  have  had  a  ver- 
dict. ... 

Mr.  Justice  Aston.  ...  I  was  not  called  upon  to  leave  it  to  the  jury. 
I  thought  the  refusing  to  produce  the  deed  was  a  want  of  fairness;  and 
that  the  plaintiff  had  not  made  a  complete  title,  without  it.  But  if 
there  is  any  doubt  in  the  Court,  I  have  no  objection  to  a  new  trial. 

Mr.  Justice  Willes  thought  the  direction  was  right.  In  ejectment 
the  plaintiff  must  recover  upon  the  strength  of  his  oion  title.  The  only 
proof  here  is,  "that  the  witness  said  that  Mrs.  Haldane  had  conveyed 
to  Urry;"  but  he  would  not  produce  the  deed  of  conveyance  to  Urry, 
though  actually  in  Court.  I  do  not  say  that  the  Court  could  oblige 
them  to  produce  this  deed.  But  I  think  the  title  of  the  plaintiff  was 
not  complete;  the  deed  iiot  being  produced.  .  .  . 

Lord  Mansfield  observed,  that  in  civil  causes,  the  Court  will  force 
parties  to  produce  evidence  which  may  prove  against  themse!  ,"is,  or 
leave  the  refusal  to  do  it  (after  proper  notice)  as  a  strong  presumption 
to  the  jury.  The  Court  will  do  it  in  many  cases,  under  particular  cir- 
cumstances, by  rule  before  the  trial;  especially,  if  the  party  from  whom 
the  production  is  wanted  applies  for  a  favor.  But  in  a  criminal  or  penal 
cause,  the  defendant  is  never  forced  to  produce  any  evidence,  though  he 
should  hold  it  in  his  hands  in  Court.     (1  Tidd,  515.     1  T.  R.  689.) 

Per  Cur.     Rule  discharged. 


No.  269        TESTIMONIAL   EVIDENCE:     PARTY'S  ADMISSIONS  397 

269.   MORSE  v.   MINNEAPOLIS  &  ST.   LOUIS  R.   CO. 

Supreme  Court  of  Minnesota.     1883 

30  Minn.  465;   16  N.  W.  358 

Appeal  by  defendant  from  an  order  of  the  District  Court  for  Freeborn 
County,  Farmer,  J.,  presiding,  refusing  a  new  trial. 

J.  D.  Springer,  for  appellant.  Gordon  E.  Cole  and  J.  H.  Parker,  for 
respondent. 

Mitchell,  J.  —  This  was  an  action  to  recover  damages  for  the 
alleged  negligence  of  defendant,  causing  the  death  of  plaintiff's  intestate 
while  employed  as  an  engineer  on  its  railroad.  One  of  the  acts  of  negli- 
gence alleged  to  have  contributed  to  the  injury  was  defendant's  allowing 
its  track  to  become  and  remain  out  of  repair;  the  defects  in  that  respect 
consisting  of  a  broken  rail  and  defective  switch,  which  caused  the  engine 
upon  which  deceased  was  to  be  thrown  from  the  track  and  upset.  The 
rail  and  switch  referred  to  were  situated  in  the  yard  of  defendant  at 
Albert  Lea,  and  near  the  water-tank,  at  which  point  the  accident 
occurred.   .  .  . 

Plaintiff  was  also  permitted  to  show  that,  after  the  accident,  defendant 
repaired  the  switch  alleged  to  have  been  defective.  The  Court  held  in 
O'Leary  v.  City  of  Mankato,  21  Minn.  65,  that  such  evidence  was,  under 
certain  circumstances,  competent.  This  case  was  followed  in  Phelps  v. 
City  of  Mankato,  23  Minn.  276,  and  Kelly  v.  South.  Minn.  Ry.  Co.,  28 
Minn.  98,  and  this  position  is  not  without  support  in  the  decisions  of 
other  Courts.  But,  if  competent,  such  evidence  is  only  so  as  an  admission 
of  the  previous  unsafe  condition  of  the  thing  repaired  or  removed ;  and, 
to  render  it  admissible  as  such,  the  act  must  have  been  done  so  soon 
after  the  accident  and  under  such  circumstances  as  to  indicate  that  it 
was  suggested  by  the  accident,  and  was  done  to  remedy  the  defect  which 
caused  it.  All  Courts  who  admit  the  evidence  at  all  so  hold.  In  the 
present  case  the  change  in  this  switch  was  made  over  a  year  after  the 
accident,  and  after  it  had  been  removed  to  another  place.  Under  such 
circumstances  the  repairs  were,  presumably,  merely  an  ordinary  better- 
ment. Lender  such  a  state  of  facts  such  evidence  would  not  be  admissible 
under  any  rule,  and  its  admission  was,  therefore,  error. 

But,  on  mature  reflection,  we  have  concluded  that  evidence  of  this 
kind  ought  not  to  be  admitted  under  any  circumstances,  and  that  the 
rule  heretofore  adopted  by  this  Court  is  on  principle  wrong;  not  for  the 
reason  given  by  some  Courts,  that  the  acts  of  the  employees  in  making 
such  repairs  are  not  admissible  against  their  principals,  but  upon  the 
broader  ground  that  such  acts  afford  no  legitimate  basis  for  construing 
such  an  act  as  an  admission  of  previous  neglect  of  duty.  A  person  may 
have  exercised  all  the  care  which  the  law  required,  and  yet,  in  the  light  of 
his  new  experience  after  an  unexpected  accident  has  occurred,  and  as  a 


398  BOOK   i:     RULES   OF   ADMISSIBILITY  Xo.  269 

measure  of  extreme  caution,  he  may  adopt  additional  safeguards.  The 
more  careful  a  person  is,  the  more  regard  he  has  for  the  lives  of  others, 
the  more  likely  he  would  be  to  do  so,  and  it  would  seem  unjust  that  he 
could  not  do  so  without  being  liable  to  have  such  acts  construed  as  an 
admission  of  prior  negligence.  We  think  such  a  rule  puts  an  unfair 
interpretation  upon  human  conduct,  and  virtually  holds  out  an  induce- 
ment for  continued  negligence.  Dougan  v.  Champlain  Transp.  Co., 
56  N.  Y.  1;  Sewell  v.  City  of  Cohoes,  11  Hun  626;  Baird  v.  Daly,  68 
N.  Y.  547;  Payne  v.  Troy  &  B.  R.  Co.,  9  Hun  526;  Salters  i-.  Delaware 
&  H.  Canal  Co*!,  3  Hun  338;  Dale  v.  Delaware,  L.  &  \V.  R.  Co.,  73  N.  Y. 
468.  ... 

We  discover  no  other  error,  but  for  those  already  referred  to  a  new 
trial  must  be  granted.  Order  reversed. 

270.   BROCK  V.   STATE 

Supreme  Court  of  Alabama.    1898 

123  Ala.  24;  26  So.  329 

Appeal  from  Circuit  Court,  Lauderdale  county;  James  J.  Banks, 
Judge. 

Polly  Brock  was  convicted  of  living  in  adultery  with  Bill  Coppin,  and 
appealed.     Reversed. 

Under  the  opinion  on  this  appeal,  it  is  unnecessary  to  set  out  in  detail 
any  of  the  facts  relating  to  the  rulings  of  the  trial  Court  tp  which  excep- 
tions were  reserved,  except  that  in  reference  to  the  argument  of  the  solici- 
tor. In  reference  to  this  ruling  the  bill  of  exceptions  contains  the 
following  recital: 

In  the  course  of  his  argument  the  solicitor  stated  to  the  jury  that  Bill 
Coppin  had  failed  to  take  the  stand  and  deny  his  illicit  intercourse  with 
the  defendant,  or  explain  what  he  was  doing  out  in  the  woods.  Defend- 
ant objected,  and  excepted  to  this  statement  of  the  solicitor,  because  Bill 
Coppin  was  one  of  the  defendants,  and  his  failure  to  testify  could  not  be 
made  the  subject  of  comment.  The  Court  refused  to  sustain  this  excep- 
tion, but  stated  that  the  argument  was  legitimate,  and  to  this  action  of 
the  Court  the  defendant  then  and  there  duly  excepted. 

Emmett  O'Neal,  for  appellant.  Chas.  G.  Brown,  Atty.  Gen.,  for  the 
State. 

Sharpe,  J.  .  .  .  The  defendant  and  one  Bill  Coppin  being  indicted 
jointly,  a  severance  of  the  trial  was  obtained.  The  solicitor,  in  his  argu- 
ment to  the  jury,  commented  upon  the  fact  that  Coppin  "had  failed  to 
take  the  stand  and  deny  his  illicit  intercourse  with  the  defendant,  or 
explain  what  he  was  doing  out  in  the  woods."  Upon  objection  by 
defendant's  counsel  to  this  comment,  the  Court  stated  that  the  argument 
was  legitimate.  There  is  a  recognized  rule  of  evidence  which  authorizes 
a  presumption  unfavorable  to  a  party  failing  to  produce  a  witness  having 


No.  270        TESTIMONIAL    EVIDENCE:     PARTY'S   ADMISSIONS  399 

peculiar  knowledge  of  facts  from  which  the  party  claims  a  benefit,  and 
where  the  witness  is  accessible  to  such  party  and  not  to  his  adversary. 
In  Bates  v.  Morris,  101  Ala.  282,  13  South.  138,  this  rule  was  referred  to, 
and  it  was  added  that  "such  presumption  isy  however,  indulged  with 
great  caution,  and  only  when  it  is  manifest  the  evidence  is  within  the 
power  of  one  party,  and  is  not  accessible  to  his  adversary."  In  that  case 
the  question  involved  the  bona  fides,  as  to  creditors  of  Bates,  of  a  transfer 
of  property  by  him  to  his  wife,  and  it  was  held  that  the  last  rule  stated 
was  applicable,  and  that  no  unfavorable  inference  could  be  raised  against 
the  wife  from  her  failure  to  introduce  her  husband  as  a  witness,  though  he 
was  present  at  the  trial.  While  there  has  been  diversity  of  opinion  in 
courts  of  other  States  as  to  the  right  of  the  jury  to  consider  the  nonpro- 
duction  of  witnesses  as  a  circumstance  against  the  party  to  whom  they 
are  available,  the  decisions  of  this  State  appear  without  conflict  to  sustain 
the  rule  as  stated  in  Bates  v.  Morris,  supra;  Patton  v.  Rambo,  20  Ala. 
485;  Jackson  v.  State,  77  Ala.  18;  Carter  v.  Chambers,  79  Ala.  223; 
Pollak  V.  Harmon,  94  Ala.  420,  10  South.  156;  Crawford  v.  State,  112 
Ala. -1,  21  South.  214.  The  last-quoted  case  denied  the  right  of 
counsel  to  comment  in  argument  upon  the  failure  of  the  opposite  party 
to  examine  a  witness  who  was  accessible  to  both  parties.  The 
authorities  rest  upon  the  consideration  that  there  is,  in  such  cases,  no 
presumption  that  the  testimony,  if  taken,  would  be  more  favorable  to 
one  party  than  to  the  other,  and  no  room  for  conjecture  as  to  what 
might  have  been  shown  by  an  examination. 

In  the  present  case,  Coppin  could  not  have  been  compelled  to  testify 
to  any  fact  tending  to  criminate  himself.  The  offense  being  one  of  which 
he  and  the  defendant  must  both  have  been  either  guilty  or  innocent,  his 
mere  refusal  upon  the  ground  of  self-incrimination  might  have  been 
construed  by  the  jury  to  the  defendant's  disadvantage.  On  the  contrary, 
if  he  had  not  declined,  the  credibility  of  his  testimony  would  have  been 
open  to  assault  upon  the  ground  of  interest.  If,  in  view  of  the  fact  that 
the  scope  allowed  to  his  examination  would  have  depended  largely  upon 
Coppin's  own  volition,  the  testimony  could  be  deemed  accessible  to  the 
defendant,  yet  it  does  not  appear  to  have  been  less  accessible  to  the  State. 
Under  the  circumstances,  no  presumption  could  arise  that  the  testimony 
was  witheld  from  sinister  motives,  and  the  jury  should  have  been  left  to 
try  the  issue  upon  the  evidence  introduced. 

The  proneness  of  the  jury  to  consider  a  defendant's  failure  to  testify 
in  his  own  behalf,  and  the  prejudice  to  the  defendant  which  would 
naturally  result  therefrom,  induced  the  legislative  prohibition  against 
any  adverse  comment  in  argument  upon  such  failure.  The  statute  does 
not  cover  this  precise  case,  but  the  argument  was  improper  under  the 
general  rule  before  stated;  and,  in  determining  its  effect,  we  are  impressed 
with  the  consideration  that  the  same  results  which  the  statute  intended 
to  forestall  when  the  defendant  is  not  examined  may  follow,  as  well, 
when  the  person  not  produced  is  one  jointly  implicated  with  the  defend- 


400  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  270 

ant.  The  argument  objected  to  was,  therefore,  forcibly  calculated  to 
injure  the  defendant's  case,  and  the  error  committed  in  its  indulgence 
must  work  a  reversal  of  the  judgment.   .   .   . 

Tyson,  J.  (dissenting).  The  opinion  in  this  case  practically  destroys 
all  room  for  the  application  of  the  universal  rule  or  doctrine  recognized 
by  this  Court  and  all  courts  of  last  resort,  as  will  be  shown  by  a  careful 
examination  of  the  facts  as  presented  by  the  record  and  a  proper  analysis 
of  the  cases  of  this  court  cited  in  the  opinion,  and  of  the  opinions  of  other 
Courts,  upon  the  point  here  invoh^ed. 

One  of  the  theories  for  a  refusal  to  apply  the  rule,  recognized  by  the 
writer  of  the  opinion  in  this  case,  is  based  upon  the  idea  that  Coppin  was 
"  accessible  "  as  a  witness  for  the  State.  To  my  mind  the  writer  has  mis- 
conceived the  meaning  of  the  word  "  accessible,"  and  the  rule  or  doctrine 
involved  in  this  case.  He  limits  the  meaning  of  the  word  "accessible" 
to  the  presence  in  person  of  the  witness,  or  the  power  of  the  State  to 
procure  his  personal  presence.  Such  an  interpretation,  I  repeat,  not 
only  practically  abolishes  the  application  of  the  rule,  but  practically 
destroys  it,  by  limiting  it  in  its  application  to  only  those  cases  where  the 
whereabouts  of  the  witness  is  known  to,  and  he  is  accessible  to,  the  defend- 
ant, and  unknown  to  the  prosecuting  officers  of  the  State.  ...  It  is 
inconceivable  how  a  witness  can  be  "accessible,"  in  the  sense  in  which 
Justice  Sharpe  limits  the  meaning  of  the  phrase  quoted  by  him,  to  one 
party  litigant,  and  inaccessible  to  his  adversary,  if  the  witness'  where- 
abouts is  known  to  both.  Each  of  the  parties  litigant  are  equally 
entitled  to  all  the  processes  of  the  Court  to  compel  his  attendance,  and 
therefore  can  compel  him  to  attend.  This  right  to  process  to  compel 
the  attendance  of  the  witness,  doubtless,  existed  at  the  time  the 
rule  under  consideration  originated.  This  being  true,  just  how  the 
rule  —  admitting,  for  the  sake  of  this  discussion,  that  it  Avas  correctly 
stated  in  Bates  v.  Morris,  which,  however,  we  will  show,  later  on,  is  not 
the  true  one  —  was  called  into  being  and  became  almost  universally 
recognized  and  adopted  by  the  courts,  is  beyond  comprehension. 

Bearing  in  mind  that  it  is  not  so  much  the  presence  of  the  witness  that 
a  party  litigant  stands  so  much  in  need  of,  as  it  is  the  testimony  to  which 
the  witness  will  depose  with  fairness,  impartiality,  and  truthfulness,  it  is 
the  latter  that  makes  the  witness  accessible  or  available  to  both  parties 
litigant.  It  is  within  the  experience  of  all  connected  with  the  administra- 
tion of  justice  and  the  trial  of  causes  that  witnesses  are  more  or  less  in- 
fluenced by  the  circumstances  surrounding  them  at  the  time  of  the  trial, 
their  relation  to  the  parties  litigant,  etc.  ...  So  partisan  do  they 
become  at  times  that,  however  honest  they  may  be,  they  are  not  available, 
to  the  party  to  the  suit  to  whom  they  are  hostile,  to  elicit  the  truth  in 
full  of  the  transaction  of  which  they  possess  a  full  knowledge. 

The  foregoing  considerations  are  conclusive  to  my  mind  of  the  mis- 
taken meaning  of  the  word  "accessibility,"  and  conclusive  that  a  witness 
to  the  transaction  may  be  present  in  the  court  during  the  trial,  and  ye* 


No.  270         TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  401 

not  be  accessible  to  the  State,  in  the  sense  that  he  may  be  so  hostile  to  the 
prosecution,  or  so  connected  with  the  defendant,  as  that  his  testimony 
would  be  unavailable  to  the  State. 

But  the  extract  from  the  case  of  Bates  v.  Morris,  made  use  of  by  Justice 
Sharpe,  is  a  much  stronger  statement  of  the  rule  than  can  be  found  in 
any  cases  where  the  question  has  arisen,  and  is  not  in  harmon\'  with  any 
statement  of  the  rule  that  I  have  been  able  to  find,  and  it  would  seem, 
upon  principle,  that  it  is  too  strongly  stated.  The  rule,  in  my  judgment, 
was  correctly  stated  .  .  .  by  Justice  Clopton  in  Pollak  v.  Harmon,  where 
he  said:  "There  is  also  another  rule,  that  when  a  party  has  the  means  of 
producing  a  witness  who  possesses  pveculiar  or  higher  knowledge  of  the 
transaction,  and  fails  to  produce  him,  this  affords  ground  for  suspicion 
that  the  testimony  of  such  better-informed  witness  would  be  unfavorable 
to  his  claim."  .  .  .  The  presumption,  or,  more  properly  speaking,  the 
unfavorable  inference,  under  the  rule  as  laid  down  in  the  cases  of  Carter 
V.  Chambers  and  Pollak  v.  Harmon,  the  jury  may  be  authorized  to  indulge, 
arises,  not  out  of  the  accessibility  or  inaccessibility  of  the  witness  to 
either  of  the  parties  litigant,  but  out  of  the  failure  of  a  party  to  explain 
or  otherwise  rebut  damaging  facts  introduced  in  evidence  against  him 
by  a  witness,  accessible  to  him,  possessing  a  knowledge  of  the  transaction 
supposed  to  be  favorable  to  him,  if  such  favorable  fact  exists.  In  no 
case  in  this  court  have  the  facts  of  the  case  warranted  the  application  of 
the  rule.  .  .  . 

We  not  are,  how^ever,  without  cases  in  which  the  rule  has  been  applied 
in  other  jurisdictions.  These  cases  are  numerous,  and  the  rule,  as  stated 
in  them,  comports  with  the  one  laid  down  in  Carter  v.  Chambers  and 
Pollak  V.  Harmon.  Many  of  them  are  criminal  cases,  and  involve  the 
correctness  of  the  prosecuting  attorney's  comment,  as  here,  upon  the  de- 
fendant's failure  to  explain,  by  a  witness,  accessible  to  him,  possessing  a 
knowledge  of  the  incriminating  facts  introduced  by  the  State  against  him. 
Notably  among  these  is  the  case  of  Graves  v.  U.  S.,  150  U.  S.  118,  where  the 
rule  is  clearly  stated  to  be  as  follows:  "  It  was  said  by  Chief  Justice  Shaw 
in  the  case  of  Com.  v.  Webster,  5  Cush.  295,  316:  'But  when  pretty 
stringent  proof  of  circumstances  is  produced  tending  to  support  the 
charge,  and  it  is  apparent  that  the  accused  is  so  situated  that  he  can  offer 
evidence  of  all  the  facts  and  circumstances  as  they  existed,  and  show,  if 
such  was  the  truth,  that  the  suspicious  circumstances  can  be  accounted 
for  consistently  with  his  innocence,  and  he  fails  to  offer  such  proof,  the 
natural  conclusion  is  that  the  proof,  if  produced,  instead  of  rebutting, 
would  tend  to  support,  the  charge.'  The  rule,  even  in  criminal  cases, 
is  that,  if  a  party  has  it  peculiarly  within  his  power  to  produce  witnesses 
whose  testimony  would  elucidate  the  transaction,  the  fact  that  he  does 
not  do  it  creates  the  presumption  that  the  testimony,  if  produced,  would 
be  unfavorable."  .  .  . 

The  other  theory  upon  which  Justice  Sharpe  declines  to  apply  the 
ra^e  in  this  case  is  that  Coppin's  tes'timony  was  not  accessible  to  the 


402  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  270 

defendant,  for  the  reason  that  he  could  not  have  been  compelled  to  testify 
to  any  fact  tending  to  criminate  himself.  .  .  . 

There  was  no  allusion  in  the  remarks  of  the  solicitor  to  her  failure 
to  testify,  but  simply  her  failure  to  introduce  Coppin,  who  could  have 
contradicted  the  evidence  introduced  by  the  State  tending  to  establish 
his  illicit  intercourse  with  her,  or  whe  could  have  explained  what  he 
was  doing  out  in  the  woods  with  her.  Besides,  the  objection  to  these 
remarks  was  not  made  on  this  ground,  but  exclusively  upon  the  idea 
that  Coppin's  failure  to  testify  could  not  be  made  the  subject  of 
comment.  This  precise  question  was  passed  upon  in  the  following 
cases,  cited  supra:  Jackson  v.  State,  31  Tex.  Cr.  342;  State  v.  Wed- 
dington,  103  N.  C.  364;  People  v.  McGrath,  5  Utah  525;  Sutton  v. 
Com.  85  Va.  128;  and  State  v.  Mathews,  98  Mo.  128,  —  in  which  it 
was  held  that  similar  comments,  as  here,  did  not  offend  statutes  con- 
taining substantially  the  same  provisions  as  ours.  The  defendent 
failing  to  introduce  any  testimony  whatever,  clearly  her  conduct  in  this 
respect  was  the  subject  of  comment,  and  this  record  discloses  a  case 
where  the  rule  ought  to  be  applied  and  enforced,  as  it  is  applied  and 
enforced  by  the  Courts  of  other  States.  ...  In  my  opinion,  the  judg- 
ment of  conviction  ought  to  be  affirmed. 


271.  STEVENS  v.   BOSTON  ELEVATED  RAILWAY  CO. 

Supreme  Judicial  Court  of  Massachusetts.     1904 

184  Mass.  476;  69  N.  E.  338 

Two  actions  of  Tort  by  the  administratrix  of  the  estate  of  Charles 
N.  Stevens,  the  first  for  the  suffering  of  the  intestate  and  the  second  for 
his  death,  both  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant's  servants  in  operating  a  car  of  the  defendant.  Writs  dated 
respectively  November  19,  1900,  and  September  20,  1901.  In  the 
Superior  Court  the  cases  were  tried  together  before  Fessenden,  J., 
without  a  jury. 

The  plaintiff's  intestate  was  a  hackman  driving  a  carriage  in  a  funeral. 
According  to  the  plaintiff's  evidence  the  car  came  up  from  behind,  and 
struck  one  of  the  forward  wheels  of  the  carriage  and  one  of  the  horses. 
It  was  admitted  that  neither  before  nor  at  the  time  of  the  accident  did 
the  motorman  sound  the  gong.  The  judge  found  for  the  plaintiff  in 
both  cases,  assessing  damages  in  the  first  case  at  $2,500,  and  in  the  second 
case  at  $4,000.  The  defendant  alleged  exceptions.  The  exception 
relied  upon  was  as  follows: 

The  plaintiff  offered  in  evidence  one  of  the  rules  in  a  certain  book 
admitted  by  the  defendant  to  be  a  book  of  rules  issued  by  the  defendant 
company  to  its  motormen  and  conductors,  and  admitted  to  have  been  the 


No.  271        TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  403 

book  of  rules  that  was  in  force  on  the  day  of  the  accident.     The  rule 
which  the  plaintiff  offered  was  Rule  83,  and  was  as  follows : 

"Gong  Ringing.  The  gong  must  always  be  sounded  before  starting,  when 
starting,  and  before  reaching,  and  at  all  street  crossings,  when  passing  other 
cars  or  vehicles,  and  at  all  points  where  vehicles  or  foot  passengers  are  cross- 
ing or  are  liable  to  cross  the  tracks.  The  gong  must  not  be  sounded  wantonly 
or  unnecessarily,  and  when  passing  places  of  worship  during  service  hours,  mak- 
ing as  little  noise  as  possible.  Upon  approaching  streets  or  crossings  the  power 
must  be  shut  off  and  the  car  kept  under  perfect  control.  This  rule  must  be 
strictly  observed  during  all  hours  of  the  day  and  night." 

To  the  admission  of  this  rule  the  defendant  objected.  The  counsel 
for  the  plaintiff  said:  "  I  put  it  in  as  a  rule  of  conduct  for  your  motorman 
by  which  he  is  to  be  judged  to  some  degree."  The  judge  then  said: 
"  I  suppose  it  is  put  upon  the  same  ground  that  an  ordinance  is  put  upon 
as  bearing  upon  the  carelessness  or  negligence  of  the  person  by  whom  the 
rules  are  to  be  followed.  I  will  admit  the  evidence  and  save  Mr.  Thomp- 
son his  exception."     The  rule  was  then  admitted  in  evidence. 

W.  G.  Thompson,  for  the  defendant.  S.  L.  Whipple  and  W.  R.  Sears, 
for  the  plaintiff. 

Knowlton,  C.  J.  —  The  only  exception  now  relied  on  by  the  defendant 
is  to  the  admission  in  evidence  of  the  defendant's  rule  in  regard  to  sound- 
ing the  gong,  in  connection  with  testimony  that  the  defendant's  motorman 
disobeyed  the  rule  and  that  this  disobedience  was  one  of  the  causes  of  the 
accident.  The  decisions  in  different  jurisdictions  are  not  entirely  har- 
monious upon  the  question  now  raised.  But  we  are  of  opinion  that  the 
weight  of  authority  and  of  reason  tends  to  support  the  ruling  of  the 
.judge  in  the  present  case. 

It  has  been  settled  by  various  adjudications  in  this  Commonwealth 
that  the  adoption  of  additional  precautions  for  safety  by  a  defendant, 
after  an  accident,  cannot  be  proved,  as  tending  to  show  liability  for  the 
method  used  at  the  time  of  the  accident.  .  .  .  This  is  the  general  rule 
in  other  jurisdictions.  Morse  v.  Minneapolis  &  St.  Louis  Railway,  30 
Minn.  465  [ante,  No.  269];  Columbia  &  Puget  Sound  Railroad  v.  Haw- 
thorne, 144  U.  S.  202,  207,  208,  and  cases  there  cited.  On  the  other 
hand,  a  violation  of  rules  previously  adopted  by  a  defendant  in  reference 
to  the  safety  of  third  persons  has  generally  been  admitted  in  evidence  as 
tending  to  show  negligence  of  the  defendant's  disobedient  servant  for 
which  the  defendant  is  liable.  The  admfssibility  of  such  evidence  has 
often  been  assumed  by  this  Court  without  discussion.  Mayo  v.  Boston 
&  Maine  Railroad,  104  Mass.  137,  140.  .  .  .  Similar  statements  of  the 
law  may  be  found  in  numerous  cases.  Dublin,  Wickford  &  Wexford 
Railway  v.  Slattery,  3  App.  Cas.  1155,  1163.  .  .  .  The  only  decision 
to  the  contrary  of  which  we  are  aware  is  in  the  case  of  Fonda  v.  St.  Paul 
City  Railway,  71  Minn.  438,  449. 

It  is  contended  bv  the  defendant  that  there  is  no  sound  principle 


404  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  271 

under  which  such  evidence  can  be  admitted.  The  evidence  is  somewhat 
analogous  to  proof  of  the  violation  of  an  ordinance  or  statute  by  the 
defendant  or  his  servant,  which  is  always  received  as  evidence,  although 
not  conclusive,  of  the  defendant's  negligence.  Wright  v.  Maiden  & 
Melrose  Railroad,  4  Allen  283;  Lane  2).  Atlantic  Works,  111  Mass.  136; 
Hall  V.  Ripley,  119  Mass.  135;  Hanlon  v.  South  Boston  Horse  Railroad, 
129  Mass.  310.  Such  an  ordinance  or  statute,  enacted  by  a  body  repre- 
senting the  interests  of  the  public,  imposes  "prima  facie"  upon  every- 
body a  duty  of  obedience.  Disobedience  is,  therefore,  a  breach  of  duty, 
unless  some  excuse  for  it  can  be  shown  which  creates  a  different  duty, 
that,  as  between  man  and  man,  overrides  the  duty  imposed  by  the 
statute  or  ordinance.  Such  disobedience  in  a  matter  affecting  the  plain- 
tiff is  always  competent  upon  the  question  whether  the  defendant  was 
negligent.  So  a  rule  made  by  a  corporation  for  the  guidance  of  its 
servants  in  matters  affecting  the  safety  of  others  is  made  in  the  per- 
formance of  a  duty,  by  a  party  that  is  called  upon  to  consider  methods, 
and  determine  how  its  business  shall  be  conducted.  Such  a  rule,  made 
known  to  its  servants,  creates  a  duty  of  obedience  as  between  the  master 
and  the  servant,  and  disobedience  of  it  by  the  servant  is  negligence  as 
between  the  two.  If  such  disobedience  injuriously  affects  a  third  person, 
it  is  not  to  be  assumed  in  favor  of  the  master  that  the  negligence  was 
immaterial  to  the  injured  person,  and  that  his  rights  were  not  affected 
by  it.  Rather  ought  it  to  be  held  an  implication  that  there  was  a  breach 
of  duty  towards  him,  as  well  as  towards  the  master  who  prescribed  the 
conduct  that  he  thought  necessary  or  desirable  for  protection  in  such 
cases.  Against  the  proprietor  of  a  business,  the  methods  which  he 
adopts  for  the  protection  of  others  are  some  evidence  of  what  he  thinks 
necessary  or  proper  to  insure  their  safety. 

A  distinction  may  well  be  made  between  precautions  taken  voluntarily 
before  an  accident,  and  precautions  which  are  suggested  and  adopted 
after  an  accident.  This  distinction  is  pointed  out  in  Columbia  &  Puget 
Sound  Railroad  v.  Hawthorne,  144  U.  S.  202,  207.  ...  In  Morse  v. 
Minneapolis  &  St.  Louis  Railway,  30  Minn.  465  [ante,  No.  269],  it  is 
said,  referring  to  the  same  subject,  that  "A  person  may  have  exercised 
all  the  care  which  the  law  required,  and  yet,  in  the  light  of  his  new 
experience,  after  an  unexpected  accident  has  occurred,  and  as  a  measure 
of  extreme  caution,  he  may  adopt  additional  safeguards."  See  also 
Illinois  Central  Railroad  v.  Swisher,  61  111.  App.  611.  In  Menard  v. 
Boston  &  Maine  Railroad,  150  Mass.  386,  and  in  some  of  the  earlier  cases 
there  is  language  which  goes  further  than  the  decision,  and  which  might 
imply  that  such  evidence  as  was  received  in  this  case  is  incompetent, 
but  the  case  is  authority  only  for  that  which  was  decided. 

Exceptions  overruled. 


No.  275        TESTIMONIAL   EVIDENCE:     PARTY'S   ADMISSIONS  405 

272.   RHEA  v.  TERRITORY 

Court  of  Criminal  Appeals  of  Oklahoma.     1909 

3  Okla.  Cr.  230;  105  Pac.  314 

[Printed  post,  as  No.  590] 

(b)  Assent  by  Silence 

274.  HoRNE  Tooke's  Trial.  (1794.  Howell's  State  Trials,  XXV,  1,  120). 
[Treason.  A  certain  paper,  addressed  to  Mr.  Tooke  and  found  at  his  house,  was 
offered  against  him]. 

Mr.  Tooke.  —  I  do  not  know  what  papers  may  have  been  taken  from  my 
house;   but  are  letters  written  to  me  to  be  produced  as  evidence  against  me? 

L.  C.  J.  Eyre.  —  Being  found  in  your  possession,  they  undoubtedly  are 
producible  as  evidence;  but,  as  to  the  effect  of  them,  very  much  will  depend 
upon  the  circumstances  of  the  contents  of  those  letters,  and  whether  answers 
to  them  can  be  traced,  or  whether  anything  has  been  done  upon  them.  A  great 
number  of  papers  may  be  found  in  a  man's  possession  which  will  be,  prima  facie, 
evidence  against  him,  but  will  be  open  to  a  variety  of  explanations;  and  it  is 
always  a  very  considerable  explanation  that  nothing  appears  to  have  been  done 
in  consequence  of  the  paper  being  sent  to  him.  But  all  pai)ers  found  in  the  pos- 
session of  a  man  are  prima  facie  evidence  against  him,  if  the  contents  of  them 
have  application  to  the  subject  under  consideration. 

Mr.  Tooke.  —  The  reason  of  my  asking  it  is,  I  am  very  much  afraid  that, 
besides  treason,  I  may  be  charged  with  blasphemy. 

Lord  Chief  Justice  Eyre.  —  You  are  not  tried  for  that. 

Mr.  Tooke.  —  It  is  notorious  I  do  not  answer  common  letters  of  civility,  but 
I  have  received  and  kept  many  curious  letters.  I  received  some  letters  from  a 
man  whose  name  is  Oliver  Verall,  and  he  endeavoured  to  prove  to  me  that  he  was 
God  the  Father,  Son,  and  Holy  Ghost.  He  proved  it  from  the  Old  Testament; 
in  the  first  place  that  he  was  God  the  Father,  because  God  is  0  Veral:  that  is, 
God  over  all.  He  proved  he  was  God  the  Son,  from  the  New  Testament  —  verily, 
verily  I  am  he;  that  is,  Veral  I,  Veral  I,  I  am  he.  Now,  if  these  letters,  written 
to  me,  which  I,  from  curiosity,  have  preserved,  but  upon  which  I  have  taken  no 
step,  and  to  which  I  have  given  no  answer,  are  produced  against  me,  I  do  not 
know  what  may  become  of  me. 

L.  C.  J.  Eyre.  —  If  you  can  treat  all  the  letters  that  have  been  found  upon 
you  with  as  much  success  as  you  have  these  letters  of  your  correspondent,  you 
will  have  no  great  reason  for  apprehension,  even  if  that  letter  should  be 
brought  against  you. 

275.   FAIRLIE  v.   DENTON 

Nisi  Prius.     1828 

?,C.  &  P.  103 

Money  had  and  received.  Plea  —  General  issue.  The  plaintiff 
had  sent  a  letter  to  the  defendants,  demanding  a  sum  of  money  as  due  to 


406  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  275 

him.  But  no  answer  had  been  returned  bj  the  defendants.  The 
plaintiff's  counsel  called  for  the  letter  under  a  notice  to  produce,  with  a 
view  to  reading  it  in  evidence,  as  a  part  of  their  case. 

Scarlett,  A.  G.,  for  the  defendants,  objected  ...  an  answered 
letter,  written  by  the  plaintiff,  was  not  evidence  in  his  own  favour;  for 
otherwise  a  party  would  only  have  to  write  a  letter  to  make  evidence 
for  himself. 

F.  Pollock,  contra.  Certain  things  are  stated  in  this  letter,  which  the 
defendants  might  deny  by  answering  it;  and  I  submit  that  it  is  evidence, 
exactly  the  same  as  w4iat  is  said  verbally  in  the  presence  of  a  defendant 
is  evidence  against  him,  though  he  may  make  no  answer. 

L.  C.  J.  Tenterden.  —  I  am  slow  to  admit  that.  What  is  said  to  a 
man  before  his  face,  he  is  in  some  degree  called  on  to  contradict,  if  he  does 
not  acquiesce  in  it.  But  the  not  answering  a  letter  is  quite  different; 
and  it  is  too  much  to  say  that  a  man,  by  omitting  to  answer  a  letter, 
at  all  events  admits  the  truth  of  the  statements  that  letter  contains.  .  .  . 
You  may  have  that  single  line  read,  in  which  the  plaintiff  makes  a  demand 
of  a  certain  amount,  but  not  any  other  part  which  states  any  supposed 
fact  or  facts. 

276.   MATTOCKS   v.  LYMAN 

Supreme  Court  of  Vermont.     1844 

16  Vt.  113 

Assumpsit.  The  declaration  set  forth  in  substance,  in  several  counts, 
that  the  plaintiff  and  defendants  entered  into  an  agreement,  by  which 
the  defendants  were  to  furnish  money,  and  the  plaintiff  was  to  purchase 
wool  for  them,  which  the  defendants  were  to  sell,  and,  if  the  profits 
exceeded  $200,  to  pay  to  the  plaintiff  for  his  services  one  half  of  the 
amount  of  profits,  —  but  if  they  were  less  than  that  sum,  then  to  pay 
the  plaintiff  one  third;  and  the  plaintiff  averred  that  the  money  had 
been  furnished  and  the  wool  purchased,  as  agreed,  and  that  the  defendants 
had  sold  the  same  at  a  profit,  but  had  refused  to  pay  to  the  plaintiff 
his  share.  The  declaration  also  contained  counts  in  indeb.  assumpsit 
for  work  and  labor,  goods  sold  and  delivered,  and  the  money  counts. 
The  defendants  pleaded  the  general  issue,  and  also  a  plea  in  set-off. 
Trial  by  jury. 

The  plaintiff,  to  prove  the  allegations  in  his  declaration,  introduced 
one  Bradley  as  a  witness,  who  testified  that,  at  the  request  of  the  plaintiff, 
he  called  with  him  at  the  defendants'  store,  and  that  the  plaintiff  stated 
to  the  defendant  Lyman  the  terms  of  the  contract,  as  set  forth  in  the 
declaration,  and  said  he  was  informed  that  the  wod  had  b^en  sold  for 
a  price  which  would  entitle  him  to  one-half  of  the  profits,  and  demanded 
said  proportion,  —  and  that  Lyman's  only  reply  was,  that  he  was  ready 
to  settle  with  him,  plaintiff;    but  that  they  did  not  owe  him  anything, 


No.  276        TESTIMONIAL  EVIDENCE:     PARTY'S    ADMISSIONS  407 

but  that  he,  plaintiff,  owed  them.  .  .  .  The  defendants,  under  their 
plea  in  offset,  gave  in  evidence  a  note  for  .|25,  which  they  held  against 
the  plaintiff.  The  defendants  requested  the  Court  to  charge  the  jury,  — 
1 .  That  the  evidence  was  insufficient  to  entitle  the  plaintiff  to  recover.  .  .  . 

The  jury  were  also  told  that  the  testimony  of  Bradley  was  competent 
evidence,  as  tending  to  prove,  by  an  implied  admission  on  the  part  of  the 
defendant  Lyman,  that  the  contract  was  as  claimed  by  the  plaintiff;  — 
but  that  its  weight  must  depend  upon  the  circumstances  attending  it, 
of  which  they  were  judges.  .  .  .  The  jury  returned  a  verdict  for  the 
plaintiff.     Exceptions  by  defendants. 

C.  D.  Kasson,  for  defendants.  .  .  .  The  testimony  of  the  witness 
Bradley  was  not  evidence  even  tending  to  prove  a  special  contract. 
No  inference  of  any  admission  of  the  correctness  of  the  plaintiff's  claim 
can  legally  be  drawn  from  it.  .  .  . 

Maeck  and  Smalley,  for  plaintiff. 

The  opinion  of  the  Court  was  delivered  by 

Redfield,  J.  .  .  .  The  most  important  practical  question,  by  far, 
discussed  in  the  case,  remains  to  be  determined.  It  seems  to  have  been 
generally  considered  that  all  conversation  had  in  the  presence  of  a  party, 
in  regard  to  the  subject  of  litigation,  might  properly  be  given  in  evidence 
to  the  jury.  But  in  Vail  v.  Strong,  10  Vt.  457,  and  in  Gle  v.  Lincoln,  11 
Vt.  152,  some  qualification  of  this  rule  is  established.  It  is  there  held, 
that  unless  a  claim  is  asserted  by  the  claimant  or  his  agent,  and  distinctly 
made  to  the  party,  and  calling  naturally  for  a  reply,  mere  silence  is  no 
ground  of  inference  against  one.  And  we  think  even  in  such  a  case  that 
mere  silence  ought  not  to  conclude  a  party,  unless  he  thereby  induces  a 
party  to  act  upon  his  silence  in  a  manner  different  from  what  he  other- 
wise would  have  acted. 

There  are  many  cases  of  this  character  when  one's  silence  ought  to 
conclude  him.  But  when  the  claim  is  made  for  the  mere  purpose  of 
drawing  out  evidence,  as,  in  the  present  case,  it  is  obvious  must  have 
been  the  fact,  or  when  it  is  in  the  way  of  altercation,  or,  in  short,  unless 
the  party  asserting  the  claim  does  it  with  a  view  to  ascertain  the  claim 
of  the  person  upon  whom  he  makes  the  demand,  and  in  order  to  know 
how  to  regulate  his  own  conduct  in  the  matter,  and  this  is  known  to  the 
opposite  party,  and  he  remains  silent,  and  thereby  leads  the  adversary 
astray,  mere  silence  is,  and  ought  to  be,  no  ground  of  inference  against 
any  one.  The  liabilities  to  misapprehension,  or  misrecollection,  or 
misrepresentation  are  such,  that  this  silence  might  be  the  only  security. 
To  say,  under  such  a  dilemma,  that  silence  shall  apply  assent  to  all 
which  an  antagonist  may  see  fit  to  assert,  would  involve  an  absurdity  little 
less  gross  than  some  of  the  most 'extravagant  caricatures  of  this  caricature 
loving  age.  With  some  men,  perhaps,  silence  would  be  some  ground  of 
inferring  assent,  and  with  others  none  at  all.  The  testimony  then  would 
depend  upon  the  character  and  habits  of  the  party,  —  which  would  lead 
to  the  direct  trial  of  the  parties  instead  of  the  case. 


408  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  276 

It  is  true,  when  a  claim  is  the  subject  of  conversation  in  the  hearing 
of  a  party  against  whom  the  claim  is  made,  and  he  takes  any  part  in 
such  conversation,  the  whole  evidence  must  go  to  the  jury;  for,  by 
consenting  to  enter  into  the  conversation,  he  thereby  makes  his  declara- 
tions upon  the  subject  evidence,  if  his  adversary  sees  fit  to  avail  himself 
of  them,  —  and  by  consenting  to  make  any  declaration  in  regard  to  the 
matter,  he  thereby  puts  the  matter  upon  a  much  stronger  ground  against 
him  than  would  mere  silence.  But  even  in  such  a  case  the  jury  should 
be  told,  in  the  charge  of  the  Court,  that  neither  his  declarations,  nor  his 
silence,  are  to  be  construed  into  an  implied  admission  of  facts  beyond 
the  scope  of  the  declarations  themselves. 

In  the  present  case  the  declarations  of  the  defendant.  Cole,  were  a 
virtual  denial  of  the  claim  made  upon  them  by  the  plaintiff.  .  .  .  The 
declaration  or  the  silence  of  Cole  had  no  tendency  to  prove  an  admission 
of  the  plaintiff's  claim. 

We  understand  the  English  cases,  in  regard  to  admissions  implied 
from  silence,  to  go  no  farther  than  we  now  decide,  although  it  is  true 
the  dicta  of  many  of  the  elementary  writers  go  farther.  The  cases  cited 
in  Starkie's  Evidence,  2d  vol.,  p.  26,  to  support  the  general  proposition 
that  a  presumption  may  be  made  of  an  admission  of  a  party  from  acquies- 
cence, or  silence,  are  all  where  the  party  lies  by,  during  the  exercise  of  a 
right  interfering  with  his  claim,  or  where  the  party,  by  his  silence,  has 
led  another  into  a  mistake,  which  amounts  to  a  virtual  fraud,  unless  he 
were  to  abide  by  his  silence.  Steele  v.  Prickett,  2  Stark.  R.  463  (3  E.  C. 
L.  490);  Doe  v.  Allen,  3  Taunt.  78;  Duncan  v.  Scott,  1  Camp.  100. 
They  are  cases  of  acquiescence  in  the  conduct  of  a  party  based  upon 
that  acquiescence,  rather  than  of  silence  under  the  mere  assertion  of  a 
claim,  and  when  denial  could  be  of  no  avail,  but  to  lead  to  altercation. 
In  this  latter  class  of  cases,  I  have  not  been  able  to  find  any  decision 
justifying  the  presumption  of  admission  from  silence  mereh'. 

Judgment  reversed  and  cause  remanded  for  a  new  trial. 


277.   COMMONWEALTH  v.   KENNEY 

Supreme  Judicial  Court  of  Massachusetts.     1847 

12  Mete.  235 

Larceny  of  a  bag  of  money.  .  .  .  John  S.  Brewer  was  called  by  the 
attorney  for  the  Commonwealth,  and  testified  that  he  was  in  one  of  the 
watch  houses,  in  Boston,  between  eleven  and  twelve  o'clock  in  the  evening 
of  September  5,  1846,  and  that  while  he  was  there  two  of  the  watchmen 
of  the  city,  having  the  defendant  in  custody,  came  in;  that  one  of  the 
watchmen  said,  "here  is  a  man  that  has  been  robbing  a  man;"  that 
presently  Russell,  the  person  named  in  the  indictment  as  having  been 
robbed,  came  in  crying,  and  said,  "  that  man, "  pointing  to  the  defendant. 


No.  277        TESTIMONIAL    EVIDENCE:     PARTY'S  ADMISSIONS  409 

"has  stolen  my  money;"  .  .  .  that  the  witness  .  .  .  saw  a  bag,  which 
he  took  up,  and  thereupon  said,  "here  is  the  bag;"  the  defendant  then 
being  on  the  stairs,  going  down  cellar,  and  within  hearing;  that  Russell 
immediately  said,  "that  is  my  bag;"  that  Baxter  then  took,  the  bag, 
and  counted  the  money  in  it;  and  that  while  Baxter  was  counting  the 
money  —  the  defendant  then  standing  in  the  watch  house  —  Russell 
said,  "  that  was  all  the  money  I  had  in  the  world; "  and  that  the  defendant 
made  no  reply  to  any  of  the  aforesaid  declarations.  .  .  . 

The  defendant's  counsel  objected  to  the  admission  of  the  declarations 
of  Russell,  on  the  ground  that  the  testimony  of  Russell  himself  was  the 
best  evidence,  and  that  the  defendant  was  entitled  to  it,  and  to  the  right 
of  cross-examining  him.  The  judge  admitted  the  declarations  of  Russell, 
as  above  reported.  The  defendant  was  found  guilty,  by  the  jury,  and 
alleged  exceptions. 

W.  H.  Whitman,  for  the  defendant.  S.  D.  Parker,  for  the  common- 
wealth. 

Shaw,  C.  J.  — The  defendant  was  indicted  for  stealing  money  and 
a  bag,  the  property  of  Barzillai  Russell,  from  the  person  of  said  Russell. 
The  averment  of  the  fact  of  stealing,  and  that  the  money  was  the  property 
of  Russell,  were  material  averments.  Russell  was  not  called  as  a  witness, 
doubtless  because  he  could  not  be  found.  But  evidence  was  offered  to 
show  that  declarations  were  made  at  the  watch  house,  by  Russell,  in  the 
presence  and  hearing  of  the  defendant,  in  regard  to  the  theft,  to  which 
the  defendant  made  no  reply.  This  evidence  was  objected  to  by  the 
defendant,  but  was  admitted  by  the  Court;  and  this  is  the  ground  of 
exception.  .  .  . 

The  evidence,  if  competent  at  all,  was  competent  on  the  ground  of 
admission  by  the  defendant,  which,  though  often  slight  as  to  weight,  is 
not  secondary. 

But  on  another  ground,  we  take  a  different  view  of  the  admissibility 
of  the  evidence,  depending  on  the  question  whether  the  statements  of 
Russell  in  the  hearing  of  the  defendant,  and  the  silence  of  the  latter,  do 
amount  to  a  tacit  admission  of  the  facts  stated.  It  depends  on  this: 
If  a  statement  is  made  in  the  hearing  of  another,  in  regard  to  facts  affect- 
ing his  rights,  and  he  makes  a  reply,  wholly  or  partially  admitting  their 
truth,  then  the  declaration  and  the  reply  are  both  admissible;  the  reply, 
because  it  is  the  act  of  the  party,  who  will  not  be  presumed  to  admit  any- 
thing affecting  his  own  interest,  or  his  own  rights,  unless  compelled  to  it 
by  the  force  of  truth;  and  the  (IccJarafion,  because  it  may  give  meaning 
and  effect  to  the  reply.  ...  In  some  cases,  where  a  similar  declaration 
is  made  in  one's  hearing,  and  he  makes  no  reply,  it  may  be  a  tacit  admis- 
sion of  the  faqts.  But  this  depends  on  two  facts:  first,  whether  he  hears 
and  understands  the  statement,  and  comprehends  its  bearing;  and 
secondly,  whether  the  truth  of  the  facts  embraced  in  the  statement  is 
within  his  own  knowledge,  or  not;  whether  he  is  in  such  a  situation  that 
he  is  at  liberty  to  make  any  reply;   and  whether  the  statement  is  made 


410  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  277 

under  such  circumstances,  and  by  such  persons,  as  naturally  to  call  for  a 
reply,  if  he  did  not  intend  to  admit  it.  If  made  in  the  course  of  any 
judicial  hearing,  he  could  not  interfere  and  deny  the  statement;  it  would 
be  to  charge  the  witness  with  perjury,  and  alike  inconsistent  with  decorum 
and  the  rules  of  law.  So,  if  the  matter  is  of  something  not  within  his 
knowledge;  if  the  statement  is  made  by  a  stranger,  whom  he  is  not  called 
on  to  notice;  or  if  he  is  restrained  by  fear,  by  doubts  of  his  rights,  by  a 
belief  that  his  security  will  be  best  promoted  by  his  silence;  then  no 
inference  of  assent  can  be  drawn  from  that  silence.  Perhaps  it  is  within 
the  province  of  the  judge,  who  must  consider  these  preliminary  questions 
in  the  first  instance  to  decide  ultimately  upon  them.  .  .  . 

The  circumstances  were  such,  that  the  Court  are  of  opinion  that  the 
declaration  of  the  party  robbed,  to  which  the  defendant  made  no  reply, 
ought  not  to  have  been  received  as  competent  evidence  of  his  admission, 
either  of  the  fact  of  stealing,  or  that  the  bag  and  money  were  the  property 
of  the  party  alleged  to  be  robbed.  The  declaration  made  by  the  officer, 
who  first  brought  the  defendant  to  the  watch  house,  he  had  certainly  no 
occasion  to  reply  to.  The  subsequent  statement,  if  made  in  the  hearing 
of  the  defendant  (of  which  we  think  there  was  evidence),  was  made  whilst 
he  was  under  arrest,  and  in  the  custody  of  persons  having  official  authority. 
They  were  made,  by  an  excited,  complaining  party,  to  such  officers,  who 
were  just  putting  him  into  confinement.  If  not  strictly  an  official 
complaint  to  officers  of  the  law,  it  was  a  proceeding  very  similar  to  it, 
and  he  might  well  suppose  that  he  had  no  right  to  say  anything  until 
regularly  called  upon  to  answer. 

We  are  therefore  of  opinion  that  the  verdict  must  be  set  aside  and  a 

New  trial  granted. 


278.   PARULO  v.   PHILADELPHIA   &  READING  R.   CO. 

United  States  Circuit  Court,  Southern  District  of 
New  York.     1906 

145  Fed.  664 

Motion  by  defendant  to  set  aside  the  verdict  of  the  jury  in  favor  of 
the  plaintiff  and  for  a  new  trial,  on  the  grounds  that  the  verdict  is  contrary 
to  the  evidence  and  law  and  upon  the  exceptions  taken  upon  the 
trial. 

Thomas  J.  O'Neill,  for  plaintiff.     Pierre  M.  Brown,  for  defendant. 

Ray,  District  Judge.  —  This  action  has  been  twice  tried.  On  the 
first  trial  the  jury  disagreed.  On  the  second  trial  the  jury  found  a  verdict 
for  the  plaintiff  in  the  sum  of  S2,000.  On  the  evening  of  November  7, 
1902,  the  plaintiff,  who  was  working  as  a  stone  mason  at  a  place  called 
"Rock  Hill,"  a  few  miles  north  of  Perkasie,  a  station  on  defendant's 
railroad,  being  at  Perkasie  and  desiring  to  go  to  his  home,  and  having 


No.  278         TESTIMONIAL    EVIDENCE:     PARTY'S    ADMISSIONS  411 

five  pounds  of  meat  in  a  package,  went  down  to  the  station.  He  claims 
that  as  he  arrived  close  to  the  station  he  found  a  freight  train  at  a  stand- 
still, with  the  engine  near  the  water  tank  a  short  distance  above  and 
north  of  the  station,  the  cars  extending  for  some  distance  to  the  south  of 
it;  that  he  clambered  up  the  side  and  to  the  top  of  the  car  some  three  or 
four  cars  back  and  to  the  south  of  the  engine,  and  seated  himself  on  the 
front  end  of  the  car,  with  his  feet  hanging  down  between  it  and  the  one 
next  in  front.  He  claims  that  a  few  seconds  after  he  had  so  seated 
himself  the  train  started  on  north,  and  that  it  had  proceeded  but  a  few 
hundred  feet  when  a  man  with  a  lantern,  whom  he  does  not  claim  to 
recognize,  came  up  behind  him,  and  told  him,  "Get  off  the  train.  I 
told  him  a  couple  of  times  'Wait  until  the  train  stops.'  He  said,  'You 
won't  get  off,  you  son  of  a  bitch.'  I  said,  'wait  until  the  train  stops,' 
and  he  kicked  me  right  off  between  the  two  cars."  .  .  .  One  foot  was 
crushed  partially  off,  and  the  other  wholly  severed.  .  .  .  The  engineer, 
fireman,  and  conductor  say  they  were  on  the  engine  or  tender,  and  that 
the  brakeman  was  there  also,  as  they  passed  Perkasie,  and  that  the 
flagman  was  in  the  top  of  the  caboose  at  the  rear  end  of  the  train.  They 
all  say  they  did  not  see  any  one  on  the  train  except  this  crew,  and  did 
not  push  or  kick  any  one  off. 

The  contention  was  and  is  that  the  plaintifif  did  not  furnish  any 
evidence  that  any  employe  of  defendant  on  that  train  either  pushed  or 
kicked  him  off;  that  there  is  no  evidence  to  sustain  such  a  finding,  or  to 
justify  the  Court  in  submitting  the  question  to  the  jury.  ...  It  was  a 
fair  question  of  fact  for  the  jury  whether  or  not  this  brakeman  kicked 
the  plaintiff  off  the  train  when  it  was  in  motion  at  the  place  in  question. 

The  defendant  excepted  to  the  ruling  of  the  Court  sustaining  objec- 
tions to  certain  questions  put  to  Dr.  Williams  and  to  the  witness  Levi 
Texter.  After  the  accident  and  the  finding  of  the  plaintiff  he  was  taken 
into  a  freight  car  —  one  on  a  siding.  Dr.  W  illiams,  the  local  physician 
of  the  defendant,  was  sent  for,  and  he  saw  the  plaintiff.     He  says : 

"Part  of  one  foot  was  cut  off,  and  the  other  was  cut  off  near  the  heel.  It 
was  smashed.  .  .  .  He  was  not  unconscious  at  any  time  when  I  saw  him.  At 
no  time.  ...  It  was  a  dangerous  wound;  if  not  attended  to  properly  it  would 
be  fatal.  He  seemed  to  be  suffering  great  pain.  Q.  —  Did  yon  have  any  con- 
versation direct  with  him  yourself  while  he  was  there  in  the  railroad  station? 
A.  —  I  made  an  effort  to,  but  I  could  not  get  anything  out  of  him  one  way  or 
the  other  for  a  long  time,  and  the  section  hands,  I  asked  them  to  ask  him,  and 
he  said  something  to  them  and  they  told  me.  Q.  —  You  did  not  talk  directly 
to  him  yourself,  did  you?  A. — No,  sir.  Q. — You  cannot  speak  Italian? 
A.  —  No,  sir;  the  section  hands  were  Italians.  .  .  .  Q. — Then  after  you  had 
asked  the  sectionman  to  ask  the  plaintiff  how  the  accident  occurred,  did  the  sec- 
tionman  talk  to  the  plaintiff  in  Italian?  A.  —  I  do  not  know  what  he  talked. 
He  talked  something.  I  cannot  tell  you  what  it  was.  He  did  not  talk  English, 
I  know  that.  Q.  —  He  said  something  to  him?  A.  — Yes,  sir.  Q.  —  Did  the 
plaintiff  say  something  to  the  sectionman  after  that?     A.  —  The  sectionman; 


412  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  278 

yes,  sir.  Q. — ^Did  the  sectionman  then  say  something  to  you?  A. — Yes. 
Q.  —  What  did  the  sectionman  say  to  you?  Was  this  in  the  presence  of  the 
plaintiff?     A.  —  Yes.     Q.  —  Wliat  did  the  sectionman  say  to  you?" 

This  was  objected  to  as  incompetent,  irrelevant,  and  immaterial, 
and  plaintiff's  counsel  said:  "I  suppose  the  theory  upon  which  it  is 
offered  is  that  this  sectionman  is  supposed  to  have  correctly  interpreted 
what  he  told  him."  To  this  defendant's  counsel  by  silence  assented. 
The  Court:  "  You  mean  there  is  no  proof  that  the  sectionman  understood 
what  was  said  to  him?"  Plaintiff's  Counsel:  "Yes."  The  Court:  "Or 
that  this  man  stated  correctly  what  he  said?"  Plaintiff's  Counsel: 
"Absolutely."  The  Court  then  sustained  the  objection.  Defendant's 
Counsel:  "Do  you  admit  that  the  plaintiff  understood  English  to  any 
extent?"  Plaintiff's  Counsel:  "No,  I  do  not  know  how  much  English 
he  spoke."  Defendant's  counsel  then  excepted.  At  this  time  there  was 
no  evidence  before  the  Court  that  the  plaintiff'  could  speak  or  understand 
a  word  of  English.  .  .  . 

A.  M.  Sperry  was  then  called  by  the  defendant,  and  he  said  that  on 
the  Monday  following  the  accident  he  went  to  the  hospital,  and  talked 
with  the  plaintiff  in  English,  and  he  understood  plaintiff  and  plaintiff 
seemed  to  understand  him.  "  I  asked  him  first  where  he  lived,  and  all 
about  him,  and  he  told  me  he  worked  in  a  stone  crusher  at  Rock  Hill,  and 
he  had  been  down  to  Perkasie,  and  was  getting  back,  and  walking  up 
along  the  railroad,  and  he  stopped  to  light  his  pipe,  and  the  wind  blew 
him  under  the  train."  Says  his  talk  with  the  plaintiff  was  just  long 
enough  for  him  to  tell  him  (witness)  that.  .  .  .  These  Italian  section- 
men  were  not  produced.  Their  absence  was  attempted  to  be  accounted 
for  by  the  statement  of  a  witness  that  they  left  the  employment  of  de- 
fendant in  July  after  the  accident,  stating  they  were  going  to  Italy. 
It  is  now  claimed  that  it  was  error  to  reject  the  statement  of  the  section- 
man  made  to  Dr.  Williams  in  the  presence  of  the  plaintiff  when  he  lay 
in  the  condition  described,  and  under  the  circumstances  described,  as 
his  silence  might  be  considered  as  an  acquiescence  in  that  statement. 

It  is  not  everything  that  is  said  in  the  presence  of  a  party  to  a  litigation 
in  reference  to  the  subject-matter  thereof  that  may  be  given  in  evidence 
against  him  when  he  remains  silent,  and  his  silence  is  relied  upon  as  an 
implied  admission  of  the  truth  or  correctness  of  the  statement.  If  the 
party  in  whose  presence  the  statement  was  made  was  physically  and 
mentally  able  to  hear  and  understand,  and  sufhcientl}'  near  to  hear,  and 
the  statement  was  of  a  character  that  would  under  the  circumstances 
naturally  call  upon  him  for  a  denial  or  qualification  if  untrue,  and  he 
was  at  liberty  to  deny  or  qualify,  then  it  may  be  given  in  evidence  against 
him;  otherwise,  not.  Schilling  v.  Union  R.  Co.  of  N.  Y.  C,  77  App. 
Div.  74,  78  N.  Y.  Supp.  1015;  Commonwealth  v.  Kenney,  12  Mete. 
235  [ante,  No.  277];  People  v.  Koerner,  154  N.  Y.  357,  374,  375;  Lanergan 
V.  People,  39  N.  Y.  41;    1  Greenleaf  on  Evidence  (15th  Ed.),  §  197;   2 


No.  279         TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  413 

Wigmore  on  Evidence,  §  1071.  .  .  .  Whether  the  circumstances  are 
such  as  to  call  for  a  reply  is  a  preliminary  question  for  the  Court.  .  .  , 

Applying  these  rules  to  the  case  now  before  the  Court,  it  is  evident 
that  the  statement  made  by  the  sectionman,  whose  ability  to  understand 
English  and  whose  plainness  of  speech  in  English  were  not  disclosed, 
under  tlie  circumstances  of  this  case  was  not  proper  to  go  to  the  jury, 
and  was  properly  excluded.  Within  a  very  short  time  before  the  state- 
ment was  made  in  his  presence  both  feet  had  been  crushed  off.  The 
shock  was  great,  and  he  was  exhausted  from  great  pain  and  loss  of  blood. 
The  doctor  was  unable  to  get  anything  from  him.  It  was  with  great 
difficulty  and  only  after  repeated  efforts  that  they  ascertained  his  name. 
There  was  no  shadow  of  evidence  that  he  heard  or  paid  any  attention 
to  what  this  sectionman  said  to  the  doctor.  Clearly,  "no  reasonable 
inference  of  acquiescence  could  be  drawn  from  the  silence"  of  the  plaintiff 
under  the  circumstances  proved  by  the  witnesses  and  not  disputed. 
Under  such  circumstances,  it  cannot  be  properly  presumed  or  inferred, 
or  even  reasonably  supposed,  that  he  listened  or  paid  attention  to,  much 
less  understood  or  comprehended,  what  was  said  to  the  doctor  by  this 
Italian  laborer,  who  soon  thereafter  left  for  Italy,  assuming  he  did,  and 
whose  knowledge  of  and  ability  to  speak  English  must  have  been  imper- 
fect. If  the  plaintiff  could  not  understand  the  English  of  the  doctor,  is 
it  reasonable  to  suppose  he  understood  that  of  this  Italian  sectionman 
who  was  speaking  to  the  doctor  and  not  to  him?  The  case  is  within  and 
governed  by  the  Schilling  Case  and  the  Koerner  Case  cited,  as  well  as 
by  the  general  rule  laid  down  by  Greenleaf  and  Elliott,  supra.  .  .  . 

As  there  was  no  prejudicial  error,  the  motion  for  a  new  trial  is  denied. 


279.   WIEDEMANN  v.   WALPOLE 

Queen's  Bench.     1891 

L.  R.  1891,  2  Q.  B.  534 

Motion  to  enter  judgment  for  the  defendant  on  one  of  the  issues  in 
an  action  tried  before  Pollock,  B.,  and  a  jury.  The  action  was  brought 
to  recover  damages  for  the  breach  of  the  defendant's  promise  to  marry 
the  plaintiff;  to  recover  damages  for  libel,  and  to  recover  the  amount  of 
expenses  incurred  by  the  plaintiff  in  making  certain  journeys  at  the 
defendant's  request.  The  defendant  pleaded  a  denial  of  the  promise  to 
marry,  and  of  the  libel,  and  further,  that  the  occasion  of  publishing  the 
alleged  libel  was  privileged.  .  .  . 

The  plaintiff  produced  at  the  trial  copies  of  letters  written  by  her  to 
the  defendant  subsequently  to  her  meeting  with  his  mother,  the  first  being 
a  letter  of  November  27,  18S2,  written  from  the  hotel  at  Cannes,  in  which 
letters  she  stated  that  he  had  promised  to  marry  her.  The  plaintiff  also 
produced  a  copy  of  a  letter,  dated  January  3,  1883,  and  written  to  the 


414  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  279 

defendant  by  her  brother-in-law,  a  burgomaster  of  Nordhausen.  This 
letter  contained  no  reference  to  the  alleged  promise  of  marriage,  but 
asked  the  defendant  to  communicate  his  intentions  and  resolutions  for 
the  future  of  the  plaintiff  as  soon  as  possible,  and  said  that  the  defendant 
must  have  considered  that  the  compromised  honor  of  the  family  could 
not  be  received  without  further  explanation.  The  plaintiff  further 
produced  a  copy  of  a  letter  written  to  the  defendant  about  February  3, 
1884,  by  the  pastor  of  the  German  Church  at  Sydenham,  asking  the  de- 
fendant whether  he  intended  to  fulfil  his  promise  to  marry  the  plaintiff, 
and  threatening  that  the  writer  would  see  by  means  of  the  law  and  the 
press  that  justice  was  done  to  his  countrywoman. 

The  defendant  did  not  answer  any  of  these  letters.  ...  At  the  close 
of  the  plaintiff's  case,  Pollock,  B.,  ruled  that  the  fact  of  the  defendant 
not  having  answered  the  letters  was  such  material  evidence  in  corrobora- 
tion of  the  promise  as  was  required  by  32  &  33  Vict.  c.  68,  s.  2,  and  declined 
to  enter  judgment  for  the  defendant  on  the  issue  of  breach  of  promise  of 
marriage.  The  defendant  was  called,  and  admitted  having  received 
the  letters,  and  that  the  copies  produced  were  substantially  correct. 
The  jury  found  a  general  verdict  for  the  plaintiff  for  300  £.  on  all  the  issues. 
The  defendant  now  moved  to  have  judgment  entered  for  himself  on  the 
issue  of  breach  of  promise  of  marriage. 

LocJavood,  Q.  C,  and  W.  Graham,  for  the  defendant.  The  letters  in 
question  were  not  evidence  in  corroboration  of  the  plaintiff's  testimony 
within  32  &  33  Vict.  c.  68,  s.  2,  which  provides  "  that  no  plaintiff  in  any 
action  for  breach  of  promise  of  marriage  shall  recover  a  verdict  unless 
his  or  her  testimony  shall  be  corroborated  by  some  other  material  evi- 
dence in  support  of  such  promise."  The  fact  that  a  man  does  not 
answer  a  letter  from  a  woman  alleging  that  he  has  promised  to  marry 
her  is  no  evidence  that  he  admits  the  allegation.  .  .  . 

Thomas  Terrell  (E.  F.  C.  Philips,  and  War  raker,  with  him),  for  the 
plaintiff.  The  defendant's  omission  to  answer  the  letters  was  some 
evidence  for  the  jury  of  corroboration.  It  is  for  the  jury  to  say  whether 
the  evidence  is  material.  .  .  . 

Lord  EsHER,  M.  R.  —  The  first  and  main  question  to  be  decided  in 
this  case  is  a  question  of  law,  and  I  shall  give  no  opinion  upon  any  other 
questions  in  dispute  between  the  parties.  The  point  of  law  is  whether 
in  such  a  case  as  this  —  where  nothing  has  happened  beyond  what  has 
happened  here  —  the  mere  fact  of  the  defendant  not  answering  any  of 
the  letters  which  have  been  brought  before  us  is  any  such  evidence  in 
corroboration  of  the  promise  to  marry  as  is  required  by  the  statute. 
We  have  not  to  determine  whether  or  not  a  promise  to  marry  was  given. 
That  was  a  question  for  the  jury.  The  question  for  us  is  whether, 
according  to  law,  the  fact  of  the  defendant  not  answering  the  letters  could 
be  taken  as  any  evidence  of  the  corroboration  required  by  the  statute.  .  .  . 

The  first  letter  put  forward  by  the  plaintiff's  counsel  is  one  written 
by  the  plaintiff  to  the  defendant,  in  which  she  states  in  effect  to  the 


No.  279         TESTIMONIAL    EVIDENCE:     PARTY'S   ADMISSIONS  415 

defendant  that  he  had  promised  to  marry  her.  He  did  not  answer  it. 
When  one  comes  to  think  what  is  meant  by  "not  answering  it,"  it  is 
impossible  to  see  how  that  could  be  any  evidence  in  corroboration  of  the 
promise  to  marry.  The  argument  that  it  was  such  evidence  must  be 
that  not  answering  was  an  admission  by  the  defendant  of  the  truth  of 
what  was  alleged  against  him  in  the  letter.  Now  the  allegation  in  the 
present  case  was  that  he  had  promised  to  marry  the  plaintiff.  Suppose, 
however,  the  letter  had  charged  against  him  some  grievous  offence  or 
misconduct,  and  the  writer  had  stated  that  unless  the  defendant  paid 
something  he  would  be  exposed.  The  argument,  if  true  at  all,  must  be 
that  by  not  answering  such  a  letter  the  man  who  receives  it  must  be 
taken  to  admit  that  he  is  guilty  of  the  charges  contained  in  it.  Now 
there  are  cases  —  business  and  mercantile  cases  —  in  which  the  Courts 
have  taken  notice  that,  in  the  ordinary  course  of  business,  if  one  man  of 
business  states  in  a  letter  to  another  that  he  has  agreed  to  do  certain 
things,  the  person  who  receives  that  letter  must  answer  it  if  he  means  to 
dispute  the  fact  that  he  did  so  agree.  So,  where  merchants  are  in  dispute 
one  with  the  other  in  the  course  of  carrying  on  some  business  negotiations, 
and  one  writes  to  the  other,  "  but  you  promised  me  that  you  would  do 
this  or  that,"  if  the  other  does  not  answer  the  letter,  but  proceeds  with 
the  negotiations,  he  must  be  taken  to  admit  the  truth  of  the  statement. 
But  such  cases  as  those  are  wholly  unlike  the  case  of  a  letter  charging  a 
man  with  some  offence  or  meanness.  Is  it  the  ordinary  habit  of  mankind, 
of  which  the  Courts  will  take  notice,  to  answer  such  letters;  and  must 
it  be  taken,  according  to  the  ordinary  practice  of  mankind,  that  if  a  man 
does  not  answer  he  admits  the  truth  of  the  charge  made  against  him? 
If  it  were  so,  life  would  be  unbearable.  A  man  might  day  by  day  write 
letters,  which,  if  they  were  not  answered,  would  be  brought  forward  as 
evidence  of  the  truth  of  the  charges  made  in  them.  The  ordinary  and 
wise  practice  is  not  to  answer  them  —  to  take  no  notice  of  them.  Unless 
it  is  made  out  to  be  the  ordinary  practice  of  mankind  to  answer,  I  cannot 
see  that  not  answering  is  any  evidence  that  the  person  who  receives  such 
letters  admits  the  truth  of  the  statements  contained  in  them.  I  have, 
therefore,  no  doubt  that  the  mere  fact  of  not  answering  a  letter  stating 
that  the  person  to  whom  it  is  written  has  made  a  promise  of  marriage, 
is  no  evidence  whatever  of  an  admission  that  he  did  make  the  promise, 
and  therefore  no  evidence  in  corroboration  of  the  promise. 

I  do  not  say  there  may  not  be  circumstances,  occurring  in  a  corre- 
spondence between  a  man  and  woman,  which  would  or  might  make  the 
omission  to  answer  one  letter  in  the  correspondence  some  evidence  of  ar> 
admission  of  the  truth  of  the  statements  contained  in  the  letter.  There 
might  be  cases  in  which  the  Court  thought  that,  having  regard  to  the 
nature  of  the  correspondence  and  the  circumstances  of  it,  the  not  answer- 
ing one  letter  in  that  correspondence  did  amount  to  evidence  of  an 
admission;  but  this  is  not  one  of  those  cases.  Here  we  have  only  to 
say  whether  the  mere  fact  of  not  answering  the  letters,  with  nothing  else 


416  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  279 

for  us  to  consider,  is  any  evidence  in  corroboration  of  the  promise.  .  .  . 
I  am  of  opinion  that  there  was  no  evidence  of  the  corroboration  of  the 
promise  to  marry  required  by  the  statute.  The  judge,  therefore,  ought 
to  have  non-suited  the  plaintiff  with  respect  to  her  claim  for  damages  for 
breach  of  promise  of  marriage,  and  upon  that  issue  there  should  be 
judgment  for  the  defendant. 

BowEN,  L.  J.  —  It  seems  to  me  that,  with  respect  to  the  question  of 
law  for  our  decision  in  this  case,  the  matter  admits  of  no  doubt.  It 
would  be  a  monstrous  thing  if  the  mere  fact  of  not  answering  a  letter 
which  charges  a  man  with  some  misconduct  was  held  to  be  evidence  of  an 
admission  by  him  that  he  had  been  guilty  of  it.  There  must  be  some 
limitation  placed  upon  the  doctrine  that  silence  when  a  charge  is  made 
amounts  to  evidence  of  an  admission  of  the  truth  of  the  charge.  The 
limitation  is,  I  think,  this:  Silence  is  not  evidence  of  an  admission, 
unless  there  are  circumstances  which  render  it  more  reasonably  probable 
that  a  man  would  answer  the  charge  made  against  him  than  that  he 
would  not.  That  appears  to  me  good  sense,  and  it  is  in  substance  the 
principle  laid  down  by  Willes,  J.,  in  Richards  v.  Gellatly,  Law  Rep. 
7C.  P.  127,  p.  131.     He  says: 

"It  seems  to  have  been  at  one  time  thought  that  a  duty  was  cast  upon  the 
recipient  of  a  letter  to  answer  it,  and  that  his  omission  to  do  so  amounted  to 
evidence  of  an  admission  of  the  truth  of  the  statements  contained  in  it.  But 
that  notion  has  been  long  since  exploded,  and  the  absurdity  of  acting  upon  it 
demonstrated.  It  may  be  otherwise  where  the  relation  between  the  parties  is 
such  that  a  reply  might  be  properly  expected."  .  .  . 

Kay,  L.  J.:  The  plaintiff's  counsel  relies  upon  various  matters  as 
evidence  which  corroborated  the  plaintiff's  testimony  that  the  defendant 
promised  to  marry  her.  ...  I  agree  with  what  has  been  said  by  the  rest 
of  the  Court  in  this  respect,  and  I  think  that  the  proper  course  which  the 
learned  judge  at  the  trial  ought  to  have  taken  was  to  say  that  the  plain- 
tiff's evidence  with  respect  to  the  promise  had  not  been  materially 
corroborated  in  such  a  way  that  there  was  anything  left  to  go  to  the  jury 
on  the  issue  of  breach  of  promise  of  marriage. 

Motion  granted  accordingly. 


280.   RUDD  V.   ROBINSON 

Court  of  Appeals  of  New  York.     1891 

126  A^  y.  113 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  upon  an  order  made  May  7,  1889, 
which  denied  a  motion  for  a  new  trial  made  upon  a  case  and  exceptions 
under  §  1001  of  the  Code  of  Civil  Procedure,  and  which  modified  and 


No.  280         TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  417 

affirmed  as  modified  a  judgment  in  favor  of  plaintiff  entered  upon  a 
decision  of  tfie  Court  on  trial  at  Special  Term. 

Thomas  Darlington,  for  appellant.  The  exception  to  the  admission 
as  evidence  of  the  books  of  account  of  the  Goodwillie-Wyman  Company 
was  well  taken.  .  .  . 

Benjamin  F.  Blair,  for  respondent.  The  account-books  of  the  Good- 
willie-Wyman Company  were  properly  recei\'ed  in  evidence.   .  .  . 

Earl,  J.  —  The  plaintiff  is  recei\er  of  the  Goodwillie-Wyman  Com- 
pany, an  insoh^ent  manufacturing  corporation  organized  under  the  laws 
of  this  State.  The  action  was  brought  in  equity  to  charge  the  defendant 
as  a  trustee  of  the  corporation  for  the  unlawful  receipt  and  appropriation 
of  its  money  and  property.  An  interlocutory  judgment  was  rendered 
against  him  charging  him  with  a  large  amount  of  money  thus  improperly 
received,  and  appropriated.  The  liability  of  the  defendant  for  this  money 
was,  in  the  main,  established  by  the  account-books  of  the  corporation, 
and  the  principal  contention  on  his  behalf  upon  this  appeal  is  that  those 
books  were  improperly  received  as  evidence  against  him. 

The  capital  of  the  corporation  was  S50,000,  of  which  Robinson, 
Briggs  and  Innet,  three  of  the  directors,  owned  $1,000  each;  and  the 
balance  of  the  stock  was  owned  by  Fisk  and  Goodwillie,  the  two  other 
directors.  Goodwillie  was  president,  Fisk  treasurer,  and  Briggs  vice- 
president  and  secretary  of  the  corporation.  There  was  no  proof  that 
the  defendant  had  actual  knowledge  of  the  entries  contained  in  the  books 
which  were  used  as  evidence  against  him,  or  that  he  authorized  such 
entries  or  caused  them  to  be  made.  There  was  no  proof  from  which 
the  law  would  raise  a  legal  presumption  that  he  had  knowledge  of  the 
entries,  unless  he  is  chargeable  with  such  knowledge  from  the  mere  fact 
that  he  was  a  stockholder  and  trustee  of  the  corporation. 

There  is  no  rule  of  law  which  charges  a  director  or  stockholder  or 
corporation  with  actual  knowledge  of  its  business  transactions  merely 
because  he  is  such  director  or  stockholder.  In  this  case  the  broad  claim 
is  made  that  in  an  action  by  a  corporation  against  one  of  its  members  to 
enforce  a  personal  liability  to  the  corporation,  its  books  are  competent 
evidence  against  him,  to  show  the  condition  of  the  accounts  between 
him  and  it  and  to  establish  the  extent  of  his  liability  to  it,  upon  their 
simple  production  and  proof  that  they  are  the  books  of  the  corporation 
kept  as  such  by  its  officers  and  agents.  The  proposition  is  thus  an- 
nounced in  the  points  of  the  learned  counsel  for  the  plaintiff:  "BetAveen 
a  corporation  and  its  members  all  its  books  regularly  kept  by  its  officers 
and  agents  for  the  purpose  of  recording  its  transactions  and  properly 
conducting  its  business  are  per  se  evidence." 

The  cases  reported  in  this  country  and  England  bearing  upon  this 
question  are  very  numerous,  and  the  general  expressions  of  judges  con- 
tained in  their  opinions  are  not  entirely  harmonious.  The  conflict, 
however,  is  mainly  in  the  dicta  of  judges,  and  not  in  decisions  actually 
made.     The  books  of  corporations  for  many  purposes  are  evidence, 


418  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  280 

not  only  as  between  the  corporation  and  its  members,  and  between 
members,  but  also  as  between  the  corporation  or  its  members  and 
strangers.  They  are  received  in  evidence  generally  to  prove  corporate 
acts  of  a  corporation  such  as  its  incorporation,  its  list  of  stockholders, 
its  by-laws,  the  formal  proceedings  of  its  board  of  directors  and  its 
financial  condition  when  its  solvency  comes  in  question.  But  we  have 
not  been  able,  after  a  careful  examination  of  the  authorities  cited  by  the 
counsel  for  the  plaintiff,  and  many  others,  to  find  any  case  in  which  it  has 
been  decided  that  the  books  of  account  of  a  corporation  are  competent 
evidence,  of  themselves,  to  establish  an  account  or  claim  against  a  trustee 
or  stockholder  in  an  action  brought  in  behalf  of  the  corporation:  and  it 
has  been  repeatedly  said  by  judges  and  text  writers  that  they  are  not 
competent  for  that  purpose.  ...  In  Hill  v.  Manchester,  etc..  Water 
Works  Co.  (5  B.  &  Adol.  866),  by  a  clause  in  the  charter  of  the  defendant, 
it  was  enacted  that  its  clerks  should,  in  a  book  provided  by  the  company, 
keep  an  account  of  all  acts,  proceedings  and  transactions  of  the  company, 
and  that  every  proprietor  should  have  liberty  to  inspect  the  same  and 
take  copies  of  the  entries ;  and  it  was  held  that  entries  of  the  proceedings 
in  the  books  thus  kept  by  the  clerk  were  not  admissible  in  evidence  on 
behalf  of  the  company  against  one  of  their  own  members  suing  them. 
Denman,  Ch.  J.,  writing  the  opinion  and  speaking  of  certain  facts  to  be 
proved,  said: 

"These  points  of  fact,  however,  could  only  be  established  by  the  books  kept 
by  the  clerk  of  the  company;  and  the  question  now  to  be  decided  is  whether 
they  are  evidence  against  the  plaintiff.  It  is  argued  that  they  were  because  he 
was  a  proprietor,  and  the  books  of  a  partnership  are  evidence  against  any  one 
of  the  partners,  and  more  particularly  as  the  act  requires  such  books  of  the 
proceedings  to  be  kept,  and  that  all  the  proprietors  shall  have  free  access  to  them 
at  all  reasonable  times.  We  are,  however,  of  opinion  that  the  principle  on  which 
partnership  books  are  evidence  against  the  partners,  is  that  they  are  the  acts 
and  declarations  of  such  partners,  being  kept  by  themselves  or  by  their  authority, 
by  their  servants  and  under  their  direction  and  superintendence.  But  the  clerk 
of  the  company,  once  appointed,  is  subject  to  the  control  of  no  individual  member, 
and  the  free  access  provided  for  is  only  for  the  purpose  of  inspection.  A  pro- 
prietor entering  into  a  contract  with  the  company  must  be  deemed  a  stranger, 
and  can  be  affected  by  no  entry  made  under  orders  from  the  entire  body." 

.  .  .  We  can  perceive  no  principle  upon  which  the  account-books  of  a 
corporation  can  be  evidence,  against  a  member  of  the  corporation,  of 
the  accounts  and  entries  therein  made  in  a  suit  brought  by  the  corpora- 
tion or  its  representatives  against  him  to  enforce  his  liability  upon  such 
account.  The  officers  and  book-keepers  of  a  corporation  are  in  no  sense 
his  agents.  Individually  he  has  no  control  over  their  acts,  and  has  no 
responsibility  therefor;  and  in  making  the  entries  they  do  not,  in  any 
legal  sense,  represent  or  bind  him.  As  to  the  competency  of  such  books, 
directors  and  stockholders  of  a  corporation  stand  upon  the  same  footing. 
It  is  quite  true  that  a  director  stands  in  a  more  favorable  position  to 


No.  282         TESTIMONIAL  EVIDENCE:     PARTY'S    ADMISSIONS  419 

know  what  is  going  on  within  the  corporation  and  to  be  more  famihar 
with  its  books  in  some  cases  than  a  stockliolder.  He  has  the  right  to 
inspect  the  books  of  the  corporation,  and  so  has  a  stockholder.  A  stock- 
holder having  the  ability  is  just  as  able  to  become  familiar  with  the  con- 
tents of  the  books  of  a  corporation  to  which  he  belongs  as  a  director; 
and  there  is  no  principle  of  law  by  which  a  director  can  be  charged  with 
knowledge  of  the  entries  in  the  books  of  a  corporation  which  is  not 
equally  applicable  to  its  stockholders.  ...  It  would  be  quite  a  dangerous 
and  we,  think,  startling  proposition  to  hold  that  a  clerk  or  other  officer 
in  a  business  corporation  could  enter  charges  in  its  books  of  account 
against  a  director  or  stockholder  which  could  be  proved  in  favor  of  the 
corporation  by  the  mere  production  of  the  books,  thus  throwing  upon 
him,  or  his  personal  representatives  after  his  death,  the  burden  of  explain- 
ing the  entries  or  showing  them  to  be  untrue,  and  we  believe  the  doctrine 
has  no  support  in  principle  or  authority. 

It  was  admitted  on  the  argument  of  this  case  that  the  evidence 
furnished  by  the  account-books  was  vital  to  the  plaintiff's  case,  and  we, 
therefore,  do  not  deem  it  important  to  examine  the  other  points  zealously 
and  ably  argued  before  us. 

For  the  error  pointed  out  the  judgrnent  should  be  reversed  and  a 
new  trial  granted,  costs  to  abide  event. 
All  concur.     Judgment  reversed. 


281.  CHESAPEAKE  &  OHIO  R.  CO.  v.  DEEP  WATER  R.  CO. 

Supreme  Court  of  Appeals  of  West  Virginia.     1905 

57  W.  Va.  643;  50  S.  E.  890 

[Printed  post,  as  No.  846] 

Sub-topic  D.     Admissions  in  Litigation 

282.   HARTFORD   BRIDGE   CO.   v.   GRANGER 

Supreme  Court  of  Errors  of  Connecticut.     1822 

4  Conn.  142 

[Action  on  a  covenant  to  ttuild  a  drawbridge  according  to  plans.] 
.  .  .  The  plaintiffs  offered  to  prove  by  James  R.  Woodbridge,  that 
long  after  th?  first  of  March,  1819,  the  defendant  Granger  came  to  his, 
Woodbridge's  store,  where  he  met  with  Ward  Woodbridge,  one  of  the 
directors  of  the  company,  who  complained  to  Granger,  that  the  draw 
was  not  such  as  it  ought  to  be;  to  which  Granger  replied,  that  he  knew 
it  was  not  such  an  one  as  they  wanted,  and  that  if  the  directors  would 
furnish  him  with  a  plan,  he  would  conform  the  draw  to  such  plan,  but 


420  BOOK    i:     RULES    OF   ADMISSIBILITY  No,  282 

that  he  could  not  make  it  conformable  to  the  plan  of  Eli  Whitney, 
because  it  would  cost  too  much.  The  defendant's  counsel,  for  the  pur- 
pose of  raising  an  objection  to  this  evidence,  asked  James  R.  Woodbridge, 
if  such  conversation  was  not  had  with  a  view  to  a  compromise;  to  which 
the  witness  answered,  that  in  the  conversation.  Granger  asked  Ward 
Woodbridge  how  much  money  he  would  accept,  and  discharge  him  from 
doing  anything  more  to  the  draw.  The  defendants  then  urged  their 
objections  to  the  evidence  offered  by  the  plaintiffs;  and  the  judge 
rejected  it. 

The  jury  returned  a  verdict  for  the  defendants;  and  the  plaintiffs 
moved  for  a  new  trial,  on  the  ground,  that  the  several  decisions  of  the 
judge,  admitting  the  evidence  of  the  defendants,  and  rejecting  that 
offered  by  the  plaintiffs,  were  erroneous.  .  .  . 

iV.  Sinitli  and  A.  Smith,  in  support  of  the  motion,  contended  .  .  . 
that  the  testimony  of  James  R.  Woodbridge  as  to  the  admissions  of 
Granger,  ought  to  have  been  received.  Facts,  admitted  by  a  party, 
may  always  be  proved:  but  concessions  or  offers,  made  with  a  view  to  a 
compromise,  cannot  be.  Gregory  v.  Howard,  3  Esp.  Rep.  113.  Buller, 
Nisi  Prius,  236.  The  admission,  which  the  plaintiffs  proposed  to  prove, 
was  simply  of  the  fact,  that  the  draw  was  not  such  as  it  ought  to  be. 
No  rule  of  law  requires  the  rejection  of  this  evidence,  because  the  party, 
in  the  course  of  the  conversation,  inquired  for  what  sum  of  money  he 
could  be  discharged.  .  .  . 

N.  Terry  and  T.  S.  Williams,  contra,  contended  .  .  .  that  a  new 
trial  ought  not  to  be  granted,  for  the  rejection  of  James  R.  Woodbridge's 
testimony.  First,  it  related  to  an  offer  made  with  a  view  to  compromise. 
The  sole  business  of  the  meeting  was  to  settle  a  controversy:  and  when 
this  is  the  object,  the  party  is  to  be  protected  throughout  the  conversa- 
tion. Secondly,  the  testimony  was  of  no  importance.  It  did  not  show, 
that  the  draw  was  not  made  according  to  the  agreement;  but  merely, 
that  it  was  not  such  as  W^ard  W^oodbridge  wanted.  .  .  .  The  proposed 
evidence  was  material  to  the  issue;  and  when  the  admission  was  made, 
there  had  been  no  conversation  with  the  view  above-mentioned.  But 
if  the  contrary  were  true,  it  would  not  authorize  the  rejection  of  the 
offered  testimony. 

HosMER,  Ch.  J.  — This  case  presents  four  questions  for  determination. 
.  .  .  The  plaintiffs  offered  to  show,  by  James  R.  Woodbridge,  the 
admission  of  Granger,  one  of  the  defendants,  that  the  draw  was  not 
complete;  and  the  Court  overruled  the  testimony  as  being  conversation 
with  a  view  to  a  compromise. 

The  law  on  this  subject  has  often  been  misconceived;  and  it  is  time 
that  it  should  be  firmly  established.  It  is  never  the  intendment  of  the 
law  to  shut  out  the  truth;  but  to  repel  any  inference  which  may  arise 
from  a  proposition  made,  not  with  design  to  admit  the  existence  of  a 
fact,  but  merely  to  buy  one's  peace.  If  an  admission,  however,  is  made, 
because  it  is  a  fact,  the  evidence  to  prove  it  is  competent,  whatever  motive 


No.  283        TESTIMONIAL  EVIDENCE:     PAKTY's    ADMISSIONS  421 

may  have  prompted  to  the  declaration.  In  illustration  of  this  remark, 
it  may  be  observed,  that  if  A.  offer  to  B.  ten  pounds,  in  satisfaction  of 
his  claim  of  an  hundred  pounds,  merely  to  prevent  a  suit,  or  purchase 
tranquillity;  this  implies  no  admission  that  any  sum  is  due;  and  there- 
fore, testimony  to  prove  the  fact  must  be  rejected,  because  it  evinces 
nothing  concerning  the  merits  of  the  controversy.  But  if  A.  admit  a 
particular  item  in  an  account,  or  any  other  fact,  meaning  to  make  the 
admission  as  being  true,  this  is  good  e\'idence,  although  the  object  of  the 
conversation  was  to  compromise  an  existing  controvers3\  The  question 
to  be  considered  is,  what  was  the  view  and  intention  of  the  party,  in 
making  the  admission;  whether  it  was  to  concede  a  fact  hypothetically, 
in  order  to  effect  a  settlement,  or  to  declare  a  fact  really  to  exist.  There 
is  no  point  of  honour  guarded  by  the  Court,  nor  exclusion  of  evidence, 
lest  it  should  deter  from  a  free  conversation.  But  testimony  of  admis- 
sions or  declarations  taking  facts  for  granted,  not  because  they  are  true, 
but  because  good  policy  constrains  the  temporary  yielding  of  them  to 
effectuate  a  greater  good,  is  not  admissible;  truth  being  the  object  of 
evidence. 

Chapman,  Brainard,  and  Bristol,  JJ.,  were  of  the  same  opinion. 

Peters,  J.,  dissented.     New  trial  not  to  be  granted. 


283.   TRUBY  v.  SEYBERT 

Supreme  Court  of  Pennsylvania.     1849 

12  Pa.  St.  101 

Error  to  the  Common  Pleas  of  Armstrong. 

This  was  an  action  of  ejectment,  brought  by  Sebastian  Seybert 
against  Jacob  Truby,  to  recover  100  acres  of  land,  being  the  settler's 
part  of  the  Samuel  Campbell  warrant,  which  Truby  had  entered  into 
articles  with  Seybert  to  sell  to  him.  Truby  derived  his  title  to  the  land 
in  dispute  from  a  sheriff's  sale  of  three  hundred  acres,  in  a  certain  case 
of  Truby  v.  Mclntyre  and  others. 

The  defence  set  up  by  Truby  to  this  action  was,  that  the  survey  upon 
the  ground,  under  the  Samuel  Campbell  warrant,  excluded  the  forty 
acres,  the  land  really  in  dispute,  embraced  in  a  survey  of  the  settler's 
part,  made  long  after  the  original  survey  of  the  whole  tract  warranted. 
To  meet  this,  the  plaintiff  offered  evidence  to  show  that  the  Samuel 
Campbell  survey,  as  made  upon  the  ground,  included  the  land  in  dispute; 
and  for  that  purpose  further  offered  the  record  of  a  suit,  Charles  Campbell 
V.  Jacob  Truby  (the  defendant  here),  which  was  an  action  of  debt  on  a 
bond,  to  which  was  pleaded  payment,  &c.,  and  in  which  the  verdict  was 
for  the  plaintiff;  to  be  followed  by  proof  that  the  defence  in  said  action 
was,  "  that  the  bond  was  given  in  part  payment  for  the  purchase  by  Truby 
of  certain  land,  and  that  part  of  said  land,  as  appeared  by  the  return  of 


422  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  283 

survey  on  the  Samuel  Campbell  warrant,  to  the  extent  of  41  acres  (being 
the  land  here  in  dispute),  was  embraced  in  that  survey."  This  offer  was 
made  for  the  purpose  of  showing  that,  on  that  occasion,  which  was  seven 
years  after  the  sale  to  Seybert,  Truby  contended  that  the  Samuel  Camp- 
bell warrant  embraced  the  now  disputed  portion  of  the  settler's  part  of 
that  warrant.  To  the  record  and  oti'er  Truby  objected,  and  the  objection 
being  overruled,  the  evidence  was  received  under  exception. 

The  verdict  was  for  the  plaintiff.  The  error  assigned  here  was  to 
the  admission  of  the  evidence  excepted  to. 

Purviance  and  Lee,  for  the  plaintiff  in  error.  Seybert  was  neither 
party  nor  privy  to  that  record;  it  was  as  to  him  "res  inter  alios  acta."  .  .  . 
Truby 's  defence  in  that  action  was  no  admission;  it  was  manifestly  not 
made  independently,  because  true,  but  only  as  a  convenient  assumption 
for  the  purpose  in  hand:  1  Greenleaf,  Evidence,  §  204.  It  is  to  be  treated 
as  the  mere  suggestion  and  allegation  of  counsel.  .  .  . 

Phelps,  for  the  defendant  in  error.  —  It  is  to  be  presumed  that  Truby 
would  not  have  made  any  admission  against  his  interest,  unless  it  was 
true.  The  record  was  admissible  without  Seybert  being  a  party  to  it. 
A  record  admission  or  judicial  declaration  is  admissible  against  the  party 
making  it  in  favor  of  a  stranger  to  the  record.  .  .  . 

The  opinion  of  this  Court  was  delivered  by 

Bell,  J.  —  The  proceeding  had  in  Campbell  v.  Truby  being  "  inter 
alios  acta,"  the  record  of  the  trial,  verdict  and  judgment  was  not,  of 
course,  admissible  in  this  action  to  prove  any  fact  upon  which  that 
judgment  professes  to  be  founded.  ...  But  though  the  parties  be 
different,  a  record  is  admissible  to  prove  the  existence  of  a  former  action 
with  its  legal  consequences,  as  an  independent  fact;  for  the  mere  fact 
that  such  a  suit  was  brought  and  a  verdict  and  judgment  rendered,  it  is 
said,  cannot  be  considered  as  "res  inter  alios  acta."  Where,  therefore, 
the  introduction  of  a  former  judgment  is  necessary  by  way  of  induce- 
ment to  the  full  understanding  of  a  collateral  fact,  or  the  admissions  and 
allegations  of  a  party  to  it,  the  record  is  always  received,  not  only  as 
legal  evidence  of  the  rendition  of  such  a  judgment,  but  as  conclusive  for 
that  purpose.  ...  ^ 

So,  also,  it  is  admissible  against  one  of  the  parties  in  favor  of  a  stranger, 
as  containing  a  solemn  admission  or  judicial  declaration  by  such  parties, 
in  regard  to  any  particular  fact.  But  in  these  instances,  it  is  received, 
not  as  an  adjudication  conclusively  establishing  the  fact,  but  as  the 

declaration  or  admission  of  the  party  himself  that  the  fact  is  so 

As  an  illustration  of  this  rule,  the  case  of  Tyley  v.  Cowling,  1  Ld.  Ray. 
744,  S.  C.  Bull.  N.  P.  243,  may  be  cited.  It  was  trover  by  a  common 
carrier  against  a  person  to  whom  he  alleged  he  had  delivered  the  goods 
intrusted  to  him  to  be  carried,  and  Lord  Holt  laid  it  down  that  the 
record  of  the  action  would  be  admissible  in  a  subsequent  suit  to  be 
brought  by  the  owner  against  the  carrier,  as  showing  the  confession  of 
the  latter  in  a  Court  of  record  that  he  had  been  put  in  possession  of  the 


No.  283        TESTIMONIAL  EVIDENCE:     PARTY'S    ADMISSIONS  423 

plaintiff's  goods.  ..."  The  allegations  in  the  declaration  and  pleadings, 
in  a  suit  at  law,  are  receivable  in  evidence  against  the  party  in  a  subse- 
quent suit  between  him  and  a  stranger,  as  his  solemn  admission  of  the 
truth  of  the  facts  recited,  or  of  his  understanding  of  the  meaning  of  an 
instrument,  though  the  judgment  could  not  be  made  available  as  an 
estoppel,  unless  between  the  same  parties  or  others  in  privity  with  them." 
(1  Greenleaf,  §  195.)  The  same  effect  is  accorded  to  an  answer  in  chan- 
cery, as  an  instrument  of  evidence  deriving  its  value  solely  from  its  char- 
acter of  a  confession  or  admission  (Ewer  v.  Ambrose,  6  D.  &  R.  127;  10 
Eng.  C.  L.  R.  220;  Grant  v.  Jackson,  Peake's  C.  203;  Digby  v.  Steele,  3 
Camp.  115);  though  a  bill  in  chancery  is  not  admissible,  because,  as  it 
is  said,  many  of  the  facts  are  the  mere  suggestions  of  counsel,  made  for 
the  purpose  of  extorting  an  answer  from  the  defendant:  Owens  v.  Daw- 
son, 1  W.  149;  and  for  a  similar  reason  cases  stated  for  the  opinion  of 
the  Court  are  also  excluded  —  McLugan  v.  Bovard,  4  W.  313;  Darlington 
V.  Gray,  5  Wh.  502;  Hart's  Appeal,  8  Barr,  37. 

In  the  case  at  bar,  the  record  in  question  was  offered,  not  as  an  estop- 
pel, but  to  show  the  fact  of  its  existence,  and  as  introductory  to  the  oral 
evidence.  We  have  seen  it  was  competei^t  for  this  purpose,  and  had  the 
defense  made  in  that  action  been  put  upon  the  record  by  a  special  plea, 
as  it  might  have  been,  no  doubt  could  be  entertained  of  its  availability 
to  show  the  allegation  as  a  truth  averred  by  the  defendant  in  relation 
to  the  point  now  in  controversy.  But  what  possible  difference  can  it 
make  in  the  determination  of  the  question  of  evidence,  that  the  party 
chose  rather  to  introduce  his  defense  under  the  general  issue,  with  notice, 
as  is  permitted  by  the  liberality  of  our  practice?  I  can  perceive  none. 
A  declaration  or  confession,  made  in  or  out  of  a  cause,  may  be  proved 
"per  testes,"  as  well  as  by  record,  the  only  difference  being  in  the  degree 
of  credit  which  the  mode  of  proof  may  command.  .  .  . 

The  principle  of  "res  inter  alios  acta,"  is  never  permitted  to  exclude 
such  proof,  proceeding  either  immediately  from  the  party  himself  or 
authorized  or  assented  to  by  him:  1  Starkie's  Evidence,  60.  These 
depend  for  their  value,  not  upon  the  contest  in  which  they  occurred,  but 
upon  the  fact  that  they  proceeded  from  the  party  to  be  affected  by  them ; 
and  he  is  equally  bound  by  the  concessions  of  those  authorized  to  repre- 
sent him.  Thus,  the  concessions  of  attorneys  of  record  bind  their  clients 
in  all  matters  relating  to  the  trial  and  progress  of  the  cause :  1  Greenleaf, 
§  186;  and  this  is  also  true  of  an  admission  before  suit  brought,  provided 
the  attorney  was  then  retained  in  the  cause;  ISIarshall  v.  Cliff,  4  Camp. 
133.  In  Young  v.  Wright,  1  Camp.,  an  admission  by  a  deceased  attorney 
of  record,  that  a  bill  of  exchange  sued  was  an  accommodation  bill,  in  order 
to  excuse  the  want  of  notice  of  dishonor,  was  admitted  by  Lord  Ellen- 
borough,  on  a  new  trial,  as  evidence  of  the  fact,  with  the  observation 
that  it  must  be  supposed  the  attorney  had  authority  to  make  the  con- 
cession, and  it  therefore  bound  the  client.  So  in  Wetherill  v.  Bird,  7  C. 
&  P.  6,  32  E.  C.  L.  R.  415,  the  admission  of  former  attorneys,  who  had 


424  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  283 

since  withdrawn  from  the  case,  in  contemplation  of  a  trial,  was  received 
on  the  second  trial  of  the  cause,  though  notice  had  been  given  that  the 
agreement  for  that  purpose  was  withdrawn. 

It  is  true,  it  has  been  ruled  that  what  an  attorney  says  in  the  course 
of  casual  conversation,  relating  to  the  controversy,  is  not  evidence.  The 
reason  of  the  distinction  is  founded  in  the  nature  and  extent  of  the  author- 
ity given:  the  attorney  being  constituted  for  the  management  of  the 
cause  in  Court,  and,  in  England,  for  nothing  more. 

It  is  not  necessary  further  to  elaborate  this  train  of  reasoning.  Enough 
has  been  said  to  show  that  the  line  of  defense  assumed  by  the  defendant, 
through  his  counsel,  on  the  trial  of  the  action  brought  against  him  by 
Campbell,  consisting  of  an  assertion  directly  pertinent  in  the  present 
inquiry,  was  good  evidence  for  the  now  plaintiff,  as  the  concession  of  a 
truth  within  the  knowledge  of  the  party.  Judgment  affirmed. 

284.   DENNIE  v.   WILLIAMS 

Supreme  Judicial  Court  of  Massachusetts.     1883 

1S5  Mass.  28 

Contract,  in  the  name  of  the  Treasurer  of  the  city  of  Boston,  for  the 
benefit  of  R.  C.  Simpson,  upon  whom  a  constable's  bond  given  by  the 
defendant  Williams  as  principal,  and  the  other  defendants  as  sureties, 
to  enforce  payment  of  a  judgment  recovered  by  Simpson  against  Williams 
for  the  conversion  of  certain  goods.  Trial  in  the  Superior  Court,  without 
a  jury,  before  Blodgett,  J.,  who  found  for  the  defendants;  and  the 
plaintiff  alleged  exceptions,  which  appear  in  the  opinion. 

J.  L.  Newton  and  T.  S.  Dame,  for  the  plaintiff.  R.  Lund,  for  the 
defendants. 

CoLBURN,  J.  .  .  .  The  remaining  exception  is  to  the  refusal  of  the 
Court  to  rule  that  the  answer  of  the  defendant  Williams,  in  the  suit  of 
Simpson  against  him,  was  evidence  against  all  the  defendants  in  this  suit 
that  the  taking  of  the  property  by  Williams,  for  which  that  suit  was 
brought,  was  under  color  of  his  office  as  constable. 

1.  It  appears  that  the  admission  of  one  of  several  joint  obligors,  or 
joint  contractors,  made  without  collusion,  is  evidence  against  the  others. 
Martin  v.  Root,  17  Mass.  222;  Hunt  v.  Bridgham,  2  Pick.  581;  Bridge 
V.  Gray,  14  Pick.  5.5;  Amherst  Bank  r.  Root,  2  Met.  522.  541.  So  a 
clear  and  unqualified  admission  by  Williams  that  the  property,  for  the 
taking  of  which  judgment  in  the  suit  of  Simpson  was  recovered  against 
him,  was  taken  under  color  of  his  office,  would  be  evidence  against  all 
the  defendants  in  this  suit.  It  is  not  very  apparent  how  the  answer  in 
question,  which  denies  any  conversion,  with  an  averment  that,  if  the 
defendant  took  any  of  the  goods,  he  did  so  as  a  constable,  by  virtue  of  a 
writ  of  replevin,  can  be  considered  as  an  admission  that  he  took  the  goods 
described  in  the  declaration  under  color  of  his  office. 


No.  284         TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  425 

2.  But,  passing  this  by,  we  cannot  consider  the  answer  filed  by 
Williams  in  the  suit  of  Simpson  admissible  as  evidence  against  the 
defendants  in  the  present  suit.  It  would  not  have  been  admissible  as 
evidence  in  the  former  suit;  Pub.  Sts.  c.  167,  §§  76,  78;  and  the  reason 
for  §  78,  which  was  first  introduced  into  the  Rev.  Sts.  as  §  18  of  c.  100, 
with  a  note  by  the  commissioners,  would  seem  to  apply  with  nearly  as 
much  force  to  another  suit,  as  to  the  one  in  which  the  answer  is  filed. 

Without  deciding  how  far,  under  any  circumstances,  an  answer  filed 
in  one  suit  may  be  evidence  in  another  suit,  against  the  party  filing  the 
answer,  it  is  sufficient  in  this  case  to  decide  that  the  answer  in  question, 
which  was  signed  by  attorney,  with  nothing  to  indicate  how  far  the 
attorney  was  particularly  instructed  by  the  defendant,  was  not  competent 
evidence  against  Williams  in  this  suit,  —  especially  as,  if  evidence 
against  him,  it  would  be  evidence  against  the  other  defendants.  Baldwin 
V.  Gregg,  13  Met.  253;  Walcott  v.  Kimball,  13  Allen,  460;  Boileau  v. 
Rutlin,  2  Exch.  665;  Combs  v.  Hodge,  21  How.  397;  Church  v.  Shelton, 
2  Curt.  C.  C.  271. 

In  Baldwin  v.  Gregg,  iihi  supra,  Chief  Justice  Shaw  says : 

"The  pleadings  are  usually  filed  by  the  attorneys;  and  they  are  filed  with  a 
view  of  laying  the  merits  of  the  respective  parties  before  the  court,  in  a  technical 
form,  and  can  hardly  be  considered  as  the  act  of  the  parties.  It  is  not  competent 
for  the  jury  to  hear  evidence,  and  inquire  and  decide  whether  a  specification  of 
defence  was  filed  bona  fide  or  vmla  fide.  A  bill  of  particulars  filed  by  a  plaintiff, 
or  a  specification  of  defence  filed  by  a  defendant,  is  usually  a  formal  document, 
drawn  up  by  counsel,  after  some  examination  of  his  client's  case,  and  is  made 
broad  enough  to  cover  all  which  the  party  can  expect,  in  any  event,  to  prove; 
and  in  most  instances,  probably,  is  not  seen  by  the  party  in  whose  behalf  it  is 
filed." 

In  Boileau  v.  Rutlin,  uhi  supra,  Baron  Parke  says: 

"But  the  statements  of  a  party  in  a  declaration  or  plea,  though,  for  the  pur- 
poses of  the  cause,  he  is  bound  by  those  that  are  material,  and  the  evidence  must 
be  confined  to  them  upon  an  issue,  ought  not,  it  should  seem,  to  be  treated  as 
confessions  of  the  truth  of  the  facts  stated." 

3.  In  some  cases  the  declaration  in  one  suit  has  been  admitted  in 
evidence  in  another  suit.  But  this  is  upon  the  ground  that  the  particular 
allegations  in  the  declarations  were  obviously  made  by  direction  of  the 
plaintiff,  and  were  not  merely  the  suggestions  of  his  attorney;  or  upon 
the  ground  that,  after  the  plaintiff  knew  what  the  allegations  were,  he 
adopted  them,  by  prosecuting  the  action  upon  them,  as  the  foundation 
of  his  claim.  Gordon  7\  Parmelee,  2  Allen  212;  Bliss  v.  Nichols,  12 
Allen  443;  Boston  v.  Richardson,  13  Allen  146,  162;  Elliott  v.  Hayden, 
104  Mass.  180;  Bogle  v.  Chase,  117  Mass.  273.  In  Elliott  v.  Hayden, 
which  was  an  action  of  tort,  in  which  the  plaintiffs  offered  in  evidence 
a  bill  in  equity,  brought  by  the  defendants  against  them,  Mr.  Justice 
Gray  says: 


426  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  284 

"As  no  action  of  the  Court  was  obtained  upon  the  bill  in  equity,  the  state- 
ments therein,  if  they  had  not  been  made  upon  the  oath  of  the  plaintiffs,  might 
have  been  considered  as  mere  suggestions  of  the  counsel  and  not  competent 
evidence  of  admissions  by  the  parties.  .  .  .  But,  being  upon  the  oath  of  the 
parties  in  whose  behalf  the  bill  was  filed,  they  are  competent  evidence  as  solemn 
admissions  by  them  in  person  of  the  truth  of  the  facts  stated  —  upon  the  same 
groimd  upon  which  sworn  answers  and  pleas  in  chancery,  or  allegations  concern- 
ing the  substance  of  the  action  in  a  declaration  at  common  law,  have  been  held 
admissible  in  evidence  in  another  suit."     104  Mass.  183. 

These  cases  relating  to  declarations  and  sworn  pleadings  in  chancery 
are  exceptions  to  the  general  rule,  and  do  not  affect  the  question  in  the 
case.  Exceptions  overruled. 


285.   BOOTS  V.   CANINE 

Supreme  Court  of  Indiana.     1883 

94  Ind.  408 

From  the  Montgomery  Circuit  Court. 

E.  C.  Snyder,  P.  S.  Kennedy  and  W.  T.  Brush,  for  appellants.  J.  M. 
Thompson,  W.  H.  Thompson,  J.  E.  McDonald,  J.  M.  Butler  and  A.  L. 
Mason,  for  appellee. 

Elliott,  J.  —  This  case  is  here  for  the  second  time.  When  it  was 
in  this  Court  the  first  time,  it  was  decided  that  the  award  sued  on  was  a 
common  law  and  not  a  statutory  award,  and  that  the  complaint  as  it 
then  stood  was  good.  Boots  v.  Canine,  58  Ind.  450.  These  questions 
are  conclusively  settled.  .  .  .  The  award  states  that  the  agreement  to 
submit  was  in  writing,  and  the  appellants  argue  that  parol  evidence  was 
not  competent  to  show  that  it  was  an  oral  one.  We  do  not  regard  the 
recital  in  the  award  as  being  either  within  the  spirit  or  the  letter  of  the 
rule  prohibiting  the  introduction  of  parol  evidence  to  vary  or  alter  a 
written  instrument.  .  .  . 

The  trial  Court  did  not  err  in  permitting  appellee  to  read  in  evidence 
answers  filed  by  the  appellants,  although  thej^  were  subsequently  super- 
seded by  amendment  or  withdrawn.  The  question  is  presented  in  a 
peculiar  form,  and,  as  presented,  we  are  clear  that  this  ruling  should  not 
be  allowed  to  reverse  the  judgment.  The  record  shows  that  there  had 
been  issues  formed  and  a  trial  had;  that  the  appellants  successfully 
relied  upon  their  answers,  and  the  case  came  to  this  Court,  and  the 
judgment  was  reversed,  but  not  upon  the  answers;  and  that  after  this 
reversal  the  original  answers  were  superseded  by  amendment.  The 
record  thus  recites  the  proceeding  on  the  trial:  "The  plaintiff  then 
offered  in  evidence  the  original  complaint  and  answers  for  the  purpose 
of  proving  by  one  of  the  paragraphs  of  the  answer  that  the  defendant 
had  admitted  that  the  agreement  to  submit  to  arbitration  was  verbal, 


No.  285        TESTIMONIAL   EVIDENCE:     PARTY'S    ADMISSIONS  427 

and  not  in  writing,  to  the  introduction  of  which  evidence  the  defendants 
objected,  on  the  grounds  that  the  statements  of  a  party  made  in  his 
pleadings,  where  they  are  not  sworn  to,  are  not  admissible  against  him." 
It  will  be  observed  that  the  answers  had  stood  through  one  trial  and 
through  an  appeal  as  statements  of  the  appellants'  defense,  and  that 
they  had  placed  these  pleadings  before  the  trial  and  appellate  Courts 
as  true  statements  of  the  facts  of  their  case.  We  can  perceive  no  reason 
why  the  answers  did  not,  under  these  circumstances,  constitute  some  evi- 
dence of  the  facts  stated  in  them.  .  .  . 

1.  It  is  not  doubted  that  admissions  in  pleadings  are  not  conclusive, 
when  used  merely  as  evidence  and  not  as  part  of  the  proceedings  in  the 
cause.  On  the  contrary,  they  are,  when  so  used,  fully  open  to  contra- 
diction or  explanation.  We  shall  presently  speak  of  cases  where  these 
admissions  assume  a  conclusive  character.  Just  now  we  are  speaking  of 
their  admissibility  as  evidence.  We  think  the  rule  is  correctly  stated 
by  Mr.  Wharton,  who  says :  "  It  is  proper  to  add  at  this  place  that  the 
pleadings  of  a  party  in  one  suit  may  be  used  as  evidence  against  him  in 
another,  not  as  estoppel,  but  as  proof,  open  to  rebuttal  and  explanation, 
that  he  admitted  certain  facts."  1  Wharton,  Evidence,  §  838.  This 
is  what  we  rule  here.  The  answer,  having  been  affirmed  to  be  true  for 
several  years,  and  acted  upon  through  one  trial  and  one  appeal,  should 
be  deemed  evidence  of  admissions,  but  evidence  open  to  explanation. 

It  is  well  known  that  the  common  law  recognized  fictions  in  pleading, 
and  did  not,  in  any  way,  require  pleadings  to  state  the  truth,  but  even 
under  that  system  the  decided  weight  of  authority  was  that  the  pleadings 
of  a  party  were  admissible  against  him.  Bliss  v.  Nichols,  12  Allen  443; 
Currier  v.  Silloway,  1  Allen  19;  Gordon  v.  Parmelee,  2  Allen  212;  Hamm- 
att  V.  Russ,  16  Maine  171 ;  Tabb  v.  Cabell,  17  Grat.  160. 

But  it  is  not  necessary  to  refer  to  common  law  authorities,  for  our 
statute  has  adopted  the  equity  practice.  We  treat  pleadings  as  statutory 
fact  not  fictions.  All  the  cases  upon  this  subject  agree  upon  this  point. 
We  are  therefore  to  look  to  chancery  rather  than  common  law  rules. 
Scott  V.  Crawford,  12  Ind.  410;  Pomeroy,  Remedies,  §§  507,  508,  517. 
Commencing  with  the  early  authorities,  we  shall  find  an  unbroken  line 
arrayed  in  favor  of  the  doctrine  that  pleadings  in  chancery  are  always 
admissible  in  evidence.  It  is  said  by  an  author  whose  book  has  long 
occupied  a  high  place,  that  "  The  bill  in  chancery  is  evidence  against  the 
complainant,  for  the  allegations  of  every  man's  bill  shall  be  supposed 
true;  nor  shall  it  be  supposed  to  be  preferred  by  a  counsel,  or  solicitor 
without  the  party's  privity,  and  therefore  it  amoimts  to  the  confession 
and  admission  of  the  truth  of  any  fact."  BuUer,  Nisi  Prius,  235.  The 
ground  given  by  this  author  for  his  conclusion  applies  to  all  pleadings, 
and  more  strongly  to  code  pleadings  than  others,  for,  under  the  code, 
pleadings  are  required  to  state  facts.  It  surely  would  be  a  violation  of 
all  rules  to  treat  a  pleading  as  a  mere  meaningless  collection  of  words,  or 
else  as  a  mere  collection  of  fictions.     It  is  to  be  observed  that  the  reason 


428  BOOK  i:     RULES   OF  .ADMISSIBILITY  No.  285 

why  bills  in  chancery  are  evidence  is,  not  because  they  are  sworn  to,  but 
because  they  are  presumed  to  state  facts.  This  is  clear  from  what 
appears  in  our  quotation  as  well  as  from  the  known  rule  that  bills  were 
not  always  required  to  be  verified.  ...  If  it  can  be  said  that  Courts 
can  presume  that  an  answer  under  our  code  does  not  state  facts,  then  it 
may  be  logically  said  that  it  is  not  evidence;  but  if  the  presumption  is, 
that  it  does  state  facts,  then  it  is  logically  inconceivable  that  it  should 
not  be  evidence  against  the  party. 

But  we  need  not  go  outside  of  our  own  State  for  authorities.  In 
McNutt  V.  Dare,  8  Blackf.  35,  it  was  said:  "There  is  another  reason 
why  the  plaintiffs  could  not  object  to  the  evidence.  It  was  a  part  of 
their  own  answer  to  the  bill  of  discovery;  and  the  answer  of  a  party  is 
legal  evidence  against  him."  ...  It  seems  clear  that  as  we  have  sub- 
stantially adopted  the  chancery  practice,  pleadings  must  be  presumed 
to  be  true,  and,  therefore,  to  constitute  evidence,  and  this,  without  further 
discussion,  should  settle  the  case. 

When  we  turn  to  the  provisions  of  the  code,  and  to  the  decisions  of 
the  Courts  where  the  code  practice  prevails,  we  shall  find  that  there  are 
still  stronger  reasons  for  holding  that  pleadings  are  admissible  in  evidence. 
Our  code  imperatively  requires  that  pleadings  shall  state  facts,  but  it 
does  not  stop  with  this  command.  It  provides  that  "All  fictions  in 
pleadings  are  abolished."  R.  S.  1881,  §  378.  It  is  several  times  declared 
that  pleadings  not  sworn  to  shall  have  the  same  effect  as  pleadings  sworn 
to.  It  is  simply  absurd  to  say  that  under  our  code  the  statements  in 
the  pleadings  are  mere  fictions,  and  if  they  are  not  fictions  then  they  are 
facts,  and  if  facts  in  some  cases,  and  in  others  conclusive  admissions  of 
record,  then  they  are  evidence.  An  admission  in  a  pleading  is  the  admis- 
sion of  matters  of  fact;  this  seems  so  plain  that  it  is  difficult  to  understand 
how  the  contrary  doctrine  can  be  seriously  asserted.  .  .  . 

The  Courts  of  the  States  where  the  code  practice  prevails  are  unani- 
mous on  the  right  to  introduce  admissions  contained  in  pleadings  in 
evidence,  with  the  possible  exception  of  California,  where  there  seems 
to  be  a  direct  conflict.  .  .  .  These  authorities  are  conclusively  in  favor 
of  the  ruling  of  the  Court  below,  and  in  opposition  to  them  are  cited  the 
cases  from  California  and  one  from  New  Hampshire.  The  former  cases, 
as  we  have  said,  are  directly  in  conflict  with  another  decision  of  the  same 
Court,  and  no  authorit}'^  is  cited  in  their  support,  and  the  reasoning  is 
far  from  satisfactory.  The  New  Hampshire  case  of  Kimball  v.  Bellows, 
13  N.  H.  58,  is  not  applicable  to  pleadings  under  the  code  system;  but 
if  it  were,  it  could  not  be  followed,  because  it  is  in  conflict  with  the  great 
weight  of  authority  as  to  the  admissibility  of  common  law  pleadings;  it 
is,  indeed,  in  direct  conflict  with  a  decision  of  the  same  Court,  that  of 
Cilley  V.  Jenness,  2  N.  H.  87. 

Admissions  in  pleadings  are  sometimes  conclusive,  but  they  are  not 
so  in  a  case  like  the  present.  One  class  of  cases  where  the  admissions 
are  conclusive  is  that  in  which  judgment  has  been  pronounced  upon  the 


No.  285        TESTIMONIAL  EVIDENCE:     PARTY'S    ADMISSIONS  429 

issues  joined.  Another  class  is  that  in  which  the  pleadings,  without 
diversity  of  statement,  make  distinct  admissions  and  are  left  standing. 
As  an  example  of  the  latter  class  may  be  given  that  of  a  defendant 
pleading  payment  only  to  a  complaint  on  a  promissory  note.  In  such  a 
case  he  cannot  dispute  the  execution  of  the  note.  In  the  present  case 
the  admissions,  like  ordinary  verbal  or  written  admissions,  are  fully 
open  to  explanation,  but  they  are  nevertheless  admissions,  and  as  such 
are  competent  evidence.  Like  other  admissions,  all  the  statements  of 
the  whole  pleading  are  to  be  taken  together,  what  makes  for  the  pleader 
as  well  as  what  makes  against  him.  .  .  . 

2.  We  should  feel  that  we  were  doing  an  idle  thing  if  we  should  under- 
take to  cite  authority  upon  the  proposition  that  a  party  can  not  be 
deprived  of  his  rights  to  give  in  evidence  an  admission  because  the  latter 
had  withdrawn  it.  Even  in  criminal  cases,  an  admission  made  by  the 
accused  before  the  examining  magistrate  is  not  rendered  incompetent 
by  a  subsequent  withdrawal.  The  withdrawal  of  an  admission  may,  in 
proper  cases,  go  in  explanation,  but  it  can  not  change  the  rule  as  to  its 
competency.  We  have  never,  until  the  argument  in  this  case,  known 
it  to  be  asserted  that  the  withdrawal  of  a  confession  or  an  admission 
destroyed  its  competency  as  evidence  against  the  person  making  it.  If 
it  did,  then  criminals  might  destroy  evidence  by  retraction,  and  parties 
escape  admissions  by  a  like  course.  The  law  tolerates  no  such  illogical 
procedure.  It  is  proper  to  show  the  withdrawal  and  all  attendant  cir- 
cumstances, for  the  purpose  of  determining  the  weight  to  be  attached  to 
the  admission,  but  not  for  tfte  purpose  of  destroying  its  competency. 
The  cases  of  Colter  v.  Galloway,  68  Ind.  219,  and  New  Albany,  etc.,  P. 
R.  Co.  V.  Stallcup,  62  Ind.  345,  are  in  line  with  what  we  here  decide,  and 
are  well  sustained.  .  .  . 

3.  In  the  last  brief  of  appellants'  counsel  it  is  virtually  conceded 
that  the  superseded  answers  would  be  admissible  in  a  different  case,  but 
not  in  the  same  case  in  which  they  were  originally  filed.  Many  of  the 
cases  we  have  cited  expose  the  fallacy  of  this  argument,  but  it  is  so  appar- 
ent that  it  does  not  require  authority  to  overthrow  it.  An  admission 
is  an  admission,  however  made,  and  is  just  as  competent  in  one  case  as 
in  another.  The  competency  of  an  admission  does  not  depend  upon  the 
case  in  which  it  is  offered.  If  it  was  voluntarily  made  and  is  relevant 
to  the  issue,  it  is  admissible  against  the  party  making  it,  although  made 
in  the  progress  of  the  same  cause.  If  the  position  of  counsel  were  correct, 
then  the  plaintiff,  to  get  the  benefit  of  the  admission  in  the  pleading,  must 
dismiss  the  pending  case  and  commence  another,  and  surely  there  is 
neither  reason  nor  law  for  such  a  course. 

We  rule  that  imder  the  circumstances  of  this  case  these  was  no  avail- 
able error  in  admitting  the  answers  in  evidence,  and  this  is  all  the  record 
requires  us  to  decide,  and  it  is  all  we  do  decide  upon  this  point. 

Judgment  affirmed. 


430  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  286 

286.   PERSON  v.   BOWE 

Supreme  Court  of  Minnesota.      1900 

79  Minn.  238;  82  N.  W.  480 

Action  in  the  Municipal  Court  of  Mankato  to  recover  $119  and 
interest  for  wages.  The  case  was  tried  before  Shissler,  J.,  who  found 
in  favor  of  plaintiff  for  8109  and  interest.  From  an  order  denying 
motion  for  a  new  trial,  defendant  appealed.     Affirmed. 

Action  for  wages  as  a  farm  laborer.  The  complaint  alleged  that  the 
plaintiff  worked  for  the  defendant  seven  months  for  the  agreed  price  of 
SI"  per  month,  and  that  no  part  of  his  wages  had  been  paid,  except  810. 
The  answer  alleged  that  the  plaintiff  agreed  to  work  for  the  full  term  of 
eight  months,  for  816  per  month  for  the  first  four  months  of  the  term,  and 
at  $18  per  month  for  the  last  four  months  thereof;  that  the  services 
mentioned  in  the  complaint  were  performed  pursuant  to  such  special 
contract,  and  that  after  working  seven  months  the  plaintiff  abandoned 
the  contract  without  the  consent  of  the  defendant;  and,  further,  that 
the  plaintiff  had  been  paid  on  such  contract  815.  The  trial  Court  found, 
in  effect,  that  the  allegations  of  the  complaint  were  true,  and  ordered 
judgment  for  the  plaintiff  for  8109.  The  defendant  appealed  from  an 
order  denying  his  motion  for  a  new  trial.  ...      ^ 

W.  R.  Geddes,  for  appellant.     W.  E.  Young,  for  respondent. 

Start,  C.  J.  (after  stating  the  case  aa  above).  Evidence  on  behalf 
of  the  plaintiff  was  received  by  the  Court,  over  the  defendant's 
objections,  to  the  effect  that  when  the  plaintiff  demanded  his  pay  for  his 
services  the  defendant  said  that  he  could  not  then  pay,  but  would  let 
the  plaintiff  have  $20,  and  would  pay  the  rest  about  the  middle  of  Novem- 
ber: that,  if  the  plaintiff  "would  throw  off  five  dollars,"  he  would  at 
once  pay  the  claim.  It  is  here  urged  that  this  was  reversible  error,  for 
the  reason  that  it  violated  the  rule  that  an  offer  to  compromise  a  disputed 
matter  is  not  admissible  in  evidence  against  the  party  making  the  offer. 
The  evidence  objected  to  was  not  within  this  rule:  for  it  did  not  relate 
to  any  matter  then  in  dispute  between  the  parties,  or  to  any  attempt  to 
compromise  a  disputed  claim.  On  the  contrary,  it  was  an  offer  of 
present  payment  of  a  then  undisputed  claim,  if  the  proposed  discount 
was  allowed.  The  evidence  was  competent  and  relevant  upon  the  issue 
whether  the  contract  was  for  seven  months'  service,  as  claimed  by  the 
plaintiff.  It  tended  to  show  an  indirect  admission  on  the  part  of  the 
defendant  that  the  plaintiff  had  performed  his  contract:  for,  if  true,  no 
claim  was  made  to  the  contrary  by  the  defendant  when  the  demand  for 
payment  was  made.  Order  affirmed. 


i~ 


No.  288  TESTIMONIAL  evidencf:   confessions  431 


Sub-topic  E.     Confessions 

288.  History}  There  may  be  noted  four  distinct  stages  in  the  history  of 
the  law's  use  of  confessions.  In  the  earhest  stage  (going  for  present  i)urposes 
no  further  back  than  the  times  of  the  Tudors  and  the  Stuarts)  there  is  no  restric- 
tion at  all  upon  their  reception.  In  the  next  stage,  comprising  the  second  half 
of  the  1700s,  the  matter  begins  to  be  considered,  and  it  is  recognized  that  some 
confessions  should  be  rejected  as  untrustworthy.  In  the  third  stage,  comprising 
the  ISOOs,  the  principle  of  exclusion  is  developed,  under  certain  influences,  to  an 
abnormal  extent;  and  exclusion  becomes  the  rule,  admission  the  exception.  In 
the  last  phase  a  reaction  sets  in  here  and  there,  but  it  represents  a  future  rather 
than  a  present  movement,  and  little  is  accomplished  in  the  way  of  changing  the 
law  or  the  practice. 

(1)  In  the  first  period  is  that  there  is  no  doctrine  about  excluding  "confessions" 
in  the  modern  sense;  that  is,  all  narratives  avowing  guilt  are  accepted  in  evi- 
dence without  discrimination,  and  particularly  without  question  as  to  their 
proceeding  from  hope  of  promises  or  from  fear  of  threats,  even  of  torture.  There 
is  a  doctrine  that  a  plea  of  guilty  in  court  should  not  ordinarily  be  received ;  and 
there  is  a  rule  that  a  confession  may  dispense  with  the  two  overt-act  witnesses 
in  treason.  But  these  were  the  only  doctrines  about  "confessions"  up  to  the 
middle  of  the  1700s.  That,  apart  from  these  doctrines,  there  were  no  others  as 
to  confessions,  appears  not  merely  from  the  general  lack  of  record  of  such  doc- 
trines, but  from  several  other  circumstances.  In  the  first  place,  the  reports  of 
trials,  down  to  the  middle  of  the  1600s  at  least,  show  the  tribunal  proceeding, 
without  let  or  hindrance,  upon  whatever  they  could  get  from  him  by  way  of 
confession.  In  the  next  place,  we  find  that,  up  to  the  middle  of  the  1600s  at 
least,  the  use  of  torture  to  extract  confessions  was  common,  and  that  confessions 
so  obtained  were  employed  evidentially  without  scruple;^   and  it  is  clear  that 


^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§§  817,  818, 
865). 

^  1836,  Jardine,  "  Use  of  Torture  in  the  Criminal  Law  of  England,"  58  ff.  Mr. 
Jardine  says,  further:  "The  last  instance  of  torture  in  England,  of  which  I  can 
find  any  trace,  occurred  in  the  year  1640"  ;  and  this  result  seems  to  be  adopted 
in  the  acute  and  interesting  articles  on  the  subject  by  Mr.  A.  Lawrence  Lowell, 
"Judicial  Use  of  Torture,"  11  Harv.  L.  Rev.  293.  Yet  in  1664,  in  Tong's  Trial, 
6  How.  St.  Tr.  259,  the  defendant  is  found  saying,  "I  confess  I  did  confess  it  in 
the  Tower,  being  threatened  with  the  rack."  In  Scotland,  it  was  applied  even 
much  later;  1676,  Mitchel's  Trial,  6  How.  St.  Tr.  1207,  1232;  1680,  Gordon's  Trial 
11  id.  51;  1684,  Semple's  Trial,  ib.  985;  1684,  Carstair's  Trial,  10  id.  687;  1688, 
Standfield's  Trial,  11  id.  1371,  1387;  1689,  Renwick's  Trial,  12  id.  569,  576;  1690, 
Pain's  Trial,  10  id.  754.  Sir  Walter  Scott,  in  "Old  Mortality,"  describing,  as  of 
1679,  the  examination  and  torture  of  the  Cameronian  preacher  Macbriar  (ch. 
36),  confessedly  relies  in  part  for  his  authority  on  this  very  trial  of  Mitchel,  supra. 
In  the  Colonies,  it  was  known  at  as  late  a  time  as  Mr.  Jardine  mentions:  1642, 
Bradford's  History  of  Plymouth  Plantation,  473;  1641  and  1660,  Mass.  Body  of 
Liberties,  c.  45.  For  the  history  of  the  abolition  of  torture  in  modern  times  on 
the  Continent,  see  "Pertile  Storia  del  diritto  italiano,"  2d  ed.,  1900,  vol.  VI,  pt. 
1,  p.  449. 


432  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  288 

such  a  practice  is  inconsistent  with  the  sHghtest  recognition  of  the  modern  doc- 
trine about  the  admissibihty  of  confessions. 

(2)  In  1775,  in  Rudd's  Case  (1  Leach  Cr.  L.  135)  where  the  accused  had  ap- 
plied for  release  in  consequence  of  having  confessed  under  an  assurance  of  pardon 
to  be  received  as  an  accomplice  testifying  for  the  Crown,  Lord  Mansfield,  in 
discussing  the  practice  of  using  approvers'  confessions,  seemed  to  see  nothing 
unlawful  in  it;  but  at  the  same  time  he  made  the  first  judicial  utterance  limiting 
the  admissibility  of  ordinary  confessions:  "The  instance  has  frequently  hap- 
pened of  persons  having  made  confessions  under  threats  or  promises;  the  con- 
sequence as  frequently  has  been  that  such  examinations  and  confessions  have  not 
been  made  use  of  against  them  on  their  trial."  He  was  here,  clearly,  thinking 
only  of  persons  "being  drawn  by  promises  and  assurances  to  answer  to  an  exam- 
ination and  to  swear  to  it  on  oath,"  and  not  of  confessions  in  general;  moreover 
he  does  not  intimate  that  anything  more  than  a  common  practice  (not  a  rule) 
existed.  But  in  1783,  in  Warickshall's  Case,  before  Nares,  J.,  and  Eyre,  B., 
the  modern  rule  received  a  full  and  clear  expression,  and  confessions  not  entitled 
to  credit  because  of  the  promises  or  the  threats  by  which  they  had  been  obtained 
were  declared  inadmissible  in  evidence. 

(3)  At  this  stage,  then,  the  doctrine  was  a  perfectly  rational  one.  Con- 
fessions apparently  untrustworthy  as  affirmations  of  guilt  are  excluded.  Under 
this  principle  very  few  were  in  fact  excluded.  Doubts  about  situations  which 
subsequently  became  questionable  were  never  heard  of.  Confessions  were 
thought  of  in  general  as  "the  highest  evidence  of  guilt";  and  there  was  no  gen- 
eral sentiment  against  them,  —  no  prima  facie  doubt  of  their  propriety.  But 
by  the  beginning  of  the  1800s,  the  attitude  of  the  judges  had  changed,  through 
influences  which  we  may  attempt  later  to  estimate.  There  was  a  general  sus- 
picion of  all  confessions,  and  an  inclination  to  repudiate  them  upon  the  slightest 
pretext.  This  attitude  continued  for  half  a  century,  becoming  more  and  more 
irrational  by  contrast  with  newer  conditions.  That  a  confession  should  be 
excluded  because  it  was  made  upon  a  promise  to  give  a  glass  of  gin;  because  the 
prosecutor  said,  "If  the  prisoner  would  only  give  him  his  money,  he  might  go  to 
the  devil  if  he  pleased";  because  a  handbill,  offering  a  few  pounds  reward  for 
evidence,  was  posted  in  the  magistrate's  office;  because  the  prisoner  was  told 
that  "what  he  said  would  be  used  against  him";  —  that  such  results,  chronicled 
in  the  reports  of  the  first  half  of  the  1800s,  could  be  reached  in  the  name  of  the 
investigation  of  truth  seems  almost  incredible.  In  the  middle  of  the  1800s 
the  perversion  of  normal  reasoning  had  gone  so  far  that  counsel  were  able  to 
advance  seriously  the  argument  that  "the  law  assumes  that  a  man  may  falsely 
accuse  himself  upon  the  slightest  inducement."  It  even  came  to  be  urged  that 
an  accused  person  should  be  dissuaded  from  confessing;  so  that  this  notion  had 
to  be  rebuked  from  the  bench.  This  sentimental  irrationality  of  the  law,  and  its 
obstruction  to  the  administration  of  justice,  has  often  been  conceded  by  judges. 
"I  confess,"  said  Baron  Parke,  "that  I  cannot  look  at  the  decisions  without  some 
shame  when  I  consider  what  objections  have  prevailed  to  prevent  the  reception 
of  confessions  in  evidence;  and  I  agree  with  the  observation  of  Mr.  Pitt  Taylor, 
that  the  rule  has  been  extended  quite  too  far,  and  that  justice  and  common  sense 
have  been  too  frequently  sacrificed  at  the  shrine  of  mercy";  and  Mr.  J.  Erie 
added:  "I  am  much  inclined  to  agree  with  Mr.  Pitt  Taylor;  and,  according  to 
my  judgment,  in  many  cases  where  confessions  have  been  excluded,  justice  and 
common  sense  have  been  sacrificed,  not  at  the  shrine  of  mercy,  but  at  the  shrine 
of  guilt."     The  spirit  that  thus  tended  to  prevail  in  the  law  has  been  properly 


No.  288  TESTIMONIAL   EVIDENCE:     CONFESSIONS  433 

described  "as  a  weak  sentimentalism  towards  criminals,"  and  it  assuredly  had 
unfortunate  results.  But  every  fact  of  life  has  its  explanation;  what  was  the 
explanation  of  this  one? 

(a)  A  first  reason  certainly  was  the  sort  of  person  usually  brought  before  the 
English  judges  on  charges  of  crime.  In  all  countries  having  the  social  cleavages 
and  the  feudal  survivals  of  England  in  the  1700s  and  early  1800s,  the  offenders 
against  the  criminal  law  come  in  the  far  greater  proportion  from  what  are  known  as 
the  "lower  classes."  This  was  especially  the  case  (down  to  the  era  of  the  Reform 
Bill,  when  nearly  two  hundred  capital  crimes  were  swept  from  the  statute-book) 
at  the  time  when  the  great  multitude  of  grave  offenses  involved  merely  those 
petty  forms  of  property-crime  which  may  be  the  natural  result  of  only  hopeless 
poverty  and  not  necessarily  of  an  abandoned  life  or  a  professional  profligacy. 
Furthermore,  the  same  social  cleavage  is  also  accompanied,  in  all  countries,  with 
a  subordination,  a  submission,  half-respectful  and  half-stupid,  on  the  part  of  the 
"lower  classes"  towards  those  in  authority,  —  an  attitude  especially  marked, 
though  not  solely  found,  among  the  peasantry  and  towards  the  squires  and  other 
landed  superiors  on  whose  will  hangs  the  tenant's  fortune.  The  situation  of 
such  a  peasant  charged  by  his  landlord  with  poaching  and  urged  to  confess,  the 
situation  of  the  maid  urged  and  threatened  by  her  mistress  to  confess  a  petty 
theft,  involves  a  mental  condition  to  which  we  may  well  hesitate  to  apply  the 
test  of  a  rational  principle.  We  may  believe  that  rationally  a  false  confession 
is  not  to  be  apprehended  from  the  normal  person  under  certain  paltry  induce- 
ments or  meaningless  tlireats;  but  we  have  here  perhaps  a  person  not  to  be 
tested  by  a  normal  or  rational  standard.^  This,  then,  was  certainly  one  of  the 
reasons  why,  in  one  way  or  another,  on  principle  or  without  principle,  many 
judges  came  to  set  themselves  against  the  use  of  confessions,  and  to  exclude  them 
on  pretexts  which  were  in  themselves  trifling  and  irrational  but  in  fact  repre- 
sented a  fixed  judicial  sentiment. 

(6)  Another  reason  is  found  in  the  absence  at  that  time  of  the  right  of  appeal 
in  criminal  cases,  and  the  practical  creation  of  the  law  of  confessions  by  isolated 
judges  at  Nisi  Prius  without  consultation  and  on  independent  responsibility. 
In  order  to  solve  any  doubts  which  might  arise  in  his  mind,  the  Nisi  Prius  judge 
was  obliged  to  consult  casually-accessible  colleagues  or  to  reserve  the  question 
for  a  meeting  of  all  the  judges;  and  the  natural  disinclination  to  such  a  delay, 
to  becoming  the  source  of  trouble  to  his  professional  associates,  and  to  bringing 
perhaps  upon  himself  the  reflection  of  having  had  unnecessary  doubts,  made  this 
course  always  a  disagreeable  one  and  a  last  resort.  The  result  was  that  the 
judges  commonly  preferred  to  eliminate  the  questionable  evidence  altogether, 
to  try  the  case  on  whatever  other  evidence  could  be  mustered,  and  to  solve  all 
questions  that  were  even  arguable  (whether  the  judge  himself  had  doubts  or  not) 
in  favor  of  the  accused.     Thus  many  confessions  were  excluded. 

(3)  A  third  reason,  and  one  amjjly  sufficient  in  itself  to  account  for  the  nar- 
rowness of  confession  rulings,  and  for  much  besides,  was  the  extraordinary  handi- 
cap placed  upon  the  accused  at  common  law  in  the  shape  of  his  inability  either 
to  testify  for  himself  or  to  have  counsel  to  defend  him.  The  right  to  have  the 
aid  of  counsel  was  not  granted  as  a  general  one  until  1836;  and  although  as  early 
as  1750  it  had  become  customary  to  allow  counsel  to  cross-examine  for  the  accused 
and  to  do  everything  but  address  the  jury,  this  custom  was  by  no  means  un- 

^  "Most  persons  accused  of  crime  are  poor,  stupid,  and  helpless"  {Stephen, 
"History  of  the  Criminal  Law,"  I,  442). 


434  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  288 

broken  and  fell  far  short  in  efficacy  of  being  equivalent  to  a  right.  The  com- 
petency to  testify  on  his  own  behalf  was  for  long  withheld  (until  1898)  from  the 
accused  person;  and  the  unsworn  address  to  the  jm-y,  which  he  was  allowed  to 
make,  was  very  different  from  the  right  to  testify  in  his  own  behalf,  and  was 
probably  not  of  great  consequence  as  furnishing  testimonial  material.  In  view 
of  the  apparent  unfairness  of  a  system  which  practically  told  the  accused  person, 
"You  cannot  be  trusted  to  speak  here  or  elsewhere  in  your  own  behalf,  but  we 
shall  use  against  you  whatever  you  may  have  said,"  it  was  entirely  natural  that 
the  judges  should  employ  the  only  makeweight  which  existed  for  mitigating  this 
unfairness  and  restoring  the  balance,  namely,  the  doctrine  of  confessions.  They 
tried  to  restore  the  balance  by  excluding  confessions  upon  every  available  pretext. 
In  view  of  these  considerations,  it  is  easy  to  see  why  the  law  of  confessions 
in  England  came  to  develop  what  seem  to  us,  in  another  country  and  in  other 
times,  absurd  and  dangerous  sentimentalities,  and  why  there  is  no  necessity  for 
our  retention  of  the  distortions  and  irrational  excrescences  which,  as  handed 
down  to  us  in  the  English  rulings  of  the  early  1800s,  have  served  to  obscure  the 
correct  and  entirely  rational  principle  of  exclusion  applicable  to  confessions.  No 
one  of  these  three  considerations  above  pointed  out  applies  to  our  conditions. 
The  spirit  of  our  community,  whether  we  choose  to  call  it  by  the  name  of  liberty 
or  by  the  name  of  anarchy  (and  it  has  certainly  the  evil  as  well  as  the  good  savor), 
is  a  spirit  of  fearlessness  of  superior  social  and  political  power;  of  restiveness  and 
struggling  against  bonds,  not  of  orderly  submission;  of  bold  (if  superficial)  readi- 
ness to  claim  "rights,"  not  of  ignorant  surrender  to  demands;  and,  in  general, 
of  keen  appreciation  of  the  possibilities  of  evading  justice,  rather  than  of  cowed 
obedience  to  any  authority  however  oppressive.  Furthermore,  the  power  of 
revision  of  confession-law  on  appeal  to  the  higher  tribunal  is  universal.  Finally, 
the  accused  person  may  everywhere  testify  for  himself,  and  has  the  fullest  assist- 
ance of  a  bar  not  remarkable  for  its  scrupulousness  in  criminal  cases.  All  those 
circumstances  are  thus  wanting  which  explain  and  excuse  the  unnatural  develop- 
ment of  the  law  of  confessions  in  the  hands  of  the  English  judges  of  a  past 
generation.  There  is  for  us  no  such  explanation  and  no  such  excuse.  The 
perpetuation  here  of  the  Nisi  Prius  doctrines  of  the  first  part  of  the  1800s  is  now 
nothing  but  sentimentalism,  a  false  tenderness  to  criminals,  and  an  unnecessary 
deviation  from  principle. 


289.   WARICKSHALL'S  CASE 
Old  Bailey  Sessions.     1783 
1  Leach  Cr.  L.  248,  M  cd.  298 

At  the  Old  Bailey,  in  April  Session,  1783,  Thomas  Littlepage  was 
indicted  before  Mr.  Justice  Nares,  present  Mr.  Baron  Eyre,  for  grand 
larceny;  and  the  same  indictment  charged  Jane  Warickshall,  as  an 
accessary  after  the  fact,  with  receiving  the  property  knowing  it  to  have 
been  stolen. 

The  accessary  had  made  a  full  confession  of  her  guilt ;  and  in  conse- 
quence of  it  the  property  had  been  found  in  her  lodgings,  concealed 
between  the  sackings  of  her  bed.     The  confession,  however,  having  been 


No.  289  TESTIMONIAL  EVIDENCE:     CONFESSIONS  435 

obtained  by  promises  of  favor,  the  Court  refused  to  admit  it  in  evidence 
against  her;  and  it  was  contended  by  her  counsel,  that  as  the  fact  of 
finding  the  stolen  property  in  her  custody-  had  been  obtained  through 
the  means  of  an  inadmissible  confession,  the  proof  of  that  fact  ought  also 
to  be  rejected;  for  otherwise  the  faith  which  the  prosecutor  had  pledged 
would  be  violated,  and  the  prisoner  made  the  deluded  instrument  of  her 
own  conviction. 

The  Court.  —  It  is  a  mistaken  notion,  that  the  evidence  of  confessions 
and  facts  which  have  been  obtained  from  prisoners  by  promises  or 
threats,  is  to  be  rejected  from  a  regard  to  pul)lic  faith:  no  such  rule  ever 
prevailed.  The  idea  is  novel  in  theory,  and  would  be  as  dangerous  in 
practice  as  it  is  repugnant  to  the  general  principles  of  criminal  law.  Con- 
fessions are  received  in  evidence,  or  rejected  as  inadmissible,  under  a 
consideration  whether  they  are,  or  are  not  entitled  to  credit.  A  free 
and  voluntary  confession  is  deserving  of  the  highest  credit,  because  it  is 
presumed  to  flow  from  the  strongest  sense  of  guilt,  and  therefore  it  is 
admitted  as  proof  of  the  crime  to  which  it  refers.  But  a  confession 
forced  from  the  mind  by  the  flattery  of  hope,  or  by  the  torture  of  fear, 
comes  in  so  questionable  a  shape  when  it  is  to  be  considered  as  the 
evidence  of  guilt,  that  no  credit  ought  to  be  given  to  it;  and  therefore 
it  is  rejected. 

This  principle  respecting  confessions  has  no  application  whatever  as 
to  the  admission  or  rejection  of  fads,  whether  the  knowledge  of  them  is 
obtained  in  consequence  of  an  extracted  confession,  or  whether  it  arises 
from  any  other  source;  for  a  fact,  if  it  exists  at  all,  must  exist  invariably 
in  the  same  manner,  whether  the  confession  from  which  it  is  derived  be 
in  other  respects  true  or  false.  Facts  thus  obtained,  however,  must  be 
fully  and  satisfactorily  proved,  without  calling  in  the  aid  of  any  part  of 
the  confession  from  which  they  may  have  been  derived ;  and  the  impossi- 
bility of  admitting  any  part  of  the  confession  as  a  proof  of  the  fact,  clearly 
shows  that  the  fact  may  be  admitted  on  other  evidence;  for  as  no  part 
of  an  improper  confession  can  be  heard,  it  can  never  be  legally  known 
whether  the  fact  was  derived  through  the  means  of  such  confession  or 
not;  and  the  consequences  to  public  justice  would  be  dangerous  indeed; 
for  if  men  were  enabled  to  regain  stolen  property,  and  the  evidence  of 
attendant  facts  were  to  be  suppressed,  because  they  had  regained  it  by 
means  of  an  improper  confession,  it  would  be  holding  out  an  opportunity 
to  compound  felonies.  The  rules  of  evidence  which  respect  the  admission 
of  facts,  and  those  which  prevail  with  respect  to  the  rejection  of  parole 
declarations  or  confessions,  are  distinct  and  independent  of  each  other. 

It  is  true,  that  many  able  judges  have  conceived  that  it  would  be  an 
exceeding  hard  case,  that  a  man  whose  life  is  at  stake,  having  been  lulled 
into  a  notion  of  security  by  promises  of  favor,  and  in  consequence  of 
those  promises  has  been  induced  to  make  a  confession  by  the  means  of 
which  the  property  is  found,  should  afterwards  find  that  the  confession 
with  regard  to  the  property  found  is  to  operate  against  him.     But  this 


436  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  289 

subject  has  more  than  once  undergone  the  solemn  consideration  of  the 
twelve  judges;  and  a  majority  of  them  were  clearly  of  opinion,  That 
although  confessions  improperly  obtained  cannot  be  received  in  evidence, 
yet  that  any  acts  done  afterwards  might  be  given  in  evidence,  notwith- 
standing they  were  done  in  consequence  of  such  confession. 


290.   BRAM  V.   UNITED   STATES 

Supreme  Court  of  the  United  States.     1897 

168  U.  S.  532;   18  Sup.  112 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts. 

Asa  P.  French  and  James  E.  Cotter,  for  plaintiff  in  error.  Assistant 
Attorney-General  Boyd,  for  the  United  States.  / 

Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  writ  of  error  is  prosecuted  to  a  verdict  and  sentence  thereon, 
by  which  the  plaintiff  was  found  guilty  of  murder,  and  condemned  to 
suffer  death.  The  homicide  was  committed  on  board  the  American 
ship  Herbert  Fuller,  while  on  the  high  seas,  bound  from  Boston  to  a  port 
in  South  America.  The  accused  was  the  first  officer  of  the  ship,  and  the 
deceased,  of  whose  murder  he  was  convicted,  was  the  master  of  the 
vessel.  The  bill  of  exceptions,  after  stating  the  sailing  of  the  vessel 
from  Boston  on  the  2d  of  -July,  1896,  with  a  cargo  of  lumber,  gives  a 
general  summary  of  the  facts  leading  up  to  and  surrounding  the  homicide, 
as  follows : 

She  had  on  board  a  captain,  Charles  I.  Nash;  Bram,  the  defendant; 
a  second  mate,  August  W.  Blomberg;  a  steward;  and  six  seamen;  also 
the  captain's  wife,  Laura  A.  Nash,  and  one  passenger,  Lester  H.  Monks. 

The  vessel  proceeded  on  her  course  towards  her  port  of  destination 
until  the  night  between  July  13th  and  July  14th.  On  that  night,  at 
12  o'clock,  the  second  mate's  watch  was  relieved  by  the  mate's  watch, 
of  which  Bram,  the  defendant,  was  the  officer  in  charge.  The  captain, 
his  wife,  the  passenger.  Monks,  and  the  first  mate  and  the  second  mate, 
all  lived  in  the  after-cabin,  occupying  separate  rooms.  .  .  .  The  crew 
and  the  steward  slept  forward  in  the  forward  house. 

When  the  watch  was  changed  at  midnight,  Bram,  the  defendant, 
took  the  deck,  the  seamen  Loheac  and  Perdok  went  forward  on  the 
lookout,  and  Charles  Brown  (otherwise  called  Justus  Leopold  Wester- 
berg,  his  true  name)  took  the  wheel,  where  it  was  his  duty  to  remain 
till  two  o'clock,  at  about  which  time  he  was  relieved  by  Loheac.  The 
second  mate  went  to  his  room  and  the  seamen  of  his  watch  to  their 
quarters  at  twelve  midnight,  and  there  was  no  evidence  that  any  of 
them  or  the  steward  appeared  again  till  daylight. 

The  passenger,  Monks,  who  occupied  a  room  on  the  starboard  side 


No.  290  TESTIMONIAL  EVIDENCE:     CONFESSIONS  437 

of  the  cabin,  between  the  chart  room  where  the  captain  slept  and  the 
room  on  the  forward  starboard  side  where  Mrs.  Nash  slept,  with  doors 
opening  from  the  passenger's  room  into  both  the  chart  room  used  by 
the  captain  as  his  room  and  that  of  Mrs.  Nash,  was  aroused  not  far 
from  two  o'clock  (the  exact  time  is  not  known,  as  he  says)  by  a  scream, 
and  by  another  sound,  characterized  by  him  as  a  gurghng  sound.  He 
arose,  went  to  the  captain's  room,  and  found  the  captain's  cot  over- 
turned, and  the  captain  lying  on  the  floor  by  it.  He  spoke,  l)ut  got  no 
answer;  put  his  hand  on  the  captain's  body,  and  found  it  damp  or  wet. 
He  then  went  to  Mrs.  Nash's  rooms;  did  not  see  her,  but  saw  dark  spots 
on  her  bedding,  and  suspected  something  wrong.  He  went  on  deck, 
and  called  the  mate,  the  defendant,  telling  him  the  captain  was  killed. 
Both  went  below,  took  down  the  lantern  hanging  in  the  main  cabin, 
burning  dimly,  turned  it  up,  and  went  through  the  captain's  room 
to  the  passenger's  room,  and  the  passenger  there  put  on  a  shirt  and 
pantaloons.  They  then  both  returned  to  the  deck,  the  mate  on  the 
way  stopping  a  brief  time  in  his  own  room.  Bram  and  Monks 
remained  talking  on  deck  till  about  daybreak,  when  the  steward  was 
called,  and  told  what  had  happened.  Up  to  this  time  no  call  had 
been  made  for  the  second  mate,  nor  had  any  one  visited  his  room. 
Later  it  was  found  that  Captain  Nash,  his  wife,  and  Blomberg,  the 
second  mate,  were  all  dead,  each  with  several  wounds  upon  the  head, 
apparently  given  with  a  sharp  instrument,  like  an  ax,  penetrating  the 
skull,  and  into  the  substance  of  the  brain;  and  the  second  mate  lying 
on  his  back,  with  his  feet  crossed,  in  his  berth;  Mrs.  Nash  in  her 
bed,  in  her  room,  and  at  the  back  side  of  the  bed;  and  Captain  Nash 
in  his  room,  as  already  stated.  .  .  . 

In  a  day  or  two,  suspicion  having  been  excited  in  respect  to  the  sea- 
man Brown,  the  crew,  under  the  supervision  of  Bram,  seized  him,  he  not 
resisting,  and  put  him  in  irons.  All  the  while  the  officers  and  seamen 
remained  on  deck.  Bram  navigated  the  ship  until  Sunday  before  they 
reached  Halifax,  on  Tuesday,  and  after  the  land  of  Nova  Scotia  was  in 
sight,  when.  Brown  having  stated  to  his  shipmates,  or  some  of  them, 
that  he  saw  into  the  cabin  through  a  window  in  the  after-part  and  on 
the  starboard  side  of  the  house,  and  saw  Bram,  the  mate,  kill  the  captain, 
in  consequence  of  this  statement  of  Brown,  the  crew,  led  by  the  steward, 
suddenly  overpowered  the  mate,  and  put  him  in  irons,  he  making  no 
resistance,  but  declaring  his  innocence.  Bram  and  Brown  were  both 
carried  into  Halifax  in  irons. 

The  bill  of  exceptions  further  states  that,  when  the  ship  arrived  at 
Halifax,  the  accused  and  Brown  were  held  in  custody  by  the  chief  of 
police  at  that  place,  and  that,  while  in  such  custody,  the  accused  was 
taken  from  prison  to  the  office  of  a  detective,  and  there  questioned,  under 
circumstances  to  be  hereafter  stated.  .  .  . 

Nicholas  Power,  of  Halifax,  called  by  the  government,  testified  that 
he  was  connected  with  the  police  department  of  Halifax,  and  had  been 


438  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  290 

for  thirty-two  years,  and  for  the  last  fifteen  years  of  that  time  as  a 
detective  officer;  that  after  the  arrival  of  the  Herbert  Fuller  at  Halifax, 
in  consequence  of  a  conversation  with  Charles  Brown,  he  made  an 
examination  of  Bram,  the  defendant,  in  the  witness'  office,  in  the  city 
hall  at  Halifax,  when  no  one  was  present  besides  Bram  and  the  witness. 
The  witness  testified  that  no  threats  were  made  in  any  way  to  Bram, 
nor  any  inducements  held  out  to  him. 

The  witness  was  then  asked:  "What  did  you  say  to  him  and  he  to 
you?  " 

To  this  the  defendant's  counsel  objected.  .  .  .  The  witness  stated 
that  the  conversation  took  place  in  his  office,  where  he  had  caused  the 
defendant,  Bram,  to  be  brought  by  a  police  officer;  that  up  to  that 
time  the  defendant  had  been  in  the  custody  of  the  police  authorities  of 
Halifax,  in  the  custody  of  the  superintendent  of  police,  John  O'Sullivan; 
that  the  witness  asked  that  the  defendant  should  be  brought  to  his  office 
for  the  purpose  of  interviewing  him;  that  at  his  office  he  stripped  the  de- 
fendant, and  examined  his  clothing,  but  not  his  pockets ;  that  he  told  the 
defendant  to  submit  to  an  examination,  and  that  he  searched  him.  .  .  . 

The  witness  answered  questions  by  the  Court  as  follows: 

"  You  say  there  was  no  inducement  to  him  in  the  way  of  promise  or 
expectation  of  advantage? 

"A.  —  Not  any,  your  honor. 

"Q.  —  Held  out? 

"A.  —  Not  any,  your  honor. 

"  Q.  —  Nor  anything  said  in  the  way  of  suggestion  to  him  that  he 
might  suffer  if  he  did  not,  —  that  it  might  be  worse  for  him? 

"A.  —  No,  sir;   not  any. 

"  Q.  —  So  far  as  you  were  concerned,  it  was  entirely  voluntary? 

"A. — Voluntary,  indeed. 

"  Q.  —  No  influence  on  your  part  exerted  to  persuade  him  one  way 
or  the  other? 

"A.  —  None  whatever,  sir;    none  whatever."  .  .  . 

The  objection  was  overruled,  and  the  defendant  excepted  on  all  the 
grounds  above  stated,  and  the  exceptions  were  allowed. 

The  witness  answered  as  follows: 

"When  Mr.  Bram  came  into  my  office,  I  said  to  him:  'Mr.  Bram,  we 
are  trying  to  vmravel  this  horrible  mystery.'  I  said:  'Your  position  is 
rather  an  awkward  one.  I  have  had  Brown  in  this  office,  and  he  made  a 
statement  that  he  saw  you  do  the  murder.'  He  said:  'He  could  not 
have  seen  me.  Where  was  he? '  I  said :  '  He  states  he  was  at  the  wheel.' 
'Well,'  he  said,  'he  could  not  see  me  from  there.'  I  said:  'Now,  look 
here,  Bram,  I  am  satisfied  that  you  killed  the  captain  from  all  I  have 
heard  from  Mr.  Brown.  But,'  I  said,. 'some  of  us  here  think  you  could 
not  have  done  all  that  crime  alone.  If  you  had  an  accomplice,  j^ou 
should  say  so,  and  not  have  the  blame  of  this  horrible  crime  on  your  own 
shoulders.'     He  said:    'W>11,  I  think,  and  many  others  on  board  the 


No.  290  TESTIMONIAL  EVIDENCE:     CONFESSIONS  439 

ship  think,  that  Brown  is  the  murderer;  but  I  don't  know  anything 
about  it.'     He  was  rather  short  in  his  rephes. 

"  Q.  —  Anything  further  said  by  either  of  you? 

"A.  —  No;    there  was  nothing  further  said  on  that  occasion."  .  .  . 

The  contention  is  that  the  foregoing  conversation,  between  the  de- 
tective and  the  accused,  was  competent  only  as  a  confession  by  him  made; 
that  it  was  offered  as  such;  and  that  it  was  erroneously  admitted,  as  it 
was  not  shown  to  have  been  voluntary.  ...  It  is  manifest  that  the  sole 
ground  upon  which  the  proof  of  the  conversation  was  tendered  was  that 
it  was  a  confession,  as  this  was  the  only  conceivable  hypothesis  upon 
which  it  could  have  been  legally  admitted  to  the  jury.  It  is  also  clear 
that,  in  determining  whether  the  proper  foundation  was  laid  for  its 
admission,  we  are  not  concerned  with  how  far  the  confession  tended  to 
prove  guilt.  Having  been  offered  as  a  confession,  and  being  admissible 
only  because  of  that  fact,  a  consideration  of  the  measure  of  proof  which 
resulted  from  it  does  not  arise  in  determining  its  admissibility.  If  found 
to  have  been  illegally  admitted,  reversible  error  will  result.  ... 

The  principle  on  the  subject  is  thus  stated  in  a  note  to  §  219  of  Green- 
leaf  on  Evidence:  "The  rule  excludes  not  only  direct  confessions,  but 
any  other  declaration  tending  to  implicate  the  prisoner  in  the  crime 
charged,  even  though,  in  terms,  it  is  an  accusation  of  another  or  a  refusal 
to  confess."  .  .  . 

In  cases  where  statements  of  one  accused  had  been  made  to  others 
than  the  magistrate  upon  an  examination,  differences  of  opinion  arose 
among  the  English  judges  as  to  whether  a  confession  made  to  a  person 
not  in  a  position  of  authority  over  the  accused  was  admissible  in 
evidence  after  an  inducement  had  been  held  out  to  the  prisoner  by 
such  persons.  Rex  v.  Spencer  (1837),  7  Car.  &  P.  776.  It  was  finally 
settled,  however,  that  the  effect  of  inducements  must  be  confined  to 
those  made  by  persons  in  authority  (Reg.  v.  Taylor  (1839),  8  Car.  &  P. 
734;  Reg.  v.  Moore  (1852),  2  Denison,  Cr.  Cas.  522),  although,  in  the 
last  cited  case,  while  former  precedents  were  followed,  the  Court  expressed 
strong  doubts  as  to  the  wisdom  of  the  restriction  (2  Denison,  Cr.  Cas. 
527).  There  can  be  no  question,  however,  that  a  police  officer,  actually 
or  constructively  in  charge  of  one  in  custody  on  a  suspicion  of  having 
committed  crime,  is  a  person  in  authority  within  the  rule.  .  .  . 

Many  other  cases  in  the  English  reports  illustrate  the  application 
of  the  rule  excluding  statements  made  under  inducement  improperly 
operating  to  influence  the  mind  of  an  accused  person.  ...  In  the  cases 
following,  statements  made  by  a  prisoner  were  held  inadmissible,  because 
induced  by  the  language  set  out  in  each  case:  In  Rex  v.  Griffin  (1809), 
Russ.  &  R.  151,  telling  the  prisoner  that  it  would  be  better  for  him  to 
confess.  In  Rex  v.  Jones,  Id.  152,  the  prosecutor  saying  to  the  accused 
that  he  only  wanted  his  money,  and,  if  the  prisoner  ga^'e  him  that,  he 
might  go  to  the  devil,  if  he  pleased.  In  Rex  v.  Kingston  (1830),  4  Car. 
&  P.  387,  saying  to  the  accused:   "You  are  under  suspicion  of  this,  and 


440  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  290 

you  had  better  tell  all  you  know."  In  Rex  v.  Enoch  (1833),  5  Car.  & 
P.  539,  saying:  "You  had  better  tell  the  truth,  or  it  will  lie  upon  you, 
and  the  man  go  free."  In  Rex  v.  Mills  (1833),  6  Car.  &  P.  146,  saying: 
"  It  is  no  use  for  you  to  deny  it,  for  there  is  the  man  and  boy  who  will 
swear  they  saw  you  do  it."  In  Sherrington's  Case  (1838),  2  Lewin,  Cr. 
Cas.  123,  saying:  "There  is  no  doubt,  thou  wilt  be  found  guilty:  it  will 
be  better  for  you  if  you  will  confess."  In  Rex  v.  Thomas  (1833),  6  Car. 
&  P.  353,  saying:  "  You  had  better  split,  and  not  suffer  for  all  of  them." 
In  Rex  V.  Simpson  (1834),  1  Moody,  410,  and  Ryan  &  M.  410,  repeated 
importunities  by  neighbors  and  relatives  of  the  prosecutor,  coupled  with 
assurances  to  the  suspected  person  that  it  would  be  a  good  deal  worse 
for  her  if  she  did  not,  and  that  it  would  be  better  for  her  if  she  did  confess. 
In  Rex  V.  Upchurch  (1836),  1  Moody,  465,  saying:  "If  you  are  guilty,  do 
confess.  It  will  perhaps  save  3^our  neck.  You  will  have  to  go  to  prison. 
If  William  H.  [another  person  suspected,  and  whom  the  prisoner  had 
charged]  is  found  clear,  the  guilt  will  fall  on  you.  Pray  tell  me  if  you 
did  it.'.'  In  Reg.  v.  Croydon  (1846),  2  Cox,  Cr.  Cas.  67,  saying:  "I 
dare  say  you  had  a  hand  in  it.  You  may  as  well  tell  me  all  about 
it."  In  Reg.  v.  Garner  (1848),  1  Denison,  Cr.  Cas.  329,  saying:  "It  will 
be  better  for  you  to  speak  out."  ...  In  the  leading  case  of  Reg.  v. 
Baldry  (1852),  2  Denison,  Cr.  Cas.  430,  after  full  consideration,  it  Avas 
held  that  the  declaration  made  to  a  prisoner,  who  had  first  been  cau- 
tioned that  what  he  said  "would"  be  used  as  evidence,  merely  imported 
that  such  statement  "might"  be  used,  and  could  not  have  induced  in 
the  mind  of  the  prisoner  a  hope  of  benefit  sufficient  to  lead  him  to  make 
a  statement.  .  .    . 

The  latest  decision  in  England  on  the  subject  of  inducement,  made 
by  the  Court  for  Crown  Cases  Reserved,  is  Reg.  v.  Thompson  (1893), 
2  Q.  B.  12.  .  .  . 

While,  as  we  have  said,  there  is  no  question  that  a  police  officer 
having  a  prisoner  in  custody  is  a  person  in  authority,  within  the  rule  in 
England,  and,  therefore,  that  any  inducement  by  him  offered,  calculated 
to  operate  upon  the  mind  of  the  prisoner,  would  render  a  confession  as  a 
consequence  thereof  inadmissible,  there  seems  to  be  doubt  in  England 
whether  the  doctrine  does  not  extend  further,  and  hold  that  the  mere 
fact  of  the  interrogation  of  a  prisoner  by  a  police  officer  would  "per  se" 
render  the  confession  inadmissible,  because  of  the  inducement  resulting 
from  the  very  nature  of  the  authority  exercised  by  the  police  officer, 
assimilating  him  in  this  regard  to  a  committing  or  examining  magistrate. 
.  .  .  Whatever  be  the  rule  in  this  regard  in  England,  however,  it  is 
certain  that,  where  a  confession  is  elicited  by  the  questions  of  a  policeman, 
the  fact  of  its  having  been  so  obtained,  it  is  conceded,  may  be  an  im- 
portant element  in  determining  whether  the  answers  of  the  prisoner 
were  voluntary.  The  attempt  on  the  part  of  police  officer  to  obtain  a 
confession  by  interrogating  has  been  often  reproved  by  the  English 
Courts  as  unfair  to  the  prisoner,  and  as  approaching  dangerously  near 


No.  290  TESTIMONIAL  EVIDENCE:     CONFESSIONS  441 

to  a  violation  of  the  rule  protecting  an  accused  from  being  compelled  to 
testify  against  himself.  Berriman's  Case  (1854),  6  Cox,  Cr.  Cas.  388; 
Cheverton's  Case  (1862),  2  Falc.  &  F.  833;  Mick's  Case  (1863),  3  Falc.  & 
F.  822;  Reagan's  Case  (1867),  17  Law  T.  (N.S.)  325;  and  Reason's  Case, 
(1872),  12  Cox,  Cr.  Cas.  228. 

We  come,  then,  to  the  American  authorities.  In  this  Court  the  gen- 
eral rule  that  the  confession  must  be  free  and  voluntary  —  that  is,  not 
produced  by  inducements  engendering  either  hope  or  fear  —  is  settled 
by  the  authorities  referred  to  at  the  outset.  The  facts  in  the  particular 
cases  decided  in  this  Court,  and  which  have  been  referred  to,  manifested 
so  clearly  that  the  confessions  were  voluntary  that  no  useful  purpose  can 
be  subserved  by  analyzing  them.  In  this  Court  also  it  has  been  settled 
that  the  mere  fact  that  the  confession  is  made  to  a  police  officer,  while 
the  accused  was  under  arrest  in  or  out  of  prison,  or  was  drawn  out  by  his 
questions,  does  not  necessarily  render  the  confession  involuntary;  but, 
as  one  of  the  circumstances-,  such  imprisonment  or  interrogation  may 
be  taken  into  account  in  determining  whether  or  not  the  statements  of 
the  prisoner  were  voluntary.  Hopt  v.  Utah,  1 10  U.  S.  574,  4  Sup.  Ct.  202; 
Sparf  V.  U.  S.,  156  U.  S.  51,  55,  15  Sup.  Ct.  273.  And  this  last  rule  thus 
by  this  court  established  is  also  the  doctrine  upheld  by  the  state  decisions. 

In  the  various  State  Courts  of  last  resort  the  general  rule  we  have 
just  referred  to,  that  a  confession  must  be  voluntary,  is  generally  recog- 
nized. ...  In  the  following  cases  the  language  in  each  mentioned  was 
held  to  be  an  inducement  sufficient  to  exclude  a  confession  or  statement 
made  in  consequence  thereof:  In  Kelly  v.  State  (1882),  72  Ala.  244,  saying 
to  the  prisoner:  "You  have  got  your  foot  in  it,  and  somebody  else  was 
with  you.  Now,  if  you  did  break  open  the  door,  the  best  thing  you  can  do 
is  to  tell  all  about  it,  and  to  tell  who  was  with  you,  and  to  tell  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.".  .  .  In  Com.  ■?;.  Myers  (1894), 
160  Mass.  530,  36  N.  E.  481,  saying  to  the  accused:  "You  had  better 
tell  the  truth."  In  People  v.  Wolcott  (1883),  51  Mich.  612, 17  N.  W.  78, 
saying  to  the  accused:  "It  will  be  better  for  you  to  confess."  ...  In 
State  V.  Drake  (1893),  113  N.  C.  624, 18  S.  E.  166,  saying  to  the  prisoner: 
"  If  you  are  guilty,  I  would  advise  you  to  make  an  honest  confession. 
It  might  be  easier  for  you.     It  is  plain  against  you."  .  .  . 

We  come,  then,  to  a  consideration  of  the  circumstances  surrounding, 
and  the  facts  established  to  exist,  in  reference  to  the  confession,  in  order 
to  determine  whether  it  was  shown  to  have  been  voluntarily  made.  .  .  . 
The  situation  of  the  accused,  and  the  nature  of  the  communication  made 
to  him  by  the  detective,  necessarily  overthrow  any  possible  implication 
that  his  reply  to  the  detective  could  have  been  the  result  of  a  purely 
voluntary  mental  action;  that  is  to  say,  when  all  the  surrounding  cir- 
cumstances are  considered  in  their  true  relations,  not  only  is  the  claim 
that  the  statement  was  voluntary  overthrown,  but  the  impression  is 
irresistibly  produced  that  it  must  necessarily  have  been  the  result  of 
either  hope  or  fear,  or  both,  operating  on  the  mind. 


442  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  290 

It  cannot  be  doubted  that,  placed  in  the  position  in  which  the  accused 
was  when  the  statement  was  made  to  him  that  the  other  suspected  person 
had  charged  him  with  crime,  the  result  was  to  produce  upon  his  mind 
the  fear  that,  if  he  remained  silent,  it  would  be  considered  an  admission 
of  guilt,  and  therefore  render  certain  his  being  committed  for  trial  as  the 
guilty  person;  and  it  cannot  be  conceived  that  the  converse  impression 
would  not  also  have  naturally  arisen  that,  by  denying,  there  was  hope 
of  removing  the  suspicion  from  himself.  If  this  must  have  been  the 
state  of  mind  of  one  situated  as  was  the  prisoner  when  the  confession 
was  made,  how,  in  reason,  can  it  be  said  that  the  answer  which  he  gave, 
and  which  was  required  by  the  situation,  was  wholly  voluntary,  and  in 
no  manner  influenced  by  the  force  of  hope  or  fear?  To  so  conclude 
would  be  to  deny  the  necessary  relation  of  cause  and  effect.  ...  As  said 
in  the  passage  from  Russell  on  Crimes  already  quoted:  " The  law  cannot 
measure  the  force  of  the  influence  used,  or  decide  upon  its  effect  upon 
the  mind  of  the  prisoner,  and  therefore  excludes  the  declaration  if  any 
degree  of  influence  has  be^  exerted."  In  the  case  before  us,  we  find 
that  an  influence  was  exerted,  and,  as  any  doubt  as  to  whether  the  con- 
fession was  voluntary  must  be  determined  in  favor  of  the  accused,  we 
cannot  escape  the  conclusion  that  error  was  committed  by  the  trial 
Court  in  admitting  the  confession  under  the  circumstances  disclosed  by 
the  record. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  directions 
to  set  aside  the  verdict  and  to  order  a  new  trial. 

Mr.  Justice  Brewer,  dissenting. 

I  dissent  from  the  opinion  and  judgment  in  this  case  — 

Fir'st,  because  I  think  the  testimony  was  not  open  to  objection. 
"A  confession,  if  freely  and  voluntarily  made,  is  evidence  of  the  most 
satisfactory  character."  Hopt  v.  People,  110  U.  S.  574,  584,  4  Sup.  Ct. 
202,  reaffirmed  in  Sparf  v.  U.  S.,  156  U.  S.  51,  55,  15  Sup.  Ct.  273.  The 
fact  that  the  defendant  was  in  custody  and  in  irons  does  not  destroy  the 
competency  of  a  confession.  "Confinement  or  imprisonment  is  not  in 
itself  sufficient  to  justify  the  exclusion  of  a  confession,  if  it  appears  to 
have  been  voluntary,  and  was  not  obtained  by  putting  the  prisoner  in 
fear  or  by  promises."  Sparf  v.  U.  S.  supra.  See,  also,  Wilson  v.  U.  S., 
162  U.  S.  613-623,  16  Sup.  Ct.  895. 

The  witness  Power,  when  called,  testified  positively  that  no  threats 
were  made  nor  any  inducements  held  out  to  Bram;  and  this  general 
declaration  he  affirmed  and  reaffirmed  in  response  to  inquiries  made  by 
the  Court  and  the  defendant's  counsel.  The  Court,  therefore,  properly 
overruled  the  objection  at  that  time  made  to  his  testifying  to  the  state- 
ments of  defendant.  .  .  .  The  first  part  of  that  conversation  is  as 
follows:  "When  Mr.  Bram  came  into  my  office,  I  said  to  him:  'Bram, 
we  are  trying  to  unravel  this  horrible  mystery.'  I  said:  'Your  position 
is  rather  an  awkward  one.     I  have  had  Brown  in  this  office,  and  he  made 


No.  291  TESTIMONIAL  EVIDENCE:     CONFESSIONS  443 

a  statement  that  he  saw  you  do  the  murder.'  He  said:  'He  could  not 
have  seen  me.  Where  was  he? '  I  said :  '  He  states  he  was  at  the  wheel. ' 
'Well,'  he  said,  'he  could  not  see  me  from  there.'  "  In  this  there  is 
nothing  which  by  any  possibility  can  be  tortured  into  a  suggestion  of 
threat  or  a  temptation  of  hope.  Power  simply  stated  the  obvious  fact 
that  they  were  trying  to  unravel  a  horrible  mystery,  and  the  further 
fact  that  Brown  had  charged  the  defendant  with  the  crime,  and  the 
replies  of  Bram  were  given  as  freely  and  voluntarily  as  it  is  possible  to 
conceive.  It  is  strange  to  hear  it  even  intimated  that  Bram  up  to  this 
time  was  impelled  by  fear  or  allured  by  hope  caused  in  the  slightest 
degree  by  these  statements  of  Power. 

The  balance  of  the  conversation  is  as  follows:  "I  said:  'Now,  look 
here,  Bram,  I  am  satisfied  that  you  killed  the  captain  from  all  I  have 
heard  from  Mr.  Brown.  But,'  I  said,  'some  of  us  here  think  you  could 
not  have  done  all  that  crime  alone.  If  you  had  an  accomplice,  you 
should  say  so,  and  not  have  the  blame  of  this  horrible  crime  on  your  own 
shoulders.'  He  said:  'Well,  I  think,  and  many  others  on  board  the  ship 
think,  that  Brown  is  the  murderer;  but  I  don't  know  anything  about  it.' 
He  was  rather  short  in  his  replies."  And  here,  it  is  argued,  was  a  sug- 
gestion of  a  benefit,  —  the  holding  out  of  a  hope  that  a  full  disclosure 
might  somehow  inure  to  his  advantage.  To  support  this  contention 
involves  a  refinement  of  analysis  which,  while  it  may  show  marvelous 
metaphysical  ability,  is  of  little  weight  in  practical  affairs.  But,  even 
if  did  carry  any  such  improper  suggestion,  it  was  made  at  nearly  the  close 
of  the  conversation;  and  that  this  suggestion  then  made  had  a  retroactive, 
effect,  and  transformed  the  previous  voluntary  statements  of  Bram  into 
statements  made  under  the  influence  of  fear  or  hope,  is  a  psychological 
process  which  I  am  unable  to  comprehend.  .  .  .  With  all  respect  to  my 
brethren  who  are  of  a  different  opinion,  I  can  but  think  that  such  a  con- 
tention is  wholly  unsound,  and  that  in  all  this  conversation  with  Bram 
there  was  nothing  of  sufficient  importance  to  justify  the  reversal  of  the 
judgment. 

The  Chief  Justice  and  Mr.  Justice  Brown  concur  in  this  dissent. 


291.   COMMONWEALTH  v.   CRESSINGER 

Supreme  Court  of  Pennsylvania.     1899 

193  Pa.  326;  44  Ail.  433 

Argued  October  16,  1899.  Appeal,  No.  231,  Jan.  T.,  1899,  by 
plaintifP,  from  judgment  of  O.  &  T.  Northumberland  Co.,  Dec.  T.,  1898, 
No.  3,  on  a  verdict  of  guilty  of  murder.  Before  Sterrett,  C.  J.,  Green, 
McCoLLUM,  Mitchell,  Dean  and  Fell,  JJ.     Affirmed. 

Indictment  for  murder.  Before  Savidge,  P.  J.  At  the  trial  it 
appeared  that  on  October  10,  1898,  Daisy  Smith,  a  girl  about  sixteen 


444  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  291 

years  of  age,  residing  in  Lower  Augusta  township,  was  shot  and  killed 
on  her  father's  farm.  Suspicion  was  directed  toward  the  prisoner,  the 
son  of  a  neighboring  farmer.  Two  of  the  neighbors  went  to  defendant's 
home  where  they  found  him  washing  a  shirt  bespattered  with  blood. 

Counsel  for  the  Commonwealth  offered  to  prove  by  L.  L.  Grimm  that 
he,  in  company  with  Miles  Dougherty,  called  at  the  county  jail;  that 
the  prisoner  was  brought  into  the  jail  ofhce  and  that  they  there  had  a 
conversation  with  him  and  that  he  confessed  to  the  commission  of  the 
crime.  Counsel  for  the  prisoner  objected,  because  when  the  prisoner 
was  interrogated  he  had  been  but  recently  placed  under  duress  without 
process  of  law.  .  .  .  That  while  he  was  yet  subjected  to  the  fear  and 
terror  incident  upon  his  arrest  and  incarceration  in  the  middle  of  the 
night,  and  before  he  had  time  to  acquire  even  proper  composure,  in 
ignorance  of  his  rights,  he  was,  with  undue  haste,  visited  by  the  officers 
of  the  law,  who  immediately  informed  him  who  they  were,  thus  being 
placed  in  a  situation  which  must  necessarily  have  terrorized  him,  which 
circumstances  were  followed  by  an  artifice  and  trick  by  which  he  was 
induced  to  make  a  statement* which  they  allege  to  be  a  confession,  and 
by  reason  of  the  artifice  and  trick  might  have  been  induced  with  the 
hope  of  some  benefit,  or  at  least  while  he  was  under  the  influence  of  fear, 
to  make  statements  which  it  is  proposed  to  use  to  his  injury :  and  because 
the  evidence  offered  is  incompetent  and  illegal. 

The  Court.  —  "  Whether  the  trick  in  this  case  was  such  as  to  excite 
hope  or  fear  cannot  be  known  until  we  hear  what  it  was.  ...  I  suppose 
it  is  of  very  little  consequence  which  side  finds  out  what  the  trick  was." 

Mr.  Mahon,  of  counsel  for  Commonwealth.  —  "Go  on  and  state  what 
you  said  to  the  prisoner  on  the  evening  of  October  11,  without  giving 
what  he  said  to  you.  What  did  you  first  say  to  him  when  he  was  brought 
into  the  office?" 

The  Court.  —  "  That  he  has  explained  to  us  already,  and  after  he 
had  explained  what  he  had  said,  leading  up  to  the  confession,  Mr.  Oram 
asked  whether  he  had  resorted  to  any  trick,  and  he  said  he  had." 

Q.  —  "  Go  on  and  state  what  you  characterized  as  a  trick  on  your 
part  on  that  occasion."  A.  —  "Why,  we  discovered  that  the  knife  was 
bought  down  at  Mrs.  Bohner's,  but  we  could  not  get  any  trace  of  who 
bought  on  the  Monday  previous,  being  the  last  knife  of  the  kind  that  she 
had,  but  we  also  found  that  she  got  her  knives  from  Mr.  Hackett  in 
town.  ...  I  went  into  Hackett's  store  and  asked  him  for  a  pocket 
knife  of  the  kind  that  Mrs.  Bohner  got;  and  he  said  she  bought  three 
or  four  different  kinds,  and  he  asked  what  kind  I  had  reference  to  and 
I  said  I  would  like  to  get  a  two-bladed  barlow,  both  at  one  end,  and  he 
said,  'I  have  some  of  that  kind,'  and  he  got  one;  and  I  says,  'I  would 
like  to  borrow  this  for  a  few  days  and  if  I  don't  bring  it  back  I  will  pay 
for  it,'  and  I  put  it  in  my  pocket  and  went  to  the  jail;  and  after  talking 
a  while  I  reached  down  in  my  pocket  and  pulled  this  out  and  I  said, 
'Ed,  I  found  your  knife.'" 


No.  291  TESTIMONIAL  EVIDENCE:     CONFESSIONS  445 

Mr.  Oram:  Q.  —  "Then  the  statement  he  made  was  induced  by 
that?"     A. — -"Yes,  sir:    in  that  way." 

The  Court.  —  "Is  that  all,  by  way  of  trick?"  A.  —  "I  gave  it  to 
the  prisoner  and  he  examined  it.  He  asked,  'Where  did  you  get  it?' 
I  said,  'Just  where  you  put  it,'  and  he  asked  me  the  second  time  and  I 
gave  him  the  same  answer,  and  he  asked  the  third  time,  '  I  would  like  to 
know  where  you  got  it;'  and  I  says,  'Nobody  knows  better  than  you; 
I  got  it  just  where  you  put  it,'  and  then  he  began  and  told  me  where  I 
got  it." 

Counsel  for  the  prisoner  renews  objections  previously  made. 

The  Court.  —  "We  are  of  the  opinion  that  we  cannot  say,  as  a  matter 
of  law,  that  the  trick  spoken  of  by  the  witness  was  calculated  to  produce 
such  a  state  of  hope  or  fear  on  the  mind  of  the  prisoner  as  would  lead 
to  an  untrue  confession.  We  therefore  overrule  the  objection  and  admit 
the  testimony." 

Exception  for  the  prisoner  and  bill  sealed.  .  .  . 

Mr.  Oram:  Q.  —  "Go  on  and  state  all  that  occurred,  which  led  up  • 
to  this  confession  that  you  have  in  this  writing."  A.  —  "When  I  told 
him,  '  Nobody  knows  better  than  you, '  he  says,  '  You  must  have  found 
it  at  the  apple  tree  where  the  wash  bench  stands;'  I  said,  'Certainly, 
you  knew  where  you  put  it.'  I  looked  at  him  straight  and  says,  'Ed, 
why  did  you  do  it?'  And  just  at  that  time  Dougherty  says,  'Did  you 
have  a  quarrel?'  And  Ed  says,  'Yes,  she  slapped  me,'  and  Dougherty 
kind  of  raised  himself  up,  and  said,  '  I  don't  want  you  to  say  another 
word,  unless  it  is  voluntarily,  because  anything  you  say  we  will  use 
against  you.' "  Q.  —  "Is  this  confession  in  your  handwriting?"  A. — 
"Yes,  sir,  it  don't  show  it  very  plainly  because  I  was  kind  of  nervous 
when  I  wrote  it." 

Counsel  for  the  Commonwealth  renewed  offer  to  read  the  confession. 

Counsel  for  the  prisoner  objected.  .  .  . 

The  Court:  Objection  overruled  and  bill  sealed  for  the  prisoner.  .  .  . 

Verdict  of  guilty  of  murder  in  the  first  degree,  and  sentence  passed 
upon  the  verdict.  .  .  . 

Charles  M.  Clement  and  William  H.  M.  Oram,  for  appellant.  .  .  . 
The  confession  was  inadmissible.  .  .  . 

P.  A.  Mahon,  with  D.  W.  Shipman,  district  attorney,  for  appellee.  .  .  . 

Opinion  by  Mr.  Justice  Mitchell,  October  30,  1899.  .  .  .  The  evi- 
dence of  the  confession  made  to  Grimm  was  properly  admitted.  The 
fact  that  it  was  obtained  by  a  trick  is  no  objection  to  its  competency, 
unless  the  circumstances  are  such  as  to  suggest  an  inference  that  through 
fear  or  hope  a  false  confession  may  be  made.  There  were  no  such  cir- 
cumstances in  the  present  case,  nor  anything  which  required  the  judge 
to  dwell  particularly  upon  them  in  his  charge.  A  knife  was  produced 
and  the  prisoner  led  to  believe  that  it  was  his.  Under  this  supposition 
he  told  where  he  had  hidden  his  and  then  told  the  story  of  the  murder. 
The  object  of  evidence  is  to  get  at  the  truth,  and  a  trick  which  has  no 


446  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  291 

tendency  to  produce  a  confession  except  one  in  accordance  with  the 
truth  is  always  admissible.  Society  and  the  criminal  are  at  war,  and 
capture  by  surprise,  or  ambush,  or  masked  battery  is  as  permissible  in 
one  case  as  in  the  other.  Com.  v.  Goodwin,  186  Pa.  218;  McClain  v. 
Com.,  110  Pa.  263,  269.  .  .  . 

Judgment  affirmed  and  record  remitted  for  purpose  of  execution 
according  to  law. 


292.   COMMONWEALTH  v.   STORTI 
Supreme  Judicial  Court  of  Massachusetts.     1901 
177  Mass.  339;    58  N.  E.  102 

Indictment  for  murder,  returned  against  Luigi  Storti  and  Vincenzo 
Bocielli  by  the  grand  jury,  December  9,  1899.  The  defendant  Bocielli 
was  not  apprehended.  The  defendant  Storti  was  tried  in  the  Superior 
Court,  before  Bond  and  Lawton,  J  J.  The  case  came  up  on  appeal  and 
bill  of  exceptions.  .  .  . 

By  the  bill  of  exceptions  it  appeared  that  on  the  night  of  November 
6,  1899,  the  two  defendants,  Luigi  Storti  and  Vincenzo  Bocielli,  of  whom 
Storti  alone  was  on  trial,  occupied  a  room  in  a  house  on  Charter  street 
in  Boston  with  five  others,  one  of  whom  was  Michele  Calucci,  the  de- 
ceased. At  an  early  hour  of  the  morning  of  November  7th  it  was  dis- 
covered by  some  of  the  occupants  of  the  room  that  Calucci  had  been 
murdered  in  his  bed  with  an  axe,  and  that  Storti  and  Bocielli  had  fled. 
Storti  was  arrested  on  the  following  day  at  Hudson,  Massachusetts.  He, 
there  and  on  the  way  to  Boston,  made  incriminating  statements  to  the 
officers,  and  later,  at  police  headquarters  in  Boston,  made  a  confession 
through  an  interpreter.  .  .  . 

P.  S.  Maker  and  C.  W.  Roioley,  for  the  defendant. 

M.  J.  Sughrue,  First  Assistant  District  Attorney,  and  J.  D.  McLaugh- 
lin, Second  Assistant  District  Attorney,  for  the  Commonwealth.  .  .  . 

Holmes,  C.  J.  .  .  .  The  admission  of  statements  made  by  the 
defendant  to  the  officers  who  arrested  him  was  excepted  to,  mainly  on 
the  ground  that  the  statements  were  not  voluntary.  The  judges  who 
tried  the  case  were  warranted  in  finding  that  the  statements  were  freely 
made,  and  whatever  latitude  we  may  use  in  reviewing  these  findings  of 
fact,  we  cannot  say  that  they  were  wrong.  Commonwealth  v.  Bond, 
170  Mass.  41. 

The  first  conversation  was  in  the  station-house,  just  after  the  arrest 
on  the  day  following  the  murder.  In  this  nothing  of  great  importance 
was  said.  But  the  defendant  in  denying  his  guilt  said  that  he  never 
was  in  Boston,  which  of  course  was  evidence  against  him.  In  the  next, 
on  the  following  day  at  the  same  place,  the  defendant  admitted  striking 
the  deceased  with  an  axe.     So  far  no  inducements  had  been  held  out  to 


No.  293  TESTIMONIAL  EVIDENCE:     CONFESSIONS  447 

him,  and  the  facts  that  the  prisoner  was  in  custody  and  was  questioned 
by  an  officer  are  not  conclusive  against  this  evidence.  .  .  . 

The  first  full  and  extended  examination  was  in  the  Boston  station- 
house,  in  the  presence  of  three  officers,  one  of  whom  put  questions  through 
an  interpreter,  and  the  questions  and  answers  were  taken  down  by  a 
stenographer.  The  interpreter  was  a  witness  at  the  trial,  and  swore  that 
he  accurately  translated  all  that  was  said  by  the  officer  to  the  prisoner 
and  all  the  answers  which  the  prisoner  made.  The  stenograplier  testi- 
fied that  he  accurately  took  it  all  down.  What  seems  to  be  the  chief 
ground  of  objection  to  this  examination  is  that  according  to  his  own 
testimony  the  interpreter  said  to  the  prisoner  that  "what  would  be 
against  him,  that  will  be  brought  in  court  against  him,  or  in  favor,  as  it 
was."  We  understand  this  to  mean  in  imperfect  English  that  whatever 
was  said  would  be  used  in  court,  against  the  defendant  if  unfavorable,  or 
for  him  if  favorable.  It  is  hard  to  find  an  inducement  to  make  a  con- 
fession or  to  say  things  unfavorable  to  himself  in  these  words.  But,  if 
it  be  thought  that  there  was  an  inducement  to  speak  when  otherwise 
he  might  have  remained  silent,  Bram  v.  United  States,  168  U.  S.  532, 
549,  550  [ante,  No.  290],  it  is  enough  to  say  that,  according  to  the  testi- 
mony of  the  stenographer  froni  his  notes,  the  prisoner  was  asked  if  he 
wished  to  make  any  statement  of  his  own  free  will,  answered  yes,  and  then 
was  cautioned  simply  that  everything  he  said  might  be  used  against  him 
in  court.  This  is  confirmed  by  other  evidence,  and,  to  say  the  least, 
the  presiding  judges  were  warranted  in  taking  it  as  the  true  account.  .  .  . 

The  only  exception  which  causes  hesitation  on  our  part  is  to  the 
exclusion  of  evidence  that,  at  the  talk  in  the  Hudson  station-house, 
Rooney,  one  of  the  officers,  said  in  English  to  Rosatto,  another,  who  was 
speaking  with  the  prisoner  in  Italian,  "  Tell  him  it  will  be  better  for  him 
if  he  tells."  But  it  appears  that  the  defendant  did  not  speak  or  under- 
stand English,  and  not  only  was  there  no  evidence  that  such  a  sugges- 
tion was  communicated  to  the  prisoner,  but  all  the  testimony  was  that  it 
was  not  communicated,  if  such  a  statement  was  made.  It  did  not  even 
appear  that  Rooney  spoke  in  the  prisoner's  hearing.  .  .  . 

Decree  overruling  motion  to  quash  affirmed;  exceptions  overruled. 


293.   AMMONS  v.   STATE 

Supreme  Court  of  Mississippi.     1902 

80  Miss.  592;  32  So.  9 

From  the  Circuit  Court  of  Warren  County.  Hon.  George  Ander- 
son, Judge. 

Ammons,  appellant,  was  indicted,  tried,  and  convicted  of  burglary. 
On  the  trial  certain  confessions  of  the  defendant,  obtained  by  the  aid  of 
a  sweat-box  in  the  manner  mentioned  in  the  opinion  of  the  Court,  were 


448  BOOK    i:     KULES    OF   ADMISSIBILITY  No.  293 

offered  in  evidence  against  defendant  over  his  objection.  Without  the 
confession  there  was  not  sufficient  evidence  to  support  the  verdict. 
From  the  conviction  the  defendant  appealed  to  the  Supreme  Court, 
assigning  as  error  the  admission  of  the  confessions. 

D.  Marshall  and  Theodore  G.  Burchett,  Jr.,  for  appellant.  Before  a 
confession  can  be  introduced  it  must  be  shown  to  be  voluntary.  .  .  . 
By  the  direction  of  the  chief  of  police  the  defendant  was  thrown  into 
the  "sweat-box."  ...  If  the  confession  has  been  extorted  by  duress  or 
fear,  as  by  threat  of  violence,  or  any  increased  rigor  of  confinement,  or 
by  any  other  menace  which  can  inspire  dread  or  alarm,  it  will  be  ex- 
cluded. ...  Of  course,  a  mere  exhortation  to  tell  the  truth  does  not 
render  the  confession  inadmissible,  but  when  an  officer,  without  advising 
a  prisoner  of  his  privilege  of  not  answering  the  questions,  tells  him  he 
had  better  tell  what  is  right,  and  it  would  be  better  to  tell  the  truth,  the 
Courts  have  uniformly  excluded  such  a  confession.  Regina  v.  Romp, 
17  Ont.  Rep.  567;  Regina  v.  Diherty,  13  Cox  C.  C.  23;  Commonwealth 
V.  Meyers,  160  Mass.  530.  .  .  . 

Monroe  McClurg,  Attorney-General,  for  appellee.  The  brief  of 
counsel  for  appellant  pictures  the  "sweat-box"  in  the  city  jail  as  a  most 
horrible  place.  Much  of  the  picture  is  drawn  from  imagination.  The 
record  shows  that  the  apartment  called  the  "sweat-box"  was  simply 
a  small  room  in  one  corner  of  a  large  room.  .  .  . 

Calhoon,  J.  —  The  chief  of  police  testified  that  the  accused  made  to 
him  a  "free  and  voluntary"  statement.  The  circumstances  under  which 
he  made  it  were  these:  There  was  what  was  known  as  a  "sweat-box" 
in  the  place  of  confinement.  This  was  an  apartment  about  five  or  six 
feet  one  way  and  about  eight  feet  another.  It  was  kept  entirely  dark. 
For  fear  that  some  stray  ray  of  light  or  breath  of  air  might  enter  without 
special  invitation,  the  small  cracks  were  carefully  blanketed.  The 
prisoner  was  allowed  no  communication  whatever  with  human  beings. 
Occasionally  the  officer,  who  had  put  him  there,  would  appear,  and 
interrogate  him  about  the  crime  charged  against  him.  To  the  credit  of 
our  advanced  civilization  and  humanity  it  must  be  said  that  neither  the 
thumbscrew  nor  the  wooden  boot  was  used  to  extort  a  confession.  The 
efficacy  of  the  sweat-box  was  the  sole  reliance.  This,  with  the  hot 
weather  of  summer,  and  the  fact  that  the  prisoner  was  not  provided  with 
sole  leather  lungs,  finally,  after  "several  days"  of  obstinate  denial, 
accomplished  the  purpose  of  eliciting  a  "free  and  voluntary"  confession. 
The  officer,  to  his  credit,  says  he  did  not  threaten  his  prisoner,  that  he 
held  out  no  reward  to  him,  and  did  not  coerce  him.  Everything  was 
"free  and  voluntary."  He  was  perfectly  honest  and  frank  in  his  testi- 
mony, this  officer  was.  He  was  intelligent,  and  well  up  in  the  law  as 
applied  to  such  cases,  and  nothing  would  have  tempted  him,  we  assume, 
to  violate  any  technical  requirement  of  a  valid  confession  —  no  threats, 
no  hope  of  reward,  no  assurance  that  it  would  be  better  for  the  prisoner 
to  confess.     He  did  tell  him,  however,  "that  it  would  be  best  for  him  to 


No.  294  TESTIMONIAL   EVIDENCE:     CONFESSIONS  449 

do  what  was  right,"  and  that  it  "  would  be  better  for  him  to  tell  the  truth." 
In  fact,  this  was  the  general  custom  in  the  moral  treatment  of  these 
sweat-box  patients,  since  this  officer  says,  "I  always  tell  them  it  would 
be  better  for  them  to  tell  the  truth,  but  never  hold  out  any  inducement 
to  them."  He  says,  in  regard  to  the  patient,  Ammons,  "  I  went  to  see 
this  boy  every  day,  and  talked  to  him  about  the  case,  and  told  him  it 
would  be  better  for  him  to  tell  the  truth;  tell  everything  he  knew  about 
the  case."  This  sweat-box  seems  to  be  a  permanent  institution,  invented 
and  used  to  gently  persuade  all  accused  persons  to  voluntarily  tell  the 
truth.  Whenever  they  do  tell  the  truth  —  that  is,  confess  guilt  of  the 
crime  —  they  are  let  out  of  the  sweat-box.  Speaking  of  this  apartment, 
and  the  habit  as  to  prisoners  generally,  this  officer  says,  "We  put  them 
in  there  (the  sweat-box)  when  they  don't  tell  me  what  I  think  they  ought 
to."     This  is  refreshing. 

The  confession  was  not  competent  to  be  received  as  evidence.  6  Am. 
&  Eng.  Enc.  Law,  p.  531,  note  3;  Id.,  p.  550,  note  7;  Hamilton  v.  State, 
77  Miss.  675  (27  So.  606) ;  Simon  v.  State,  37  Miss.  288.  Defendant, 
unless  demented,  understood  that  the  statement  wanted  was  confession, 
and  that  this  only  meant  release  from  this  "black  hole  of  Calcutta." 
Such  proceedings  as  this  record  discloses  cannot  be  too  strongly 
denounced.  They  violate  every  principle  of  law,  reason,  humanity, 
and  personal  right.  They  restore  the  barbarity  of  ancient  and  medieval 
methods.  They  obstruct,  instead  of  advance,  the  proper  ascertainment 
of  truth.  It  is  far  from  the  duty  of  an  officer  to  extort  confession  by 
punishment.  On  the  contrary,  he  should  warn  his  prisoner  that  every 
statement  he  may  choose  to  make  may  be  used  against  him  on  his  trial. 

Reversed  and  remanded. 

294.   STATE  v.   FINCH 

Supreme  Court  of  Kansas.      1905 

71  Kan.  793;  81  Pac.  494 

Appeal  from  District  Court,  Finney  County;  W^m.  Easton 
Hutchison,  Judge.  O.  W.  Finch  was  convicted  of  manslaughter  in 
the  fourth  degree,  and  appeals.     Affirmed. 

G.  L.  Miller,  for  appellant.  C.  C.  Coleman,  Attorney-General,  and 
Albert  HosJcinson,  for  the  State. 

Johnston,  C.  J.  —  In  an  information,  containing  two  counts,  O.  W. 
Finch  was  charged  with  manslaughter  in  the  third  and  fourth  degrees 
for  the  killing  of  M.  Brooks.  He  was  found  guilty  of  manslaughter  in 
the  fourth  degree,  as  charged  in  the  second  count.  In  his  appeal  numer- 
ous errors  are  assigned.  .  .  . 

The  principal  complaint  of  the  defendant  is  the  admission  of  testimony 
given  by  himself  at  the  coroner's  inquest.  .  .  .  We  find  nothing  in  the 
record  showing-  that  it  was  not  admissible.     Like  others,  the  defendant 


450  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  294 

was  subpoenaed  as  a  witness  to  testify  at  the  inquest  as  to  the  cause  of 
Brooks'  death.  For  aught  that  appears,  he  may  have  been  anxious  and 
swift  to  testify.  There  is  not  a  hint  in  the  record  that  he  was  led  to 
testify  through  any  inducement  of  promised  favor  or  by  reason  of  any 
fear,  menace  or  duress.  Ordinarily,  all  that  a  defendant  has  said  perti- 
nent to  the  subject  of  inquiry  may  be  received  in  evidence  against  him. 
The  exceptions  to  this  rule  are  when  admissions  have  been  extracted  from 
him  by  means  of  promises  or  threats,  or  where  statements  made  or 
testimony  given  have  been  compulsory  or  involuntary.  The  test  of 
admissibility  in  this  and  like  cases  is,  Were  the  statements  made  volun- 
tarily and  without  compulsion? 

In  this  instance  they  were  made  in  an  inquiry  where  the  defendant 
was  a  witness,  and  not  a  party,  and  where  he  might  have  claimed  the 
privileges  of  a  witness.  He  was  not  in  custody,  nor  had  any  accusation 
been  made  against  him.  Indeed,  it  does  not  appear  that  Brooks'  death 
was  then  thought  to  have  been  caused  by  any  criminal  act.  ...  If  the 
testimony  which  defendant  gave  was  incriminating,  was  it  inadmissible 
merely  because  he  was  subpoenaed  as  a  witness  and  gave  his  testimony 
at  a  formal  inquest  before  the  coroner?  There  was  no  compulsion  to 
testify,  unless  the  mere  fact  that  he  was  subpoenaed  to  give  his  testimony 
can  be  so  regarded.  There  is  considerable  diversity  of  opinion  in  the 
cases  as  to  the  admission  of  such  testimony,  and  these  may  be  found 
compiled  and  classified  in  1  Wigmore  on  Evidence,  §  851,  and  the  ap- 
pended note.  In  an  early  New  York  case  the  subject  was  examined  and 
the  cases  reviewed,  and  it  was  held  that  upon  a  trial  for  murder  statements 
made  by  the  prisoner  at  a  coroner's  inquest  upon  the  body  of  the  deceased, 
when  the  witness  was  not  under  arrest  or  accused  of  the  crime,  were 
admissible  against  him.  Hendrickson  v.  The  People,  10  N.  Y.  13,  61 
Am.  Dec.  721.  In  a  later  case  a  witness  at  a  coroner's  inquest,  who 
appeared  in  response  to  a  subpoena,  testified,  and  on  his  subsequent 
trial  the  testimony  was  admitted  against  him,  although  he  knew  at  the 
time  he  testified  that  he  was  under  suspicion  of  having  committed  the 
crime  under  investigation,  and  would  probably  be  arrested.  Teachout 
V.  The  People,  41  N.  Y.  7.  In  People  v.  Molineux,  168  N.  Y.  264,  61 
N.  E.  286,  62  L.  R.  A.  193,  the  defendant  was  charged  with  murder  at 
an  inquest  over  the  body  of  the  deceased;  the  defendant  testified  in 
pursuance  to  a  subpoena  issued  by  the  coroner,  and  he  was  threatened 
with  punishment  if  he  refused  to  testify;  at  the  close  of  the  inquest  he 
was  arrested,  charged  with  the  crime.  The  Court  said,  on  page  331  of 
168  N.  Y: 

"When  a  person  is  called  upon  to  testify  at  a  coroner's  inquest,  convened  to 
inquire  into  a  crime,  for  the  commission  of  which  such  person  is  then  under  arrest, 
or  upon  which  he  has  been  formally  accused,  he  occupies  the  same  position  and 
he  has  the  same  rights,  as  though  he  were  before  an  examining  magistrate.  People 
V.  Mondon,  103  N.  Y.  211,  8  N.  E.  496,  57  Am.  Rep.  709.  So,  on  the  other  hand, 
if  the  person  who  testifies  at  the  inquest  does  so  simply  as  a  witness,  he  has  none 


No.  295  TESTIMONIAL  EVIDENCE:     CONFESSIONS  451 

of  the  rights  or  immunities  of  a  party.  This  is  the  foundation  of  the  rule  which 
is  now  firmly  estabHshed  in  this  State  —  that  when  a  person  testifies  at  an  inquest 
as  an  accused  or  arrested  party  his  testimony  cannot  be  used  against  him  upon 
a  subsequent  trial  of  an  indictment  growing  out  of  the  inquest,  unless  his  testi- 
mony has  been  voluntarily  given  after  he  has  been  fully  advised  of  all  his  rights 
and  has  been  given  an  opportunity  to  avail  himself  of  them.  People  r.  Chapleau, 
121  N.  Y.  267.  The  logical  and  necessary  corollary  of  that  part  of  the  rule  stated 
is  that  when  a  person  testifies  simply  as  a  witness,  and  not  as  a  party,  his  testi- 
mony can  be  used  against  him  even  though  he  is  afterwards  indicted  and  tried 
for  the  commission  of  the  crime  disclosed  by  the  inquest." 

Other  authorities  supporting  this  rule  are  Wilson  v.  The  State,  110 
Ala.  1;  Jones  v.  The  State,  120  Ala.  303;  State  v.  Coffee,  56  Conn.  399, 
16  Atl.  151;  State  v.  Oilman,  51  Me.  206;  Shoeffler  v.  The  State,  3  Wis. 
823;  Williams  v.  The  Commonwealth,  29  Pa.  102;  Newton  v.  The  State, 
21  Fla.  53;  Kirby  v.  The  State,  23  Tex.  App.  13;  The  People  v.  Taylor,  59 
Cal.  640;  1  Oreenleaf  on  Evidence  (15th  Ed.)  §  225;  1  Roscoe's  Criminal 
Evidence  (8th  Ed.)  95.  Some  of  the  Courts  have  taken  a  different  view. 
State  V.  Young,  119  Mo.  495;  State  v.  Young,  60  N.  C.  126;  State  v. 
Senn,  32  S.  C.  392;   State  v.  O'Brien,  18  Mont.  1.  .  .  . 

Attention  is  called  to  the  case  of  State  v.  Taylor,  36  Kan.  329;  but 
there  the  testimony  at  the  coroner's  inquest  was  admitted  because  it  did 
not  appear  to  be  voluntary.  In  the  course  of  the  opinion  it  is  said  that, 
if  the  defendant  was  compelled,  by  subpoena  or  otherwise,  to  give  his 
testimony  before  the  coroner's  inquest,  and  there  was  duress,  it  should 
be  excluded.  But  that  case  is  not  an  authority  that  testimony  given 
under  a  subpoena  and  without  compulsion  and  duress  is  inadmissible. 
Testimony  as  to  the  cause  of  a  death  at  a  coroner's  inquest,  given  by  a 
witness  who  is  not  accused  nor  under  arrest,  is  not  deemed  to  be  involun- 
tary merely  because  he  testified  in  response  to  a  subpoena.  Of  course, 
if  it  appeared  that  he  testified  as  a  party,  rather  than  as  a  witness,  or  if 
he  had  been  induced  to  testify  by  promises  or  threats  or  other  improper 
influences,  his  testimony  might  not  subsequently  be  used  against  him. 
In  this  case  there  are  no  circumstances  indicating  coercion,  nor  anything 
inconsistent  with  the  view  that  the  defendant  desired  or  sought  the  oppor- 
tunity to  testify.  .  .  .  Finding  no  prejudicial  error,  the  judgment  will 
be  affirmed.  All  the  justices  concurring. 

295.   STATE  v.   CAMPBELL 

Supreme  Court  of  Kansas.     1906 

73  Kan.  688;  85  Pac.  784 

Appeal  from  District  Court,  Wyandotte  County;  J.  McCabe  Moore, 
Judge. 

Frank  M.  Campbell  was  convicted  of  bribery,  and  appeals.  Affirmed. 
[The  facts  and  the  evidence  objected  to  are  printed  post,  in  No.  654.] 
Porter,  J.  (after  stating  the  facts).     The  appellant  contends  .  .  . 


452  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  295 

that  the  Court  erred  in  allowing  members  of  the  grand  jury  which 
indicted  appellant  to  testify  to  statements  made  by  him  while  a  witness 
before  the  grand  jury.  It  is  contended:  (1)  That,  before  such  testimony 
was  competent,  the  State  should  have  shown  that  the  statements  of 
appellant  were  voluntary.  .  .  .  It  is  insisted  that  the  same  rule  applies 
to  the  admissibility  of  statements  and  declarations  of  a  defendant  in  a 
criminal  action  as  obtains  in  reference  to  a  confession. 

The  distinction  between  a  confession  and  a  statement  or  declaration 
is  one  recognized  by  Courts  and  text-writers  because  it  is  a  patent  distinc- 
tion in  the  very  nature  of  things.  The  only  reason  why  confessions  are 
sometimes  not  admitted  in  evidence  is  because  experience  has  shown  that, 
when  made  under  certain  circumstances,  they  cannot  be  relied  upon  as 
true.  It  is  not  out  of  any  consideration  for  the  rights  of  the  party  alleged 
to  have  made  the  confession  that  it  is  excluded,  but  simply  because  of  the 
inherent  probability  of  its  untruthfulness,  unless  it  first  appears  to  have 
been  made  voluntarily  and  not  under  the  influence  of  fear  or  duress, 
occasioned  by  threats  or  hope  of  immunity  by  reason  of  promises. 

"A  'confession,'  in  a  legal  sense,  is  restricted  to  an  acknowledgment  of  guilt 
made  by  a  person  after  an  offense  has  been  committed,  and  does  not  apply  to  a 
mere  statement  or  declaration  of  an  independent  fact  from  which  such  guilt  can 
be  inferred.     State  v.  Reinhart,  26  Or.  466,  38  Pac.  822.  .  .  . 

In  1  Wigmore  on  Evidence,  §  821,  p.  930,  the  author  says: 

"  (3)  An  acknowledgment  of  a  subordinate  fact,  not  directly  involving  guilt, 
or,  in  other  words,  not  essential  to  the  crime  charged,  is  not  a  confession,  because 
the  supposed  ground  of  untrustworthiness  of  confessions  is  that  strong  motive 
impels  the  accused  to  expose  and  declare  his  guilt  as  the  price  of  purchasing 
immunity  from  present  pain  or  subsequent  punishment,  and  thus,  by  hypothesis, 
there  must  be  some  quality  of  guilt  in  the  fact  acknowledged.  Confessions  are 
thus  only  one  species  of  admissions,  and  all  other  admissions  than  those  which 
directly  touch  the  fact  of  guilt  are  without  the  scope  of  the  peculiar  rules  affecting 
the  use  of  confessions."  .  .  . 

Tested  by  these  well  established  rules,  how  can  it  be  said  that  the 
statements  of  appellant  before  the  grand  jury  amounted  to  a  confession? 
They  were  made  in  positive  denial  of  guilt  and  for  the  purpose  of  excul- 
pating himself.  He  admitted  the  making  of  the  contract  with  Gilhaus; 
there  was  no  guilt,  no  crime,  no  offense  in  that.  He  admitted  the  receipt 
of  S412  from  Gilhaus;  but,  if  the  story  he  told  was  true,  and  this  money 
was  in  payment  of  the  purchase  price  of  the  steam  valve  which  he  had 
sold  to  Gilhaus,  there  was  no  offense  in  that.  No  statement  by  itself 
amounted  to  an  acknowledgment  of  guilt;  nor  could  his  guilt  be  neces- 
sarily inferred  by  the  jury  from  all  his  statements  taken  together.  The 
constitutional  right  which  every  man  has  to  refuse  to  answer  any  ques- 
tions which  may  incriminate  him  seems,  in  these  days  of  "immunity 
pleas,"  to  be  fully  recognized  and  appreciated.  It  furnishes  ample 
protection  and  does  not,  in  our  opinion,  require  reinforcement  by  the 
adoptior-  of  the  rule  contended  for  by  the  appellant.  .  .  . 

The  judgment  will  be  affirmed.     All  the  justices  concurring. 


No.  297  PREFERENTIAL    RULES  453 


TITLE    II.    PliEFEBENTIAL    RULES 

296.  Introductory.'  The  nature  of  the  Prefrrmfial  rules  is  that  they  prefer 
one  kind  of  evidence  to  another.  This  may  be  done  in  one  of  two  ways:  (a)  they 
may  require  one  kind  of  evidence  to  be  brought  in  before  any  other  can  V)e  re- 
sorted to,  and  may  refuse  provisionally  to  listen  to  the  latter  until  the  former  is 
procured  or  is  shown  to  be  inaccessible;  or  (b)  they  may  prefer  one  kind  of  evi- 
dence absolutely,  i.e.  they  may  require  its  production,  and,  so  long  as  it  is  avail- 
able, consider  no  other  kind  of  evidence,  after  the  preferred  kind  has  been 
supplied. 

With  reference  to  the  kinds  of  evidence  thus  preferred,  these  rules  are  of  the 
follo^Wng  scope: 

(1)  There  is  a  rule  of  preference  for  the  inspection  of  the  thing  itself,  in  place 
of  any  evidence,  either  circumstantial  or  testimo'nial,  about  the  thing;  this  is 
the  rule  of  Primariness,  as  sometimes  termed,  and  concerns  itself  solely  with 
docnments. 

(2)  There  is,  next,  a  preference  as  between  various  kinds  of  testimonial  evi- 
dence. One  kind  of  witness  may,  for  various  reasons,  be  required  to  be  called 
in  preference  to  another.  Here  the  two  kinds  of  preference,  conditional  and 
absolute,  are  both  found,  (a)  The  chief  example  of  the  former  sort  is  the  rule 
requiring  an  attesting  witness  to  be  called.  Other  examples  of  this  kind  of  rule 
are  sometimes  found  in  requirements  that  the  eye-witnesses  to  a  crime  must  all 
be  called,  or  that  the  owner  of  stolen  goods  must  be  called  to  prove  their  loss,  or 
that  the  alleged  writer  of  a  document  must  be  called  to  identify  it.  (b)  Of  the 
absolute  preference  of  one  witness  above  another,  the  chief  example  is  the  rule 
preferring  a  magistrate's  official  report  of  testimony  delivered  before  him.  Another 
example  of  such  a  rule  is  the  preference  given  to  the  enrolment  of  a  statute  as 
certified  to  by  the  presiding  officers  of  the  Legislature,  the  Governor,  and  the 
Secretary  of  State. 

297.  Professor  James  Bradley  Thayer.  Preliminary  Treatise  on  Evidence. 
(1898,  pp.  489  ff.).  The  "Best  Evidence"  ride.  The  phrase  ["best  evidence"] 
first  appears  in  Chief  Justice  Holt's  time,  .  .  .  and  continued  to  hold  a  great 
place  throughout  the  eighteenth  century.  Chief  Baron  Gilbert  introduced  the 
expression  into  his  book  on  Evidence,  and  recognized  the  rule  which  reqinres  of 
a  party  the  best  evidence  that  he  can  produce,  as  the  chief  rule  of  the  whole  sub- 
ject. ...  It  is  said  in  Gilbert's  book  that  "the  first,  therefore,  and  most  sig- 
nal rule  in  relation  to  evidence  is  this,  that  a  man  must  have  the  utmost 
evidence  the  nature  of  the  fact  is  capable  of."  .  .  .  The  true  meaning  of  the  rule 
of  law  that  requires  the  greatest  evidence  that  the  nature  of  the  thing  is  capable 
of  is  this,  that  no  such  evidence  shall  be  brought  which  "  ex  natura  rei "  supposes 
still  a  greater  evidence  behind,  in  the  parties'  own  possession  and  power.  Why 
did  he  not  produce  the  better  evidence?  he  asks;  and  he  illustrates  by  what  was 
always  the  stock  example,  the  case  of  offering  "a  copy  of  a  deed  or  will  where 
he  ought  to  produce  the  original."  .  .  .  The  Court  also  were  using  the  same  and 
even  more  emphatic  language.  In  1740,  Lord  Hardwicke  declared  that  "the 
rule  of  evidence  is  that  the  best  evidence  that  the  circumstances  of  the  case  will 


^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§  1672). 


454  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  297 

allow  must  be  given.  There  is  no  rule  of  evidence  to  be  laid  down  in  this  court  but 
a  reasonable  one,  such  as  the  nature  of  the  thing  to  be  proved  will  admit  of." 
And  in  1792  Lord  Loughborough  said  "that  all  common-law  courts  ought  to 
proceed  upon  the  general  rule,  namely,  the  best  evidence  that  the  nature  of  the 
case  will  admit,  I  perfectly  agree."  But  the  great,  conspicuous  instance  in  which 
this  doctrine  was  asserted  and  applied  was  in  the  famous  and  historical  case  of 
Omychimd  v.  Barker,  in  1744,  growing  out  of  the  extension  of  British  commerce 
in  India,  where  the  question  was  on  receiving  in  an  English  court  the  testimony 
of  a  native  heathen  Hindoo,  taken  in  India,  on  an  oath  conformed  to  the  usage 
of  his  religion.  In  this  case,  Willes,  J.,  resorted  to  this  rule,  and  Lord  Hard- 
wiCKE,  sitting  as  Chancellor,  with  great  emphasis  said:  "The  judge  and  sages 
of  the  law  have  laid  it  down  that  there  is  but  one  general  rule  of  evidence,  the 
best  that  the  nature  of  the  case  will  allow."  .  .  . 

[By  the  ISOOs,]  an  old  principle  which  has  served  a  useful  purpose  for  the 
century  while  rules  of  evidence  had  been  forming  and  were  being  applied,  to  an 
extent  never  before  known,  while  the  practice  of  granting  new  trials  for  the  jury's 
disregard  of  evidence  had  been  developing,  and  judicial  control  over  evidence 
had  been  greatly  extended,  —  this  old  principle,  this  convenient,  rough  test, 
had  survived  its  usefulness.  A  crop  of  specific  rules  and  exceptions  to  rules  had 
been  sprouting,  and  hardening  into  an  independent  growth.  It  had  become 
perfectly  true  that  in  many  cases  it  made  no  difference  whatever  whether  a  man 
offered  the  best  evidence  that  he  could  or  not,  —  the  best  evidence  that  the  nature 
of  the  case  admitted,  the  best  "ex  natura  rei,"  as  some  judges  said,  or  the  best 
"rebus  sic  stantibus,"  as  others  said;  none  the  less  it  was,  in  many  cases,  rejected. 
...  As  regards  the  main  rule  of  the  Best  Evidence,  in  its  general  application 
the  text-books  which  followed  Gilbert,  beginning  with  Peake  in  1801,  and  con- 
tinuing with  the  leading  treatises  of  Phillips  in  1814,  Starkie  in  1824,  Greenleaf 
in  1842,  Taylor  in  1848,  and  Best  in  1849,  all  repeat  it.  But  it  is  accompanied 
now  with  so  many  explanations  and  qualifications  as  to  indicate  the  need  of  some 
simpler  and  truer  statement,  which  should  exclude  any  mention  of  this  as  a  work- 
ing rule  of  our  system.  Indeed  it  would  probably  have  dropped  naturally  out 
of  use  long  ago,  if  it  had  not  come  to  be  a  convenient,  short  description  of  the  rule 
as  to  proving  the  contents  of  a  writing.  Regarded  as  a  general  rule,  the  trouble 
with  it  is  that  it  is  not  true  to  the  facts  and  does  not  hold  out  in  its  application; 
and  in  so  far  as  it  does  apply,  it  is  unnecessary  and  uninstructive.  It  is  roughly 
descriptive  of  two  or  three  rules  which  have  their  own  reasons  and  their  own 
name  and  place,  and  are  well  enough  known  without  it. 


No.  298  DOCUMENTARY   ORIGINALS  455 


SUB-TITLE   I.      RULE   OF   PREFERENCE   FOR  DOCUMENTARY 

ORIGINALS 

298.  History.^  The  rule  requiring  the  production  of  wTitings  before  the 
tribunal  is  one  of  the  few  rules  in  our  system  of  evidence  that  run  back  earlier 
than  the  1700s.  In  this  rule  we  find  a  continuous  existence,  under  one  form  or 
another,  as  far  back  as  the  history  of  our  legal  system  takes  us.  But  this  history 
finds  the  rule  in  three  stages:  first,  the  stage  of  a  form  of  trial,  —  trial  by  carta 
or  document;  next,  the  stage  of  a  rule  of  pleading  in  jury  trial,  —  the  rule  of 
profert;  and  finally  the  modern  rule  of  production  in  evidence. 

(1)  Trial  by  docinnents.  This  is  the  primitive  aspect  of  the  rule.  Here  the 
contrast  and  competition  is  between  trial  before  the  judges  with  deed-witnesses 
and  trial  by  the  jiu-y;  but  this  contrast  tends  to  disappear,  and  the  witnesses  go 
out  with  the  jury  and  investigate  the  deed. 

(2)  Profert  in  jAcading.  In  the  second  stage,  the  contrast  is  between  docu- 
ments which  are  brought  into  court  and  formally  presented  in  pleading  to  the 
consideration  of  the  jury,  and  documents  which  are  taken  into  consideration  by 
the  jury  without  this  formal  presentation.  The  jury  at  this  time  might  freely 
go  upon  their  own  knowledge  in  reaching  a  verdict.  This  had  changed  by  the 
1700s;  but  in  the  meantime  the  tendency  in  that  direction  is  here  seen  in  the 
rule  requiring  important  documents  to  be  presented  ("profert  and  oyer")  before 
the  jury  in  Court,  and  forbidding  them  to  be  dealt  with  by  the  jury  unless  so 
presented. 

(3)  The  ride  of  'production  in  evidence.  The  contrast  that  remains  to  investi- 
gate is  that  between  a  rule  requiring  the  production  in  evidence  of  writings  and 
the  absence  of  such  a  rule.  It  is  apparent  that,  so  far  as  the  rule  of  profert  in 
pleading  obtained,  and  from  the  earliest  time  of  its  obtaining,  there  was  in  effect 
a  rule  of  evidence  on  the  subject.  But  the  rule  of  profert  applied  (1)  in  the  first 
place  only  to  documents  under  seal  and  to  judicial  records.  (2)  Furthermore, 
it  applied  in  civil  cases  only;  there  thus  remained  practically  the  entire  scope  of 
criminal  trials  to  be  covered  by  the  rule  of  evidence.  (3)  Finally,  the  rule  was 
dispensed  with  —  at  least  by  gradual  steps,  stretching  over  two  centuries  —  where 
the  document  was  lost,  or  in  the  hands  of  the  opponent,  or,  in  certain  cases,  in 
the  hands  of  a  stranger,  or  was  only  collateral  to  the  main  issue;  but  these  limi- 
tations (except  the  last)  were  also  perpetuated  in  the  rule  of  evidence,  so  that 
there  are  under  this  head  no  radical  steps  of  expansion  to  be  noted. 

At  what  time,  then,  did  the  rule  of  evidence  come  to  include  in  its  scope  the 
documents  exempted  by  the  first  two  above  limitations  of  the  rule  of  profert? 

(a)  In  civil  cases,  it  is  plain  that  during  the  1500s  no  independent  rule  of 
evidence  yet  required  the  production  of  writings  in  general.  At  this  period, 
whatever  document  was  not  brought  in  by  virtue  of  the  profert  rule  in  pleading 
might  be  testified  to  without  any  production.  By  the  beginning  of  the  1700s  and 
onwards  the  rule  is  found  applied  to  miscellaneous  WTitings;  although  when  a 
formal  statement  of  it  is  made,  the  scope  is  still  sometimes  not  so  broad;  and  only 
by  the  beginning  of  the  ISOOs  do  the  practitioners  and  writers  of  treatises  explicitly 
state  it  to  cover  all  kinds  of  writings.     Moreover,  all  through  the  1700s  the  rule 


Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§  1177). 


456  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  298 

was  understood  not  to  apply  to  writings  which  were  only  "collateral"  to  the  issue, 
—  a  limitation  borrowed  from  the  profert  tradition. 

(6)  In  criminal  cases,  the  rule  appears,  as  late  as  the  1600s,  not  to  have  been 
settled  as  broadly  applicable,  even  to  records.  No  fixed  rule  of  production 
existed  for  miscellaneous  writings.  They  were  often  produced,  and  often  not 
produced  nor  accounted  for;  and  when  they  were  accounted  for,  the  explanation 
was  made,  as  likely  as  not,  only  on  cross-examination,  or  to  forestall  the  jury's 
suspicion  or  the  judge's  criticism,  and  not  as  a  preliminary  required  by  firm  and 
accepted  rule.  Under  Lord  Holt,  however,  the  first  quarter  of  the  1700s  finds 
the  rule  (coincidently  with  its  progress  in  civil  cases)  regularly  acknowleged  in 
practice,  and  applied  to  all  kinds  of  wTitings.  And  yet  fifty  years  later  it  was 
possible  to  dispute  and  necessary  to  decide  plainly  that  there  was  no  difference 
in  the  doctrine  for  criminal  cases:  Buller,  J.,  in  Att'y-Gen'l  r.  Le  Merchant, 
2  T.  R.  201  (1772) :  "  The  rule  of  evidence  in  both  cases  [criminal  and  civil]  is  the 
same,  that  is,  to  have  the  best  evidence  that  is  in  the  power  of  the  party  to  pro- 
duce, which  means  that,  if  the  original  can  possibly  be  had,  it  shall  be  required." 

299.  Francis  Francia's  Trial.  (1717.  Howell's  State  Trials,  XV,  897,  919). 
[Treason.     The  wdtness  is  telling  of  some  letters  found  on  the  accused]. 

Lord  Townsend.  —  Upon  the  issuing  out  the  warrant,  the  prisoner  was  seized, 
and  his  letters  were  brought  to  Mr.  Walpole.  The  next  day  I  sent  for  the  prisoner 
to  be  examined.  ...  I  asked  him  whether  he  knew  the  hand,  and  whether  those 
letters  were  not  for  him?  He  owned  the  letters,  but  said  he  could  not  help  what 
was  in  those  letters,  and  that  what  others  wTote  to  him  could  not  make  him  guilty. 
....  On  the  perusal  of  the  letters,  I  found  he  was  not  a  bare  conveyor  of  them, 
or  came  by  chance  to  the  knowledge  of  what  he  explained  in  them,  but  that  he 
was  wrote  to,  as  one  of  the  managers.  .  .  .  About  a  morning  or  two  after,  one 
Curtis,  who  was  in  the  same  messenger's  house,  brought  a  letter  to  the  office, 
which  he  had  found  dropped  by  this  man's  bed-side.  It  was  directed  to  his  wife, 
and  the  subject  was  to  bid  her  not  afflict  herself;  .  .  .  that  the  government  had 
nothing  against  Mr.  Harvey,  but  a  general  suspicion  that  he  was  against  the 
government,  which  three  parts  in  four  of  the  nation  were;  and  that  he  himself 
laughed  at  any  thing  the  government  could  do  against  him  the  prisoner.  .  .  . 

Mr.  Hungerford.  —  I  would  propose  to  the  judgment  of  the  Court,  whether 
is  it  proper  to  give  evidence  of  the  substance  of  a  letter  without  offering  the 
letter  itself. 

Just.  Pratt.  —  This  comes  in  answer  to  Mr.  Ward's  question.  .  .  . 

Mr.  Hungerford.  —  But  to  give  an  account  of  the  substance  of  a  letter  with- 
out producing  it,  I  apprehend,  is  not  according  to  the  rules  of  evidence. 

Sir  J.  Jekyll.  —  If  the  counsel  for  the  prisoner  desires  the  letter  to  be  read,  it 
shall  be  read.  .  .  . 

]Mr.  Hungerford.. —  If  in  the  course  of  the  evidence  the  letter  is  read,  I  do 
not  press  it. 

Then  Mr.  Horatio  Walpole  was  called  again,  and  the  letter  was  showed  to 
him. 

Atl.  Gen.  —  Pray,  Sir,  will  you  give  an  account  of  what  you  know  of  this 
letter,  and  how  it  came  into  your  hands? 

300.  John  TuTCfflN's  Trial.  (1704.  Howell's  State  Trials,  XIV,  1114). 
[Seditious  libel.  The  accused  was  charged  as  the  author  of  certain  printed  papers, 
serial  numbers  of  the  "Observator."     The  printer  is  called.] 


No.  302  DOCUMENTARY   ORIGINALS  457 

Att.  Gen.  —  Now  we  will  show  these  papers  to  Mr.  How,  for  these  are  all  that 
are  in  the  book.  (They  were  shown  him.)  Mr.  How,  pray  tell  us  who  was  the 
author  of  these  papers?     How.  —  Mr.  Tutchin. 

L.  C.  J.  —  How  do  you  know  that?     How.  —  I  had  them  of  him. 

Att.  Gen.  — Did  you  pay  him  for  them?  How.  —  I  paid  him  for  these  very 
papers. 

Mr.  Mountagiie.  —  What,  these  papers  that  are  now  produced?  You  never 
showed  them  to  him,  did  you?     How.  —  No;  but  I  showed  him  the  same  number. 

Mr.  Moiintague.  —  Have  you  read  them  to  him?  How. —  He  has  owned 
them  all;   he  has  owned  them  an  hundred  and  an  hundred  times,  all  of  them. 

Mr.  Mountagur.  —  Have  you  the  copy  of  these  papers  by  you?     How.  —  No. 

Mr.  Movntagite.  —  Did  you  search  for  them?     How.  —  No,  I  have  not. 

Mr.  Harris.  —  My  lord,  if  we  had  seen  these  papers,  then  we  might  have  seen 
what  alterations  were  made  in  them.  ... 

Att.  Gen.  —  Did  not  Mr.  Borret  send  to  you  about  the  original  papers? 
How.  —  Yes. 

Att.  Gen.  —  Did  you  look  out  what  you  had?  How.  —  Those  that  I  had  were 
looked  out. 

Att.  Gen.  —  What  became  of  them?  .  .  . 

How.  —  Those  that  I  have  now  are  but  two  or  three. 

Att.  Gen.  —  Did  you  carry  all  the  original  papers  you  had  to  Mr.  Borret? 
How.  —  Yes,  all  that  I  know  of .  .  .  . 

L.  C.  J.  —  Then  Mr.  Borret  must  be  sworn.  (And  he  was  sworn  accord- 
ingly.)  .  .  . 

Mr.  Mountague.  —  Did  you  send  to  Mr.  How,  to  ask  for  the  original  of  these 
papers  here  named?     Borret.  —  I  did. 

Mr.  Moiintague.  —  Will  you  produce  the  papers  you  have?  B.  —  My  lord, 
they  have  taken  those  original  papers;  and  if  they  were  produced,  you  would  see 
how  they  are  mangled. 

Topic  1.     The  Rule  Itself 

302.  Dr.  Leyfield's  Case.  (1611.  Kings  Bench,  10  Co.  Rep.  92a).  Per 
Curiam.  It  was  resolved  that  the  lessee  for  years  in  the  case  at  bar  ought  to 
shew  the  letters  patent  made  to  the  lessee  for  life.  For  it  is  a  maxim  in  the  law 
that  .  .  .  although  he  who  is  privy  claims  but  parcel  of  the  original  estate,  yet 
he  ought  to  shew  the  original  deed  to  the  Court.  And  the  reason  that  deeds  being 
so  pleaded  shall  be  shewed  to  the  Court  is  that  to  every  deed  two  things  are  req- 
uisite and  necessary;  the  one,  that  it  be  sufficient  in  law,  and  that  is  called 
the  legal  part,  because  the  judgment  of  that  belongs  to  the  judges  of  the  law;  the 
other  concerns  matter  of  fact,  sc.  if  it  be  sealed  and  delivered  as  a  deed,  and  the 
trial  thereof  belongs  to  the  country.  And  therefore  every  deed  ought  to  approve 
itself,  and  to  be  proved  by  others,  —  approve  itself  upon  its  shewing  forth  to  the 
Court  in  two  manners:  1.  As  to  the  composition  of  the  words  to  be  sufficient  in 
law,  and  the  Court  shall  judge  that;  2.  That  it  be  not  razed  or  interlined  in 
material  points  or  places;  ...  3.  That  it  may  appear  to  the  Court  and  to  the 
party  if  it  was  upon  conditional  limitation  or  power  of  a  revocation  in  the  deed. 
.  .  .  And  these  are  the  reasons  of  the  law  that  deeds  pleaded  in  court  shall  be 
shewed  forth  to  the  Court.  And  therefore  it  appears  th^t  it  is  dangerous  to 
suffer  any  who  by  the  law  in  pleading  ought  to  shew  the  deed  itself  to  the  Coiu-t, 
upon  the  general  issue  to  prove  in  evidence  to  a  jury  by  witnesses  that  there  was 


458  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  302 

such  a  deed,  which  they  have  heard  and  read;  or  to  prove  it  by  a  copy;  for  the 
viciousness,  rasures,  or  interlineations,  or  other  imperfections  in  these  cases  will 
not  appear  to  the  Court,  or  peradventure  the  deed  may  be  upon  conditional 
limitation  or  with  power  of  revocation,  and  by  this  way  truth  and  justice  and  the 
true  reason  of  the  common  law  would  be  subverted.  .  .  .  Yet  in  great  and  no- 
torious extremities,  as  by  casualty  of  fire,  that  all  his  evidences  were  burnt  in  his 
house,  there,  if  that  should  appear  to  the  Judges,  they  may,  in  favor  of  him  who 
has  so  great  a  loss  by  fire,  suffer  him  upon  the  general  issue  to  prove  the  deed  in 
evidence  to  the  jury  by  witnesses,  that  affliction  be  not  added  to  affliction. 

303.  Head  v.  Brookman.  (1789.  3  T.  R.  151).  [A  demurrer,  to  a  plea  excus- 
ing profert  on  the  ground  that  it  was  "lost  and  destroyed  by  time  and  accident," 
was  overruled].  Buller,  J.  The  rule  laid  down  by  Lord  Coke  [in  Leyfield's 
Case]  extends  to  all  cases  of  extreme  necessity;  those  which  he  mentions  are  only 
put  as  instances;  and  wherever  a  similar  necessity  exists,  the  same  rule  holds. 


304.   THE  QUEEN  d.   KENILWORTH 

Queen's  Bench.     1845 

7  Q.  B.  632 

On  appeal  against  an  order  of  justices,  whereby  Charles  Dencer,  his 
wife  and  three  children,  were  removed  from  Bermondsey  in  Surrey  to  the 
parish  of  Kenilworth  in  Warwickshire,  the  Sessions  confirmed  the  order, 
subject  to  a  case  which  was  substantially  as  follows. 

The  ground  of  removal  was  an  alleged  settlement  of  the  pauper  in 
Kenilworth,  by  the  apprenticeship  of  Joseph  Dencer,  the  deceased  father 
of  the  male  pauper.  The  indenture  of  apprenticeship  was  not  produced, 
either  before  the  removing  magistrates  or  at  the  Sessions.  The  appellants 
objected,  under  their  grounds  of  appeal,  that  there  was  not  sufficient 
proof  to  let  in  secondary  evidence  of  the  contents  of  the  indenture;  and 
they  urged,  principally,  that  a  proper  and  sufficient  search  was  not  proved, 
and  that  the  evidence  consisted  of  the  mere  proof  of  parol  declarations  of 
third  parties  not  upon  oath.  .  .  .  The  objection  was  overruled  in  each 
instance;  but  the  Sessions  reserved  the  points  for  the  opinion  of  this 
Court.  .  .  . 

The  evidence  given  at  the  Sessions  with  respect  to  the  indenture  was 
as  follows: 

William  Cormvell.  —  "I  am  in  the  vestry  clerk's  office  at  Bermondsey.  In 
July,  1840,  I  searched  for  the  indenture  of  apprenticeship  of  Joseph  Dencer.  I 
went  to  Kenilworth,  and  inquired  for  Susannah  Dencer,  the  mother  of  the  pauper. 
I  found  her  in  Warwick  Union  house.  She  was  in  bed;  her  husband  was  dead. 
I  asked  her  if  she  had  the  indenture;  she  said  she  gave  it  to  the  master  of  the 
workhouse,  Mr.  Squires.  I  then  went  from  Warwick  to  Kenilworth,  and  saw 
Mrs.  Squires,  who  said-  she  was  a  widow,  and  that  she  had  all  her  husband's  papers 
up  stairs.  She  brought  them  down;  and  I  looked  over  them,  but  could  not  find 
any  indenture.     She  said  she  had  never  seen  any  indenture  of  Dencer's.     The 


No,  304  •  DOCUMENTARY   ORIGINALS  459 

pauper  then  ceased  to  be  chargeable.  I  went  again  in  July,  1843,  to  Mrs.  Squires. 
She  said  she  had  given  all  her  papers  to  Mr.  Sutton,  the  assistant  overseer.  I  saw 
Sutton;  and  he  said  he  had  received  them,  but  that  he  had  seen  no  indenture  of 
Dencer's.  He  said  he  had  given  them  to  Mr.  Hopkins,  the  then  assistant  over- 
seer. Hopkins  said  that  he  had  received  all  the  papers  from  the  late  assistant 
overseer,  but  that  he  had  seen  no  indenture  of  Dencer's.  I  waited  while  he  searched 
again;  but  I  did  not  go  up  stairs  with  him.  When  he  came  down,  he  said  he  could 
not  find  such  an  indenture.  1  then  went  to  Mr.  Watts,  at  Kenihvorth,  who  pre- 
pared the  indenture.  He  was  dead;  and  I  saw  his  widow,  who  said  that  all  her 
husband's  papers  were  delivered  to  Messrs.  Poole  and  Haynes,  solicitors,  of 
Leamington.  I  went  there,  and  saw  Mr.  Haynes's  clerk.  We  both  searched, 
he  up  stairs,  anfl  I  down  stairs;  but  we  could  not  find  it.  We  found  no  bill,  nor 
draft,  nor  any  memorandum  about  it.  Mrs.  Dencer  died  in  the  Warwick  Union 
house;  and  the  master  and  matron  said  she  had  left  no  papers.  I  have  used  all 
due  diligence  to  find  the  indenture. 

' '  I  have  not  searched  the  parish  chest,  nor  the  offices  of  the  parish  officers,  it 
not  being  a  parish  indenture." 

Charles  Dencer,  the  pauper. 

"Joseph  Dencer  was  my  father;  he  died  in  1835.  My  mother  is  also  dead. 
I  have  seen  my  father's  indenture  in  my  mother's  possession;  that  was  in  1835, 
after  my  father's  death.  ..." 

The  appellants,  at  each  stage  of  the  evidence,  objected  to  the 
admissibility  of  the  parol  statements  of  the  different  parties,  namely 
Susannah  Dencer,  Mrs.  Squires,  ^\  illiam  Sutton,  William  Hopkins,  Mrs. 
Coates,  and  the  master  and  matron  of  the  Warwick  Union  workhouse, 
respectively;  and  they  also  objected  to  the  admissibility  and  sufficiency 
of  the  parol  evidence  of  the  contents  of  the  indenture ;  but  the  objection 
was,  in  each  instance,  overruled,  and  the  order  was  confirmed,  subject 
to  the  opinion  of  this  Court.  .  .  . 

WaUitigcr,  in  support  of  the  order  of  Sessions.  Perhaps  no  very 
distinct  rule  can  be  laid  down  as  to  the  search  sufficient  to  let  in  secondary- 
evidence;  no  two  cases  are  precisely  alike;  but  Freeman  v.  Arkell,  2  B. 
&  C.  494,  resembles  the  present  in  many  respects.  There  Bayley,  J., 
citing  Brewster  v.  Sewell,  3  B.  &  Aid.  296,  said  that,  "Where  a  paper  is 
useless,  so  that  its  loss  or  destruction  may  reasonably  be  presumed,  very 
slight  evidence  of  its  loss  and  destruction  is  sufficient  to  let  in  secondary 
evidence."  Here  the  paper  had  become  useless  to  the  father,  and  the 
inquiry  was  pursued  as  far  as  was  reasonably  practicable.  Cornwell  was 
indeed  guided,  in  some  steps  of  his  search,  by  what  is  objected  to  as 
hearsay  evidence;  but  that  part  of  the  evidence  may  be  rejected  as  super- 
fluous. .  .  . 

Watson  and  Bovill,  contra.  The  party  seeking  to  introduce  secondary 
evidence  was  bound  to  show  that  he  has  searched  in  the  proper  place; 
here  the  propriety  of  the  place  in  which  the  search  has  been  made  is 
shown  by  hearsay  evidence.  .  .  . 

Lord  Denman,  C.J.  —  I  should  be  very  unwilling  to  come  to  a  decision 
which  might  have  the  effect  of  making  parties  lax  in  the  custody  of 


460  BOOK   i:     RULES   OF  ADMISSIBILITY   .  No.  304 

documents,  or  careless  in  the  search  for  them.  I  think,  however,  that 
we  may  collect  from  Rex  v.  Morton,  4  M.  &  S.  48,  the  only  rule,  namely, 
that  no  general  rule  exists.  The  question  in  every  case  is,  whether  there 
has  been  evidence  enough  to  satisfy  the  Court  before  which  the  trial  is 
had  that,  to  use  the  words  of  Bayley,  J.,  in  Rex  v.  Denio,  7  B.  &  C.  620, 
"a  bona  fide  and  diligent  search  was  made  for  the  instrument  where  it 
was  likely  to  be  found." 

But  this  is  a  question  much  jStter  for  the  Court  which  tries  than  for  us. 
They  have  to  determine,  whether  the  evidence  is  satisfactory,  whether 
the  search  has  been  made  bona  fide,  whether  there  has  been  due  diligence, 
and  so  on.  It  is  mere  waste  of  time  on  our  part  to  listen  to'  special  plead- 
ing on  the  subject.  To  what  employment  shall  we  be  devoted,  if  such 
questions  are  to  be  brought  before  us  as  matters  of  law!  The  Court 
below  must  exercise  their  own  judgment  as  to  the  reasonableness  of  the 
search,  taking  into  consideration  the  nature  of  the  instrument,  the  time 
elapsed,  and  numerous  other  circumstances  which  must  vary  with  every 
case.  ...  In  the  present  case  I  shduld  have  come  to  the  same  conclusion 
with  the  Sessions.  And  I  think  we  must  adhere  to  their  decision,  unless 
we  pretend  to  act  on  a  rule  which  the  nature  of  the  case  makes  impossible. 

As  to  what  is  called  the  hearsay  evidence,  I  am  distinctly  of  opinion 
that  it  was  receivable:  it  would  have  been  absurd  not  to  act  upon  it. 
When  the  party  got  a  reasonable  account  which  showed  that  the  docu- 
ments could  not  be  found,  why  was  he  to  go  farther? 

I  am,  on  the  whole,  satisfied,  first,  that  it  was  not  necessary  for  the 
search  to  go  farther,  and,  secondly,  that  the  evidence  given  was  quite 
enough  to  satisfy  the  Sessions.  I  only  regret  that  they  thought  it  a 
question  for  us  at  all.  They  were  in  the  position  of  a  jury;  unless  we 
feel  certain  that  they  have  come  to  a  wrong  conclusion  we  ought  not  to 
interfere.  .  .  . 

Williams,  J.  —  You  cannot  have  an  absolute  certainty  of  the  loss 
of  a  document,  unless  where  you  can  call  a  party  who  witnessed  its  de- 
struction.    The  question  always  is,  whether  due  diligence  is  shown.  .  .   . 

Coleridge,  J.  —  I  am  of  the  same  opinion.  ...  In  the  case  of 
inquiry  by  a  Court,  if  there  has  been  any  evidence  sufficient  for  the 
Court  to  act  upon,  we  do  not  set  aside  their  decision,  because  the  same 
difficulty  can  not  be  supposed  to  exist  as  in  the  case  of  a  jury. 

Order  of  Sessions  affirmed. 


305.   BAGLEY  v.   McMICKLE 

Supreme  Court  of  California,  1858 

9  Cal.  430 

Appeal  from  the  District  Court  of  the  Fourth  Judicial  District, 
County  of  San  Francisco.     This  action  was  commenced  on  the  4th  of 


No.  305  DOCUMENTARY   ORIGINALS  461 

April,  1855,  by  the  appellant,  against  the  respondents,  on  three  promis- 
sory notes  made  and  delivered  by  G.  C.  McAlickle,  deceased,  to  Bagley 
and  Sinton,  and  by  them  assigned  to  Bagley.  On  the  death  of  McMickle, 
the  claim,  duly  verified,  was  presented  to  the  administrators  of  his 
estate,  and  rejected,  and  suit  brought  within  three  months  thereafter.  .  .  . 

On  the  trial,  the  plaintiff's  counsel  read  to  the  Court,  for  the  purpose 
of  laying  the  foundation  for  the  introduction  of  secondary  evidence  of 
the  notes  sued  on  to  the  jury,  the  following  affidavits,  viz. :  .  .  . 

"Grove  C.  McMickle  made  and  delivered  to  the  firm  of  Bagley  & 
Sinton  three  promissory  notes  of  that  date,  described  and  referred  to  in  a 
certain  instrument  in  writing  of  that  date,  signed  by  this  plaintiff,  and 
R.  H.  Sinton  and  Grove  C.  McMickle,  and  acknowledged  before  J.  P. 
Haven,  notary  public;  that  said  notes  remained  in  the  possession  of  said 
Bagley  &  Sinton  for  some  time  after  their  maturity;  and  that,  in  the 
demand  for  the  same,  said  Bagley  &  Sinton  had  been  very  lenient  and 
indulgent  to  said  McMickle,  and  had  resorted  to  no  legal  proceedings  to 
collect  the  same;  and  that  said  McMickle,  having  repeatedly  requested 
said  firm  not  to  sell  or  negotiate  said  notes,  and  fearing  a  negotiation  to 
some  person  who  might  be  more  rigorous  in  the  collection  of  the  same, 
the  parties  altogether,  viz.,  said  Bagley,  Sinton  and  McMickle,  consented 
and  agreed  that  said  notes,  for  the  sole  purpose  of  preventing  their 
negotiation  into  the  hands  of  some  other  party,  or  of  their  getting  into 
the  market,  might  be  destroyed,  and  believing,  also,  that  the  rights  of 
the  parties  would  remain  the  same  as  before  the  destruction;  and  the 
said  notes  were  then  and  there,  to  wit,  about  the  15th  day  of  August, 
A.D.  1852,  torn  up  into  small  pieces  and  thrown  away,  in  the  presence  of 
all  the  parties.  That  said  destruction  was  done  for  the  purpose  aforesaid, 
and  by  the  agreement  of  the  parties  was  not  to  affect  the  right  of  the  said 
Bagley  &  Sinton  to  recover  on  said  notes,  and  with  full  intention  the  part 
of  all  the  parties,  that  the  rights  of  the  parties  should  be  as  if  the  notes 
continued  to  exist."  .  .  . 

The  plaintiff's  counsel  then  offered  in  evidence  to  the  jury,  the  fol- 
lowing instrument  in  writing.  ...  It  was  then  and  there  admitted,  by 
the  defendant's  counsel  in  open  Court,  in  the  presence  of  the  Court 
and  jury,  that  the  signatures  to  the  foregoing  instrument  were  genuine, 
and  that  the  same  was  executed  in  duplicate,  one  part  of  which  was  then 
in  the  possession  of  the  plaintiff,  and  one  of  the  defendants,  as  the  repre- 
sentatives of  the  intestate. 

To  the  admission  of  this  instrument  in  evidence  to  the  jury  the 
defendants'  counsel  objected,  but  the  Court  overruled  the  objection,  and 
permitted  it  to  be  read  in  evidence  to  the  jury,  which  was  done.  .  .  . 
The  defendants  offered  no  evidence. 

The  Court  instructed  the  jury,  without  being  requested  by  either 
party,  as  follows :  "  The  bond  is  sufficient  evidence  of  the  making  of  the 
notes  therein  described.  The  affidavits  of  plaintiff  and  Sinton  are  ad- 
dressed to  the  Court  for  the  purpose  of  accounting  for  the  non-production 


462  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  305 

of  the  notes  sued  upon,  and  laying  the  foundation  for  secondary  evidence, 
and  are  not  evidence  for  the  jury.  These  affidavits  show  that  the  maker 
of  the  notes  peaceably  acquired  their  possession,  and  destroyed  them  with 
plaintiff's  consent.  Under  these  circumstances,  I  feel  it  my  duty  to 
instruct  you  that  there  is  no  testimony  to  show  there  is  any  amount  due 
upon  the  notes  sued  upon.  ..."  The  jury  found  in  favor  of  defendants, 
under  these  instructions. 

Plaintiff  moved  the  Court  for  a  new  trial,  which  motion  was  denied. 
Plaintiff  appealed  to  this  Court,  and  assigned  as  error  the  instructions  of 
the  Court. 

Hoge  &  Wilson,  for  appellant.  The  foundation  for  the  introduction 
of  secondary  evidence  may  be  made  either  by  the  party's  own  affidavit 
or  that  of  another  person.  .  .  .  The  District  Court,  after  receiving  the 
preliminary  proofs,  to  lay  the  foundation  for  the  introduction  of  secondary 
evidence,  admitted  the  secondary  evidence  to  go  to  the  jury,  though 
objected  to  by  defendants'  counsel.  .  .  .  After  the  secondary  evidence 
went  to  the  jury,  it  was  solely  for  the  jury  to  determine  the  issues  of 
fact  on  the  evidence  introduced  before  them.  .  .  . 

Glasscl  &  Leigh,  for  respondents.   .   .   . 

Field,  J.  —  delivered  the  opinion  of  the  Court  —  Terry,  C.  J., 
concurring. 

This  is  an  action  upon  three  promissory  notes  executed  by  McMickle, 
deceased,  to  Bagley  &  Sinton,  and  by  them  transferred  to  the  plaintiff. 
At  the  solicitation  of  the  maker,  the  notes  were  delivered  to  him  in 
August,  1852,  by  the  holders,  and  in  their  presence  and  with  their  consent 
were  then  destroyed.  On  the  trial,  the  plaintiff,  in  order  to  account  for 
the  non-production  of  the  notes,  and  to  lay  the  foundation  for  the  intro- 
duction of  secondary  evidence  of  their  contents,  read  to  the  Court  his 
own  and  his  co-payee's  affidavits,  detailing  the  circumstances  and  motives 
which  occasioned  the  destruction  of  the  notes.  These  affidavits  were 
held  by  the  Court  sufficient  to  authorize  the  admission  of  the  secondary 
evidence.  .  .  .  The  verdict  and  judgment  were  for  the  defendants,  and 
a  motion  for  a  new  trial  having  been  denied,  the  plaintiff  appealed,  and 
assigns  these  instructions  as  error. 

It  is  not  a  matter  of  course  to  allow  secondary  evidence  of  the  contents 
of  an  instrument  in  suit  upon  proof  of  its  destruction.  If  the  destruction 
was  the  result  of  accident,  or  was  without  the  agency  or  consent  of  the 
owner,  such  evidence  is  generally  admissible.  But,  if  the  destruction 
was  voluntarily  and  deliberately  made,  by  the  owner,  or  with  his  assent, 
as  in  the  present  case,  the  admissibility  of  the  evidence  will  depend  upon 
the  cause  or  motive  of  the  party  in  effecting  or  assenting  to  the  destruc- 
tion. The  object  of  the  rule  of  law  which  requires  the  production  of  the 
best  evidence  of  which  the  facts  sought  to  be  established  are  susceptible, 
is  the  prevention  of  fraud ;  for,  if  a  party  is  in  possession  of  this  evidence, 
and  withholds  it,  and  seeks  to  substitute  inferior  evidence  in  its  place, 
the    presumption  naturally  arises,  that  the  better  evidence  is  withheld 


No.  305  DOCUMENTARY    OKIGINALS  463 

for  fraudulent  purposes  which  its  production  would  expose  and  defeat. 
When  it  appears  that  this  better  evidence  has  been  voluntarily  and  delib- 
erately destroyed,  the  same  presumption  arises,  and  unless  met  and 
overcome  by  a  full  explanation  of  the  circumstances,  it  becomes  con- 
clusive of  a  fraudulent  design,  and  all  secondary  or  inferior  evidence  is 
rejected.  If,  however,  the  destruction  was  made  upon  an  erroneous 
impression  of  its  effect,  under  circumstances  free  from  suspicion  of 
intended  fraud,  the  secondary  evidence  is  admissible.  The  cause  or 
motive  of  the  destruction  is  then  the  controlling  fact  which  must  deter- 
mine the  admissibility  of  this  evidence  in  such  cases.  .  .  . 

Authorities  to  the  same  effect  might  be  cited  almost  ad  infinitum. 
From  them  it  is  clear  that  the  cause  or  motive  of  the  destruction  of  the 
instrument  in  suit,  when  voluntarily  made,  must  determine  the  question 
of  the  admissibility  of  secondary  evidence  of  its  contents.  From  them 
it  is  also  clear  that  the  facts  and  circumstances  of  the  destruction  must 
be  shown  in  the  first  instance  to  the  Court,  to  enable  it  to  judge  of  the 
propriety  of  admitting  or  refusing  the  secondary  evidence.  .  .  .  The 
naked  fact  of  voluntary  destruction,  without  explanation,  is  held  such 
presumptive  evidence  of  fraudulent  design  as  to  preclude  all  secondary 
evidence  (Blade  v.  Noland,  12  Wend.  173);  and  the  restriction  placed 
upon  the  rule  by  the  Court  below  in  this  case  would  deprive  it  of  all 
practical  benefit  in  the  numerous  and  by  far  the  largest  class  of  cases, 
where  the  destruction  has  taken  place  when  no  third  party  was  present. 
W^e  do  not  think,  therefore,  that  the  affidavits  read  to  the  Court  below, 
in  explaining  the  possession  and  destruction  of  the  notes  in  suit  by  the 
maker,  went  "beyond  their  true  purpose."  .  .  . 

The  preliminary  proof  is  addressed  to  the  Court,  and  of  its  sufficiency 
the  Court  is  the  sole  judge.  We  do  not  find  in  the  cases  cited,  nor  have 
we  been  able  to  find  any  authority  for  the  ruling  that  a  presumption 
against  the  plaintiff,  arising  upon  facts  detailed  in  the  preliminary  affi- 
davits, is  to  be  explained  by  evidence  to  the  jury;  or  for  the  observation 
of  the  Court  below,  in  its  opinion  on  the  motion  for  a  new  trial,  that 
"sometimes  the  facts  and  circumstances  connected  with  the  destruction 
have  been  submitted  to  the  jury  to  be  passed  upon  by  them  in  considering 
their  verdict,"  unless  such  facts  and  circumstances  were  disclosed  in  the 
evidence  offered  to  the  jury  after  the  question  of  the  admissibility  of 
secondary  evidence  had  been  disposed  of  by  the  Court.  .  .  .  The 
secondary  evidence  being  admitted,  it  became  the  province  of  the  jury 
to  judge  of  its  credit  and  weight.  It  took  the  place  of  the  primary  evi- 
dence, and  was  entitled  to  the  same  consideration.  It  was  a  substitute 
for  the  original  notes,  and  if  sufficiently  full  as  to  their  contents,  it  placed 
the  plaintiff  in  the  same  position  in  Court  as  though  the  secondary 
evidence  had  never  been  required.  (Jackson  r.  Betts,  9  Cow.  20S.)  The 
distinction  between  primary  and  secondary  evidence  has  reference  to 
its  quality,  and  not  to  its  strength.  Secondary  evidence  may  be  equally 
conclusive  as  primary.     In  the  present  case,  the  former  existence  of  the 


464  BOOK  i:     RULES   OF  ADMISSIBILITY  No.  305 

notes,  their  contents,  their  execution  by  the  intestate  to  Bagley  &  Sinton, 
and  their  assignment  to  the  plaintiff,  were  fully  established  by  the 
secondary  evidence;  yet  the  consideration  of  this  evidence  was  taken 
from  the  jury  by  the  instructions.   .   .   . 

The  judgment  of  the  Court  below  is  reversed,  and  the  cause  remanded 
for  a  new  trial.  ' 


306.   PRUSSING  v.  JACKSON 
Supreme  Court  of  Illinois.     1904 

208  III.  85;  69  N.  E.  771 

Writ  of  Error  to  the  Appellate  Court  for  the  First  District;  —  heard 
in  that  Court  on  writ  of  error  to  the  Circuit  Court  of  Cook  County ;  the 
Hon.  George  W.  Brown,  Judge,  presiding. 

Ernest  Saunders,  for  plaintiff  in  error.  It  is  not  matter  of  course 
to  allow  secondary  evidence  of  the  contents  of  an  instrument  in  suit  on 
proof  of  its  destruction.  The  motive  and  intent  of  the  destruction  are 
necessary  to  be  shown  before  secondary  proof  will  be  admitted.  Bagley 
V.  McMickle,  9  Cal.  430.  Secondary  evidence  of  contents  of  a  document 
cannot  be  given  if  the  original  is  in  possession  of  a  stranger  unless  a  sub- 
poena duces  tecum  be  served,  or  if  the  original  is  in  the  possession  of  an 
adverse  party,  unless  notice  to  produce  be  served.  .  .  . 

Collins  &  Fletcher,  for  defendant  in  error.  .  .  . 

Mr.  Justice  Boggs  delivered  the  opinion  of  the  Court. 

This  was  an  action  for  libel,  against  the  plaintiff  in  error  by  the 
defendant  in  error.  The  declaration  charged  that  the  plaintiff  in  error 
composed  and  caused  to  be  published  in  the  Chicago  "Times-Herald," 
a  daily  newspaper  published  in  the  city  of  Chicago,  a  certain  false, 
scandalous,  defamatory  and  libelous  article,  set  forth  in  haec  verba, 
with  appropriate  innuendoes,  in  the  declaration.  .  .  .  The  plaintiff  in 
error  filed  the  plea  of  not  guilty,  and  the  cause  was  submitted  for  trial 
before  the  Court  and  a  jury.  The  jury  returned  a  general  verdict  finding 
the  plaintiff  in  error  to  be  guilty  and  assessing  the  damages  of  defendant 
in  error  at  the  sum  of  $20,000.  ... 

We  think,  however,  the  plaintiff  in  error  has  lawful  right  to  complain 
of  an  erroneous  ruling  of  the  Court  as  to  the  admissibility  of  evidence. 
It  was  sought  to  maintain  the  action  against  the  plaintiff  in  error  as  the 
author  of  the  alleged  libelous  publication  which  appeared  in  the  Chicago 
"Times-Herald."  He  was  in  nowise  connected  with  the  management, 
control  or  publication  of  the  newspaper  and  had  no  interest  therein. 
The  action  was  against  him  on  the  alleged  ground  that  he  was  the  author 
of  a  statement,  in  the  form  of  a  letter,  which  appeared  as  a  part  of  the 
publication,  and  that  he  had  given,  or  permitted  one  Varian,  a  reporter 
for  the  newspaper,  to  take,  the  letter  under  such  circumstances  as  that  he 


No.  306  DOCUMENTARY   ORIGINALS  465 

should  be  held  to  have  procured  it  to  be  published.  The  cause  was 
tried  before  the  Court  and  a  jury. 

The  defendant  in  error,  plaintiff  below,  was  produced  as  a  witness  in 
his  own  behalf,  and,  among  other  things,  testified  that  he,  together  with 
one  William  B.  Kent,  had  an  interview  with  the  plaintiff  in  error.  .  .  . 
Counsel  for  the  defendant  in  error  then  produced  a  copy  of  the  newspaper 
which  contained  the  alleged  libelous  publication  and  asked  the  witness 
if  that  was  the  statement  about  which  they  were  talking.  The  plaintiff 
in  error  then  objected.  .  .  . 

We  think  the  objections  preferred  by  coimsel  for  the  plaintiff  in  error 
called  upon  the  Court  to  rule  whether  the  printed  publication  was  admis- 
sible in  evidence  without  the  production  of  the  writing  of  which  the 
plaintiff  in  error  was  the  author  and  which  it  was  asserted  had  been 
reproduced  in  the  printed  article,  and  which,  so  reproduced,  constituted 
the  alleged  libel.  Counsel  for  the  defendant  in  error  insist  that  no  definite 
and  specific  objection  of  that  nature  was  made.  ...  Counsel  for  the 
defendant  in  error  read  to  the  Court  the  notice  which  had  been  served 
calling  for  the  production  of  the  original  writing  in  Court.  In  response 
to. this,  counsel  for  the  plaintiff  in  error  stated  in  open  Court  that  the 
document  was  not  in  their  possession  or  in  the  possession  of  their  client 
and  had  never  been  in  their  possession,  and  had  not  been  in  the  possession 
of  their  client  since  it  was  taken  from  his  office  by  a  Mr.  Varian,  a  reporter 
for  the  "Times-Herald."  .  .  .  The  printed  article  was  then  received  in 
evidence  and  read  to  the  jury.  .  .  . 

We  find  that  the  defendant  in  error  produced  as  a  witness  one  Herman 
L.  Reiwitch,  city  editor  of  the  Chicago  "Times-Herald,"  for  the  purpose 
of  laying  the  foundation  for  the  introduction  of  secondary  evidence  of 
the  contents  of  the  manuscript,  which  was  in  the  handwriting  of  the 
plaintiff  in  error,  by  showing  that  the  original  had  been  lost  or  that  it 
was  not  in  the  power  of  the  defendant  in  error  to  produce  the  same.  The 
testimony  of  this  witness  Avas  received  by  the  Court  as  sufficient  to  justify 
the  admission  of  such  secondary  proof. 

In  this  the  Court  was  in  error.  This  witness,  after  stating  that  he 
had  charge  of  the  department  of  the  "Times-Herald,"  office  in  which  the 
printed  article  in  question  was  prepared,  testified  further,  to  quote  from 
the  abstract,  as  follows : 

"I  saw  something  similar  to  it  in  the  afternoon  preceding  the  day  of  the  pub- 
lication. One  of  the  reporters  brought  it  to  me.  His  name  was  Varian.  I  do 
not  know  where  Varian  is  now.  It  is  about  one  and  one-half  years  since  he  has 
been  connected  with  the  Chicago  'Herald.'  I  don't  recall  whether  letter  was 
in  manuscript  or  typewritten." 

Q.  —  "Is  that  'Exhibit  I'  that  you  hold  in  your  hand  a  copy  of  a  communi- 
cation that  Mr.  Varian  brought  you,  or  not?"  (Objection  by  defendant;  sus- 
tained.) 

Q.  —  "Of  what  is  that  a  copy,  if  you  know?"  (Objection  by  defendant; 
overruled  and  exception.)     A.  —  "To  the  be*  of  my  recollection  it  is  a  repro- 


466  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  306 

duction  of  that  letter  brought  in  by  Mr.  Varian.  I  don't  recall  whether  any 
name  was  appended  to  that  letter.  ..." 

Judge  Collins.  —  "Have  you  made  search  for  that  paper  writing?"  (Ob- 
jection by  defendant  as  leading;   overruled  and  exception.)     A.  —  "No,  sir." 

Q.  —  "Have  you  ordered  a  search  made?"  A.  —  "No,  sir;  it  would  be 
absolutely  impossible  to  find  it  now."  (Objected  to  by  defendant  as  not  respon- 
sive.) 

Witness.  —  "We  destroy  manuscript  of  that  kind  within  a  few  days  after 
they  are  used,  unless  there  is  some  particular  occasion  for  saving  it."  (Motion 
to  strike  out  by  defendant;  denied  and  exception.)  "This  was  saved  for,  I 
think,  some  little  time.  Can  I  state  the  circumstances  under  which  it  was 
saved?"     ^.  — "Yes." 

A.  —  "The  letter  was  of  a  peculiar  character,  of  course,  and  I  thought  per- 
haps it  might  be  questioned."  (Objection  by  defendant  and  ordered  stricken 
out.)  "And  I  told  the  reporter  to  keep  that  letter."  (Answer  objected  to  by 
defendant.) 

The  Court.  —  "What  did  you  do  with  it?     Have  you  got  it  now?" 

A.  —  "No,  sir." 

Judge  Collins.  —  "It  has  been  destroyed,  has  it?"  A.  —  "So  far  as  I 
know,  it  is  destroyed." 

Mr.  Saunders.  —  "You  don't  know  whether  it  is  destroyed  or  not,  do  you?" 
A.  —  "No,  sir.  The  original  letter  was  kept  by  the  reporter.  There  is  no  par- 
ticular place  in  the  'Herald'  office  where  such  matters  are  kept." 

Q.  —  "If  this  has  been  preserved  by  the  'Herald'  company  where  would 
you  go  to  find  it?"  (Objection  by  defendant;  overruled  and  exception.)  A.  — 
"It  would  be  in  my  possession,  most  likely."  (Answer  objected  to  by  defendant 
with  motion  to  strike  out. 

Q.  —  "This  article  is  not  now  in  your  possession?"     A.  —  "No,  sir." 

This  evidence  was  insufRcient  to  justify  the  admission  of  secondary 
evidence  as  to  the  contents  of  the  communication  which  was  written  by 
the  plaintiff  in  error.  The  witness  testified  that  search  had  not  been 
made  for  the  writing;  that  while  it  was  the  custom  to  destroy  manu- 
scripts of  that  kind,  there  was  an  exception  to  that  custom  when  occasion 
required,  and  that  under  this  exception  the  manuscript  in  question  was 
saved  and  not  destroyed;  that  it  was  given  to  Varian,  the  reporter,  to 
be  kept  by  him;  that  if  it  had  been  preserved  by  the  "Herald"  company 
it  would  most  likely  be  in  his  (the  witness')  possession,  but  that  it  was 
kept  by  said  Varian.  No  effort  to  procure  the  manuscript  from  Varian 
was  proven.  It  was  shown  that  Varian  was  not  in  the  employ  of  the 
"  Times-Herald  " ;  but  no  attempt  was  made  to  show  but  that  he  continued 
to  reside  in  the  city,  or  that  he  could  not  be  found,  or  that  any  effort  had 
been  made  to  find  him  or  to  get  the  paper  from  him. 

The  rule  is,  in  order  to  let  in  secondary  evidence  of  the  contents  of  a 
written  instrument  the  person  in  whose  possession  it  was  last  traced  must 
be  produced,  unless  shown  to  be  impossible,  in  which  case  search  among 
his  papers  must  be  proved,  if  that  can  be  done.  In  all  events,  search 
must  be  made  for  the  paper  with  the  utmost  good  faith,  and  be  as 
thorough  and  vigilant  as  if  the  rule  were  that  all  benefit  of  the  paper 


No.  307  DOCUMENTARY   ORIGINALS  467 

would  be  lost  unless  it  be  found.  Mariner  v.  Saunders,  5  Gilm.  113; 
Sturges  V.  Hart,  45  111.  103;  Chicago  &  Northwestern  Railway  Co.  v. 
Ingersoll,  Go  id.  399;   Williams  v.  Case,  79  id.  356.  .  .  . 

The  judgment  of  the  Appellate  Court  and  that  of  the  Circuit  Court 
are  each  reversed,  and  the  cause  will  be  remanded  to  the  Circuit  Court 
for  such  other  and  further  proceedings  as  to  law  and  justice  shall 
appertain.  Reversed  and  remanded. 


307.   ATTORNEY-GENERAL  v.   LE  MERCHANT 

Exchequer.     1772 

2  T.  R.  201 

Information  for  the  illegal  importation  of  tea.  In  the  course  of  the 
trial,  the  Attorney  General  offered  to  read  some  I'etters  concerning  this 
tea,  which  had  been  sent  by  the  defendant  to  Channon,  a  witness  for  the 
crown,  which  letters  were  proved  to  have  come  to  the  defendant's  hands 
under  an  order  made  by  the  Lord  Chancellor  for  the  delivery  up  to  him 
of  all  papers  and  letters  seized  under  a  commission  of  bankrupt  against 
Channon,  among  which  were  these  letters.  The  solicitor  of  the  excise 
had  contrived  'to  take  copies  of  them  whilst  they  were  in  the  hands  of 
the  clerk  of  the  commission;  and  notice  having  been  given  to  the  defend- 
ant to  produce  the  original  letters,  and  that  being  refused,  the  Attorney 
General  offered  to  read  these  copies. 

This  was  objected  to  by  the  counsel  for  the  defendant,  upon  the  ground 
principally,  that  a  defendant  in  a  criminal  case  was  never  bound  to  pro- 
duce evidence  against  himself;  that  he  was  guilty  of  no  crime  in  not 
producing  them ;  and  that  the  Attorney  General  had  no  right  to  call  upon 
him  to  produce  them,  or  ask  a  single  question  concerning  them;  con- 
sequently no  copies  could  be  admitted  in  evidence. 

But  Eyre,  Baron,  admitted  the  evidence,  though  he  said  he  had  some 
doubt  about  it.  .  .  . 

Smythe,  L.  C.  B.  First,  it  was  objected,  that  copies  of  letters  or 
papers  in  the  hands  of  the  adversary  ought  not  to  be  read  in  criminal 
cases;  that  was  one  general  objection.  And  the  other,  that  supposing, 
for  argument's  sake,  they  ought  to  be  admitted,  yet  in  this  particular 
instance  the  notice  which  was  given  was  not  sufficient.  As  to  the  first 
objection,  that  copies  are  not  admissible  in  any  criminal  case,  because 
that  would  be  to  oblige  a  man  to  produce  evidence  against  himself; 
in  answer  to  it,  I  do  not  recollect  that  they  have  produced  any  one  case 
to  show  any  difference  at  all  as  to  the  rule  of  evidence  in  criminal,  and  in 
civil  cases;  therefore  the  rule  of  evidence  in  both  cases  is  the  same,  that 
is,  to  have  the  best  evidence  that  is  in  the  power  of  the  party  to  produce, 
which  means  that,  if  the  original  can  possibly  be  had,  it  shall  be  required, 
but  if  that  original  be  destroyed,  or  if  it  be  in  the  hands  of  the  opposite 


468  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  307 

party  who  will  not  produce  it,  then  in  case  of  a  deed,  a  counter  one,  or 
sometimes  a  copy  of  the  deed,  or  copy  of  the  paper,  is  evidence  to  be 
admitted.  .  .  . 

It  was  likewise  said,  in  support  of  the  motion,  that  the  reason  why 
copies  are  permitted  to  be  evidence  in  common  cases  is  because  the  party 
who  has  them  in  his  custody,  and  does  not  produce  them,  is  in  some  fault 
for  not  producing  them;  it  is  considered  as  a  misbehavior  in  him  in  not 
producing  them,  and  therefore  in  criminal  cases  a  man  who  does  not 
produce  them  is  in  no  fault  at  all,  and  for  that  reason  a  copy  is  not  ad- 
mitted. But  I  do  not  take  that  to  be  the  rule;  it  is  not  founded  upon  any 
misbehavior  of  the  party,  or  considering  him  in  fault;  but  the  rule  is 
this:  the  copies  are  admitted  when  the  originals  are  in  the  adversary's 
hands  for  the  same  reason  as  when  the  originals  are  lost  by  accident; 
the  reason  is  because  the  party  has  not  the  originals  to  produce.  .  .  . 

Another  objection  has  been  made  that  this  notice  is  not  sufficient; 
the  answer  is,  I  know  no  difference  between  the  rule  of  evidence  in  civil 
and  criminal  cases.  Then,  if  there  be  no  such  difference,  the  rule  which 
has  always  been  followed  and  allowed  in  civil  cases  is  that  notice  be  given 
to  the  attorney  or  agent  of  the  adverse  party.  Now  in  this  case,  without 
going  minutely  into  the  consideration,  whether  the  notice  was  proved  to 
the  defendant  himself,  and  was  good,  here  is  unquestionable  notice  proved 
to  Sayer  who  is  the  agent  and  solicitor  of  Le  Merchant,  into  whose  hands 
it  appears  that  these  letters  had  actually  been  delivered;  and  then  there 
is  a  notice  likewise  to  Davy,  who  is  the  attorney  for  the  defendant  in 
this  very  cause,  and  no  attempt  was  made  on  the  part  of  the  defendant  to 
prove  what  was  become  of  these  letters,  or  that  it  was  not  in  his  power  to 
produce  them.  Rule  discharged. 

308.  Lawrence  v.  Clark.  (1845.  Exchequer.  14  M.  &  W.  250,  253).  Alder- 
son,  B.  All  these  cases  depend  on  their  particular  circumstances;  and  the 
question  in  each  case  is  whether  the  notice  was  given  in  reasonable  time  to  enable 
the  plaintiff  to  be  prepared  to  produce  the  document  at  the  time  of  the  trial. 
Pollock,  C.  B.  Wliat  is  sufficient  in  one  case  may  not  be  so  in  another;  and 
much  therefore  must  be  left  to  the  discretion  of  the  presiding  judge,  subject,  of 
course,  to  correction  by  the  Court. 


309.   DWYER  v.   COLLINS 

Exchequer.     1852 

7  Exch.  639 

Action  by  the  indorsee  against  the  acceptor  of  a  bill  of  exchange;  to 
which  the  defeildant  pleaded,  inter  alia,  that  the  bill  was  given  for  a 
gaming  debt. 

On  the  trial,  before  the  Lord  Chief  Baron,  the  defendant  proceeded 
to  prove  his  plea;    and  for  that  purpose  gave  evidence  of  the  gaming, 


No.  309  DOCUMENTARY   ORIGINALS  469 

and  swore  that  the  only  bill  he  ever  gave  to  the  drawer  of  the  bill  which 
was  declared  on,  was  by  way  of  payment  of  the  debt  then  incurred.  The 
defendant's  counsel,  being  required  to  prove  that  the  identical  bill  de- 
clared upon  was  that  which  was  given  on  that  occasion,  called  for  the 
bill,  which  the  plaintiff's  counsel  declined  to  produce.  .  .  .  The  plaintiff's 
attorney  having  admitted  that  the  bill  was  in  his  possession  and  in  Court, 
the  defendant's  counsel  called  for  its  production;  which  being  refused,  he 
then  offered  to  give  secondary  evidence  of  its  contents.  .  .  .  The  plain- 
tiff's counsel  objected  that  there  ought  to  have  been  a  previous  notice  to 
produce;  and  the  Lord  Chief  Baron,  after  consulting  the  judges,  ruled  in 
favor  of  the  defendants. 

Humfrey  obtained  a  rule  nisi  accordingly.  .  .  . 

Hawkins  (James  with  him)  showed  cause.  .  .  .  The  notice  to  produce 
the  bill  was  given  in  sufficient  time,  as  it  was  shown  that  that  document 
was  at  the  time  in  Court.  ...  In  Lawrence  v.  Clark,  [a7ite,  No.  308], 
where  to  a  declaration  upon  a  bill  of  exchange  the  defendant  pleaded  a 
plea  of  fraud  and  covin,  it  was  held  that  the  plaintiff  was  not  bound  to 
produce  the  bill  on  the  trial  without  a  notice  given  in  due  time;  and 
Alderson,  B.,  in  his  judgment,  says  —  "All  these  cases  depend  on  their 
particular  circumstances,  and  the  question  in  each  is,  whether  the  notice 
was  given  in  reasonable  time  to  enable  the  plaintiff  to  be  prepared  to 
produce  the  document  at  the  time  of  the  trial."  .  .  .  (Parke,  B.  .  .  . 
The  question  really  turns  upon  the  principle  of  the  rule  on  which  a  notice 
to  produce  is  required.  In  Starkie  on  Evidence,  p.  404,  the  rule  is  laid 
down  in  the  following  terms :  —  "  Proof  that  the  adversary  or  his  attorney 
has  the  deed  or  other  instrument  in  Court  does  not  supersede  the  necessity 
of  notice;  for  the  object  of  the  notice  is  not  merely  to  enable  the  party  to 
bring  the  instrument  itself  into  Court,  but  also  to  provide  such  evidence 
as  the  exigency  of  the  case  may  require  to  support  or  impeach  the  instru- 
ment." If,  on  the  other  hand,  the  object  of  the  notice  is  to  require  the 
production  of  a  particular  document,  or,  in  case  the  document  is  not 
produced,  to  authorize  the  party  giving  the  notice  to  give  secondary  evi- 
dence of  the  contents  of  that  document,  then  all  that  is  necessary  is  that 
the  notice  should  be  given  in  sufficient  time  to  the  opposite  party  to 
enable  him  to  be  ready  to  produce  the  document  at  the  trial.  I  have 
always  been  of  opinion  that  this  is  the  true  object  of  the  notice;  and  if 
this  be  so,  the  inquiry  relating  to  the  sufficiency  of  the  notice  is  a  simple 
one;  but  if  the  proposition  laid  down  by  Mr.  Starkie  in  his  work  be 
correct,  the  inquiry  would  often  be  one  of  an  extremely  complicated 
character;  for  it  might  depend  upon  the  nature  of  the  document  and  many 
extrinsic  circumstances.)  .  .  . 

The  Court  then  called  upon  « 

Udal  (with  whom  was  Humfrey)  to  support  the  rule.  .  .  .  The  notice 
was  insufficient.  The  authorities  and  text-writers  are  expressly  in  favor 
of  the  plaintiff  upon  this  point.  .  .  . 

The  judgment  of  the  Court  was  now  delivered  by 


470  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  309 

Parke,  B.  .  .  .  We  do  not  propose  to  .  .  .  consider  the  question, 
whether  the  pleadings  themselves  give  as  much  notice  that  the  bill  will 
be  the  subject  of  inquiry  as  they  do  in  an  action  of  trover  for  a  written 
instrument,  where  a  notice  to  produce  is  unnecessary  —  it  having  been 
decided  by  the  Court  of  Queen's  Bench  in  Read  v.  Gamble,  10  A.  &  E. 
597,  n.,  and  in  Goodered  v.  Armour,  3  Q.  B.  596,  and  followed  by  this 
Court  in  Lawrence  v.  Clark,  14  M.  &  W.  250,  that  in  a  case  like  the 
present  the  pleadings  do  not  give  constructive  notice.  We  wish  to  decide 
this  case  upon  the  more  general  ground,  the  principal  subject  of  the  argu- 
ment at  the  bar.  .  .  , 

Whether,  on  his  refusal,  it  was  competent  for  the  defendant  to  give 
secondary  evidence  of  its  contents,  no  previous  notice  to  produce  having 
been  given.  We  are  of  opinion  that  the  ruling  of  my  Lord  Chief  Baron 
was  right.  ... 

The  question  is  whether,  the  bill  being  admitted  to  be  in  court,  parol 
evidence  was  admissible  on  its  non-production,  or  whether  a  previous 
notice  to  produce  was  necessary.  On  principle,  the  answer  must  depend 
on  the  reason  why  notice  to  produce  is  required.  If  it  be  to  give  his 
opponent  notice  that  such  a  document  will  be  used  by  a  party  to  the 
cause,  so  that  he  may  be  enabled  to  prepare  evidence,  to  explain  or  con- 
firm it,  then  no  doubt  a  notice  at  the  trial,  though  the  document  be  in 
Court,  is  too  late.  But  if  it  be  merely  to  enable  the  party  to  have  the 
document  in  Court,  to  produce  it  if  he  likes,  and  if  he  does  not,  to  enable 
the  opponent  to  give  parol  evidence,  —  if  it  be  merely  to  exclude  the 
argument  that  the  opponent  has  not  taken  all  reasonable  means  to  pro- 
cure the  original  (which  he  must  do  before  he  can  be  permitted  to  make 
use  of  secondary  evidence),  then  the  demand  of  production  at  the  trial 
is  sufficient.  ...  If  this  [the  former]  be  the  true  reason,  the  measure  of 
the  reasonable  length  of  notice  would  not  be  the  time  necessary  to  pro- 
cure the  document  —  a  comparatively  simple  inquiry,  —  but  the  time 
necessary  to  procure  evidence  to  explain  or  support  it,  —  a  very  compli- 
cated one,  depending  on  the  nature  of  the  plaintiff's  case  and  the  docu- 
ment itself  and  its  bearing  on  the  cause;  and  in  practice  such  matters 
have  never  been  inquired  into,  but  only  the  time  with  reference  to  the 
custody  of  the  document  and  the  residence  and  convenience  of  the  party 
to  whom  notice  has  been  given,  and  the  like.  We  think  the  plaintiff's 
alleged  principle  is  not  the  true  one  on  which  notice  to  produce  is  required, 
but  that  it  is  merely  to  give  a  sufficient  opportimity  to  the  opposite 
party  to  produce  it  and  thereby  secure  if  he  pleases  the  best  evidence  of 
the  contents;  and  a  request  to  produce  immediately  is  quite  sufficient 
for  that  purpose,  if  it  be  in  court.  .  .  . 

We  think  that  the  rule  hiust  be  discharged;  and  it  would  be  some 
scandal  to  the  administration  of  the  law  if  the  plaintiff's  objection  had 
prevailed.  Rule  discharged. 


No.  310  DOCUMENTARY   ORIGINALS  471 

I 

310.   UNITED  STATES  v.  DOEBLER 
United  States  District  Court.     1832 
Baldw.  519;  25  Fed.  Cos.  883 

[Indictment  for  forging  a  bank-note. . .  .  After  evidence  of  the  forging 
of  the  note  in  question],  one  Empich  was  examined,  w  ho  proved  tliat  at 
the  Lancaster  races,  at  the  time  testified  by  Rallston,  the  defendant 
dehvered  him  a  twenty  dollar  note,  stating  that  it  was  not  good,  and 
requested  the  witness  to  play  it  off  at  a  faro  table,  which  he  did  not  do, 
but  after  some  time  returned  it  to  the  defendant.  IVlr.  Gilpin,  after  stating 
that  this  note  was  not  the  subject  of  an  indictment,  but  that  the  evidence 
in  relation  to  it  was  offered  to  prove  the  scienter  as  to  the  notes  charged 
in  the  indictment,  asked  the  witness  to  describe  the  twenty  dollar  note, 
as  to  the  bank,  etc.,  it  was  on,  which  was  objected  to,  on  the  ground  that 
this  was  matter  collateral  to  the  indictment,  of  which  notice  ought  to 
have  been  given  to  the  defendant,  and  that  it  was  not  evidence  of  the 
scienter,  because  the  delivery  of  the  note  to  Empich  was  subsequent 
to  the  delivery  of  the  note  which  was  the  subject  matter  of  the  indictment; 
and  the  question  was  elaborately  argued.  .  .  . 

Baldwin,  J.  .  .  .  As  the  intention  and  knowledge  wuth  which 
the  act  is  done,  constitute  the  crime,  it  may  be  made  out  by  evidence 
of  other  acts  of  a  similar  kind  with  that  charged  in  the  indictment.  This 
being  the  well  settled  and  well  known  rule  in  such  cases,  the  prisoner 
cannot  be  taken  by  surprise;  when  such  evidence  is  offered,  he  must 
come  prepared  to  meet  not  only  the  evidence  which  applies  directly  to 
the  specific  act  charged,  but  all  other  acts  which,  according  to  the  known 
rules  of  evidence,  a  prosecutor  may  adduce  to  prove  the  act  charged. 
If  the  note  he  is  charged  with  forging,  passing,  or  delivering,  is  of  the 
same  kind  with  others  which  he  has  disposed  of  or  retained  in  his  pos- 
session, he  has  notice  in  effect  that,  if  practicable  to  procure  it,  evidence 
will  be  given  of  their  counterfeit  character,  and  of  his  having  passed  them 
as  true.  It  is  notice  in  law,  by  which  a  party  is  as  much  bound  both  in 
civil  and  in  criminal  cases  as  by  notice  in  efl^ect.  Notice  in  fact  is  notice 
in  form;   notice  in  law  is  notice  in  effect;   and  either  are  sufficient.  .  .  . 

Knowing  that  proof  of  all  these  facts  is  as  competent  to  the  prose- 
cutor as  the  one  specifically  charged,  no  injustice  is  done  him. 

He  ought  to  answer  for,  and  be  prepared  to  meet  them,  on  the  same 
rules  of  evidence  which  ^pply  to  the  principal  act  for  which  he  is  on 
trial.  The  indictment  is  notice  of  that,  and  we  think  it  also  notice  of  the 
other  acts,  which  are  as  admissible  in  evidence  as  the  one  charged.  .  .  . 
The  indictment  in  all  cases  of  forgery,  is  in  itself  notice  that  all  com- 
petent evidence  will  be  produced;  the  defendant  cannot,  therefore,  be 
taken  by  surprise,  when  the  passing  of  any  other  forged  notes  of  a  manu- 
facture similar  to  the  one  laid  in  the  indictment  is  offered;   whether  the 


472  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  3 10 

mode  of  proof  is  by  the  production  of  letters,  copies,  or  proof  of  their 
contents,  or  by  the  notes,  is  immaterial,  so  that  the  evidence  conduces 
to  prove  the  scienter  as  to  the  one  charged. 

For  these  reasons,  we  are  of  opinion  that  the  evidence  of  .  .  .  the 
note  delivered  by  the  defendant  to  Empich  is  admissible.  .  .  . 

The  jury  found  the  defendant  not  guilty. 


311.   EURE  V.  PITTMAN 

Supreme  Court  of  North  Carolina.     1824 

3  Hawks  364 

The  plaintiffs  offered  for  probate  a  paper  writing  as  the  last  will  and 
testament  of  Edward  Crowell,  deceased;  there  was  a  caveat  in  the  county 
court,  and  after  trial  there  it  was  carried  by  appeal  to  the  superior  court. 
The  wife  of  the  legatee  named  in  the  paper  (Thomas  W.  Crowell,  son  of 
Edward)  is  now  one  of  the  plaintiffs.  .  .  . 

The  defendant  contended  that  this  will  was  revoked  by  a  subsequent 
will  made  by  Edward  Crowell,  and  that  the  last  will  had  been  destroyed 
or  suppressed  by  the  plaintiffs  or  by  those  under  whom  they  derived  an 
interest,  or  by  some  other  person  under  their  advice  and  procurement, 
and  offered  to  prove  the  same  by  the  subscribing  witnesses  to  the  last 
will.  This  was  objected  to  by  the  plaintiffs,  because  they  had  no  notice 
to  produce  the  will.  The  Court  was  of  opinion,  that  if  the  plaintiffs  had 
the  last  will  or  had  been  the  cause  of  its  suppression,  or  claimed  under 
those  who  had,  then  such  conduct  would  be  illegal  and  fraudulent,  and 
the  defendant  was  not  bound  to  give  notice  to  produce  it  in  order  to  be 
let  into  parol  proof  of  its  contents.  The  plaintiffs  further  objected  to 
any  parol  proof  of  its  contents.  .  .  . 

The  defendant  then  called  as  witnesses,  Jacob  Pope  and  his  daughter. 
Pope  deposed  that  Edward  Crowell  died  on  Wednesday.  On  the  pre- 
ceding Sunday,  May  26,  1820,  he  came  to  the  house  of  Pope,  with,  a 
paper  writing  in  his  hand,  having  his  name  signed  to  it,  and  said  that  it 
was  his  last  will  and  testament,  and  requested  Pope  to  attest  it;  Pope 
did  subscribe  it  as  a  witness  in  Crowell's  presence.  .  .  .  The  defendant 
then  produced  another  witness,  who  swore  that  Crowell,  on  the  27th  of 
IVIay,  1820,  placed  the  last  mentioned  will  in  the  possession  of  one  Rebecca 
Tillery,  who  was  the  sister  of  Mrs.  Eure,  one  of  the  plaintiffs,  and  who 
resided  at  the  house  of  Mrs.  Eure's  then  husband,  Thomas  W.  Crowell, 
only  son  of  the  testator.  .  .  .  Rebecca  Tillery  was  summoned  by  both 
parties,  but  did  not  appear.  .  .  . 

[The  Court  thus  instructed  the  jury:]  The  jury  should,  if  they  be- 
lieved the  evidence,  find  the  paper  now  offered  to  be  the  last  will  of 
Edward  Crowell,  unless  they  should  be  of  opinion,  from  all  the  evidence, 
that  the  last  will  had  been  suppressed  by  the  plaintiffs,  or  those  under 


No.  311  DOCUMENTARY   ORIGINALS  473 

whom  the  plaintiffs  cluiiii,  or  by  their  advice  or  procurement;  in  that 
case,  they  ought  to  find  a  \'erdict  for  the  defendant,  because  they  miglit 
presume  a  re\'ocation  or  contradictory  devises  from  the  fact  of  suppres- 
sion. But  if  the  jury  should  be  of  opinion  that  Rebecca  Tillery,  of  her 
own  accord,  destroyed  the  last  will  without  the  consent  or  knowledge  of 
the  plaintiffs,  or  those  under  whom  they  now  claim,  or  if  the  testator 
destroyed  it,  then,  in  either  of  these  events,  they  should  find  for  the 
plaintiffs.  .  .  . 

Verdict  for  defendant;  judgment  accordingly,  and  appeal  by  plain- 
tiffs. 

Gaston,  for  appellant.  1.  Evidence  of  the  execution  or  contents  of 
the  last  will  was  improper  under  the  circumstances.  The  principle  on 
which  we  object  is  that  the  best  evidence  is  requii'cd;  the  instrument 
itself  shall  always  be  produced  if  possible.  ...  If  it  was  in  the  possession 
of  the  plaintiffs,  they  should  have  had  notice  to  produce  it.  2  Term  R., 
201-2. 

There  was  here  no  proof  of  its  destruction,  no  subpoena  duces  tecum 
to  the  witness,  no  notice  to  the  plaintiffs  to  produce  it;  in  short,  no  pains 
taken  at  all  to  procure  the  best  evidence,  or  furnish  a  legal  ground  for 
the  admission  of  inferior  testimony.  .  .  . 

Seawell,  contra.  The  principle  upon  which  notice  to  produce  a  paper 
is  required,  is  to  prevent  surprise,  where,  from  the  nature  of  the  contro- 
versy, it  is  uncertain  whether  such  evidence  will  be  material  on  the  trial. 
.  .  .  Here  there  could  be  no  surprise.  If  the  plaintiffs  had  possession 
of  the  will,  it  was  a,  fraud  to  attempt  the  proof  of  the  prior  will,  and  in 
such  case  no  notice  is  necessary.  .  .  . 

Reply:  .  .  .  The  bare  circumstance  of  a  party  not  having  it  in  his 
power  to  produce  a  paper  is  not  sufficient  reason  for  admitting  parol 
evidence.  ...  It  seems  there  is  no  case  where  parol  evidence  has  been 
admitted  merely  because  the  paper  is  in  the  hands  of  a  third  person  and 
a  subpoena  duces  tecum  has  been  refused.  .  .  . 

Taylor,  C.  J.  —  There  is  no  proof  that  the  second  will  was  ever  in 
the  plaintiff's  possession,  and  therefore  a  notice  to  produce  it  would  be 
totally  unnecessar}-.  But  there  is  evidence  that  the  will  was  placed  by 
the  testator  in  the  hands  of  Rebecca  Tillery,  since  which  period  it  has 
been  traced  no  farther.  Now  the  ground  upon  which  the  defendant 
offers  proof  of  the  execution  of  the  will  is  the  charge  of  suppression 
against  the  plaintiff,  or  those  under  whom  she  claims.  It  appears  to 
me  that  this  fact  should  be  first  established  by  the  best  evidence  the 
nature  of  the  case  admits  of,  that  is,  the  testimony  of  Rebecca  Tillery 
and  the  production  of  the  paper  enforced  by  a  subpoena  duces  tecum. 

I  understand  it  to  be  an  elementary  rule  that,  when  the  ground  of 
admitting  the  secondary  evidence  is  the  loss  of  the  original,  it  ought  to 
be  shown  that  diligent  inquiry  has  been  made;  and  the  last  person  into 
whose  possession  the  paper  has  been  traced  should  be  called  to  give  an 
account  of  it.  .  .  .  In  all  such  cases  the  invariable  rule  is  for  the  Court 


474  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  311 

to  pronounce,  in  the  first  instance,  whether  there  is  sufficient  proof  of 
the  loss  or  destruction  of  the  paper,  or  whether  sufficient  inquiry  has  been 
made  to  render  parol  evidence  of  the  contents  admissible.  But  here  the 
whole  evidence,  that  of  the  suppression  of  the  instrument,  and  the 
secondary  evidence  of  its  execution,  was  all  submitted  to  the  jury  in  the 
first  instance,  for  which  practice  I  cannot  find  a  single  authority.  And 
the  principle  of  evidence  is  directly  opposed  to  it;  for  if  the  Court  had 
pronounced  in  the  first  instance  whether  the  evidence  of  the  suppression 
was  sufficient  to  authorize  the  secondary  evidence,  it  seems  evident  to 
me  that  it  must  have  been  rejected,  both  for  its  insufficiency  as  to 
the  suppression  and  its  defect  in  not  showing  that  proper  inquiries 
respecting  the  paper  had  been  made  of  Rebecca  Tillery;  and  then 
all  the  evidence  respecting  the  execution  of  the  will,  and  the  infer- 
ences drawn  from  it  that  it  operated  a  revocation  of  the  first  will, 
must  have  been  excluded.  The  danger  of  such  evidence  consists  in 
this,  that  it  may  unconsciously  influence  the  judgment  of  the  jury, 
and  make  impressions  upon  it  which  no  subsequent  advice  of  the 
Court  will  be  able  to  deface.  The  efifect  of  such  a  procedure  in  this 
case  has  been  that,  because  the  will  was  placed  in  the  hands  of 
Rebecca  Tillery,  who  was  a  sister  to  the  wife  of  the  younger  Crowell,  the 
jury  have  inferred  a  suppression  by  him  or  by  her;  and  because  it  was 
suppressed  it  was  further  inferred  that  it  amounted  to  a  revocation  of 
the  first  will ;  a  string  of  inferences  that  might  have  been  broken  by  the 
testimony  of  Rebecca  Tillery  or  by  inquiries  of  her.  The  paper  might 
have  been  produced,  and  might  have  turned  out  not  to  be  a  will,  or,  if  a 
will,  not  amounting  to  a  revocation  of  the  first.  .  .  . 

Hall,  J.  —  I  think  the  defendants  ought  not  to  have  been  permitted 
to  prove  the  execution  and  existence  of  another  and  subsequent  will 
before  they  made  it  appear  to  the  Court  that  they  had  made  reasonable 
efforts  to  procure  it.  .  .  .  For  the  reason  I  have  first  assigned,  I  think 
there  should  be  a  new  trial. 

Henderson,  J.,  dissenting  —  The  paper  which  the  defendants  allege 
revoked  the  will  in  question,  not  belonging  to  them  or  being  within  their 
control,  excuses  them  for  its  non-production  on  the  trial,  for  the  law 
imposes  on  no  one  a  thing  beyond  his  power.  If  the  paper  is  alleged 
to  be  in  the  possession  of  the  adversary,  notice  must  be  given  to  him  to 
produce  it  on  the  trial  before  parol  evidence  shall  be  received  of  its  con- 
tents; but  if  it  is  destroyed,  no  such  notice  is  necessary.  These  pre- 
liminary facts  to  let  in  the  secondary  evidence,  both  as  to  their  truth 
and  sufficiency  when  shown,  belong  to  the  Court,  and  not  to  the  jury. 
See  a  very  clear  and  able  opinion  on  the  latter  question  delivered  by 
Judge  Spencer  in  16  Johns.  193. 

But  neither  of  these  questions  arises  in  the  present  case.  .  .  .  From 
these  facts  the  defendant  insisted  that  Crowell  had  destroyed  the  latter 
writing,  and  that  "in  odium  spoliatoris"  the  jury  should  presume  either 
that  the  writing  contained  a  clause  of  revocation  or  was  inconsistent 


No.  312  DOCUMENTARY    ORIGINALS  475 

with  the  will  offered.  There  was  no  parol  evidence  of  the  contents  of 
the  will  by  copy,  or  other  evidence  of  a  like  kind ;  nor  was  any  argument 
drawn  of  its  being  a  revocation,  but  from  the  fact  of  its  destruction  by 
Crowell,  or  some  one  by  his  connivance  or  direction.  With  the  fact  of 
destruction  the  Court  had  nothing  to  do,  nor  with  inferences  to  be  drawn 
from  it.  They  both  belonged  to  the  jury.  They  were  not  preliminary 
questions  to  the  introduction  of  secondary  evidence;  for  this  reason 
notice  to  produce  the  original  was  unnecessary.  And  here  there  was  no 
inferior  evidence  offered;  it  was  all  primary;  for  every  fact  deposed  to 
went  to  the  making  and  destruction  of  the  paper.  Whether  they  were 
sufficient  to  establish  them  belonged  to  the  jury. 


312.   BOWDEN  v.   ACHOR 

Supreme  Court  of  Georgia.     1894 
95  Ga.  243 

Equitable  petition.  Before  Judge  Clark.  Clayton  Superior 
Court.  March  Term,  1894.  [Petition  to  set  aside  deeds  obtained  by 
fraud  from  the  petitioner,  Lou  Achor.]  She  was  the  daughter  of  Nancy 
Wright,  who  before  her  death  owned  lots  8,  9  and  24  in  the  13  th  district 
of  Clayton  county.  .  .  .  On  September  28,  1887,  Nancy  Wright  by  will 
devised  these  three  lots  to  petitioner,  her  only  child.  .  .  . 

About  November  9,  1891,  one  Morris,  with  his  attorney  Albert, 
visited  petitioner's  home  in  Alabama,  and  after  securing  the  services 
and  influence  of  J.  M.  Phillips,  who  was  known  by  them  to  be  the  friend 
and  adviser  of  petitioner,  falsely  and  fraudulently  represented  to  her  that 
her  attorneys  could  do  nothing  for  her,  and  by  all  kinds  of  misrepre- 
sentations and  fraudulent  practices  induced  her  to  sign  some  kind  of 
paper,  she  did  not  know  what,  except  that  the  same  was  without  con- 
sideration save  the  paltry  sum  of  SlOO,  conveying  the  land.  She  has 
been  informed  and  believes  that  the  SlOO  was  paid  by  them  to  Phillips, 
as  the  price  of  his  influence  with  her  to  induce  her  to  sign  papers  of  their 
own  drawing.  She  is  now  informed  that  this  last  mentioned  paper  is 
claimed  to  be  a  deed  to  Bowden,  but  he  was  not  present  and  she  believes 
knew  nothing  about  it  and  has  never  even  seen  the  paper.  .  .  . 

Under  the  evidence  and  charge  of  the  Court,  the  jury  found  for  the 
plaintiff.  .  .  .  Bowden  and  Morris  moved  for  a  new  trial,  which  was 
denied;  and  they  excepted.  The  grounds  of  the  motion  proper  to  be 
here  stated  are,  in  brief,  as  follows:  .  .  .  Error  in  refusing  to  allow 
W.  J.  Albert  to  testify,  that  the  power  of  attorney  shown  him  by  Monroe 
Phillips  on  November  9,  1891,  was  from  plaintiff,  giving  Phillips  author- 
ity to  bring  suit  for  the  land  in  dispute,  or  to  compromise  whatever 
right  plaintiff  might  have  in  said  land,  but  the  right  to  sign  conveyances 
being  retained  in  plaintiff;   and  that  Monroe  Phillips  was,  on  November 


476  BOOK    i:     RULES    OF   .ADMISSIBILITY  No.  312 

9,  1891,  and  ever  since  had  been  a  citizen  of  Alabama.  This  was  ex- 
cluded on  the  ground  that  the  power  of  attorney  was  the  best  evidence; 
defendant's  counsel  contending  that  as  the  paper  was  out  of  the  juris- 
diction of  the  Court,  its  contents  could  thus  be  shown.  .  .  . 

Lumpkin,  Justice.  .  .  .  Where  a  paper  of  any  kind  is  material  as 
bearing  upon  the  issue  under  investigation,  the  paper  itself  is  generally 
the  best  evidence  of  its  contents.  Secondary  evidence  may  be  resorted 
to  when  the  original  is  inaccessible.  The  Courts  of  this  State  have  no 
power  to  compel  the  production  of  a  paper  in  the  possession,  custody 
or  control  of  a  person  in  another  State,  when  such  person  is  not  a  party 
to  the  cause.  In  such  an  instance,  the  paper  may  well  be  said  to  be 
inaccessible.  If  it  were  a  duly  recorded  paper  of  which  a  legally  certi- 
fied copy  could  be  obtained,  it  might  be  incumbent  upon  the  party  desir- 
ing the  benefit  of  this  evidence  to  produce  such  a  copy;  but  where  no 
such  secondary  evidence  is  obtainable,  a  witness  may  be  permitted  to 
testify  to  the  contents  of  the  original,  if  within  his  personal  knowledge 
and  he  is  competent  to  do  so.  In  this  connection  see  Lunday  et  ux  v. 
Thomas  et  al.,  26  Ga.  537.  .  .  .  Judgment  reversed. 


313.   SHEA  V.   SEWERAGE   &  W^ATER  BOARD 

Supreme  Court  of  Louisiana.     1909 

124  La.  299;   50  So.  166 

Appeal  from  Civil  District  Court,  Parish  of  Orleans;  Frederic 
DuRiEVE  King,  Judge.  Action  by  Thomas  J.  Shea  against  the  Sewerage 
&  Water  Board  of  New  Orleans.  From  a  judgment  for  plaintiff,  de- 
fendant appeals.     Reversed  and  remanded. 

The  plaintiff,  T.  J.  Shea,  was  awarded  contracts  C.  &  F.  of  the  nu- 
merous contracts  for  the  laying  of  sewers  and  appurtenances  in  the  city 
of  New  Orleans.  He  completed  contract  F.,  and  had  constructed  the 
sewers  under  contract  C,  and  had  cleaned  the  most  of  them,  ready  for 
inspection,  when  differences  arose  between  him  and  the  defendant  board, 
over  the  responsibility  for  failures  which  had  developed  in  the  sewers, 
which  led  him  to  abandon  the  contract  and  bring  this  suit.  He  avers 
that  he  fulfilled  these  contracts,  and  demands  $145,483.60,  which,  he 
alleges,  is  the  balance  due  him.  The  claim  is  divided  into  amounts  for 
regular  work  under  the  contracts,  for  extras,  and  for  damages.  The 
claims  for  extras  and  damages  are  itemized  in  exhibits  annexed  to  the 
petition. 

The  defenses  are  a  general  denial  and  the  special  defenses;  that 
plaintiff  was  paid  all  that  was  due  under  contract  F;  that  he  abandoned 
contract  C  incomplete;  that  there  was  to  his  credit  at  that  time  on  the 
books  of  defendant  $79,607.28;  but  that  defendant  has  since  then  com- 
pleted the  sewers  at  the  expense  of  plaintiff,  as  it  had  a  right  to  do  under 


No.  313  DOCUMENTARY   ORIGINALS  477 

the  contract,  at  a  cost  of  $54,014.92,  and  has,  moreover,  expended,  in 
repairing  damage  caused  by  plaintiff  and  in  other  extra  work,  as  set 
forth  in  detail,  -11,564. 20;  that  these  expenses  offset  pro  tanto  the  said 
credit  of  plaintiff;  and  that  plaintiff  owes,  in  addition,  $41,100,  liquidated 
damages  for  delay  in  the  completion  of  said  contract,  being  411  days  at 
$100  per  day,  as  stipulated  in  said  contract,  which  more  than  offsets  the 
balance  to  the  credit  of  plaintiff,  leaving  him  indebted  to  the  defendant 
in  the  sum  of  $16,378.90,  for  which  defendant  prays  judgment.  .  .  . 

Omer  Villere  {E.  H.  Block  and  Thomas  H.  Thorpe,  of  counsel),  for 
appellants. 

McCloskcy  &  Benedict  and  Clegg  &  Quintero,  for  appellee. 

Provosty,  J.  (after  stating  the  facts  as  above).  Coming  to  the  con- 
sideration of  the  items  which  compose  the  demand  of  plaintiff,  and  of 
the  character  of  evidence  and  degree  of  proof  which  ought  to  be  required 
of  plaintiff,  we  find  that  defendant  would  hold  plaintiff  to  the  same 
strictness  of  proof  as  if  the  case  involved  but  one  item  and  were  a  mere 
ordinary  case  of  a  plaintiff  suing  on  an  open  account.  But,  manifestly, 
that  view  cannot  be  accepted.  On  that  theory  the  trial  of  the  case, 
which  occupied  the  lower  court  some  eight  months,  128  actual  trial  days, 
would  have  occupied  it  eight  years.  The  plaintiff,  the  members  of  the 
defendant  board,  the  judge,  the  lawyers,  and  the  witnesses  would  all 
have  had  time  to  die  before  the  evidence  could  have  been  taken.  As 
matters  stand,  the  case  has  monopolized  the  time  of  the  courts  far 
beyond  all  reasonable  limits.  By  express  terms  of  the  contract,  the 
defendant  was  entitled  to  have  its  inspector  keep  an  account  of  every 
hour  of  labor  and  every  piece  of  material  that  went  into  the  work,  and 
such  an  account  was  kept,  and  a  daily  report  made  of  it  to  defendant, 
and  defendant  has  these  reports  in  his  possession.  By  means  of  these 
reports  and  of  the  other  data  in  its  office,  the  defendant  could  have  put 
its  fingers  upon  every  cent  of  overcharge,  if  any,  contained  in  the  exhibits 
presented  by  the  plaintiff.  These  exhibits  are  models  of  clearness  and 
precision.  They  are  easily  intelligible  even  to  the  non-expert.  They 
show  exactly  what  every  cent  is  charged  for.  As  a  matter  of  fact,  the 
engineer  of  plaintiff  and  the  engineers  of  the  defendant  board  went  over 
these  exhibits  together  and  agreed  as  to  most  of  the  items,  and  have  on 
the  witness  stand  given  the  reasons  why  they  disagreed  as  to  the  others. 

With  respect  to  the  admissibility  in  evidence  of  summaries,  or  com- 
plications, such  as  these  exhibits,  the  law  is  stated  by  Wigmore,  as  follows: 

"  Where  a  fact  could  be  ascertained  only  by  the  inspection  of  a  large 
number  of  documents  made  up  of  very  numerous  detailed  statements  — 
as,  the  net  balance  result  from  a  year's  vouchers  of  a  treasurer  or  a  year's 
account  in  a  bank  ledger,  —  it  is  obvious  that  it  would  often  be  practi- 
cally out  of  the  question  to  apply  the  present  principle  by  requiring  the 
production  of  the  entire  mass  of  documents  and  entries  to  be  perused  by 
the  jury  or  read  aloud  to  them.  The  convenience  of  trials  demands  that 
other  evidence  be  allowed  to  be  offered,  in  the  shape  of  the  testimony  of 


478  BOOK   i:     RULES   OF    ADMISSIBILITY  No.  313 

a  competent  witness  who  has  perus«d  the  entire  mass  and  will  state 
summarily  the  net  results.  Such  a  practice  is  well  established  to  be 
proper.  Most  courts  require,  as  a  condition  that  the  mass  thus  summa- 
rily testified  to  shall,  if  the  occasion  seems  to  require  it,  be  placed  at  hand 
in  the  court,  or  at  least  be  made  accessible  to  the  opposing  party  in  order 
that  tlie  material  for  cross-examination  may  be  available."  Wigmore, 
Evidence,  §  1230,  p.  1473.  See,  also,  Greenleaf,  Evidence  (16th  Ed.) 
Vol.  I,  p.  690;  State  v.  Mathis,  106  La.  263,  30  So.  834. 

The  requirement  that  the  "mass"  or  data  from  which  such  a  com- 
pilation has  been  made  should  be  offered  in  evidence  has  been  complied 
with  in  this  case.  The  said  data  consists  of  the  reports  of  plaintiff's 
foremen  on  the  work,  of  the  notes  and  calculations  of  measurements 
made  by  the  engineer  of  plaintiff,  and  of  the  sheets  of  defendant's  monthly 
estimates.  Only  in  a  few  unimportant  instances  are  the  compilations 
not  based  upon  the  data  in  the  record.  Of  these  foremen's  reports  alone 
there  are  2,730.  Of  the  estimates  there  are  47  large  sheets  covered  with 
small  figures,  the  labor  of  going  through  which  would  be  simply  stu- 
pendous. Of  the  other  data,  there  is  a  large  number  of  bound  volumes. 
.  .  .  We  think  that,  under  the  peculiar  circumstances  of  this  case, 
and  in  view  of  the  practical  impossibility  of  trying  the  case  in  any  other 
way,  the  Court  can  accept  the  said  exliibits  as  correct,  except  as  to  the 
items  specially  objected  to ;  and  the  trial  Court  is,  accordingly,  directed 
so  to  do.  The  items  specially  objected  to,  we  now  proceed  to  consider 
and  pass  on,  in  so  far  as  the  condition  of  the  record  will  permit. 


314.  Chief  Baron  Gilbert.  Evidence  (ante  1726,  fol.  7).  Records,  being 
the  precedents  of  the  demonstrations  of  justice,  to  which  every  man  has  a  com- 
mon right  to  have  recourse,  cannot  be  transferred  place  to  place  to  serve  a  private 
purpose;  and  therefore  they  have  a  common  repository,  from  whence  they  ought 
not  to  be  removed  but  by  the  authority  of  some  other  Court;  and  this  is  in  the 
treasury  of  Westminster.  And  this  piece  of  law  is  plainly  agreeable  to  all  manner 
of  reason  and  justice;  for  if  one  man  might  demand  a  record  to  serve  his  own 
occasions,  by  the  same  reason  any  other  person  might  demand  it;  but  both  could 
not  possibly  possess  it  at  the  same  time  in  different  places,  and  therefore  it  must 
be  kept  in  one  certain  place  in  common  for  them  both.  Besides,  these  records, 
by  being  daily  removed,  would  be  in  great  danger  of  being  lost.  And  conse- 
quently, it  is  on  all  hands  convenient  that  these  monuments  of  justice  should  be 
fixed  in  a  certain  place,  and  that  they  should  not  be  transferred  from  thence  but 
by  public  authority  from  superior  justice.  The  copies  of  records  must  be  allowed 
in  evidence,  for  .  .  .  the  rule  of  evidence  demands  no  farther  than  to  produce 
the  best  that  the  nature  of  the  thing  is  capable  of;  for  to  tie  men  up  to  the 
original  that  is  fixed  to  a  place,  and  cannot  be  had,  is  to  totally  discard 
their  evidence,  .  .  .  for  then  the  rules  of  law  and  right  would  be  the  authors  of 
injury,  which  is  the  highest  absurdity. 

315.  Rex  v.  Gordon.  (1781.  Dougl.  572,  Reporter's  note).  It  is  a  general 
notion,  that  copies  of  nothing  but  records  are  admissible,  if  the  originals  exist; 


No.  316  DOCUMENTARY   ORIGINALS  479 

and  I  remember  a  motion  by  Dunning,  in  M.  12  Geo.  3,  (27  Nov.  1771),  for  a 
rule  on  the  East  India  Company,  to  show  cause,  why  they  should  not  permit 
their  original  transfer  books  to  be  produced,  on  the  ground  that  copies  from  them 
could  not  be  read.  He,  on  that  occasion,  stated  the  principle  to  be  what  I  have 
just  mentioned,  and  said  there  had  been  many  nonsuits  for  want  of  producing 
the  original  journals  of  the  House  of  Commons.  But  the  Court  denied  the  "rule 
to  be  as  he  stated  it,  and  mentioned  several  instances  where  copies  of  matters, 
not  of  record,  are  admissible;  as  copies  of  court-rolls,  of  parish-registers,  &c., 
and  Lord  Mansfield  expressly  said,  that  copies  of  the  [Commons]  journals  are 
evidence,  and  that  he  particularly  remembered  their  being  admitted  on  a  trial 
at  bar,  in  a  cause  in  which  he  was  leading  counsel  for  the  late  Sir  Watkin  William 
Wynne,  against  Middleton,  the  sheriff  of  Denbighshire,  on  an  action  for  a  false 
return.  That  Mr.  Onslow,  then  speaker  of  the  House  of  Commons,  made  a  point 
with  his  Lordship,  that  the  copies  should  be  offered  in  evidence,  though  nothing 
would  have  been  so  easy  in  that  case  as  to  produce  the  original  journals.  The 
Court  added,  that  the  reason  "ab  inconvenienti,"  for  holding  it  not  necessary  to 
produce  records,  applied,  with  still  greater  force,  to  such  public  books  as  the 
transfer  books  of  the  East  India  Company;  for  the  utmost  confusion  would  arise, 
if  they  could  be  transported  to  any  the  most  distant  part  of  the  kingdom,  when- 
ever their  contents  should  be  thought  material  on  the  trial  of  a  cause.  .  .  . 

The  correct  principle,  therefore,  seems  to  be  as  laid  down  by  Lord  Holt,  in 
a  case  of  Lynche  v.  Clerke,  viz.,  "That,  whenever  an  original  is  of  a  public  nature, 
and  would  be  evidence  if  produced,  an  immediate  sworn  copy  thereof  will  be 
evidence."     3  Salk.  154,  [post,  No.  318.] 


316.   HENNELL  v.  LYON 

King's  Bench.     1817 

1.  B.  &  Aid.  182 

Assumpsit  for  goods  sold  by  plaintiff  to  intestate.  Plea,  1.  Non 
assumpsit.  2.  Plene  administravit.  At  the  trial  before  Abbott,  J., 
at  the  London  sittings,  plaintiff  having  proved  the  goods  sold,  in  order 
to  show  assets  in  hand  of  the  defendant  as  administrator,  produced  an 
examined  copy  of  a  bill,  and  an  answer,  purporting  to  be  an  answer  by 
Charles  Lyon  to  a  bill  filed  in  Chancery  against  him  in  his  character 
of  administrator  of  Mary  Lyon.  The  bill  was  filed  by  Messrs.  Maltbj^ 
&  Co.,  as  well  on  their  own  behalf  as  on  that  of  all  other  creditors, 
praying  an  account.  The  plaintiff  in  this  action  was  not  a  party  to  that 
suit.  It  was  objected,  that  that  was  insufficient  evidence,  for  it  was 
"res  inter  alios  acta" :  that  the  plaintiff  should  have  produced  the  original 
answer,  and  verified  the  handwriting,  or  he  should  have  shown  that  this 
defendant  was  the  defendant  in  that  suit:  that  in  the  absence  of  such 
evidence  there  was  no  proof  of  identity.  The  learned  Judge,  however, 
received  the  evidence,  and  the  jury  found  a  verdict  for  the  plaintiff, 
Walton  having  obtained  a  rule  nisi  for  setting  aside  that  verdict,  and 
entering  a  nonsuit. 


480  BOOK   l:     RULES   OF  .ADMISSIBILITY  No.  316 

Marryat  and  Piatt  showed  cause.  To  prove  matter  of  record  or 
documents  of  a  public  nature,  it  is  not  necessary  to  have  the  original 
record  or  document,  or,  where  it  is  signed,  to  verify  the  handwriting.  .  .  . 

Walton,  contra.  .  .  . 

Lord  Ellenborgugh,  C.J.  —  The  admis.sionof  copies  in  evidence  is 
founded  upon  a  principle  of  public  convenience,  in  order  that  documents 
of  great  moment  should  not  be  ambulatory,  and  subject  to  the  loss  that 
would  be  incurred  if  they  were  removable.  The  same  has  been  laid 
down  in  respect  of  proceedings  in  Courts,  not  of  record,  copies  whereof 
are  admitted,  though  not  strictly  of  a  public  nature.  In  all  these  cases 
it  may  be  laid  down  as  a  general  principle,  that  copies  should  be  received. 
In  this  case,  the  answer  being  a  proceeding  in  a  Court  of  Justice,  must 
have  been  received  there  in  the  usual  course,  and  verified  by  the  person 
putting  it  in,  as  the  answer  of  the  person  sustaining  the  character  which 
it  imports  him  to  bear;  and  there  is  no  question  here,  as  to  that  answer 
having  been  put  in  by  a  person  bearing  that  name  and  character.  But 
it  is  said,  that  the  evidence  wants  a  further  link  to  connect  it  with  the 
defendant,  and  that  it  ought"  to  be  shown  that  the  Charles  Lyon  m  the 
answer  is  the  present  litigant.  I  do  not  know  any  way  by  which  that 
circumstance  can  be  supplied,  but  by  the  description  in  the  answer 
itself,  which  tallies  in  almost  every  particular.  Still,  however,  it  may 
be  shown  that  he  is  not  the  same  person.  .  .  . 

Bayley,  J.  —  The  bill  and  answer  being  proceedings  in  a  Court  of 
Justice,  it  is  of  the  utmost  importance,  that  the  originals  should  be  pre- 
served; and  great  inconvenience  would  result  if  they  were  moved  about 
from  place  to  place ;  and  indeed  they  might  be  wanted  at  more  than  one 
place  at  the  same  time.  On  this  ground,  therefore,  such  proceedings 
are  provable  by  examined  copies.  Then  the  question  is,  whether  the 
copy  of  the  answer  in  this  case  was  sufficient,  or  whether  the  identity 
should  not  also  have  been  proved;  but  I  think  that  it  did  afford  prima 
facie  evidence,  to  show  that  the  defendant  was  the  same  person.  .  .  . 

HoLROYD,  J.  —  I  am  of  the  same  opinion,  that  the  copy  of  the  bill 
and  answer  was  properly  received.  It  has  been  holden  from  the  time  of 
Holt,  C.  J.,  that  where  the  original  itself  is  e\ndence,  the  immediate 
copy  of  the  original  is  also  evidence.  .  .  • .  Rule  discharged. 


317.   CLEMENT  v.  GRAHAM 

Supreme  Court  of  Vermont.     1905 

78  Vt.  290;  63  Atl.  146 

Petition  for  Mandamus  to  the  Auditor  of  Accounts,  brought  to  the 
Supreme  Court  for  Rutland  County  at  its  October  Term,  1904.  Heard 
at  the  January  Term,  1905,  on  petition,  answer,  and  testimony  taken 
and  filed.     The  opinion  fully  states  the  case. 


No.  317  DOCUMENTARY   ORIGINALS  481 

Cowles  and  Moulton,  for  the  relator.  The  vouchers  required  by  law 
to  be  kept  in  the  office  of  the  State  Auditor  are  public  records.  .  .  . 
A  citizen  and  taxpayer,  having  a  legitimate  purpose  for  so  doing,  has  a 
right,  at  proper  times  and  under  reasonable  regulations,  to  examine 
public  records.  .  .  . 

W.  W.  Miles,  and  Horace  F.  Graham,  for  the  defendant.  ...  A 
public  record  is  a  written  memorial  made  by  a  public  officer,  who  is 
authorized  by  law  to  make  it.  That  term  does  not  include  the  files  and 
papers  from  which  the  record  is  made.  ...  If  these  vouchers  are  public 
records,  in  order  to  make  it  the  duty  of  defendant  to  exhibit  them  to  the 
relator,  he  must  allege  and  prove  that  he  has  a  pecuniary  interest  in 
them.  .  .  . 

Watson,  J.  —  This  is  a  complaint  for  mandamus  to  the  Auditor  of 
Accounts  commanding  him  forthwith  and  without  delay  to  exhibit  the 
vouchers  on  file  in  his  office  to  the  relator,  or  to  his  agent  and  attorney. 
.  .  .  The  defendant  denies  that  the  vouchers  which  the  relator  wished 
to  inspect  are  public  records,  and  if  this  contention  is  sound  it  is  decisive 
against  the  existence  of  the  right  of  inspection  claimed  by  the  relator. 

1.  Of  what  do  the  vouchers  consist?  In  determining  this  question, 
it  becomes  necessary  to  examine  the  statute  prescribing  the  auditor's 
duties.  By  Vermont  Statutes,  .  .  .  Sec.  305,  "He  shall  require  all 
bills  presented  to  him  for  allowance  to  be  fully  itemized  and  accom- 
panied, as  far  as  possible,  with  vouchers,  which  shall  be  kept  in  his  office." 
.  .  .  The  term  "bill,"  as  used  in  the  last  named  section,  includes  all 
claims  and  accounts  which  by  law  may  be  presented  to  the  auditor  for 
allowance;  and  the  term  "vouchers,"  as  there  used,  includes  all  books, 
papers,  receipts,  receipted  bills,  and  documents  which  serve  to  prove 
the  truth  of  the  claims  and  accounts  so  presented. 

It  is  a  basic  principle  of  e\adence  that  where  a  document  is  of  a  public 
nature,  a  copy  of  it  is  evidence;  for  the  production  of  the  original  is 
dispensed  with  on  account  of  the  inconvenience  which  would  result  from 
the  frequent  removal  of  public  documents,  and  consequently  the  absence 
of  the  original  affords  no  presumption  of  fraud.  Starkie,  Evidence, 
Part  III,  §  14;  Lynch  v.  Clarke,  3  Salk.  154, 11  Eng.  R.  C.  450;  Wigmore, 
Evidence,  §  1218;   Mattocks  v.  Bellamy,  8  Vt.  463. 

True,  under  this  rule,  it  had  been  held  in  England  that  copies  of  the 
books  of  the  Bank  of  I^ngland  and  of  the  East  India  Company,  and 
perhaps  of  some  other  companies,  legally  private  corporations,  might 
be  used,  since  the  books  are  not  removable  on  the  ground  of  public  incon- 
venience. But  these  books  have  been  held  to  be  of  a  public  nature. 
Thus  they  are  brought  within  the  rule  rather  than  made  an  exception  to 
it.  Marsh  v.  Colluett,  2  Esp.  665,  11  Eng.  R.  C.  508;  Doe  v.  Roberts, 
13  M.  &  W.  520.  The  same  is  true  regarding  the  books  of  the  Bank  of 
the  State  of  Alabama  and  its  branches.  The  banks  are  held  to  be  the 
property'  of  the  public  and  their  books  are  held  to  be  public  writings. 
Crawford  v.  Bank,  8  Ala.  79.    In  the  case  of  People  v.  Hurst,  41  Mich.  328, 


482  BOOK   i:     RULES    OF   .ADMISSIBILITY  No.  317 

the  rule  seems  to  be  extended  to  banks  generally,  and  there  may  be  other 
instances  of  like  nature.  The  generally  recognized  rule,  however,  at 
common  law  is  that  this  principle  does  not  apply  to  documents  of  a 
private  nature.  Respecting  them,  a  copy  is  not  evidence  unless  the 
original  is  lost,  destroyed,  or  in  the  hands  of  a  third  person  who  cannot 
be  compelled  to  produce  it. 

In  Wigmore  on  Evidence,  §  1218,  in  stating  the  conceivable  scope  of 
this  principle  allowing  proof  by  copies,  it  is  said  among  other  things: 

(1)  "When  by  statute  or  by  regulation  a  document  in  official  custody  is 
expressly  or  impliedly  forbidden  to  be  removed,  it  is  clear  that  the  principle  appHes 
and  production  dispensed  with.  (2)  Where  the  document  is  one  of  the  icorking 
documents  of  the  office  containing  the  official  doings  or  being  a  paper  made  and 
consulted  there  officially  in  the  course  of  office  duty,  it  is  equally  clear  that  it 
need  not  be  produced.  (3)  When  the  document  is  one  made  by  a  -private  person 
and  filed  in  a  public  office,  the  principle  does  not  apply,  if  a  statute  or  regulation 
does  not  expressly  require  it  to  be  filed  and  kept  there;  if  it  does  so  require,  then 
the  principle  applies;  although  the  rulings  lay  down  no  clear  distinction  on  the 
subject,  and  most  of  the  instances  are  dealt  with  by  a  statute  in  general  or  specific 
terms.  (4)  Where  the  document  is  one  made  by  a  private  person  and  required 
by  law  to  be  recorded  in  the  public  office,  but  not  to  be  kept  there,  the  principle 
does  not  at  common  law  apply.  (5)  Where  the  document  is  made  by  a  public 
officer  and  is  delivered,  after  being  recorded,  to  a  private  person  (as,  a  government 
land-certificate),  the  principle  does  not  apply;  but  by  statute  in  many  instances 
it  has  either  been  made  to  apply  or  the  record  has  been  constituted  the  basis  of 
title,  so  that  the  record,  as  the  original  being  in  official  custody,  need  not  be 
produced." 

It  will  be  observed  by  this  classification  that  in  all  instances  where 
by  law  or  regulation  the  document  is  filed  in  a  public  office  and  required 
to  be  kept  there,  it  is  of  a  public  nature  as  far  as  the  law  of  evidence  is 
concerned.  The  same  test  has  often  been  applied,  and  we  think  rightly 
so,  in  determining  the  nature  of  books  and  documents  in  proceedings  to 
compel  the  allowance  of  their  inspection. 

Claims  are  not  to  be  allowed  against  the  State  unless  they  are  based 
on  law  and  are  supported  by  evidence  equivalent  to  testimony  upon 
oath,  or  a  certificate  of  some  commissioned  officer  of  the  State  officially 
cognizant  of  the  claim.  By  the  provision  of  the  statute  that  vouchers 
shall  be  required  by  the  Auditor  to  accompany  as  far  as  possible  all  bills 
presented  for  allowance,  the  General  Assembly  has  declared  for  the 
production  of  that  which,  in  contemplation  of  law,  is  generally  the  best 
evidence  for  that  purpose.  And  that  this  evidence  may  be  preserved 
for  any  future  use  or  examination  which  may  lawfully  be  had,  the  statute 
provides  that  the  vouchers,  whatever  may  be  their  specific  nature,  shall 
be  filed  and  kept  in  the  Auditor's  office.  Certainly  they  are  within  the 
first  class  named  by  Wigmore,  and  may  be  within  the  third.  If  vouchers 
so  used,  filed,  and  kept  were  not  before  of  a  public  nature  because  made 
or  presented  by  some  other  public  officer  in  the  discharge  of  a  public 


No.  319  DOCUMENTARY   ORIGINALS  .  483 

duty,  they  thereby  are  stamped  with  that  character  and  thenceforth 
are  pubHc  documents.  Brown  v.  County  Treasurer,  54  Mich.  132,  52 
Am.  Rep.  800;  Ferry  v.  WilHams,  12  Vroom,  332,  32  Am.  Rep.  219; 
People  V.  Jewell,  (Mich.)  101  N.  W.  835;  Conran  v.  Williams,  before 
cited;    Clay  v.  Ballard,  87  Va.  787.  ... 

Moreover,  it  would  seem  that  all  vouchers,  files,  papers,  and  records 
required  by  law  to  be  kept  in  the  office  of  the  Auditor  of  Accounts  are, 
by  the  law-making  power,  deemed  of  a  public  character;  for  at  the  last 
session  of  the  General  Assembly,  the  Auditor  was  made  a  certifying 
officer  whose  certified  copy  of  any  such  voucher,  file,  paper,  or  record, 
shall  be  admitted  in  any  suit,  civil  or  criminal.  And  it  is  made  his  duty 
to  furnish  such  copies  to  any  person  desiring  the  same  on  the  payment 
or  tender  of  the  specified  legal  fee  therefor.     Laws  of  1904,  No.  24. 

2.  Since  the  vouchers  in  question  are  public  documents  in  a  public 
office,  the  question  arises  whether  citizens  and  taxpayers  of  the  State 
have  a  right  to  inspect  them.  .  .  . 

We  think  it  may  be  safely  said  that  at  common  law,  when  not  detri- 
mental to  the  public  interest,  the  right  to  inspect  public  records  and 
public  documents  exists  with  all  persons  who  have  a  sufficient  interest 
in  the  subject-matter  thereof  to  answer  the  requirements  of  the  law 
governing  that  question.  .  .  .  Upon  principle  and  authority  we  think 
the  interest  of  the  relator,  as  a  citizen  and  taxpayer,  in  the  matters  and 
things  to  which  the  vouchers  in  question  pertain  is  sufficient  to  entitle 
him  to  an  inspection  of  the  vouchers  for  the  purpose  which  he  has 
stated.  .  .  . 

Judgment  that  the  prayer  of  the  complaint  is  granted.  .  .  . 

MuNSON  and  Haselton,  JJ.,  dissent. 

Start,  J.,  by  reason  of  his  illness  took  no  active  part  in  the  decision 
of  this  case. 


318.  Lynch  v.  Clerke.  (1696.  3  Salk.  154).  Per  Holt,  C.  J.  .  .  .  Wherever 
an  original  is  of  a  public  nature,  and  would  be  evidence,  if  produced,  an  imme- 
diate sworn  copy  thereof  will  be  evidence,  as  the  copy  of  a  bargain  and  sale,  or  of  a 
deed  inrolled,  or  church  register,  &c. ;  but  where  an  original  is  of  a  private  nature, 
a  copy  is  not  evidence,  unless  the  original  is  lost  or  biunt. 


319.   PEAY  V.  PICKET 

Court  of  Appeals  of  South  Carolina.     1825 

3  McC.  318 

This  was  an  action  of  trespass  to  try  title  to  500  acres  of  land,  orig- 
inally granted  to  John  Heard,  on  the  25th  of  August,  1774.  The  plain- 
tiff would  have  deduced  to  himself  a  title  by  deed  thus:  From  the 
guarantee  to  William  Nesbit  in  1775;  from  Nesbit  to  John  Dart,  in  1779; 


484  •  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  319 

from  Dart  to  Rout,  in  1779;  the  last  will  and  testament  of  Rout  in  1802, 
to  his  executors,  to  sell;  and  their  title  to  the  plaintiff,  25th  February 
1815. 

The  only  question  made,  was  whether  the  deed  from  Nesbit  to  Dart 
was  sufficiently  pi'oved?  The  original  was  not  produced.  It  was  proved 
that  diligent  search  had  been  made  for  it,  without  success,  in  the  register's 
office,  and  among  the  papers  of  Rout,  from  whom  the  plaintiff  purchased. 
A  certified  copy  of  it  from  the  register's  office,  in  Charleston,  which  was 
then  the  only  recording  office  in  the  State,  was  offered  in  evidence;  and 
besides  the  certificate  of  the  register,  it  was  proved,  by  a  witness,  present 
in  Court,  to  be  a  correct  copy  of  the  record,  with  which  he  had  compared 
it.     The  deed,  of  which  this  was  a  copy,  was  dated  10th  August,  1779. 

This  copy  was  objected  to,  on  the  ground  that  a  copy  deed  was  no 
evidence.  ...  It  was  contended  by  the  counsel  for  the  plaintiff,  that 
after  so  great  a  lapse  of  time,  the  Court  would  presume  that  all  had  been 
done  which  the  law  required,  and  that  the  officer  would  not  have  recorded 
the  deed  unless  it  had  been  proved.  And  that  the  evidence  of  diligent 
search,  without  success,  and  the  possession  by  the  plaintiff  of  all  the  title 
deeds  from  the  grant  down,  together  with  the  ravages  of  the  War  of  the 
Revolution,  were  circumstances  sufficient  to  be  left  to  the  jury,  and 
from  whence  to  presume,  that  the  deed  had  been  executed  from  Nesbit 
to  Dart. 

The  presiding  judge  (Gantt,  J.),  thought  otherwise;  and  said  that 
the  act  of  1731,  (Pub.  Laws,  130),  admitting  copy-deeds,  was  in  abroga- 
tion of  the  common  law,  and  that  all  acts  which  are  so,  must  be  con- 
strued strictly.  That  by  the  terms  of  the  Act  of  Assembly,  it  appeared, 
that  a  copy  is  only  admissible  in  evidence,  when  certain  prerequisites 
have  been  complied  with;  particularly,  that  the  deed  shall  have  been 
proved  in  the  usual  way,  before  recorded.  So  that  to  entitle  such  copy 
to  admissibility  in  evidence  it  must  appear  that  the  deed  had  been  proved 
and  recorded.  That  the  paper  adduced,  as  a  copy,  purported  to  be  a 
deed  of  this  land  from  Nesbit  to  Dart,  but  it  furnished  no  evidence  of  the 
same  having  been  proved  in  the  "usual"  or  any  other  way;  it  also  pur- 
ported to  have  been  executed  in  the  presence  of  one  witness  only;  and 
that  the  presumption  arising  from  the  want  of  probate  of  the  deed  was 
a  fact  from  whence  the  conclusion  was  to  be  drawn,  that  it  was  never 
proved.  He  thought  that  the  landed  interest  of  the  country  would  be 
secured  by  a  tenure  most  precarious  if  the  rule  contended  for  w^ere  to 
prevail.  .  .  . 

The  jury  found  a  verdict  for  the  defendant.  The  plaintiff  appealed 
and  moved  for  a  new  trial.  1st,  Because  his  Honor,  the  presiding  judge, 
refused  to  admit  the  copy  deed  from  Nesbit  to  Dart  in  evidence.  .  .  . 

W.  F.  De  Saussure,  for  the  motion,  —  cited  the  case  of  Anderson  v. 
Gilbert  (1  Bay  368),  where  a  copy  of  a  deed  of  conveyance,  recorded,  and 
certified  from  the  register's  office  in  Charleston,  as  in  this  case,  was  held 
admissible,  and  was  admitted  without  any  proof  of  loss.  .  .  . 


No.  319  DOCUMENTARY   ORIGINALS  485 

Clarke,  on  the  same  side  —  said,  copies  of  public  records  are  always 
admissible.  (Lynch  v.  Clark,  3  Salk.  153  [ante,  No.  318].)  A  deed  of 
bargain  and  sale  recorded  in  a  public  record.  (2  Black,  238.)  He  also 
•cited  2  Bacon,  Abridgement,  64G,  Tit.  Evidence,  A. 

CoLCOCK,  J.  —  F'rom  the  earliest  enactments  of  the  British  parliament 
on  the  subject,  to  the  present  day,  a  period  of  about  280  years,  it  has  been 
the  established  law  of  that  country,  that  a  copy  of  a  deed,  duly  enrolled, 
is  as  good  evidence  as  the  original  itself  (Phill.  351);  and  I  think  I  do 
not  say  too  much,  when  I  assert,  it  was  generally  considered  to  be  the 
law  of  this  land  from  the  first  enactment  on  the  same  subject  here,  in 
1731  (P.  L.  133),  to  the  decision  of  Purvis  &  Robinson  (1  Bay  485),  a 
decision  much  to  be  regretted,  in  which  it  was  determined  that  the  loss 
of  the  original  must  be  proved,  to  admit  the  introduction  of  the  copy. 

But  in  conformity  with  that  decision,  which  is  considered  as  obliga- 
tory on  us,  I  think  the  plaintiff  entitled  to  a  new  trial.  All  the  circum- 
stances of  the  case  and  the  evidence  offered,  together  with  the  historical 
facts  of  the  country,  afford  sufficient  proof  of  the  loss  to  have  authorized 
the  introduction  of  the  office  copy;  for  we  are  not  warranted  by  any 
thing  in  the  decision  itself  of  Purvis  &  Robinson,  to  suppose  that  any 
other  evidence  of  loss  was  intended  than  such  as  is  required  by  the  rules 
of  the  common  law.  .  .  .  Now,  what  are  the  circumstances  and  the  proof 
before  us  in  this  case?  The  plaintiff  makes  out  a  long  chain  of  title, 
consisting  of  seven  links,  tracing  a  title  back  to  a  grant  made  in  1774. 
One  of  the  links  in  his  chain  is  broken.  A  deed  from  Nesbit  to  Dart, 
executed  in  1779,  is  lost.  To  supply  the  place  of  which,  he  offers  a  copy 
taken  from  the  register's  office  in  Charleston.  He  proves  that  he  has 
made  diligent  search  for  it  ever^^where.  But  from  the  facts  of  the  case, 
connected  with  the  history  of  the  times,  in  which  this  deed  was  made  and 
recorded,  there  arises  a  presumption,  stronger  than  is  afforded  in  one 
case  in  a  thousand,  that  the  deed  was  lost  or  destroyed  by  the  enemies 
of  the  country.  In  which  case,  no  further  evidence  is  necessary  to  be 
produced.  For  when  it  is  proved  that  a  deed  is  destroyed,  it  follows 
that  there  is  no  occasion  to  prove  that  it  has  been  sought  for.  (Phill. 
347.) 

This  deed  was  executed  in  August,  1779.  The  city  of  Charleston  fell 
into  the  hands  of  the  British  on  the  6th  of  May  following.  There  was  at 
that  time  but  one  recording  office  in  the  State,  and  consequently  a  great 
deal  of  business  to  be  done;  so  that  one  would  not  have  had  a  right  to 
expect  that  his  deed  would  be  very  expeditiously  recorded.  The  deed 
was  recorded,  but  on  what  particular  day  does  not  now  appear.  Under 
those  circumstances  there  is  a  strong  probability  that  the  original  was 
yet  in  the  register's  office  at  the  time  the  town  fell,  and  might  have  been 
lost  or  destroyed  in  the  removal  of  the  papers  for  the  purpose  of  safe 
keeping.  But  if  it  were  not  lost  in  this  particular  manner,  the  con- 
fusion of  the  times  would  furnish  innumerable  occasions  on  which  it 
might  have  been  lost;    and  the  great  length  of  time  which  has  elapsed 


486  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  319 

puts  it  out  of  the  power  of  the  party  to  furnish  any  better  evidence  of  the 
fact.  .  .  . 

It  is  the  opinion  of  the  Court  that  the  copy  deed  should  have  been 
admitted,  and  therefore  a  new  trial  is  granted. 


320.   COMMONWEALTH  v.   EMERY 

Supreme  Judicial  Court  of  Massachusetts.     1854 

2  Gray  80 

The  defendant  was  tried  on  the  charge  of  being  a  common  seller  of 
intoxicating  liquors.  The  district  attorney,  in  order  to  prove  that  the 
house  was  owned  by  the  defendant,  and  that  the  business  carried  on  there 
was  his,  offered  a  paper  purporting  to  be  a  registry  copy  of  a  deed  of  the 
premises  to  the  defendant,  certified  by  the  register  of  deeds  for  this 
county.  The  defendant  objected  to  the  admission  of  the  copy  of  the 
deed  as  evidence,  for  the  reason  that  he  had  had  no  notice  to  produce 
the  original  deed;   but  Perkins,  J.,  overrruled  the  objection. 

J.  G.  Abbott,  for  the  defendant.  The  copy  was  erroneously  admitted 
in  evidence ;  the  original  deed  to  the  defendant  must  be  presumed  to  be 
in  his  possession;  and  when  such  is  the  case,  a  copy  can  never  be  used, 
without  notice  to  the  party  to  produce  the  original.  .  .  . 

J.  H.  Clifford,  Attorney-General,  for  the  Commonwealth.   .  .   . 

Shaw,  C.  J.  —  Upon  consideration,  the  Court  are  of  opinion  that  this 
copy  of  a  deed  ought  not  to  have  been  admitted,  without  notice  to  the 
defendant  to  produce  the  original. 

The  rule,  as  to  the  use  of  deeds  as  evidence,  in  this  Commonwealth, 
is  founded  partly  on  the  rules  of  the  common  law,  but  modified,  to  some 
extent,  by  the  registry  system  established  here  by  statute.  The  theory 
is  this :  ...  In  all  cases  original  deeds  should  be  required  if  they  can  be 
had;  but  as  this  would  be  burdensome  and  expensive,  if  not  impossible 
in  many  cases,  some  relaxation  of  this  rule  was  necessary  for  practical 
purposes.  .  .  .  Our  system  of  conveyancing,  modified  by  the  registry 
law,  is  that  each  grantee  retains  the  deed  made  immediately  to  himself, 
to  enable  him  to  make  good  his  warranties.  Succeeding  grantees  do  not, 
as  a  matter  of  course,  take  possession  of  deeds  made  to  preceding  parties 
so  as  to  be  able  to  prove  a  chain  of  title  by  a  series  of  original  deeds. 
Every  grantee,  therefore,  is  the  keeper  of  his  own  deed,  and  of  his  own 
deed  only.  .  .  .  When,  then,  he  has  occasion  to  prove  any  fact  by  such 
deed,  he  cannot  use  a  copy,  because  it  would  be  offering  inferior  evidence, 
when  in  theory  of  law  a  superior  is  in  his  possession  or  power;  it  is  only 
on  proof  of  the  loss  of  the  original,  in  such  case,  that  any  secondary  evi- 
dence can  be  received.  .  .  . 

In  cases,  therefore,  in  which  the  original,  in  theory  of  law,  is  not  in 
the  custody  or  power  of  the  party  having  occasion  to  use  it,  the  certified 


No.  322  DOCUMENTARY   ORIGINALS  487 

office  copy  is  prima  facie  evidence  of  the  original  and  its  execution, 
subject  to  be  controlled  by  rebutting  evidence.  But  as  this  arises  from 
the  consideration,  that  the  original  is  not  in  the  power  of  the  party  rely- 
ing on  it,  the  rule  does  not  apply  where  such  original  is,  in  theory  of  law, 
in  possession  of  the  adverse  party;  because  upon  notice  the  adverse 
party  is  bound  to  produce  it,  or  put  himself  in  such  position  that  any 
secondary  evidence  may  be  given. 

The  Court  being  of  opinion  that  evidence  was  received  which  was  not 
competent  and  ought  not  to  have  been  admitted,  the  verdict  is  set  aside, 
and  a  new  trial  ordered  in  the  Court  of  C'ommon  Pleas. 

321.  Statutes.  California  (C.  C.  P.  1872,  §  1951,  as  amended  March  24, 
1874).  [A  certified  copy  of  a  duly  recorded  instrument  affecting  realty]  may 
also  be  read  in  evidence  uith  the  like  effect  as  the  original,  on  proof,  by  affidavit 
or  otherwise,  that  the  original  is  not  in  the  possession  or  under  the  control  of  the 
party  producing  the  certified  copy;  [amended  March  1,  1889,  so  as  to  read:]  be 
read  in  evidence  with  the  like  effect  as  the  original  instrument  without  further 
proof. 

Illinois  (Rev.  St.  1874,  c.  30,  §  35).  If  it  shall  appear  to  the  satisfaction  of 
the  Court  that  the  original  deed  so  acknowledged  or  proved  and  recorded,  is  lost, 
or  not  in  the  power  of  the  party  wishing  to  use  it  [a  certified  copy  is  admissible]. 
Ibid.,  §  36.  Whenever  upon  the  trial  of  any  cause  at  law  or  in  equity  in  this  State, 
any  party  to  said  cause,  or  his  agent  or  attorney  in  his  behalf,  shall,  orally  in 
Court,  or  by  affidavit  to  be  filed  in  said  cause,  testify  and  state  under  oath  that 
the  original  [of  any  instrument  affecting  land,  duly  recorded]  is  lost  or  not  in  the 
power  of  the  party  wishing  to  use  it  on  the  trial  of  said  cause,  and  that  to  the  best 
of  his  knowledge  said  original  deed  was  not  intentionally  destroyed  or  in  any 
manner  disposed  of  for  the  purpose  of  introducing  a  copy  thereof  in  place  of  the 
original  [the  record  or  recorder's  certified  copy  is  admissible]. 

New  York  (C.  C.  P.  1877,  §935).  A  conveyance,  acknowledged  or  proved, 
and  certified,  in  the  manner  prescribed  by  law,  to  entitle  it  to  be  recorded  in  the 
county  where  it  is  offered,  is  evidence,  without  further  proof  thereof.  Except 
as  otherwise  specially  prescribed  by  law,  the  record  of  a  conveyance,  duly  re- 
corded, within  the  State,  or  a  transcript  thereof,  duly  certified,  is  evidence,  with 
like  effect  as  the  original  conveyance. 

Ibid.,  §  947.  An  exemplification  of  the  record  of  a  conveyance  of  real  property 
situated  without  the  State,  and  within  the  United  States,  which  has  been  recorded 
in  the  State  or  territory,  where  the  real  property  is  situated,  pursuant  to  the  laws 
thereof,  when  certified  under  the  hand  and  seal  of  the  officer  having  the  custody 
of  the  record,  is,  if  the  original  cannot  be  produced,  presumptive  evidence  of  the 
conveyance,  and  of  the  due  execution  thereof. 


322.   SCOTT  V.   BASSETT 

Supreme  Court  of  Illinois.     1898 

174  ///.  390;  51  N.  E.  577;  57  N.  E.  835 

Appeal  from  the  Circuit  Court  of  Mercer  County;  the  Hon.  John  J. 
Glenn,  Judge,  presiding. 


488  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  322 

This  is  an  action  of  ejectment,  brought  in  the  Circuit  Court  of  Mercer 
county,  by  the  appellees  against  the  appellant,  to  recover  the  possession 
of  forty  acres  of  land  in  that  county.  The  suit  was  commenced  on  Au- 
gust 1,  1895.  The  plea  was  the  general  issue  of  not  guilty.  The  case 
was  tried  before  the  court  and  a  jury.  The  jury  found  the  defendant 
guilty,  and  that  the  plaintiffs  were  the  owners  of  the  premises  in  fee 
simple,  and  fixed  the  damages  at  one  cent.  Motion  for  new  trial  was 
overruled  and  judgment  was  rendered  upon  the  verdict.  The  present 
appeal  is  prosecuted  from  such  judgment.  The  appellees,  who  were 
the  plaintiffs  below,  did  not  attempt  to  show  themselves  to  be  the  owners 
of  the  paramount  title,  but  introduced  certain  deeds  as  color  of  title, 
and  sought  to  establish,  by  proof,  possession  and  payment  of  taxes  for 
seven  years  under  such  color  of  title. 

Appellees,  on  the  trial  below,  introduced  the  records  of  the  following 
deeds,  to-wit: 

1.  The  record  of  a  deed  dated  November  8,  1867,  executed  by  the 
master  in  chancery  of  Mercer  county  to  one  Randolph  Keig,  conveying 
the  lands  described  in  the  declaration,  and  other  lands,  and  recorded  in 
the  Recorder's  office  of  said  county. 

[2-6.    The   records   of   five   deeds   of   intervening  grantees.]  .  .  . 

7.  The  record  of  a  deed,  executed  by  F.  C.  Grabel  to  Frank  C. 
Taggart,  dated  September  27,  1886,  and  conveying  said  premises. 

8.  An  original  deed  from  Frank  C.  Taggart  and  wife  to  the  appellees, 
dated  July  17,  1895,  and  recorded  on  July  29,  1895,  conveying  the  said 
premises.  .  .  . 

Scott  &  Cooke,  and  James  M.  Brock,  for  appellant.  Bassett  &  Bas- 
sett,  for  appellees. 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  Court. — 

In  this  case  we  forbear  to  express  any  opinion  upon  the  question, 
whether  or  not  the  appellees  proved  possession  and  payment  of  taxes 
under  claim  and  color  of  title  for  seven  years.  We  also  forbear  to  ex- 
press any  opinion  as  to  the  validity  or  invalidity  of  the  tax  deed  intro- 
duced by  the  appellant  upon  the  trial  below. 

The  appellees  introduced  only  the  records  of  the  deeds  relied  upon 
by  them  as  color,  but  did  not  introduce  the  originals  of  any  of  such 
deeds,  except  the  last  deed  from  Taggart  to  themselves.  Before  they 
were  entitled  to  introduce  the  records  of  the  deeds,  it  was  necessary  to 
lay  a  foundation  for  the  use  of  secondary  evidence.  Such  a  foundation 
was  not  here  properly  laid,  so  as  to  justify  the  introduction  of  the  records 
instead  of  the  original  instruments. 

Section  36  of  the  Act  in  regard  to  conveyances  is  as  follows :  [printed 
anie.  No.  321]  .  .  .  The  testimony  introduced  in  supposed  compliance 
with  this  statute  did  not  meet  its  requirements.  One  of  the  appellees 
took  the  stand  as  a  witness,  and  his  testimony  is  the  only  evidence  upon 
this  subject  in  the  record.  That  testimony  is  as  follows:  "I  have  not 
the  original  deeds.     They  are  not  in  the  hands  of  the  plaintiffs  in  this 


No.  322  DOCUMENTARY   ORIGINALS  489 

case,  and  never  have  been,  and  I  have  never  seen  them.  I  think  I  did 
have  the  original  deed  from  the  master  in  Chancery  to  Keig.  That's 
the  only  one  1  ever  had.  .  .  .  The  deed  from  the  master  in  chancery  is 
not  in  my  possession.  I  have  no  control  over  it.  None  of  the  deeds 
mentioned  are  destroyed  so  far  as  I  know."  Joseph  S.  Bell  in  his  testi- 
mony states,  that  after  the  death  of  his  father,  James  C.  Bell,  his  brother, 
James,  took  his  father's  papers  to  Burlington,  la.,  and  he  says  he  expects 
those  papers  could  be  found.  .  .  . 

In  Dickinson  v.  Breeden,  25  111.  186,  it  was  held  that,  where  the 
affidavit  of  the  party  disclosed  a  knowledge  of  the  residence  of  the 
grantee  in  a  lost  deed,  the  deposition  of  such  grantee  should  be  taken  to 
prove  the  existence  of  the  original  deed,  and  that  it  was  lost,  or  so  mis- 
laid that  it  could  not  be  found  after  diligent  search,  and  that  such  grantee 
had  in  good  faith  made  such  search  with  a  view  of  finding  it.  In  that 
case  the  Court  remarked  upon  the  danger  of  allowing  the  introduction 
of  copies  of  deeds  conveying  valuable  lands,  without  fully  establishing 
the  fact  of  the  existence  at  some  time  of  an  original,  and  of  its  subsequent 
loss  or  destruction,  so  that  after  diligent  search  it  could  not  be  found.  .  .  . 
In  Pretty  man  v.  Walston,  34  111.  175,  the  affidavit,  offered  as  preliminary 
proof  for  the  purpase  of  laying  a  foundation  for  the  introduction  of  the 
record  copy  of  a  deed,  stated  that  the  affiant  "  had  not  in  his  possession, 
power,  or  control"  the  instrument  declared  on;  and  that  affiant  had  not 
had  since  the  commencement  of  the  suit  the  original  instrument,  and 
had  never  sepn  it,  and  that  it  was  not  "  within  his  possession,  control  or 
power  to  produce  on  the  trial."  In  Nixon  v.  Cobleigh,  52  111.  387,  the 
plaintiff  swore,  in  order  to  lay  the  foundation  for  the  introduction  of  the 
record  of  a  deed,  "that  he  did  not  have  the  deed  in  his  possession;  that 
he  did  not  know  where  it  was,"  and  his  testimony  was  held  to  be 
sufficient.  ... 

The  testimony  in  the  case  at  bar  does  not  go  as  far  as  the  affidavit 
in  the  Prettyman  case.  That  testimony  merely  states,  that  the  appellee 
giving  it,  to-wit,  Isaac  N.  Bassett,  had  no  control  over  the  deed  from  the 
master  in  chancery  to  Keig,  l)ut  the  testimony  does  not  show  that  the 
witness  may  not  have  had  control  over  the  originals  of  the  other  deeds 
mentioned  in  the  statement  preceding  this  opinion.  .  .  . 

The  appellee,  Isaac  N.  Bassett,  does  not  state  that  the  original  deeds 
are  not  "in  the  power"  of  the  appellees  to  produce  the  same,  but  that 
they  are  not  "in  the  hands"  of  the  appellees.  A  deed  might  not 
be  in  the  manual  possession  of  the  plaintiff,  and  yet  might  be  where 
the  plaintiff  could  control  its  possession  and  its  production.  The 
statute  is,  that  the  preliminary  proof  must  show  that  the  original  was 
lost,  or  not  "in  the  power"  of  the  partj^  wishing  to  use  it,  etc.  The 
testimony  here  does  not  come  within  the  purview  of  the  testimony 
or  affidavits  in  the  cases  above  referred  to.  Originals  of  the  deeds 
referred  to  by  the  witness,  Bassett,  may  never  have  been  in  the 
hands  of  himself  or  his   co-appellee,   and  they  may  never  have   seen 


490  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  322 

such  original  deeds,  and  yet  it  may  have  been  in  their  power  to  produce 
the  same. 

In  addition  to  this,  §  36  of  the  Act  of  1872,  which  is  now  in  force, 
requires  that  the  plaintiff  in  his  affidavit  or  testimony  should  state,  that, 
to  the  best  of  his  knowledge,  the  original  deed  was  not  intentionally 
destroyed,  or  in  any  manner  disposed  of  for  the  purpose  of  introducing 
a  copy  thereof  in  place  of  the  original.  The  evidence  of  the  appellee 
Bassett  does  not  meet  this  requirement.  He  merely  says:  "None  of 
the  deeds  mentioned  are  destroyed  so  far  as  I  know."  They  may  not 
have  been  destroyed,  and  yet  in  some  manner  they  may  have  been  dis- 
posed of  for  the  purpose  of  introducing  copies  in  place  of  the  originals.  .  .  . 

For  the  reasons  above  indicated  the  judgment  of  the  Circuit  Court 
is  reversed,  and  the  cause  is  remanded  to  the  Circuit  Court. 

Reversed  and  remanded. 


323.   CARPENTER  v.   DRESSLER 

Supreme  Court  of  Arkansas.     1905 

76  Ark.  400;  89  .S.  W.  89 

Appeal  from  Circuit  Court,  Arkansas  County;  George  M.  Chapline, 
Judge. 

Two  separate  actions  by  one  Carpenter  against  one  Dressier.  From 
judgments  for  defendant  in  each  action,  plaintiff  appeals.    *  Reversed. 

H.  A.  &  J.  R.  Parker  and  John  F.  Park,  for  appellant.  By  the  statute 
(Kirby's  Dig.  §§  3057,  3064)  copies  of  entries  made  in  the  books  of  the 
land  office,  certified  by  the  proper  officer,  are  made  evidence  to  the  same 
extent  as  the  original  books  and  papers  would  be,  if  produced.  The 
transcript  of  the  record  entries  of  the  land  office  was  sufficient  as  a  link 
in  the  chain  of  title  in  ejectment.  .  .  . 

Lewis  &  Ingram  and  H.  Coleman,  for  appellee.  The  certified  tran- 
script from  the  land  office  is  not  of  equal  evidentiary  value  to  the  patent 
itself,  but  is  only  secondary  evidence  of  the  existence  thereof.  Cf. 
Kirby's  Dig.  §§  3057,  3064,  4746  et  seq.  The  loss  of  the  patent  must 
be  first  shown  as  a  foundation  for  the  admission  of  such  secondary  evi- 
dence.    57  Ark.  158.  ... 

H.  A.  &  J.  R.  Parker  and  John  F.  Park,  for  appellant,  in  reply:  The 
certified  copy  of  the  record  of  the  land  office  was  equal  in  evidentiary 
value  to  the  patent  certificate  itself.     55  Ark.  286.  .  .  . 

Hill,  C.  J.  —  The  issues  in  these  cases  are  identical,  and  they  will  be 
treated  for  the  purposes  of  the  opinion  as  one  case. 

1.  The  first  question  for  consideration  is  the  effect  to  be  given  to  a 
certified  transcript  from  the  office  of  the  Land  Commissioner,  when 
offered  in  evidence  to  prove  a  transfer  therein  shown.  The  statute 
(§  3064,  Kirby's  Dig.)  only  provides  that,  when  properly  certified,  it 


No.  323  DOCUMENTARY   ORIGINALS  491 

shall  be  received  in  evidence  of  the  existence  of  the  records  of  which  the 
transcript  is  a  copy.  It  does  not  provide  whether  it  shall  be  primary 
or  secondary  evidence,  and  the  question  here  is  whether  such  transcript 
can  be  received  as  original  evidence  to  prove  the  issuance  of  a  certificate 
or  deed,  without  first  accounting  for  the  deed  or  certificate.  In  other 
words,  does  this  statute  make  the  record  of  the  transaction  required  by 
law  to  be  kept  in  the  land  office  of  the  same  grade  of  evidence  as  the 
certificate  or  deed  issuing  from  the  land  office  as  a  result  of  the  transac- 
tion there  recorded? 

One  view  to  take  of  it  is  that  the  law  requires  a  record  to  be  had  of 
the  transaction,  say  a  land  sale,  and  as  evidence  of  the  consummation 
of  that  sale  the  deed  is  issued,  and  it  is  evidence,  but  not  the  only  evi- 
dence, of  the  sale;  for  this  record  must  precede  the  issuance  of  the  deed, 
and  the  deed  is  based  upon  the  transaction  therein  recorded.  In  this 
view  the  record  and  deed  would  be  original  evidence  of  equal  grade,  and 
this  statute  makes  the  certified  transcript  of  the  record  equal  to  the 
record  itself.  This  is  the  view  taken,  under  closely  analogous  statutes, 
in  Mississippi  and  Alabama.  Boddie  v.  Pardee,  74  Miss.  13,  20  So.  1; 
Wood-Stock  Iron  Co.  v.  Roberts,  87  Ala.  436,  6  So.  349. 

In  Boynton  v.  Ashabranner,  decided  at  this  terra,  and  reported  in 
88  S.  W.  566,  this  view  prevailed.  However,  the  question  was  not  fully 
considered,  as  the  Court  was  then  of  opinion,  as  therein  indicated,  that 
Dawson  v.  Parham,  55  Ark.  286,  18  S.  W.  48,  had  settled  this  question 
in  this  way.  In  the  argument  of  this  case,  counsel  pointed  out  the  error 
of  the  Court  in  misconceiving  the  scope  of  Dawson  v.  Parham.  That 
case  did  not  reach  to  this  point,  but  to  the  effect  of  the  certified  tran- 
script being  of  equal  dignity  to  the  record  in  the  land  office,  and  did  not 
decide  the  effect  of  the  record  itself  (or  its  copy  made  pursuant  to  the 
statute),  as  original  evidence  to  prove  the  transfer  without  accounting 
for  the  deed  or  certificate  itself.  The  question  arising  again  in  this  case 
and  in  Covington  v.  Berry  (this  day  decided),  88  S.  W.  1005,  has  caused 
the  Court  to  re-examine  the  ruling  in  Boynton  v.  Ashabranner,  as  well 
as  in  the  cases  now  at  bar. 

The  other  view  of  the  question  is  that  the  record  in  the  land  office 
is  a  public  memorandum  of  the  transaction,  and  that  the  primary  evi- 
dence of  the  transaction  is  the  deed  or  certificate  issued  by  the  Land 
Commissioner,  and  this  public  memorandum  is  only  admissible  evidence 
after  the  loss  or  destruction  of,  or  inability  of  the  party  to  produce,  the 
original  is  shown,  and  then  this  public  record  (and  by  statute  certified 
transcripts  thereof)  becomes  the  highest  grade  of  secondary  evidence 
to  prove  the  transaction  therein  recorded.  This  subject  is  fully  and 
exhaustively  treated  by  Wigmore  in  his  recent  treatise"  on  the  Law  of 
Evidence,  and  statutes  and  decisions  from  almost  every  State  in  the 
LTnion  are  collected,  in  a  note  following  the  discussion  on  the  subject. 
2  Wigmore  on  Evidence,  §  1239,  and  note  pages  1484-1488.  This  latter 
view  is  more  consonant  to  the  previous  decisions  of  this  Court.     See 


492  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  323 

Stewart  v.  Scott,  57  Ark.  158,  20  S.  W.  1088;  Driver  v.  Evans,  47  Ark. 
300,  1  S.  W.  518.  This  view  seems  to  be  sustained  by  the  weight  of 
authority  also. 

The  Court  concludes  that  the  transcript  from  the  land  office  is  not 
admissible  until  the  party  offering  it  accounts  for  the  loss  or  destruction 
of  the  deed  or  certificate,  or  shows  it  to  be  inaccessible  to  him  or  the 
process  of  the  court,  or  in  unknown  hands,  or  otherwise  not  subject  to 
production,  as  a  foundation  to  admit  the  transcript  as  secondary  evi- 
dence. A  supplemental  opinion  will  be  filed  in  Boynton  v.  Ashabranner 
to  the  same  effect,  and  the  mandate  recalled  to  contain  it. 

2.  The  Court  was  right,  therefore,  in  excluding  the  transcript  as 
evidence  of  the  transfer  of  title ;  but  the  Court  erred  in  not  then  permit- 
ting appellant  to  lay  the  necessary  foundation  to  admit  the  transcript, 
or  to  allow  appellant  to  take  a  nonsuit  in  order  to  complete  his  evidence 
in  a  new  suit.  .  .  . 

For  the  error  indicated,  the  cause  is  reversed,  and  remanded  for  a 
new  trial. 

Battle,  J.,  absent. 


Topic  2.    Limits  to  the  Application  of  the  Rule 

325.   PHILIPSON  v.   CHASE 

Nisi  Prius.     1809 

2  Camp.  110 

Action  on  an  attorney's  bill.     Plea,  the  general  issue. 

To  prove  that  a  copy  of  the  bill  had  been  delivered  pursuant  to  2 
Geo.  II,  c.  23,  the  plaintiff's  clerk  was  called,  who  swore  that  he  had 
delivered  to  the  defendant  a  bill  signed  by  the  plaintiff,  containing  an 
account  of  the  business  done.  He  was  then  proceeding  to  state  the 
items  of  this  bill  from  the  plaintiff's  books,  when  the  defendant's  counsel 
objected  that  no  notice  had  been  given  to  produce  it. 

Topping  and  Espinasse,  for  the  plaintiff,  insisted,  that  this  was  un- 
necessary. In  Jory  v.  Orchard,  2  Bos.  &  Pull.  39,  the  Court  of  C.  P. 
held,  that  it  was  unnecessary  to  give  a  notice  to  produce  the  written  de- 
mand of  a  copy  of  a  warrant  pursuant  to  24  Geo.  II,  c.  44,  before  giving 
evidence  of  its  contents ;  and  the  very  point  before  the  Court  was  decided 
in  Anderson  v.  May,  2  Bos.  &  Pull.  237,  where  it  was  held  that  a  copy  of 
an  attorney's  bill,  the  original  of  which  has  been  delivered  to  the  defend- 
ant, may  be  admitted  in  evidence  without  proof  of  notice  to  produce 
the  original.  This  had  always  been  considered  like  the  case  of  a  notice 
to  quit,  in  which  no  notice  to  produce  was  ever  required. 

Lord  Ellenborough.  —  If  there  are  two  contemporary  writings, 
the  counterparts  of  each  other,  one  of  which  is  delivered  to  the  ojjposite 
party,  and  the  other  preserved,  as  they  may  both  be  considered  as 


No.  326  DOCUMENTARY   ORIGINALS  493 

originals,  and  they  have  equal  claims  to  authenticity,  the  one  which  is 
preserved  may  be  received  in  evidence,  without  notice  to  produce  the 
one  which  was  delivered.  So  it  must  have  been  in  the  cases  which  have 
been  cited;  and  if  a  duplicate  of  the  bill  delivered  is  offered,  I  am  ready 
to  receive  it.  But  I  am  quite  clear  that  this  evidence  from  the  plain- 
tiff's books  is  inadmissible  to  prove  that  a  bill  was  delivered  according 
to  the  statute.  I  approve  of  the  practice  as  to  notices  to  quit;  and  I 
remember  when  the  point  was  first  ruled  by  Mr.  Justice  Wilson,  who 
said  that  if  a  duplicate  of  the  notice  to  quit  was  not  of  itself  sufficient, 
no  more  ought  a  duplicate  of  the  notice  to  produce,  and  thus  notices 
might  be  required  in  infinitum. 

Plaintiff  nonsuited. 

Topping  and  Espinasse,  for  the  plaintiff.     Garrow,  for  the  defendant. 


326.   REX   V.  WATSON 
King's  Bench.     1817 
2  StarJcie,   116 

[High  treason.  It  appeared  that  on  the  26th  of  November  a  person 
of  the  name  of  Castle  took  a  manuscript  to  Scale,  a  printer,  in  order  that 
he  might  print  500  large  copies  for  placards  and  4,000  small  ones,  adver- 
tising a  meeting  at  Spa  Fields  on  the  2d  of  December,  and  that  the 
prisoner  Watson  afterwards  called  upon  him,  Scale,  and  took  away 
twenty-five  of  the  large  placards.  Scale  upon  the  trial  produced  one 
of  the  large  ones,  and  another  witness  was  afterward  asked  whether 
similar  placards  had  not  been  posted  upon  the  walls  of  the  metropolis.] 

It  was  objected  for  the  prisoner,  that  no  evidence  of  the  contents 
could  be  received  without  notice  to  the  prisoner  to  produce  the  original 
manuscript;  that  the  original  ought  either  to  be  produced,  or  proved  to 
be  destroyed,  or  in  the  possession  of  the  prisoner;  that  notice  must  be 
proved  to  have  been  given  to  him  to  produce  it  before  secondary  evi- 
dence could  be  received ;  that  all  the  printed  placards  were  to  be  consid- 
ered as  copies,  and  not  as  originals;  and  that  it  by  no  means  followed 
that  all  were  alike  because  all  were  printed.  And  the  case  was  assim- 
ilated to  that  of  Nodin  v.  Murray,  3  Camp.  228,  which  was  tried  before 
Lord  Ellenborough,  where  his  Lordship  held  that  a  copy  of  a  letter 
proved  to  have  been  taken  by  a  letter-copying  machine,  and  which  was 
therefore  necessarily  a  true  copy,  could  not  be  received  in  evidence  with- 
out notice  to  produce  the  original.  It  was  also  urged  that  notice  ought 
to  have  been  given  to  produce  the  25  copies  which  had  been  taken 
away  by  the  prisoner. 

Ellenborough,  L.  C.  J.  (overruling  the  objection).  An  order  having 
been  given  to  print  500  copies,  Watson  fetched  away  25;  by  this  he 
adopted  the  printing  as  done  in  the  execution  of  an  order  which  he  had 


494  BOOK  i:     RULES   OF  ADMISSIBILITY  No.  326 

given;  and  when  he  took  away  25  out  of  a  common  impression,  they 
must  be  supposed  to  agree  in  the  contents. 

Bayley,  J.  —  The  objection  is,  that  without  notice  to  produce  the 
original  any  other  evidence  of  the  contents  is  but  secondary  evidence. 
It  appears  to  me  that  that  is  not  the  case,  for  that  every  one  of  those 
worked  off  are  originals,  in  the  nature  of  duplicate  originals;  and  it  is 
clear  that  one  duplicate  may  be  given  in  evidence,  without  notice  to 
produce  the  other.  If  the  placard  were  offered  in  evidence  in  order  to 
show  the  contents  of  the  original  manuscript,  there  would  be  great  weight 
in  the  objection;  but  when  they  are  printed  they  all  become  originals; 
the  manuscript  is  discharged;  and  since  it  appears  that  they  are  from 
the  same  press,  they  must  all  be  the  same. 

Abbott,  J.  —  If  this  paper  were  offered  in  order  to  show  what  were 
the  contents  of  the  original  manuscript,  it  might  be  contended  that 
sufficient  preparatory  evidence  had  not  been  given.  But  in  another 
point  of  view  it  appears  to  me  that  the  evidence  is  admissible,  in  order 
to  prove  that  Mr.  Watson  knew  the  contents  of  a  placard  posted  in  the 
streets,  relating  to  a  meeting  in  Spa  Fields,  on  the  2d  of  December. 


327.   ANHEUSER-BUSCH  BREWING  ASSOCIATION 
V.   HUTMACHER 

Supreme  Court  of  Illinois.    1889 

127  III.  652;  21  A^.  E.  626 

Appeal  from  the  Appellate  Court  for  the  Third  District;  heard  in 
that  Court  on  appeal  from  the  Circuit  Court  of  Adams  county;  the 
Hon.  William  Marsh,  Judge,  presiding. 

Mr.  George  W.  Fogg,  for  the  appellant.  ...  If  a  telegraph  dispatch 
is  sought  to  be  introduced  in  evidence,  the  original  must  be  produced 
and  its  execution  proved  precisely  as  any  other  instrument,  or  its  loss 
or  destruction  shown,  and  then  a  copy  must  be  proved  to  be  a  true  and 
compared  copy.  .  .  . 

Messrs.  Carter  &  Govert,  for  the  appellee.  .  .  .  The  telegraph  com- 
pany is  the  agent  of  the  sender,  and  the  telegram  as  received  at  the  end 
of  the  line  is  the  original,  and  is  primary  evadence.  .  .  . 

Mr.  Justice  Bailey  delivered  the  opinion  of  the  Court. 

This  was  a  suit  in  assumpsit,  brought  by  Rudolph  Hutmacher  against 
the  Anheuser-Busch  Brewing  Association,  a  corporation  organized 
and  doing  business  at  St.  Louis,  Missouri,  to  recover  for  work,  labor 
and  services  of  the  plaintiff  in  superintending  the  erection  of  an  ice  house 
and  cutting,  storing  and  purchasing  ice  for  the  defendant.  The  trial 
in  the  Circuit  Court  resulted  in  a  judgment  in  favor  of  the  plaintiff  for 
SI 640  and  costs,  which  judgment  was  affirmed  by  the  Appellate  Court 


No.  327  DOCUMENTARY   ORIGINALS  495 

on  appeal,  and  by  a  further  appeal  the  record  has  been  brought  to  this 
court.  .  .  . 

A  number  of  telegrams  in  relation  to  the  labor  and  services  sued  for, 
and  purporting  to  hav-e  been  sent  by  the  defendant  to  the  plaintiff,  were 
produced  by  the  plaintiff,  and  on  proof  that  they  were  received  by  him 
from  the  telegraph  company  in  the  usual  course  of  business,  they  were 
admitted  in  evidence,  against  the  objection  and  exception  of  the  defend- 
ant. Several  letters,  of  dates  contemporaneous  with  the  telegrams, 
written  by  the  defendant  to  the  plaintiff,  were  also  read  in  evidence,  in 
which  the  defendant  admitted  having  communicated  with  the  plaintiff 
by  telegraph,  and  in  some  of  which  letters  copies  of  the  telegrams  sent 
were  given,  the  same  being  exact  copies  of  telegrams  of  the  same 
date  read  in  evidence.  The  position  now  taken  is,  that  the  papers 
delivered  by  the  telegraph  company  to  the  plaintiff  are  only  copies,  the 
originals  being  the  telegrams  signed  by  the  defendant  and  delivered 
by  it  to  the  telegraph  office  from  which  the  message  was  sent,  and  it 
is  urged  that  such  originals  should  have  been  produced  or  some  proper 
foundation  laid  for  the  introduction  of  secondary  evidence  of  their 
contents. 

The  application  of  the  rule  of  evidence  here  contended  for  must 
depend  upon  whether  the  messages  delivered  by  the  telegraph  company 
to  the  plaintiff  or  those  delivered  by  the  defendant  to  the  telegraph 
operator  are,  as  between  the  parties  to  this  suit,  to  be  deemed  the  origi- 
nals. In  Durkee  v.  Vermont  Central  Railroad  Co.,  29  Vt.  127,  the  rule 
which  we  consider  the  most  reasonable  one  is  laid  down,  viz.,  that  the 
original,  where  the  person  to  whom  it  is  sent  takes  the  risk  of  its  trans- 
mission, or  is  the  employer  of  the  telegraph,  is  the  message  delivered  to 
the  operator;  but  where  the  person  sending  the  message  takes  the  ini- 
tiative, so  that  the  telegraph  is  to  be  regarded  as  his  agent,  the  original 
is  the  message  actually  delivered  at  the  end  of  the  line.  See  also  Save- 
land  V.  Green,  40  Wis.  431;  Western  Union  Telegraph  Co.  v.  Shotter, 
71  Ga.  760;  Wilson  v.  M.  &  N.  W.  Railroad  Co.,  31  Minn.  481;  Dunning 
V.  Roberts,  35  Barb.  463;  Gray  on  Communications  by  Telegraph, 
§§  104,  129.  The  same  ride  was  adopted  by  this  Court  in  Morgan  v. 
The  People,  59  111.  58.  The  fact  that  the  defendant  took  the  initiative 
in  sending  the  telegrams,  thus  employing  the  telegraph  company  as  its 
agent,  is  clearly  shown  by  its  letters  to  the  plaintiff  read  in  evidence. 
Having  thus  employed  such  agent  to  convey  communications  to  the 
plaintiff,  it  must  be  held  to  be  bound  by  the  acts  of  its  agent  to  the 
extent  at  least  of  making  the  messages  delivered  originals,  thereby 
constituting  them  primary  evidence  of  the  contents  of  the  messages 
sent. 

It  should  be  observed  that  there  is  no  suggestion  that  any  of  these 
messages  were  erroneously  transmitted,  and  the  case  therefore  does  not 
present  the  question,  upon  which  there  is  some  conflict  in  the  authorities, 
whether  the  sender  of  a  telegram  makes  the  telegraph  company  its  gen- 


496  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  327 

eral  agent  so  as  to  become  responsible  for  the  acts  of  such  agent  where 
there  is  a  departure  from  the  authority  actually  given,  by  transmitting 
the  message  incorrectly.  .  .  . 

We  find  no  error  in  the  record,  and  the  judgment  of  the  Appellate 
Court  will  therefore  be  affirmed.  Judgment  affirmed. 


328.  PEAKS  V.   COBB 

Supreme  Judicial  Court  of  Massachusetts.     1906 

192  Mass.  196;  77  N.  E.  881 

Tort,  against  the  owner  of  a  building  number  102  on  Huntington 
Avenue  in  Boston,  by  Julia  F.  Peaks,  who  hired  a  room  from  one  Mrs. 
St.  Ledger,  the  lessee  of  an  apartment  or  suite  of  rooms  in  that  building, 
for  personal  injuries  from  falling  on  a  walk  leading  from  the  entrance  of 
the  building  to  the  sidewalk  of  Huntington  Avenue.  Writ  dated  March 
25,  1901. 

At  the  trial  in  the  Superior  Court  before  Hitchcock,  J.,  the  defend- 
ant was  allowed,  against  the  objection  and  exception  of  the  plaintiff,  to 
testify  to  the  language  of  the  covenant  in  the  lease  from  him  to  Mrs. 
St.  Ledger  which  is  mentioned  in  the  opinion  and  under  the  circum- 
stances there  stated.  The  judge  ordered  a  verdict  for  the  defendant; 
and  the  plaintiff  alleged  exceptions. 

E.  R.  Anderson  {A.  T.  Smith  with  him),  for  the  plaintiff. 

W.  H.  Hitchcock,  for  the  defendant. 

Hammond,  J.  —  One  of  the  grounds  of  the  defence  was  that  in  the 
lease  from  the  defendant  to  Mrs.  St.  Ledger,  from  whom  the  plaintiff 
hired  the  room,  there  was  a  clause  to  the  effect  that  the  lessee  should  not 
lease,  under-let  nor  permit  any  other  person  to  occupy  the  premises 
named  in  the  lease,  without  the  written  consent  of  the  lessor;  and  the 
defendant  undertook  to  prove  the  existence  of  such  a  provision. 

The  lease  was  executed  in  duplicate,  one  being  retained  by  the  lessor 
and  the  other  given  by  him  to  the  lessee.  Each  was  therefore  an 
original,  and  as  evidence  of  the  contract  could  have  been  introduced 
without  the  production  of  the  other.  The  defendant  testified  that  he 
had  searched  for  his  paper  and  could  not  find  it.  Upon  this  evidence 
the  judge  could  have  found,  and  it  is  to  be  assumed  that  he  did  find, 
that  it  was  lost. 

If  this  had  been  the  only  original,  secondary  evidence  of  its  contents 
of  course  could  have  been  admitted.  But  it  was  not  the  only  original. 
The  other  was  presumed  to  be  in  the  possession  of  Mrs.  St.  Ledger,  the 
lessee,  to  whom  the  defendant  had  given  it.  A  witness  called  by  the 
plaintiff  testified  on  cross-examination  that  Mrs.  St.  Ledger  was  living 
on  Massachusetts  Avenue  in  Boston,  the  place  of  the  trial,  and  that 
the  witness  knew  of  no  reason  why  she  could  not  be  present  at  the 


No.  329  DOCUMENTARY   ORIGINALS  497 

trial.  It  does  not  appear  that  any  effort  whatever  was  made  to  pro- 
cure the  original  which  had  been  delivered  to  her.  Upon  the  evidence 
it  is  to  be  presumed  that  the  paper  was  within  the  jurisdiction  of  the 
Court. 

Here,  then,  is  the  case  of  two  originals,  one  lost  and  one  presumably 
still  in  the  hands  of  a  third  party  within  reach  of  the  Court.  Under 
these  circumstances  the  rule  is  that  no  secondary  evidence  of  the  contents 
of  either  is  admissible  until  it  is  shown  that  reasonable  effort  had  been 
made  to  procure  the  other.  All  originals  must  be  accounted  for  before 
secondary  evidence  can  be  given  of  any  one.  Starkie,  Evidence  (10th 
Am.  ed.)  542,  ad  finem,  and  cases  therein  cited.  1  Greenleaf,  Evidence, 
§  563,  and  cases  cited.  2  Wigmore,  Evidence,  §  1233,  and  cases  cited. 
See  also  Poignand  v.  Smith,  8  Pick.  272.  The  exception  to  the  admission 
of  the  oral  evidence  of  the  contents  of  the  lease  must  be  sustained.  .  .  . 

Exceptions  sustained. 


329.   INTERNATIONAL  HARVESTER  CO.   v.   ELFSTROM 

Supreme  Court  of  Minnesota.    1907 

101  Minn.  263;   112  iV.  W.  252 

Action  in  the  District  Court  for  Chisago  county  to  recover  $115,  and 
interest,  on  an  alleged  contract.  The  case  was  tried  before  Crosby,  J., 
and  a  jury,  which  rendered  a  verdict  in  favor  of  plaintiff  for  SI  16.47. 
From  an  order  denying  a  motion  for  judgment  notwithstanding  the  ver- 
dict or  for  a  new  trial,  defendant  appealed.     Affirmed. 

George  S.  Grimes,  for  appellant.  The  Court  erred  in  admitting  in 
evidence,  and  in  refusing  to  strike  out,  exhibit  A,  a  carbon  copy  of  the 
contract.  Exhibit  A  was  not  the  best  evidence.  The  original  contract 
was  in  existence.  .  .  . 

Buffiiigton  &  Buffingion,  for  respondent.  Instruments  signed  in 
duplicate  are  both  originals.  And  where  a  contract  is  executed  in  dupli- 
cate or  triplicate  form  the  parts  are  denominated  duplicate  or  triplicate 
originals,  the  one  as  much  so  as  the  other.  It  does  not  require  in  order 
to  introduce  one  of  the  duplicates  that  notice  should  be  given  to  produce 
the  other.     They  are  all  primary  evidence.  .  .  . 

Elliott,  J.  —  This  was  an  action  brought  to  recover  upon  a  written 
contract  for  the  purchase  price  of  a  certain  McCormick  binder,  which 
the  plaintiff  claimed  it  sold  and  delivered  to  the  defendant.  The  jury 
returned  a  verdict  in  favor  of  the  plaintiff,  and  the  appeal  is  from  an 
order  denying  the  alternative  motions  for  judgment  in  favor  of  the  defend- 
ant notwithstanding  the  verdict  or  for  a  new  trial.  .  .  . 

The  remaining  question  relates  to  the  reception  in  evidence  of  what 
the  appellant  claims  was  a  mere  copy  of  the  contract  without  having 
first  accounted  for  the  absence  of  the  original.     This  presents  an  interest- 


498  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  329 

ing  and  somewhat  novel  question,  but  which,  by  reason  of  the  introduc- 
tion of  labor-saving  devices  in  modern  offices,  is  liable  to  arise  more 
frequently  in  the  future.  A  sheet  of  carbon  paper  was  placed  between 
two  sheets  of  order  paper,  so  that  the  writing  of  the  order  upon  the  outside 
sheet  produced  a  fac-simile  upon  the  one  underneath.  The  signature 
of  the  party  was  thus  reproduced  by  the  same  stroke  of  the  pen  which 
made  the  surface,  or  exposed,  impression.  In  State  v.  Teasdale,  120  Mo. 
App.  692,  97  S.  W.  996,  it  was  held  that  a  carbon  copy  of  a  letter  was  not 
admissible  in  evidence  until  the  original  letter  from  which  it  was  made 
was  accounted  for.  The  signature  would  not,  under  ordinary  circum- 
stances, appear  upon  the  carbon  copy  of  such  a  letter.  In  Chesapeake  v. 
Stock,  104  Va.  97,  51  S.  E.  161,  it  was  held  that  a  carbon  copy  made 
at  the  same  time  and  by  the  same  impression  of  type  may  be  regarded 
as  a  duplicate  original  of  the  letter  itself  and  admitted  in  evidence  without 
notice  to  produce  the  letter. 

We  think  this  view  can  be  sustained,  and  that  a  clear  distinction 
exists  between  letter-press  copies  of  writings  and  duplicate  writings 
produced  as  was  the  contract  in  the  case  at  bar.  It  is  well  settled  that, 
where  a  writing  is  executed  in  duplicate  or  multiplicate,  each  of  the  parts 
is  the  writing  which  is  to  be  proved,  because  by  the  act  of  the  parties  each 
is  made  as  much  the  legal  act  as  the  other.  Grossman  v.  Grossman,  95 
N.  Y.  145,  148;  Hubbard  v.  Russell,  24  Barb.  404,  408;  Lewis  v.  Payn, 
8  Gow.  71,  18  Am.  Dec.  427;  Jackson  v.  Denison,  4  Wend.  558;  Barr  v. 
Armstrong,  56  Mo.  577,  586;  Weaver  v.  Shipley,  127  Ind.  526,  27  N.  E. 
146;  Cleveland  v.  Perkins,  17  Mich.  296;  Philipson  v.  Ghase,  2  Gamp. 
110  [ante,  No.  325].  It  is  very  generally  held  that  a  reproduction  of  a 
writing  l)y  a  letter-press  cannot  be  considered  as  a  duplicate.  2  Wigmore, 
Evidence,  §  1234,  and  cases  there  cited;  Menasha  v.  Harmon,  128  Wis. 
177,  107  N.  W.  299. 

The  distinction  between  letter-press  copies  and  instruments  produced 
by  the  use  of  carbon  paper,  as  in  this  instance,  seems  reasonably  clear 
and  satisfactory.  Wliat  makes  two  numbers  of  an  instrument  duplicates 
and  equivalents  is  the  fact  that  the  legal  act  of  the  parties  as  consum- 
mated embraces  them  both.  Letter-press  copies  are  produced  by  an  act 
distinct  from  and  subsequent  to  the  consummation  of  the  legal  act  of 
execution.  It  may  or  may  not  be  the  act  of  the  parties  to  the  contract. 
We  know  from  common  experience  that  such  copies  are  ordinarily  pro- 
duced by  the  labor  of  clerks  and  other  employes,  and  that  the  results  are 
not  always  satisfactory.  But  all  the  numbers  of  a  writing  result 
from  the  completion  of  the  legal  act  of  the  parties,  although  aided  by 
mechanical  devices  or  chemical  agencies,  meet  the  requirements  of 
originals.  If  the  reproduction  is  complete,  there  is  no  practical  reason 
why  all  the  products  of  the  single  act  of  writing  the  contract  and 
affixing  a  signature  thereto  should  not  be  regarded  as  of  equal  and 
equivalent  value.  In  this  instance  the  same  stroke  of  the  pen  pro- 
duced  both  signatures.     The  argument  that  the  recognition  of  these 


No.  330  DOCUMENTARY   ORIGINALS  499 

instruments  as  duplicates  would  encourage  fraudulent  practices  does 
not  touch  the  principle  involved. 

The  order  of  the  District  Court  is  affirmed. 


330.   COLE  V.   GIBSON 

Chancery.     1750 

1  Ves.  Sr.  503 

In  1733,  on  a  treaty  of  marriage  between  Philip  Bennet  and  Miss 
Hallam,  then  about  twenty  years  old,  articles  were  entered  into,  to  which 
were  made  parties  the  intended  husband  and  wife,  the  defendant  and  Mr. 
Ralph  Allen.  The  first  clause  therein  was  for  securing  an  annuity  of 
£100  to  the  defendant  out  of  the  wife's  estate:  but  every  other  provision 
therein  for  benefit  of  the  wife  and  issue  of  the  marriage  was  made  revoca- 
ble by  the  wife,  after  the  marriage  should  be  had.  About  the  same  time 
with  the  articles,  a  bond  was  given  by  Mr.  Bennet  before  the  marriage 
to  pay  the  defendant  £1000,  which  bond  was  afterward  delivered  up  to 
be  canceled;  but  at  what  particular  time  did  not  appear.  A  recovery 
was  afterward  suffered  to  the  uses  of  the  articles.  In  1736  a  new  grant 
was  made  to  the  defendant  of  this  annuity;  which  was  continued  to  be 
paid  for  some  time  after  the  wife's  death.  But  the  present  bill  was  now 
brought  to  set  it  aside. 

Evidence  for  the  plaintiff  to  prove  the  contents  of  the  bond  was 
objected  to,  as  never  done  unless  where  the  instrument  itself  cannot  be 
had:  whereas  it  appeared  from  the  answer  read,  that  the  bond  was  de- 
livered up  to  plaintiff,  and  must  be  in  his  custody.  Counsel  for  -plaintiff. 
This  bill  is  not  to  be  relieved  against  the  bond;  for  then  the  objection 
would  be  good;  but  here  it  is  made  use  of  as  collateral  evidence,  as 
being  part  of  the  transaction,  and  to  prove  that  it  was  on  account  of  the 
marriage,  and  on  no  other  consideration. 

Lord  Chancellor  [Hardwicke].  The  objection  is  founded  on  the 
proper  and  common  rule  of  evidence;  and  in  consequence  the  plaintiff 
cannot  be  admitted  to  give  parol  evidence  of  the  contents  of  this  bond, 
as  the  case  at  present  stands.  The  general  rule  is,  the  best  evidence 
should  be  given  the  nature  of  the  thing  will  admit:  and  therefore  as  to 
all  deeds,  writings,  and  letters  they  must  be  proved  themselves  unless 
under  certain  circumstances ;  as  when  shown  to  be  in  the  adverse  party's 
hands ;  for  then  you  will  be  permitted  to  prove  the  contents ;  or  if  shown 
to  be  destroyed,  you  may  then  read  reasonable  proof  of  the  destruction 
and  parol  evidence  to  the  contents;  which  is  then  made  the  best  the  thing 
will  admit.  .  .  .  The  plaintiff  has  read,  what  is  made  evidence  out  of 
the  answer,  that  the  bond  was  executed,  and  that  the  defendant  delivered 
it  up  to  the  plaintiff:  which  is  evidence  that  it  is  in  plaintiff's  custody. 
And  to  prove  the  contents  it  must  be  produced.  .  .  . 


500  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  330 

A  distinction  is  endeavored  between  a  bill  to  set  aside  the  bond  or 
other  instrument,  and  a  case  wherein  it  is  made  use  of  only  by  collateral 
evidence;  but  there  is  no  such  distinction  in  point  of  evidence,  the  rule 
being  the  same  whether  it  comes  in  by  way  of  collateral  evidence,  or  the 
very  deed  which  the  bill  is  brought  to  impeach. 


331.   LAMB  V.   MOBERLY 

Court  of  Appeals  of  Kentucky.    1826 

3  T.  B.  Monr.  179 

The  plaintiff  in  the  Court  below,  sued  the  defendant,  in  an  action  of 
assumpsit,  for  so  much  money  for  a  note  made  by  a  third  person,  and  sold 
and  delivered  by  the  plaintiff  to  the  defendant.  On  the  trial  of  the  issue 
of  non  assumpsit,  the  plaintiff  introduced  the  confessions  of  the  defendant 
that  he  had  bought  such  a  note,  and  had  promised  to  pay  a  certain  sum 
therefor,  at  a  period,  or  rather  on  a  contingency  which  had  happened, 
substantially  agreeing  with  some  of  the  counts  in  the  declaration.  The 
counsel  for  defendant  moved  the  Court  to  exclude  that  evidence,  until 
the  plaintiff  should  produce  the  note  itself  as  the  best  evidence.  The 
Court  sustained  this  motion. 

Mills,  J.  (after  stating  the  case  as  above).  We  cannot  agree  with  the 
Court  below  .  .  .  that  the  production  of  the  note  was  necessary.  It 
could  only  be  held  necessary  by  not  attending  to  the  distinction  between 
proving  the  existence  and  contents  of  a  note  and  the  sale  of  a  note.  Of 
the  former,  the  note  is  the  better  evidence;  but  of  the  latter  the  note 
furnishes  no  evidence.  .  .  .  The  existence  of  a  note  is  as  certainly 
perceived  by  the  senses  or  acknowledged  in  conversation  as  that  of  any 
other  article  of  commerce;  and  it  might  as  well  be  urged  that  before 
the  acknowledgments  of  a  sale  of  any  other  article  could  be  given  in  evi- 
dence the  article  itself  must  be  produced  in  Court  in  order  that  the 
Court  might  see  that  it  really  existed,  as  that  a  note  thus  sold  should  be 
produced.  Judgment  reversed. 

332.  TILTON  v.   BEECHER 

City  Court  of  Brooklyn,  N.  Y.     1875 

Abbott's  Rep.  1,  389. 

[The  plaintiff  desired  to  prove  certain  admissions  made  by  the  de- 
fendant.] 

Witness  for  plaintiff:  [Mr.  Tilton  had  WTitten  the  story  of  the  w^hole 
affair  for  publication  and  wanted  Mr.  Beecher  to  hear  it  before  publi- 
cation,] and  Mr.  Tilton  said  to  Mr.  Beecher,  "I  will  read  to  you  one 
passage  from  this  statement,  and  if  you  can  stand  that,  you  can  stand 


No.  333  DOCUMENTARY   ORIGINALS  501 

any  part  of  it,"  and  he  read  to  him  a  passage  from  the  statement,  which 
was  about  as  follows  as  nearly  as  I  can  recollect. 

Mr.  Evarts,  for  defendant:    The  statement  will  speak  for  itself. 

Mr.  Fullerton,  for  plaintiff:   What  did  he  read? 

Mr.  Evarts:  We  want  that  paper  and  the  part  of  it  that  was  read,  as  it 
appeared  in  that  paper,  and  it  is  not  competent  to  recite  out  of  a  written 
paper  by  oral  proposition  what  the  written  paper  is  the  best  evidence  of. 

Mr.  Fullerton:  I  propose  to  show  what  communication  was  made  by 
Mr.  Tilton  on  that  occasion  to  Mr.  Beecher;  1  do  not  care  whether  it 
originated  in  his  own  mind,  or  whether  it  was  read  from  a  paper,  printed 
or  written;  it  makes  no  difference;  what  it  was  that  he  said  to  him  is 
what  I  have  a  right  to. 

Judge  Neilson:  I  think  the  witness  can  state  what  was  said  to 
Mr.  Beecher,  although  he  stated  matter  that  had  been  incorporated  in 
writing.  * 

333.   MASSEY  v.   BANK 

Supreme  Court  of  Illinois.     1885 

113  ///.  334 

Appeal  from  the  Appellate  Court  for  the  Third  District;  —  heard  in 
that  Court  on  appeal  from  the  Circuit  Court  of  Sangamon  county;  the 
Hon.  C.  S.  Zane,  -Judge,  presiding. 

Messrs.  Morrison  &  Whitlock,  for  the  appellant.  As  to  the  rule 
requiring  the  best  evidence  to  be  produced,  .  .  .  the  best  evidences 
were  the  deeds  and  mortgages.  .  .  . 

Messrs.  Ketcham  &  Gridlcy,  and  Mr.  L.  H.  Hatfield,  for  the  appellee. 

Mr.  Justice  Mulkey,  delivered  the  opinion  of  the  Court: 

This  is  an  appeal  from  a  judgment  of  the  Appellate  Court  for  the 
Third  District,  affirming  a  judgment  of  the  Circuit  Court  of  Sangamon 
county,  in  faVor  of  the  National  Bank  of  Virginia,  and  against  Henderson 
E.  Massey,  for  the  sum  of  $6439.56.  The  action  below  was  upon  a 
promissory  note  purporting  to  have  been  executed  by  Henry  C.  Massey, 
Henderson  E.  Massey  and  George  W\  Laurie.  .  .  .  The  note  was  given 
for  money  borrowed  from  the  bank  by  Henry  C.  Massey.  The  appellant 
filed  a  plea,  verified  by  affidavit,  denying  the  execution  of  the  note,  and 
the  cause  was  tried  upon  that  issue,  alone.  .  .  . 

The  point  which  seems  to  be  chiefly  relied  on,  arises  upon  a  motion 
to  suppress  part  of  the  answer  to  the  following  interrogatory:  "You  may 
state  whether  the  note"  (referring  to  the  one  sued  on)  "was  a  renewal 
note."  Objection  being  made,  unless  the  note  was  produced,  the  witness 
then,  as  we  understand*  the  record,  produced  it,  and  proceeded  first  to 
read  the  credits  indorsed  on  it,  the  whole  answer  being  as  follows :  "  Paid, 
July  25,  1879,  $275  and  interest  on  note  to  date.  Paid  August  5,  1879, 
$1782.75  and  interest  on  note  to  date.     That  S1782.75  my  father  owed,  — 


502  BOOK   i:     RULES   OF    ADMISSIBILITY  No.  333 

that  is,  he  gave  me  a  deed  to  one  hundred  acres  of  land  in  1866;  told  me  to 
go  to  work  on  it,  and  improve  it,  and  suit  myself,"  (objection  by  defendant,) 
"  but  had  never  given  me  a  deed,  and  after  he  received  notice  from  the 
bank  in  1879,  he  goes  to  Jacksonville  and  deeds  this  one  hundred  acres 
of  hind  away  from  me,  with  the  exception  of  forty  acres  where  the  house 
and  barn  stand,  and  said  to  me  and  told  me  to  give  him  a  mortgage 
for  $3000,  and  he  would  enable  me  to  get  a  loan  of  $2000  on  it,  to  pay 
upon  this  note.  He  did  that.  /  had  to  give  him  a  mortgage  for  $3000, 
while  I  never  owed  him  a  dollar  in  the  world.  He  did  that  to  fix  the  bank 
so  they  couldn't  get  anything  off  of  me,  and  he  was  going  to  put  his 
property  out  of  his  hands,  to  avoid  this  note."  .  .  . 

Construing  the  motion  according  to  its  literal  terms,  the  Court  really 
sustained  it,  instead  of  denying  it,  hence  there  is  no  ground  to  complain. 
We  are  not  inclined,  however,  to  rest  our  decision  of  the  question  solely 
upon  this  view,  but  rather  prefer  to  place  it  upon  the  broad  ground  that 
the  general  principle  upon  which  appellant  bases  the  objection,  — 
namely,  that  the  best  evidence  by  which  a  fact  is  susceptible  of  being 
established  must  always  be  produced,  or  its  absence  accounted  for,- — 
has  no  application  to  the  facts  above  stated.  We  fully  recognize  the 
rule  that  whenever  the  existence  of  a  deed  or  other  writing  is  directly 
involved  in  a  judicial  proceeding,  whether  as  proof  of  the  precise  question 
in  issue  or  of  some  subordinate  matter  that  tends  to  establish  the  ultimate 
fact  or  facts  upon  which  the  case  turns,  such  deed  or  other  writing  itself 
must  be  produced,  or  its  absence  accounted  for,  before  secondary  evidence 
of  its  contents  is  admissible.  Yet  while  this  rule  is  fully  conceded,  it  is 
also  true  that  a  witness,  when  testifying,  may,  for  the  purpose  of  making 
his  statements  intelligible,  and  giving  coherence  to  such  of  them  as  are 
unquestionably  admissible  in  evidence,  properly  speak  of  the  execution 
of  deeds,  the  giving  of  receipts,  the  writing  of  a  letter,  and  the  like, 
without  producing  the  instrument  or  writing  referred  to.  To  hold 
otherwise  would  certainly  be  productive  of  great  inconvenience,  and  in 
some  cases  would  defeat  the  ends  of  justice.  References  to  written  instru- 
ments by  a  witness  for  the  purpose  stated  are  to  be  regarded  as  but  mere 
inducement  to  the  more  material  parts  of  his  testimony. 

The  present  case  well  illustrates  the  principle  in  question.  As 
remotely  bearing  upon  the  issue  to  be  tried,  the  plaintiff  sought  to  show 
the  appellant  had  avowed  a  purpose  not  to  pay  the  note  —  that  he  had 
said  he  was  going  to  put  his  property  out  of  his  hands  in  order  to  defeat 
the  claim.  Now  this,  under  the  issue,  is  the  important  part  of  the 
ans\^^e^  to  the  question  ["whether  the  note  was  a  renewal  note"],  if 
indeed  any  of  it  can  be  so  regarded.  All,  therefore,  that  was  said  about 
the  deeding  of  the  land,  the  giving  of  the  mortgage,  and  getting  the 
loan  of  $2,000,  we  regard  as  mere  matter  of  inducement  to  the  more 
important  part  of  the  testimony. 

In  short,  we  see  no  substantial  error  in  the  record,  and  the  judgment 
will  therefore  be  affirmed.  Judgment  affirmed. 


No.  334  DOCUMENTARY   ORIGINALS  503 

334.   MINNESOTA  DEBENTURE  CO.   v.  JOHNSON 
Supreme  Court  of  Minnesota.    1906 
■     96  Minn.  91 ;   107  A^.  W.  740 

Action  of  ejectment  in  the  District  Court  for  Hennepin  county. 
The  case  was  tried  before  Holt,  J.,  who  directed  a  verdict  in  favor  of 
plaintiff.  From  an  order  denying  a  motion  for  judgment  notwithstanding 
the  verdict  or  for  a  new  trial,  defendant  appealed.  Plaintiff  moved  to 
dismiss  the  appeal  on  the  ground  of  defective  notice.  Motion  to  dismiss 
denied.     Order  affirmed. 

Savage  &  Purdy,  for  appellant.    John  F.  Fitzpatrick,  for  respondent.  .  . 

On  May  4,  1906,  the  following  opinion  was  filed: 

Elliott,  J.  —  In  an  action  of  ejectment  the  plaintiff  prevailed  and 
from  an  order  denying  a  new  trial  the  defendant  appealed  to  this  Court 
where  the  order  was  reversed  and  a  new  trial  granted.  94  Minn.  150, 
102  N.  W.  381.  After  a  second  trial  the  case  now  comes  here  on  appeal 
by  the  defendant  from  an  order  denying  a  motion  for  judgment  for  the 
defendant  notwithstanding  a  verdict  for  the  plaintiff,  or  for  a  new  trial. 

The  facts  are  fully  stated  in  the  former  opinion.  On  the  first  trial 
the  plaintiff  traced  the  title  from  the  United  States  Government  by 
mesne  conveyances  to  George  F.  Dean  and  showed  the  entry  of  a  judg- 
ment on  February  4,  1899,  against  Dean,  quieting  the  title  to  the  land 
in  the  plaintiff.  .  .  .  The  plaintiff'  would  therefore  be  entitled  to  the  land 
as  against  Dean,  and  if  the  defendant  Johnson  was  Dean's  tenant  under 
a  lease  made  after  the  entry  of  the  judgment,  his  rights  were  no  greater 
than  those  of  Dean.  Blew  v.  Ritz,  82  Minn.  530;  1  Freeman,  Judgments, 
§169. 

On  the  second  trial  the  plaintiff,  instead  of  disclosing  its  title,  proved 
to  the  satisfaction  of  the  trial  Court  that  Johnson  was  Dean's  tenant  and 
made  no  other  claim  to  the  land.  .  .  .  Therefore  if  Johnson  in  this  action 
claimed  only  through  Dean,  he  is  in  privity  with  him  and  bound  by  the 
judgment  which  determined  Dean's  rights. 

The  defendant  when  called  by  the  plaintiff,  testified  as  follows: 

Q.  —  "Did  you  ever  claim,  or  do  you  claim  now  to  own  the  land  in 
this  lawsuit,  yourself?"     A.  —  "No,  it  is  not  my  land." 

Q.  —  "During  all  the  time  that  you  were  on  the  land,  did  you  hold  it 
under  George  F.  Dean?"     A.  —  "Yes,  I  rented  it  from  him." 

This  is  definite  and  clear;  and  it  would  doubtless  surprise  Johnson 
to  learn  that  he  was  not  Dean's  tenant  and  that  he  has  any  interest  in  the 
land  other  than  as  such  tenant.  He  further  testified  that  he  first  rented 
the  property  about  1895;  that  he  had  had  many  leases  but  did  not  remem- 
ber how  many,  and  that  he  "had  one  for  the  year  before  last,"  which 
would  be  1903,  which  he  burned  up  because  he  moved.  It  thus  clearly 
appeared  that  about  1895  Johnson  took  possession  of  the  property  as  the 


504  BOOK   i:     RULES   OF  ADMISSIBILITY  No.    334 

tenant  of  Dean  and  that  the  lease  was  renewed  or  a  new  lease  made,  after 
the  entry  of  the  judgment  in  1899. 

But  the  defendant  contends  that  the  evidence  by  which  this  was  shown 
was  improperly  received,  because  it  called  for  the  contents  of  the  written 
leases  and  an  opinion  as  to  the  character  of  the  defendant's  possession. 

1.  It  was  a  question  of  the  application  of  recognized  rules  governing 
the  production  of  evidence.  The  existence  of  certain  relations,  although 
created  by  certain  instruments  in  writing,  may  be  shown  by  parol. 
Widdifield  v.  Widdifield,  2  Binn.  245;  Cutler  v.  Thomas,  25  Vt.  73; 
Rosenbaum  v.  Howard,  69  Minn.  41,  71  N.  W.  823;  Alderson  v.  Clay, 
1  Starkie,  405.  The  terms  of  the  tenancy  were  not  in  issue.  They  could 
have  been  shown  only  by  the  production  of  the  writings  or,  under  proper 
conditions,  by  secondary  evidence.  But  whether  the  witness  was  in 
possession  of  the  land  as  a  tenant  of  Dean  was  an  independent  fact 
within  his  personal  knowledge,  and  there  could  be  as  against  him  no  better 
evidence  of  the  character  of  his  claim  than  the  witness's  own  statement. 
In  1  Greenleaf,  Evidence  (16th  ed.),  §  87,  it  is  said  that,  "if  the  fact  of 
the  occupation  of  land  is  alone  in  issue  without  respect  to  the  terms  of  the 
tenancy,  this  fact  may  be  proved  by  any  competent  oral  testimony  such 
as  payment  of  rent  or  declarations  of  the  tenant,  notwithstanding  it 
appears  that  the  occupancy  was  under  an  agreement  in  writing;  for  here 
the  writing  is  only  collateral  to  the  fact  in  question."  So  in  2  Wigraore, 
Evidence,  §  1246,  it  is  said,  "  the  fact  that  a  person  occupies  the  relation 
of  tenant  as  to  a  piece  of  land  or  its  owner,  is  a  distinct  fact;  for  he  may 
have  become  tenant  by  parol  or  by  writing  and  the  tenancy  is  the  result 
of  the  transaction  and  is  not  the  transaction  itself."  The  rule  is  applied 
in  Rex  v.  Holy  Trinity,  7  B.  &  C.  611;  Taylor  v.  Peck,  21  Gratt.  1;  and 
Raynor  v.  Lee,  20  Mich.  384.  See  1  Elliott,  Evidence,  §  574  and  1 
Greenleaf,  Evidence  (16th  ed.),  §  563k. 

2.  Even  though  the  question  directed  to  the  witness  called  upon  him 
to  make  admissions  as  to  the  contents  of  written  documents,  it  would  not 
necessarily  follow  that  the  rulings  of  the  trial  Court  were  erroneous. 
There  is  ample  authority  to  support  the  rule  that  it  is  not  necessary  to 
produce  a  document  when  its  contents  can  be  proven  by  the  admissions 
of  the  adverse  party.  The  leading  case  of  Slatterie  v.  Pooley,  6  M.  & 
W.  664  [post,  No.  335],  established  the  rule  in  England  that  a  parol  admis- 
sion by  a  part}^  to  a  suit  is  admissible  in  evidence  against  him  although 
it  relates  to  the  contents  of  a  deed  or  other  written  instrument.  Although 
there  are  American  authorities  to  the  contrary,  some  of  which  are  cited 
by  defendant,  the  better  authorities  in  this  country  have  apparently 
accepted  the  rule  of  Slatterie  v.  Pooley.  The  question  is  fully  discussed 
in  2  Wigmore,  Evidence,  §  1256,  et  seq.  But  we  are  not  required  to 
determine  this  question,  as  the  case  is  disposed  of  by  the  rule  to  which 
reference  has  already  been  made. 

The  order  appealed  from  is  affirmed. 


No.  335  DOCUMENTARY   ORIGINALS  505 

335.   SLAITERIE   v.   POOLEY 

Exchequer.     1840 

6  M.  &  W.  664 

Action  on  a  covenant  to  indemnify  the  plaintiff  against  debts  sched- 
uled in  a,  composition-deed  and  due  to  creditors  not  signing  it;  plea, 
that  the  debt  in  question  was  not  contained  in  the  schedule. 

At  the  trial,  the  composition  deed  and  schedule  were  produced  in 
evidence  for  the  plaintiff;  but  the  latter,  not  being  duly  stamped,  was 
rejected.  Whereupon  the  plaintiff"s  counsel  tendered  in  evidence  a 
verbal  admission  by  the  defendant  that  the  debt  mentioned  in  the 
declaration  was  the  same  with  one  entered  in  the  schedule.  This  evidence 
was  objected  to,  on  the  ground  that  the  contents  of  a  written  instrument, 
which  was  itself  inadmissible  for  want  of  a  proper  stamp,  could  not  be 
proved  by  parol  evidence  of  any  kind;  and  the  learned  judge  being  of 
that  opinion,  the  plaintiff  was  nonsuited. 

Sir  F.  Pollock  and  ]]\irren  showed  cause  in  Michaelmas  Term.  —  This 
evidence  was  not  receivable.  To  admit  a  parol  statement  of  the  matter 
inserted  in  the  schedule  in  this  case,  would  be  a  direct  violation  of  a 
settled  principle  of  the  law  of  evidence,  viz.,  that  the  contents  of  a  written 
instrument  cannot  be  proved  otherwise  than  by  the  instrument  itself, 
unless  satisfactory  grounds  be  shown  for  its  non-production,  in  which 
case  secondary  evidence  of  its  contents  is  receivable.  .  .  .  No  case 
appears  to  have  been  decided  the  other  way,  until  that  of  Earle  v.  Picken 
(5  C.  &  P.  542),  where  Park,  J.,  certainly  laid  it  down  as  a  general  rule  of 
law,  that  "what  a  party  says  is  evidence  against  himself,  as  an  admission, 
whether  it  relate  to  the  contents  of  a  written  paper,  or  to  anything  else." 
There,  however,  the  admission  did  not  necessarily  involve  the  contents 
of  a  written  instrument.  .  .  .  (Parke,  B.  —  Other  subsequent  cases  to 
the  same  effect  are  referred  to  in  Phillipps  on  Evidence,  vol.  I,  p.  364, 
and  a  reason  is  given  for  the  admissibility  of  the  evidence.  In  one  sense, 
no  doubt,  the  best  evidence  is  the  production  of  the  instrument  itself; 
but  the  question  is,  whether  the  admission  by  the  party  himself  of  its 
contents  is  not  receivable,  as  affording  a  presumption  of  truth,  whereas 
parol  evidence  of  its  contents  aliunde,  without  its  non-production  being 
first  accounted  for,  leads  to  a  contrary  presumption.)  The  admission 
of  such  evidence  is  of  dangerous  precedent,  since  thereby  as  well  the  rule 
which  enjoins  the  calling  of  the  subscribing  witness,  as  also  the  reading 
of  the  instrument  itself,  is  dispensed  with.  .  .  .  Such  evidence  has  in  no 
case  been  admitted,  where  the  contents  of  the  deed  or  written  instrument 
were  directly  in  issue.  .  .  . 

On  a  subsequent  day,  Erie  and  Busby  appeared  to  support  the  rule, 
but 

Parke,  B.,  said:  —  The   Court  did  not  think  it  necessary  to  trouble 


506  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  335 

Mr.  Eric  in  support  of  the  rule  in  this  case;  as  we  who  heard  the  argument 
(my  Brother  Alderson,  who  is  absent,  as  well  as  ourselves)  entertain  no 
doubt  that  the  defendant's  own  declarations  were  admissible  in  evidence 
to  prove  the  identity  of  the  debt  sued  for,  with  that  mentioned  in  the 
schedule,  although  such  admissions  involved  the  contents  of  a  written 
instrument  not  produced;  and  I  believe  my  Lord  Abinger,  who  was  not 
present  at  the  argument,  entirely  concurs.  The  authority  of  Lord 
Tenterden  at  Nisi  Prius,  in  the  case  of  Bloxam  v.  Elsee  (Ry.  &  M.  187, 
1  C.  &  P.  588),  is  no  doubt  to  the  contrary:  but  since  that  case  as  well  as 
before,  there  have  been  many  reported  decisions,  that  whatever  a  party 
says,  or  his  acts  amounting  to  admissions,  are  evidence  against  himself, 
though  such  admissions  may  involve  what  must  necessarily  be  contained 
in  some  deed  or  writing. 

If  such  evidence  were  inadmissible,  the  difficulties  thrown  in  the  way 
of  every  trial  would  be  nearly  insuperable.  The  reason  why  such  parol 
statements  are  admissible  ...  is  that  they  are  not  open  to  the  same 
objection  which  belongs  to  parol  evidence  from  other  sources,  where  the 
written  evidence  might  have  been  produced;  for  such  evidence  is  excluded 
from  the  presumption  of  its  untruth  arising  from  the  very  nature  of  the 
case  where  better  evidence  is  withheld;  whereas  what  a  party  himself 
admits  to  be  true  may  reasonably  be  presumed  to  be  so.  The  weight 
and  value  of  such  testimony  is  quite  another  question. 

Lord  Abinger,  C.  B.,  said,  he  was  not  present  at  the  argument,  but 
concurred  in  what  was  said  by  Parke,  B.  ;  and  stated  that  he  had  always 
considered  it  as  clear  law,  that  a  party's  own  statements  were  in  all  cases 
admissible  against  himself,  whether  they  corroborate  the  contents  of  a 
written  instrument  or  not. 

Gurney,  B.,  and  Rolfe,  B.,  concurred.  Rule  absolute. 


336.  Lawless  ?).  QuEALE.  (1845.  Ireland,  8  Ir.  L.  R.  382,  .385).  Pennefather, 
B.  I  cannot  subscribe  to  what  was  said  by  Parke,  B.,  in  that  case  [of  Slatterie 
V.  Pooley].  .  .  .  The  doctrine  there  laid  down  is  a  most  dangerous  proposition. 
By  it  a  man  might  be  deprived  of  an  estate  of  £10,000  per  annum,  derived  from 
his  ancestors  by  regular  family  deeds  and  conveyances,  by  producing  a  witness, 
or  by  one  or  two  conspirators,  who  might  be  got  to  swear  they  heard  the  defend- 
ant say  he  had  conveyed  away  his  interest  therein  by  deed,  had  mortgaged  or 
otherwise  incumbered  it;  and  thus,  by  this  facility  so  given,  the  most  open  door 
would  be  given  to  fraud,  and  a  man  might  be  stripped  of  his  estate  through  this 
invitation  to  fraud  and  dishonesty.  It  is  said,  it  is  evidence  against  the  person 
himself  who  made  this  admission,  and  that  there  is  no  danger  of  untruth  in  what 
a  man  admits  against  himself.  Supposing  the  admission  to  be  proved,  is  there 
no  danger  of  mistake  or  misconception  of  the  terms  of  a  written  instrument?  It 
may  be  long  and  difficult;  one  part  or  clause  may  explain  or  qualify  another; 
an  unprofessional  or  ignorant  man  may  be  led  to  believe  it  may  be  so-and-so, 
whereas  the  real  and  true  meaning  may  be  the  very  reverse  or  something  very 
different.  But,  produce  the  deed  or  wTiting;  "litera  scripta  manet."  On  which 
side  is  the  security,  and  why  depart  from  the  rule  that,  if  you  want  to  give  evidence 


No.  338  DOCUMENTARY   ORIGINALS  507 

of  the  contents  of  a  writing,  the  writing  itself  must  be  produced?  Is  there  no 
danger  of  untruth  or  misrepresentation,  when  used  against  the  party  making  the 
admission?  That  is  the  groimd  put  by  Pakke,  B.,  and  in  which  I  cannot  agree, 
when  I  know  by  experience  how  easy  it  is  to  fabricate  admissions,  and  how  im- 
possible to  come  prepared  to  detect  the  falsehood.  Why  are  writings  prepared 
at  all  but  to  prevent  mistakes  and  misrepresentations?  And  why,  having  taken 
that  precaution,  with  such  writing  at  hand  and  capable  of  being  produce<l,  is  the 
same  to  be  laid  aside  and  inferior  and  less  satisfactory  evidence  resorted  to? 


337.   MINNESOTA  DEBENTURE   CO.   v.  JOHNSON 

Supreme  Court  of  Minnesota.    1906 

96  Alimi.  91;   107  N.  W.  740 

[Printed  ante,  as  No.  334;  Point  2  of  the  opinion.] 


338.   THE  QUEEN'S  CASE 

House  of  Lords.    1820 

2  B.  &  B.  286 

[Bill  for  divorce  on  the  ground  of  adultery  and  improper  conduct. 
The  House  of  Lords  put  the  following  questions  to  the  Judges:]  First, 
whether,  in  the  Courts  below,  a  party  on  cross-examination  would  be 
allowed  to  represent  in  the  statement  of  a  question  the  contents  of  a 
letter,  and  to  ask  the  witness  whether  the  witness  wrote  a  letter  to  any 
person  with  such  contents,  or  contents  to  the  like  effect,  without  having 
first  shown  to  the  witness  the  letter,  and  having  asked  that  witness  whether 
the  witness  wrote  that  letter  and  his  admitting  that  he  wrote  such  letter? 
.  .  .  Thirdly,  whether,  when  a  witness  is  cross-examined  and,  upon  the 
production  of  a  letter  to  the  witness  under  cross-examination,  the 
witness  admits  that  he  wrote  that  letter,  the  witness  can  be  examined,  in 
the  courts  below,  whether  he  did  not  in  such  letter  make  statements  such 
as  the  counsel  shall,  by  questions  addressed  to  the  witness,  inquire  are  or 
are  not  made  therein ;  or  whether  the  letter  itself  must  be  read  as  the 
evidence  to  manifest  that  such  statements  are  or  are  not  contained 
therein? 

Abbott,  C.  J.,  for  the  Judges  [answering  the  first  question  in  the 
negative].  The  contents  of  every  written  paper  are,  according  to  the 
ordinary  and  well-established  rules  of  evidence,  to  be  proved  by  the  paper 
itself,  and  by  that  alone,  if  the  paper  be  in  existence ;  the  proper  course, 
therefore,  is  to  ask  the  witness  whether  or  no  that  letter  is  of  the  hand- 
writing of  the  witness;  if  the  witness  admits  that  it  is  of  his  handwriting, 
the  cross-examining  counsel  may  at  his  proper  season  read  that  letter  as 
evidence.  .  .  . 


508  BOOK   i:     RULES   OF    ADMISSIBILITY  No.  338 

[The  other  question  was  answered  thus:]  The  Judges  are  of  opinion, 
in  the  case  propounded,  that  the  counsel  cannot,  by  questions  addressed 
to  the  witness,  enquire  whether  or  no  such  statements  are  contained  in 
the  letter,  but  that  the  letter  itself  must  be  read,  'to  manifest  whether 
such  statements  are  or  are  not  contained  in  that  letter.  .  .  .  [The  Judges] 
found  their  opinion  upon  what  in  their  judgment  is  a  rule  of  evidence  as 
old  as  any  part  of  the  common  law  of  England,  namely,  that  the  contents 
of  a  written  instrument,  if  it  be  in  existence,  are  to  be  proved  by  that 
instrument  itself  and  not  by  parol  evidence. 

339.  Henry  Brougham.  Speech  on  the  Courts  of  Common  Law.  (Hansard,  Pari. 
Deb.,  2d  ser.,  XVHI,  213,  219,  Feb.  7,  1828).  If  I  wish  to  put  a  witness'  memory 
to  the  test,  I  am  not  allowed  to  examine  as  to  the  contents  of  a  letter  or  other 
paper  which  he  has  written.  I  must  put  the  document  into  his  hands  before  I 
ask  him  any  questions  upon  it,  though  by  so  doing  he  at  once  becomes  acquainted 
with  its  contents,  and  so  defeats  the  object  of  my  inquiry.  That  question  was 
raised  and  decided  in  the  Queen's  Case,  after  solemn  argument,  and,  I  humbly 
venture  to  think,  upon  a  WTong  ground,  that  the  WTiting  is  the  best  evidence  and 
ought  to  be  produced,  though  it  is  plain  that  the  object  is  by  no  means  to  prove 
its  contents.  Neither  am  I,  in  like  manner,  allowed  to  apply  the  test  to  his  verac- 
ity; and  yet,  how  can  a  better  means  be  found  of  sifting  a  person's  credit,  sup- 
posing his  memory  to  be  good,  than  examining  him  to  the  contents  of  a  letter, 
WTitten  by  him,  and  which  he  believes  to  be  lost?  ...  I  shall  not  easily  forget  a 
case  in  which  a  gentleman  of  large  fortune  appeared  before  an  able  arbitrator, 
now  filling  an  eminent  judicial  place,  on  some  dispute  of  his  own,  arising  out  of 
an  election.  It  was  my  lot  to  cross-examine  him.  I  had  got  a  large  number  of 
letters  in  a  pile  under  my  hand,  but  concealed  from  him  by  a  desk.  He  was  very 
eager  to  be  heard  in  his  own  cause.  I  put  the  question  to  him:  "Did  you  never 
say  so  and  so?"  His  answer  was  distinct  and  ready,  —  "Never."  I  repeated 
the  question  in  various  forms,  and  with  more  particularity,  and  he  repeated  his 
answers,  till  he  had  denied  most  pointedly  all  he  had  ever  written  on  the  matter 
in  controversy.  This  passed  before  the  rules  in  evidence  laid  down  in  the  Queen's 
Case;  consequently  I  could  examine  him  without  putting  the  letters  into  his 
hand.  I  then  removed  the  desk,  and  said,  "Do  you  see  what  is  now  under  my 
hand?"  pointing  to  about  fifty  of  his  letters.  "I  advise  you  to  pause  before  you 
repeat  your  answer  to  the  general  question,  whether  or  not  all  you  have  sworn 
is  correct."  He  rejected  my  advice,  and  not  without  indignation.  Now,  those 
letters  of  his  contained  matter  in  direct  contradiction  to  all  he  had  sworn.  I  do 
not  say  that  he  perjured  himself,  —  far  from  it.  I  do  not  believe  that  he  inten- 
tionally swore  what  was  false;  he  only  forgot  what  he  had  WTitten  some  time 
before.     Nevertheless  he  had  committed  himself,  and  was  in  my  client's  power. 

340.  Statutes.  (1854.  England,  St.  17  &  18  Vict.  c.  125,  §  24).  A  witness 
may  be  cross-examined  as  to  previous  statements  made  by  him  in  WTiting  or 
reduced  into  wTiting,  relative  to  the  subject-matter  of  the  cause,  without  such 
writing  being  shown  to  him;  but  if  it  is  intended  to  contradict  such  witness  by 
the  writing,  his  attention  must,  before  such  contradictory  proof  can  be  given,  be 
called  to  those  parts  of  the  writing  which  are  to  be  used  for  the  purpose  of  so 
contradicting  him;  provided  always  that  it  shall  be  competent  for  the  judge,  at 


No.  341  DOCUMENTARY   ORIGINALS  509 

any  time  during  the  trial,  to  require  the  production  of  the  writing  for  his  inspec- 
tion, and  he  may  thereupon  make  such  use  of  it  for  the  purposes  of  the  trial  as 
he  shall  think  fit. 


341.   THE   CHARLES  MORGAN 

Supreme  Court  of  the  United  States.    1884 
115  U.  S.  69 

This  is  a  suit  in  admiralty,  brought  by  the  owners  of  the  steamboat 
"Cotton  Valley,"  to  recover  for  the  loss  of  their  boat,  and  certain  articles 
of  personal  property  belonging  to  Martin  H.  Kouns  alone,  in  a  collision 
on  the  Mississippi  River  with  the  steamboat  "  Charles  Morgan."  In  the 
original  libel  filed  in  the  District  Court,  claim  was  made  only  for  the  value 
of  the  boat,  and  for  an  itemized  account  for  clothes,  jewelry,  furniture, 
etc.,  of  the  libellant  Kouns.  .  .  .  When  the  case  got  into  the  Circuit 
Court,  leave  was  granted  the  libellants  to  file  a  supplemental  and  amended 
libel  setting  up  their  claim  for  stores,  supplies,  and  cash,  proved  before 
the  commissioner  in  the  District  Court,  but  rejected  by  that  Court 
because  not  included  in  the  original  libel.  ...  A  decree  was  rendered 
against  the  Morgan  and  her  owners  and  stipulators  for  the  value  of  the 
Cotton  Valley,  and  for  the  value  of  the  personal  property  belonging  to 
Kouns,  the  same  as  in  the  District  Court,  and  also  for  the  value  of  the 
stores,  supplies,  etc.,  set  forth  in  the  supplemental  libel,  $1,376.16. 
From  that  decree  this  appeal  was  taken.  .  .  . 

It  is  also  shown  by  another  bill  of  exceptions  in  the  record,  that, 
after  the  depositions  of  Albert  Stein,  Harry  W.  Stein,  Sylvester  Doss, 
John  B..  Evelyn,  and  Livingston  McGeary  had  been  read  on  behalf  of  the 
claimant  of  the  Morgan,  the  libellants,  for  the  purpose  of  impeaching 
and  contradicting  their  evidence,  offered  certain  depositions  of  the  same 
witnesses  used  on  the  trial  of  certain  other  suits,  growing  out  of  the  same 
collision,  between  one  Menge  and  some  insurance  companies,  to  which  the* 
claimant  was  not  a  party.  To  the  introduction  of  this  evidence  the 
claimant  objected,  on  the  ground  that  no  basis  for  offering  said  purported 
depositions  had  been  laid,  it  not  having  been  shown  or  pretended  that 
said  purported  depositions  were  ever  submitted  to  the  said  witnesses, 
or  otherwise  verified  as  their  evidence  in  said  causes;  but  as,  "in 
the  cross-examination  of  each  of  said  witnesses  in  this  case,  the  atten- 
tion of  the  witness  was  called  to  the  evidence  given  by  him  in  the 
cases  of  Menge  v.  Insurance  Companies,  .  .  .  and  the  witnesses  were 
specifically  examined  as  to  the  correctness  of  said  evidence,  and  admitted 
having  testified  therein,"  and  "no  objection  was  made  that  the  evidence 
offered  was  not  the  evidence  of  said  witnesses  respectively,  or  that  the 
same  had  been  imperfectly  taken  or  reported,"  the  depositions  were 
admitted   for  the  purpose  for  which   they   were  offered.     The   cross- 


510  BOOK   i:     RULES   OF   ADMISSIBILITY  No,  341 

examination  referred  to  is  not  set  forth  in  the  bill  of  exceptions.  To  the 
admission  of  this  evidence  the  claimant  excepted.  .  .  . 

Mr.  T.  D.  Lincoln  (Mr.  R.  H.  Marr  also  filed  a  brief)  for  appel- 
lants. 

Mr,  Richard  H.  Browne  (Mr.  Charles  B.  Singleton  was  with  him)  for 
appellees. 

Mr.  Chief  Justice  Waite  (after  stating  the  facts  as  above)  delivered 
the  opinion  of  the  Court. 

The  specific  objection  to  the  depositions  in  the  Menge  cases  that  were 
offered  for  the  purpose  of  impeachment,  is  that  they  were  not  exhibited  to 
the  witnesses  whose  testimony  was  to  be  impeached  upon  their  cross- 
examination,  or  otherwise  verified,  as  the  evidence  of  the  witnesses  in 
the  former  causes.  The  rule  is,  that  the  contradictory  declarations  of  a 
witness,  whether  oral  or  in  writing,  made  at  another  time,  cannot  be 
used  for  the  purpose  of  impeachment  until  the  witness  has  been  examined 
upon  the  subject,  and  his  attention  particularly  directed  to  the  circum- 
stances in  such  a  way  as  to  give  him  full  opportunity  for  explanation  or 
exculpation,  if  he  desires  to  make  it.  Conrad  v.  Griffey,  16  How.  38,  46. 
If  the  contradictory  declaration  is  in  writing,  questions  as  to  its  contents, 
without  the  production  of  the  instrument  itself,  are  ordinarily  inadmissi- 
ble, and  a  cross-examination  for  the  purpose  of  laying  the  foundation  of 
its  use  as  impeachment  would  not,  except  under  special  circumstances, 
be  allowed  until  the  paper  was  produced  and  shown  to  the  witness  while 
under  examination. 

Circumstances  may  arise,  however,  which  will  excuse  its  production. 
All  the  law  requires  is,  that  the  memory  of  the  witness  shall  be  so  refreshed 
by  the  necessary  inquiries  as  to  enable  him  to  explain,  if  he  can  and 
desires  to  do  so.  Whether  this  has  been  done  is  for  the  Court  to  deter- 
mine before  the  impeaching  evidence  is  admitted.  Here  the.  cross- 
examination,  on  which  the  right  to  use  the  depositions  depended,  has  not 
been  put  into  the  record,  but  the  bill  of  exceptions  shows  "that,  in  the 
cross-examination  of  each  of  said  witnesses,  the  attention  of  the  witness 
'was  called  to  the  evidence  given  by  him  in  the  cases  of  Menge,  .  .  .  and 
the  said  witnesses  were  specifically  examined  as  to  the  correctness  of  said 
evidence,  and  admitted  having  testified  therein."  From  this,  and  the 
failure  to  incorporate  the  cross-examination  into  the  bill  of  exceptions, 
we  must  presume  that  ample  foundation  was  laid  for  the  introduction  of 
the  evidence,  unless  the  failure  to  show  the  depositions  to  the  witnesses 
at  the  time  of  their  cross-examination  was  necessarily  and  under  all 
circumstances  fatal.  The  objection  is  not  to  the  cross-examination  as 
to  the  contents  of  the  depositions  without  their  production,  but  to  the 
admission  of  the  depositions  after  a  cross-examination  which  was,  as  we 
must  presume,  properly  conducted  in  their  absence.  It  is  also  stated 
in  the  bill  of  exceptions  that,  "at  the  offering,  no  objection  was  made 
that  the  evidence  offered  was  not  the  evidence  of  said  witnesses  respec- 
tively, or  that  the  same  had  been  imperfectly  taken  or  reported."     This 


No.  343  DOCUMENTARY   ORIGINALS  511 

shows  that  the  depositions  must  have  been  sufficiently  identified  as  the 
evidence  of  the  witnesses  in  the  former  cases. 

In  the  case,  as  it  comes  to  us,  we  find  no  error. 

The  decree  of  the  Circuit  Court  is  affirmed  and  interest  allowed. 


Topic  3.    Rules  Preferring  One  Sort  of  Secondary  Evidence  to  Another 

343.   DOE    DEM.   GILBERT  v.   ROSS 

Exchequer.     1840 

7  M.  &  W.  102 

Ejectment  by  the  lessors  of  the  plaintiff,  who  claimed  as  co-heiresses 
at  law  of  Arthur  Gramer  Miller.  .  .  .  They  sought  to  give  evidence  of 
the  marriage  settlement  of  A.  G.  Miller,  executed  by  him  in  1789,  after 
his  father's  death,  in  order  to  show  that  he  had  acquired  the  fee  by  exer- 
cising the  power  of  appointment.  This  settlement  was  in  the  possession 
of  Mr.  Baxter,  the  defendant's  attorney,  who  had  been  subpoenaed  to 
produce  it.  .  .  .  Mr.  Baxter  stated  that  he  claimed  a  lien  on  the  deeds 
for  professional  business  done  for  Mr.  Weetman,  and  he  declined  to 
produce  it  on  this  ground.  Mr.  Weetman  himself  was  in  Court,  but  was 
not  examined,  or  called  on  to  produce  the  deed. 

Upon  Mr.  Baxter's  refusal  to  produce  the  deed,  the  lessors  of  the 
plaintiff  proposed  to  give  secondary  evidence  of  its  contents.  This  was 
objected  to  on  the  part  of  the  defendants,  but  Lord  Denman  ruled  that 
such  evidence  was  admissible.  The  lessors  of  the  plaintiff  then  tendered 
in  evidence  a  copy  of  the  deed;  but  upon  examination  it  appeared  that 
this  had  been  made  an  attested  copy,  and  was  unstamped,  and  it  was 
consequently  rejected.  It  was  then  proposed  to  read,  as  secondary 
evidence  of  the  contents  of  the  deed,  a  short-hand  writer's  notes  of  the 
proceedings  of  the  trial  in  the  former  action,  when  the  settlement  had 
been  produced  and  proved  by  the  then  defendant  Weetman.  This 
evidence  was  objected  to,  but  Lord  Denman  allowed  it  to  be  admitted, 
and  the  short-hand  writer's  notes  were  read.  The  ground  of  appeal 
was  that  the  short-hand  writer's  notes  were  not  receivable  when  it 
appeared  that  a  copy  of  the  settlement  was  in  existence. 

Adams,  Serjt.,  in  Easter  Term  last,  moved  for  a  nonsuit  or  a  new 
trial,  on  several  groimds.  .  .  .  2dly,  that  even  if  secondary  evidence  was 
receivable,  the  shorthand  writer's  notes  were  not  admissible  evidence. 
.  .  .  In  Villiers  v.  Villiers,  2  Atk.  71,  Lord  Hardwicke  says  —  "The 
rule  of  evidence  is,  that  the  best  evidence  that  the  circumstances  allow 
must  be  given.  If  an  original  deed  be  lost,  the  counterpart  may  be  read; 
and  if  there  is  no  counterpart  forthcoming,  then  a  copy  may  be  admitted ; 
and  if  there  should  be  no  copy,  there  may  be  parol  evidence  of  the 
deed,  and  of  the  manner  of  its  being  lost."  .  .  .  (Parke,  B.  —  You  must 


512  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  343 

contend,  then,  that  there  is  to  be  primary,  secondary,  and  tertiary  evi- 
dence. If  an  attested  copy  is  to  be  one  degree  of  secondary  evidence, 
the  next  will  be  a  copy  not  attested;  and  then  an  abstract:  then  would 
come  an  inquiry,  whether  one  man  has  a  better  memory  than  another, 
and  we  should  never  know  when  to  stop.  ...)...  In  Buller's  Nisi 
Prius  p.  256,  the  same  rule  is  laid  down  as  in  Villiers  v.  Villiers. 

Lord  Abinger,  C.  B.  —  There  can  be  no  rule  upon  this  point.  Upon 
examination  of  the  cases,  and  upon  principle,  we  think  there  are  no  degrees 
of  secondary  evidence.  The  rule  is  that  if  you  cannot  produce  the  origi- 
nal, you  may  give  parol  evidence  of  its  contents.  If  indeed  the  party 
giving  such  parol  evidence  appears  to  have  better  secondary  evidence  in 
his  power  which  he  does  not  produce,  that  is  a  fact  to  go  to  the  jury,  from 
which  they  might  sometimes  presume  that  the  evidence  kept  back  would 
be  adverse  to  the  party  withholding  it.  But  the  law  makes  no  distinction 
between  one  class  of  secondary  evidence  and  another. 

Parke,  B.  —  I  concur  entirely  in  refusing  the  rule  on  this  ground. 
There  can  be  no  doubt  that  an  attested  copy  is  more  satisfactory,  and 
therefore,  in  that  sense,  better  evidence  than  mere  parol  testimony; 
but  whether  it  excludes  parol  testimony,  is  a  very  different  thing.  .  .  . 
As  soon  as  you  have  accounted  for  the  original  document,  you  may 
then  give  secondary  evidence  of  its  contents.  .  .  .  Does  it  then  become 
inadmissible,  if  it  be  shown  from  other  sources,  that  a  more  satisfactory 
species  of  secondary  evidence  exists?  I  think  it  does  not;  and  I  have 
always  understood  the  rule  to  be,  that  when  a  party  is  entitled  to  give 
secondary  evidence  at  all,  he  may  give  any  species  of  secondary  evidence 
within  his  power.   .   .   . 

Alderson,  B.  —  I  agree  with  my  Brother  Parke,  that  the  objection 
must  arise  from  the  nature  of  the  evidence  itself.  If  you  produce  a  copy, 
which  shows  that  there  was  an  original,  or  if  you  give  parol  evidence  of 
the  contents  of  a  deed,  the  evidence  itself  discloses  the  existence  of  the 
deed.  But  reverse  the  case;  the  existence  of  an  original  does  not  show 
the  existence  of  any  copy;  nor  does  parol  evidence  of  the  contents  of  a 
deed  show  the  existence  of  anything  except  the  deed  itself.  If  one  species 
of  secondary  evidence  is  to  exclude  another,  a  party  tendering  parol 
evidence  of  a  deed  must  account  for  all  the  secondary  evidence  that  has 
existed.  He  may  know  of  nothing  but  the  original,  and  the  other  side 
at  the  trial  may  defeat  him  by  showing  a  copy,  the  existence  of  which 
he  had  no  means  of  ascertaining.  Fifty  copies  may  be  in  existence 
unknown  to  him,  and  he  would  be  bound  to  account  for  them  all. 

GuRNEY,  B.,  concurred. 

344.  Harvey  v.  Thorpe.  (1856.  Alabama,  28  Ala.  250,  262).  Goldthwaite, 
J.  [The  American  weight  of  authority  requires  that]  the  best  kind  of  that  char- 
acter of  evidence  which  appears  to  be  in  the  power  of  the  party  to  produce  must 
be  offered.  We  confess  that  the  American  rule  appears  to  us  more  reasonable 
than  the  English;  and  we  see  great  propriety,  if  there  was  an  examined  copy  of 


No.  845  DOCUMENTARY   ORIGINALS  513 

ail  instrument  in  the  possession  of  a  party,  in  refusing  to  allow  him  to  prove  it  by 
the  uncertain  memory  of  witnesses.  A  copy  of  a  letter,  taken  by  a  copying  press, 
would  unquestionably  be  better  evidence  of  the  original  than  the  recollection 
of  its  contents  by  a  witness;  and  the  same  reasons  which  would  recjuire  the  pro- 
duction of  the  original  if  in  the  control  of  the  party,  would  operate  in  favor  of 
the  production  of  the  fascimile  or  of  the  examined  copy.  But  in  all  these  cases 
the  strength  of  the  proposition  consists  in  the  fact  that  there  is  secondary  evi- 
dence in  its  nature  and  character  better  than  that  which  the  party  offers,  and 
that  it  is  in  his  power  to  produce  it. 


345.   STATE   v.   LYNDE 

Supreme  Judicial  Court  of  Maine.     1885 

77  Me.  561 ;   1  Atl.  687 

On  Exceptions.     Indictment  for  keeping  a  liquor  nuisance. 

At  the  trial,  George  S.  Winn,  a  clerk  in  the  office  of  the  collector  of 
internal  revenue,  testified  that  he  had  the  custody  of  the  records  and 
had  made  a  true  copy  therefrom  of  certain  names.  This  copy  was 
admitted  to  show  that  the  defendant  had  procured  a  license  as  retail 
liquor  dealer,  and  the  defendant  alleged  exceptions. 

True  P.  Pierce,  county  attorney,  for  the  State.  .  .  . 

D.  N.  Mortland  and  J.  E.  Hartley,  for  the  defendant.  —  We  think  it  is 
a  well  settled  rule  that  the  record  itself  or  a  copy  attested  by  the  proper 
officer  is  the  only  evidence  admissible  of  such  a  record.  1  Greenleaf, 
Evidence,  483,  484;  Mammatt  v.  Emerson,  27  Maine  308;  State  v. 
Gray,  39  Maine  353.  The  fact  that  the  clerk  testified  that  the  paper 
was  a  true  copy  of  the  record  did  not  make  the  paper  admissible; 
neither  was  it  competent  for  the  clerk  to  testify,  it  was  nothing  more 
nor  less  than  allowing  a  person  to  testify  what  the  "record  was  without 
producing  it.  The  production  of  a  paper  made  by  himself  and  which  he 
certified  to  be  a  true  copy  was  simply  allowing  him  to  testify  from  a 
memorandum  what  the  record  contained.  The  collector,  himself,  could 
not  be  permitted  to  give  such  testimony  while  an  authentic  copy  made 
by  him  might  be  evidence. 

Peters,  C.  J.  The  original  record  of  payments  for  licenses,  kept 
in  the  office  of  the  collector  of  internal  revenue,  would  have  been  proper 
evidence;  and  a  copy  of  the  same,  certified  by  the  collector  himself, 
would  have  been.  A  copy  of  the  record  authenticated  merely  by  a 
clerk  in  the  collector's  office,  an  unofficial  person,  standing  without  other 
proof,  would  be  neither  sufficient  nor  admissible.  But  it  was  in  this  case 
supported  by  the  testimony  of  the  clerk  as  a  witness,  who  swears  that  he 
personally  examined  the  record  and  made  a  true  copy.  The  copy, 
sustained  by  his  oath,  was  admissible,  if  the  mode  of  proof  styled  "sworn 
copies"  or  "examined  copies"  is  allowable  by  the  practice  in  this  State. 

Examined  copies  are,  in  England,  resorted  to  as  the  most  usual  mode 


514  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  345 

of  proving  records.  Wharton,  Evidence,  §  94.  The  mode  is  explained 
and  commended  in  Best's  work  on  evidence,  §  468.  It  seems  to  have 
prevailed  in  many  of  the  States,  including  Pennsylvania  and  New  York. 
It  was  at  an  early  date  adopted  in  some  of  the  federal  circuit  courts. 
4  Dall.  412  (U.  S.  v.  Johns).  It  is  not  an  unknown  mode  of  proof  in  New 
England.  It  is  spoken  of  as  a  well  settled  doctrine  in  New  Hampshire. 
Whitehouse  v.  Bickford,  29  N.  H.  471.  In  Spaulding  v.  Vincent,  24  Vt. 
501,  it  is  said:  "The  more  usual  method"  (of  proving  a  discharge  in  a 
foreign  court  of  bankruptcy)  "is  a  sworn  copy."  Mr.  Greenleaf  says 
(1  Evidence,  §  485),  "Where  the  proof  is  by  copy,  an  examined  copy, 
duly  made  and  sworn  to  by  any  competent  witness,  is  always  admissible." 
In  Atwood  V.  Winterport,  60  Maine  250,  the  rule  is  casually  approved, 
Appleton,  C.  J.,  there  saying,  whilst  speaking  of  the  mode  of  proving 
an  army  record,  "  A  sworn  copy  is  admissible  or  a  copy  certified  by  the 
proper  certifying  officer." 

Why  not  admissible?  The  evidence  is  as  satisfactory  certainly  as  a 
certified  copy.  In  the  latter  case  we  depend  upon  the  honor  and  integrity 
of  an  official,  and  in  the  former  upon  the  oath  of  a  competent  witness. 
In  either  case,  an  error  or  fraud  is  easily  detectible.  Probably  the  reason 
why  such  a  mode  of  proof  had  not  been  much  known,  if  known  at  all, 
in  our  practice,  is  that  it  is  cheaper  and  easier  to  produce  [certified] 
copies;  and  if  a  witness  comes  instead,  it  is  more  satisfactory  to  have 
[as  here]  the  officer  who  controls  the  records  bring  them  into  Court.  .  .  . 

Exceptions  overruled. 

Walton,  Danforth,  Libbey,  Emery  and  Foster,  JJ.,  concurred. 


346.   STATE  v.   KNOWXES 

Supreme  Judicial  Court  of  Maine.     1904 

98  Me.  429;  57  Atl.  588 

Exceptions  by  defendants.  Overruled.  Indictments  for  burglary 
in  the  night  time.  The  respondents  were  each  indicted  for  breaking 
and  entering  the  dwelling-house  of  one  John  Vehue  in  the  night  time.  .  .  . 

Fred  D.  Bartlett,  one  of  the  respondents  who  was  a  witness,  was 
asked  by  the  County  Attorney  if  he  had  ever  been  convicted  of  crime 
before,  which  was  objected  to,  but  the  Court  overruled  the  objection 
and  directed  him  to  answer. 

H.  S.  Wing,  County  Attorney,  for  State. 

H.  L.  Whitcomb,  for  defendants.  In  all  cases  the  best  evidence  is 
required.  It  is  an  indispensable  rule  of  law  that  evidence  of  an  inferior 
nature,  which  supposes  evidence  of  a  higher  in  existence,  and  which 
may  be  had,  shall  not  be  admitted.  .  .  .  The  fact  that  a  witness  has 
been  in  the  house  of  correction  cannot  be  proved  by  cross-examination  of 
the  witness,  but  must  be  proved  by  the  record  of  his  conviction.  .  .  . 


No.  346  DOCUMENTARY   ORIGINALS  515 

Powers,  J.  —  The  respondents  were  severally  indicted  for  burglary 
and  tried  together  by  agreement.  .  .  . 

The  respondent  Bartlett  was  a  witness  in  his  own  behalf,  and  upon 
cross-examination  was  asked  by  the  county  attorney  if  he  had  ever  been 
convicted  of  crime.  Objection  was  made,  but  the  presiding  justice 
overruled  the  objection  and  directed  the  respondent  to  answer,  and' in 
his  charge  instructed  the  jury  that  the  evidence  thus  elicited  could  only 
affect  the  credibility  of  the  party  convicted. 

Whether  to  impeach  his  credibility  the  conviction  of  a  witness  may 
be  proved  by  questioning  him  on  cross-examination,  has  been  variously 
decided  by  different  judicial  tribunals.  Formerly,  when  conviction  of 
an  infamous  crime  rendered  a  witness  incompetent,  it  was  universally 
held  that  for  that  purpose  the  conviction  could  be  proved  by  the  record 
alone.  In  many  of  those  jurisdictions,  however,  where  the  conviction 
of  crime  no  longer  affects  the  competency  but  simply  goes  to  the  credi- 
bility of  the  witness,  there  has  been  a  tendency,  sometimes  by  legislative 
enactment  and  sometimes  by  judicial  decision,  to  broaden  the  sources  of 
evidence  and  permit  the  conviction  to  be  shown  by  cross-examination 
of  the  witness  himself.  In  a  technical  sense,  the  record  may  be  the  best 
evidence  and  the  rule  of  primariness  may  require  its  production.  This 
general  rule,  however,  is  of  no  great  value  unless  in  its  application  to  the 
subject  under  consideration,  it  is  necessary  for  the  interests  of  justice 
to  avoid  error,  exclude  falsehood,  and  promote  the  truth.  It  can  hardly 
be  claimed  that  a  record  of  conviction  is  any  more  convincing  to  the  mind, 
or  less  liable  to  error,  than  is  the  witness'  own  admission  of  the  fact  under 
oath.  He  may  well  be  presumed  to  know  what  the  truth  is.  There  is 
very  little  possibility  of  his  being  mistaken  as  to  the  fact  of  the  conviction 
and  none  as  to  the  identity  of  the  party  convicted.  He  has  every  induce- 
ment of  self-interest  to  protect  his  good  name  and  reputation,  and  it  is 
inconceivable  that  he  will  falsely  accuse  himself.  In  many  cases  also 
the  prompt  and  proper  administration  of  justice  requires  the  acceptance 
of  a  broader  and  more  liberal  rule  of  evidence.  The  opposing  party 
frequently  has  no  knowledge  that  the  witness  is  to  testify  until  he  takes 
the  stand.  It  may  then  be  too  late  to  obtain  a  record  of  his  conviction 
from  other  courts  or  counties,  or  even  from  distant  States,  without  delay- 
ing the  trial.  Even  if  possible  to  obtain  it,  its  production  may  be 
accompanied  by  great  expense.  Why  should  this  burden  be  imposed 
upon  a  party  seeking  to  impeach  the  credibility  of  the  witness,  if  the 
witness  himself  is  willing  to  admit  the  fact  sought  to  be  proved?  If  he 
does  not  admit  it,  it  must  then  be  proved  by  the  record  and  the  record 
is  conclusive.  If  he  does  admit  it,  it  would  seem  only  reasonable  to 
explore  the  source  of  evidence  which  is  ready  at  hand  rather  than  to  seek 
for  that  which  is  far  away  and  which  it  may  require  considerable  time 
and  money  to  produce,  when  there  is  apparently  as  little  liability  of  error 
in  the  one  source  of  evidence  as  in  the  other.  Reason  is  the  life  of  the 
law.     "Cessante  ratione  legis  cessat  ipsa  lex."  ... 


516  BOOK   l:     RULES   OF    ADMISSIBILITY  No.  346 

We  believe  the  result  here  reached  to  be  fully  sustained  by  authority 
as  well  as  reason.  In  1  Greenleaf's  Evidence,  16  thed.,  §  461  b,  it  is  said 
that  "  the  propriety  of  proving  the  conviction  by  cross-examination  has 
come  in  most  jurisdictions  to  be  conceded."  .  .  . 

It  is  claimed  that  the  question  here  presented  is  no  longer  an  open 
one  in  this  State,  but  has  been  settled  in  support  of  the  respondent's 
contention.  A  careful  examination  of  the  cases  relied  upon,  while  they 
may  contain  some  dicta  favorable  to  the  respondent's  contention,  shows 
that  the  question  here  raised  has  not  before  received  the  full  consideration 
of  this  Court.  .  .  . 

As  we  are  free,  therefore,  to  follow  the  dictates  of  our  own  reason, 
and  the  result  reached  is  not  opposed  to  any  previous  decision  of  this 
Court,  but  is  fully  sustained  as  we  believe  by  other  Courts  of  the  highest 
authority,  we  hold  that  when  the  respondent  Bartlett  offered  himself 
as  a  witness  in  his  own  behalf  his  previous  conviction  might  be  shown  by 
his  own  cross-examination.     In  both  cases.  Exceptions  overruled. 

347.  Statutes.  England.  (1854,  St.  17  and  18  Vict.  c.  125,  §  25).  A  witness 
in  any  cause  may  be  questioned  as  to  whether  he  has  been  convicted  of  any  felony 
or  misdemeanor,  and  upon  being  so  questioned,  if  he  either  denies  the  fact  or 
refuses  to  answer,  it  shall  be  lawful  for  the  opposite  party  to  prove  such  convic- 
tion; and  a  certificate  containing  the  substance  and  effect  only  (omitting  the 
formal  part)  of  the  indictment  and  conviction  for  such  offence,  [signed  by  the 
clerk  or  other  custodian,  shall  suffice,]  upon  proof  of  the  identity  of  the  person. 

California  (C.  C.  P.  1872,  §  2051).'  It  may  be  shown  by  the  examination  of 
the  witness,  or  the  record  of  the  judgment,  that  he  had  been  convicted  of  a  felony. 
Illinois  (Revised  Statutes,  1874,  c.  51,  §  1).     [Printed  ante,  in  No.  207.] 


348.  Chief  Baron  Gilbert.  Evidence  (ante,  1726,  fol.  8).  A  copy  of  a  copy 
is  no  evidence;  for  the  rule  demands  the  best  evidence  that  the  nature  of  the 
thing  admits,  and  a  copy  of  a  copy  cannot  be  the  best  evidence;  for  the 
farther  off  a  thing  lies  from  the  first  original  truth,  so  much  the  weaker  must 
the  evidence  be. 

349.   CAMERON  v.  PECK 

Supreme  Court  of  Errors  of  Connecticut.     1871 

37  Cotm.  555 

Assumpsit  for  goods  sold;  brought  to  the  Superior  Court  in  Fairfield 
County,  and  tried  to  the  jury,  on  the  general  issue,  before  Granger,  J. 
Verdict  for  the  plaintiffs,  and  motion  for  a  new  trial  for  error  in  the 
rulings  and  charge  of  the  court.  The  case  is  sufficiently  stated  in  the 
opinion. 

Sturges,  in  support  of  the  motion.     Beardsley,  contra. 

Foster,  J.  There  are  not  grounds  for  disturbing  the  verdict  and 
granting  a  new  trial  in  this  case.  .  .  . 


No.  349  DOCUMENTARY   ORIGINALS  517 

The  remaining  question  is  as  to  the  admissibiHty  in  evidence  of 
a  copy  of  a  letter  said  to  have  been  written  by  the  plaintiffs  to  the 
defendant. 

The  plaintiffs  offered  to  prove  that  on  the  13th  of  March,  1868,  a 
letter  was  written  by  them  addressed  to  the  defendant,  in  which  was 
enclosed  a  statement  of  their  account  against  him,  which  statement,  it 
was  admitted,  the  defendant  had  previously  requested  the  plaintiffs  to 
forward  him  by  mail.  It  must  be  presumed  that  defendant  was  notified 
to  produce  this  letter,  though  the  motion  does  not  state  the  fact.  It 
does  state  however  that  to  prove  the  contents  of  the  letter,  the  defendant 
claiming  that  the  original  was  not  in  his  possession,  the  plaintiffs  offered 
a  writing  which  A.  J.  Cameron,  one  of  the  plaintiffs,  swore  was  a  true 
copy  of  the  original  letter  forwarded  by  mail  to  the  defendant  enclosing 
a  statement  of  their  account.  On  cross-examination  the  witness  testified 
that  the  copy  offered  in  evidence  was  copied  from  the  plaintiffs'  letter 
book,  which  contained  an  impression  of  the  original,  made  at  the  time 
it  was  written,  by  the  copy-press  process,  and  that  he  knew  this  to  be  an 
exact  copy  of  the  original  letter.  The  defendant  objected  to  the  admis- 
sion of  the  copy  in  evidence,  solely  on  the  ground  that  it  was  a  copy  of  a 
copy,  but  the  Court  admitted  it. 

This  objection  is  purely  technical,  and  may  be  considered  therefore 
on  technical  grounds. 

In  the  argument  before  us  the  defendant's  counsel  assume  that  the 
machine  copy  was  in  the  possession  and  so  in  the  power  of  the  plaintiffs. 
Such  may  have  been  the  fact,  but  the  motion  is  silent  on  the  subject. 
For  aught  that  appears  the  letter  book,  containing  this  machine  copy, 
was  not  in  existence.  Nor  does  the  motion  disclose  when  the  copy  offered 
in  evidence  was  made.  It  may  have  been  made  at  the  same  time  that 
the  machine  copy  was  made,  and  if  so  it  would  clearly  be  admissible  as 
one  of  two  duplicate  copies.  But  if  made  afterwards,  as  most  probably 
it  was,  we  still  think  it  was  admissible. 

The  sole  objection  to  its  admissibility,  it  must  be  borne  in  mind,  is, 
that  it  was  a  copy  of  a  copy.  The  ground  of  the  objection  supposes  the 
original  to  be  lost,  or  out  of  reach  of  the  plaintiff.  If  that  were  not  so, 
the  objection  to  any  copy  would  be  insuperable.  Now  the  rule  that  a 
copy  of  a  copy  is  not  evidence  properly  applies  to  cases  where  the  original 
is  still  in  existence  and  capable  of  being  compared  with  it ;  or  where  it  is 
the  copy  of  a  copy  of  a  record,  the  record  being  still  in  existence,  and 
])eing  by  law  as  high  evidence  as  the  original.  The  reason  of  the  rule  is 
the  same  in  both  cases,  the  copy  offered  is  two  removes  from  the  original. 
But  it  is  quite  a  different  question  where  the  original  is  lost,  and  the 
record  is  not  deemed  in  law  as  high  as  the  original.  Winn  v.  Patterson, 
9  Pet.  Rep.  677,  per  Story,  J.  In  Robertson  v.  Lynch,  18  Johns.  Rep. 
450,  after  notice  to  the  defendant  to  produce  an  original  letter,  the 
Court  admitted  in  evidence  to  prove  its  contents  a  copy  made  from  the 
letter  book  of  the  plaintiffs,  on  the  testimony  of  a  clerk  who  testified  that 


518  BOOK   i:     RULES   OF    ADMISSIBILITY  No.  349 

he  copied  the  original  into  the  letter  book,  and  that  the  copy  offered  in 
evidence  was  a  true  copy  of  the  copy  in  the  letter  book;  on  a  motion  to 
set  aside  the  verdict  and  grant  a  new  trial,  the  case  went  off  on  another 
point,  but  the  Court  say,  —  "  We  are  inclined  to  think  that  none  of  the 
other  objections"  (this  was  one)  "are  well  founded." 

The  witness  in  this  case  testified  that  he  knew  the  paper  offered  to  be 
an  exact  cop}^  of  the  original  letter.  That,  we  think,  made  it  admissible; 
the  proper  foundation  for  the  admission  of  secondary  evidence  having 
been  previously  laid.  The  facts  elicited  on  the  cross-examination,  at  the 
most,  go  no  farther  than  to  show  that  this  was  a  second  copy,  verified  as 
a  true  copy  of  the  original.     It  was  properly  admitted. 

There  should  be  no  new  trial. 

In  this  opinion  the  other  judges  concurred. 


No.  351  PREFERENTIAL    RULES:     ATTESTING    WITNESS  519 


SUB-TITLE    II.     RULES    OF    PREFERENCE   AS    BETWEEN 
DIFFERENT    KINDS    OF    WITNESSES 

Topic  1.    Rule  Preferring  the  Attesting  Witness 

351.  History.^  The  rule  requiring  the  calling  of  a  person  who  has  attested 
a  deed  by  his  subscription  comes  down  to  us  as  the  survival  of  a  very  early 
procedure.  The  connection  by  tradition  is  direct,  though  the  original  rule  belongs 
to  an  epoch  wholly  alien  in  its  ideas  of  proof  and  trial.  Its  history  has  been 
thus  set  forth : 

Professor  Jaw f A'  Bradley  Thayer,  "Preliminary  Treatise  on  Evidence"  (1898, 
p.  502).  "(The  rule]  has  a  clear  and  very  old  origin.  Such  persons  belonged  to 
that  very  ancient  class  of  transaction  or  business  witnesses,  running  far  back  into 
the  old  Germanic  law,  who  were  once  the  only  sort  of  witnesses  that  could  be 
compelled  to  come  before  a  court.  Their  allowing  themselves  to  be  called  in 
and  set  down  as  attesting  witnesses  was  understood  to  be  an  assent  in  advance 
to  such  a  compulsory  summons.  Proof  by  witnesses  could  not  be  made  by  those 
who  merely  happened  casually  to  know  the  fact.  However  exact  and  full  the 
knowledge  of  any  person  might  be,  he  could  not,  in  the  old  Germanic  procedure, 
be  called  in  court  as  a  witness,  unless  he  had  been  called  at  the  time  of  the  event 
as  a  preappointed  witness.  It  was  a  part  of  such  a  system  and  in  accordance 
with  such  a  set  of  ideas  that  witnesses  formally  allowed  their  names  to  be  WTitten 
into  deeds  in  large  numbers.  When  jury  trial,  or  rather  proof  by  jury,  as  it 
originally  was,  came  in,  the  old  proof  by  witnesses  was  joined  with  it  when  the 
execution  of  the  deed  was  denied;  and  the  same  process  that  summoned  the 
twelve,  summoned  also  these  witnesses.  The  phrase  of  the  precept  to  the  sheriff 
was  suvivione  duodecim  (etc.  etc.)  cum.  aliis.  The  presence  of  these  witnesses 
was  at  first  as  necessary  as  that  of  the  jury.  Great  delays  and  embarrassments 
attended  such  a  requirement  where  the  number  of  witnesses  might  be  so  great; 
the  jury  was  cumbersome  enough  anyway.  Accordingly,  in  1318,  the  presence 
of  the  witnesses  was  made  no  longer  absolutely  necessary;  they  must  still  be 
summoned,  but  the  case  might  go  on  without  them.  After  another  century  and 
a  half  the  process  against  the  witness  became  no  longer  a  necessity.  It  was  not 
issued  unless  it  were  called  for.  After  still  another  century,  in  1562-3,  process 
against  all  kinds  of  witnesses  was  allowed,  requiring  them  to  come  in,  not  with  the 
jury  or  as  a  part  of  the  jury,  but  to  testify  before  them  in  open  court,  and  then 
the  old  procedure  of  simimoning  such  witnesses  with  the  jury  seems  to  have 
died  out;  [but  they  must  still  be  summoned  as  witnesses.]  ...  As  late  as  the 
early  part  of  the  eighteenth  century  it  was  doubtful  whether  a  deed  could  be 
proved  at  all,  if  the  attesting  witnesses  came  in  and  denied  it.  Half  a  century 
later,  Lord  Mansfield,  while  reluctantly  yielding  to  what  he  stigmatized  as  a 
captious  objection  that  you  must  produce  the  witness,  declared  that  Tt  is  a 
technical  rule  that  the  subscribing  witness  must  be  produced;  and  it  cannot  be 
dispensed  with  unless  it  appeared  that  his  attendance  could  not  be  produced.'" 

This  ancient  rule  thus  continued  to  be  enforced  long  after  the  disappearance 
of  the  primitive  system  of  trial  and  the  notions  of  proof  in  which  it  had  its  origin. 
By  the  end  of  the  1700s  rules  of  evidence  began  to  be  argued  out,  but  no  sound 

^  Adapted  from  the  present  Compiler's  "Treatise  on  Evidence"  (§  1287). 


520  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  351 

reason  could  in  truth  be  furnished  for  the  strict  and  entire  perpetuation  of  the 
rule.  Under  such  circumstances,  insufficient  and  inconsistent  reasons  were  likely 
to  be  advanced. 

(1)  A  favorite  reason  was  that  the  parties  to  the  document  had  agreed  to  make 
the  attester  their  witness  to  prove  execution.  The  difficulty  about  this  reason 
is  that  no  such  agreement  can  be  implied,  particularly  where  attestation  is  required 
by  law. 

(2)  Another  reason,  suggested  almost  as  often,  was  that  the  opponent  is 
entitled  to  the  benefit  of  cross-examining  the  attesting-witness  as  to  the  circum- 
stances of  execution;  or,  put  in  another  way,  that  the  attester  may  not  only 
know  more  than  some  other  person  observing  the  execution,  but  may  be  able 
to  speak  as  to  fraud,  duress,  or  other  matters  of  defence.  The  objections  to  this 
reason  are  numerous.  First,  it  is  inconsistent  with  the  rule  itself;  for  the  rule 
applies  even  where  fraud,  duress,  and  time  are  not  in  issue,  and  even  where  the 
maker  himself  is  competent  as  a  witness.  Again,  the  attester  is  in  practice  not 
usually  a  person  who  knows  anything  about  the  circumstances  preceding  the 
document's  execution,  or  knows  more  than  any  other  person  who  by  being  present 
would  be  a  qualified  witness.  Finally,  if  the  witness  does  possess  special  knowl- 
edge about  some  affirmative  issue,  the  opponent  is  the  proper  person  to  call  the 
witness,  if  he  desires  him.  This  reason  for  the  rule,  then,  is  no  more  capable  of 
defence  than  the  first. 

(3)  Has  the  rule,  then,  no  justification  in  policy?  It  certainly  has  none,  in 
its  original  broad  form.  But  in  most  jurisdictions  it  has  by  statute  been  limited 
to  documents  required  by  law  to  be  attested;  and  in  this  shape  it  seems  to  be 
entirely  justifiable.  In  the  first  place,  the  attestation  is  in  such  cases  required 
by  law  as  a  special  precaution  against  forgery;  thus  the  attestation  itself  must  in 
any  case  be  proved  as  an  element  in  the  validity  of  the  document,  and  there  seems 
to  be  no  special  hardship  in  obtaining  the  witness  rather  than  in  obtaining 
evidence  of  his  signature.  In  the  next  place,  such  documents  are,  in  most  juris- 
dictions, wills  of  deceased  persons  and  deeds  of  illiterate  persons;  for  such  docu- 
ments, the  maker  himself  being  either  deceased  or  not  acquainted  with  writings, 
the  attester's  testimony  is  almost  inevitably  the  most  desirable  and  most  trust- 
worthy source  of  information  as  to  the  fact  of  execution;  moreover,  it  is  in  such 
cases  that  the  defences  of  fraud  or  undue  influence  are  most  likely  to  be  made, 
and  here  also  the  attester's  testimony  is  likely  to  be  of  use  and  ought  to  be  obtained 
if  possible.  Still  further,  in  these  and  all  other  cases  where  attestation  is  legally 
required,  the  situation  is  one  in  which  by  hypothesis  the  risk  of  a  false  document 
is  serious. 

At  common  law  the  rule  was  applied  to  all  kinds  of  docvments  whatever,  when 
purporting  to  bear  an  attestation,  whether  or  not  the  document  was  sealed, 
whether  or  not  it  was  in  the  nature  of  a  specialty,  and  whether  or  not  the  attesta- 
tion was  required  by  law  as  an  element  of  the  document's  validity.  But  by  the 
beginning  of  the  1800s  the  unnecessary  hardship  and  the  mere  technicality  of 
the  rule  in  this  broadness  of  scope  began  to  be  recognized.  It  may  be  supposed, 
too,  that  the  then  increasing  resort  to  handwriting-testimony  made  it  easier  to 
rely  less  upon  attesting  witnesses.  Accordingly,  in  1854,  England  restricted  the 
rule  thereafter  to  documents  required  by  law  to  be  attested,  and  this  statute  ha«- 
been  adopted  in  Canada  also. 

In  the  United  States,  the  common-law  doctrine  was  recognized  to  have  the 
same  scope  as  in  England;  except  that  by  a  few  Courts  it  was  confined  to  docu- 
ments under  seal.     In  most  jurisdictions,  however,  a  statutory  restriction  has 


No.  353  PREFERENTIAL   RULES:     ATTESTING    WITNESS  521 

been  enacted  similar  to  that  of  England.  Under  such  restrictions,  the  rule  comes 
into  application  chiefly  for  wills  and  for  illiterates'  deeds,  and,  in  England,  for 
powers  of  appointment.  Moreover,  even  where  the  common-law  rule  obtains  in 
strictness,  the  principle  which  dispenses  with  it  for  proof  by  copies  of  registered 
instruments  relieves  nowadays  in  most  instances  from  its  harshness. 

352.  Statutes.  England.  (1854,  St.  17  &  18  Vict.  c.  125,  §  26).  It  shall  not 
be  necessary  to  prove  by  the  attesting  witness  any  instrument  to  the  validity  of 
which  attestation  is  not  requisite;  and  such  instrument  may  be  proved  by  admis- 
sion, or  otherwise,  as  if  there  had  been  no  attesting  witness  thereto. 

Illinois.  (Revised  Statutes  1874,  c.  51,  §  51).  [Whenever  any  instrument} 
not  required  by  law  to  be  attested  by  a  subscribing  witness  [is  offered  in  a  civil 
cause,]  and  the  same  shall  appear  to  have  been  so  attested,  and  it  shall  become 
necessary  to  prove  the  execution  of  any  such  deed  or  other  writing  otherwise  than 
as  now  provided  by  law,  it  shall  not  be  necessary  to  prove  the  execution  of  the 
same  by  a  subscribing  witness  to  the  exclusion  of  other  evidence,  but  the  execution 
of  such  instrument  may  be  proved  by  secondary  evidence  without  producing  or 
accounting  for  the  absence  of  the  subscribing  witness  or  witnesses. 

Massachusetts.  (St.  1897,  c.  386,  Revised  Laws  1902,  c.  175,  §  70).  The 
signature  to  an  attested  instrument  or  writing,  except  a  will,  may  be  proved  in 
the  same  manner  as  if  it  were  not  attested. 

New  York.  (Laws  1883,  c.  195,  §  1).  Except  in  the  case  of  written  instruments 
to  the  validity  of  which  a  subscribing  witness,  or  subscribing  witnesses,  is,  or  are 
necessary,  whenever,  upon  the  trial  of  any  action,  civil  or  criminal,  or  upon  the 
hearing  of  any  judicial  proceeding,  a  WTitten  instrument  is  offered  in  evidence, 
to  which  there  is  a  subscribing  witness,  it  shall  not  be  necessary  to  call  such  sub- 
scribing witness,  but  such  instrument  may  be  proved  in  the  same  manner  as  it 
might  be  proved  if  there  was  no  subscribing  witness  thereto. 


353.   BOOTLE  v.   BLUNDELL 

Chancery.     1815 
19  Ves.  Jr.  494 

The  bill  was  filed  by  devisees;  praying,  that  the  Will  of  Henry 
Blundell  may  be  established  against  the  heir  at  law. 

John  Blanchard  by  his  depositions  proved  the  will,  dated  the  24th  of 
July,  1809,  in  the  regular  form;  and  that  the  testator  at  the  time  of  sign- 
ing and  publishing  the  said  Will  was  of  sound  and  disposing  mind, 
memory,  and  understanding,  as  the  examinant  verily  believes.  The 
same  witness  proved  a  Codicil,  dated  the  25th  of  May,  1810,  also  in  the 
regular  form.  .  .  .  When  the  witnesses  were  called  in,  Stonor  said  aloud 
to  the  testator,  that  the  witnesses  to  the  Codicil  were  come;  but  the 
examinant  cannot  recollect  whether  he  made  any  answer,  either  by  word, 
sign,  or  otherwise. 

Henry  Holland  proved  the  execution  of  the  Will;  and  stated,  that  at 
the  time  of  signing  and  publishing  the  Will  he  did  not  form  any  opinion 
or  belief  whether  the  testator  was  or  was  not  of  sound  or  disposing  mind. 


522  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  353 

&c.,  and  cannot  now  say,  whether  he  was  or  was  not  so  at  the  time. 
The  testator's  butler  requested  the  examinant  to  go  to  the  testator's 
house,  where  he  met  Blanchard  and  James  Goore  in  the  servant's  hall. 
He  imagined  they  were  there  to  witness  Mr.  Blundell's  Will;  as  the  same 
persons  had  done  so  six  or  seven  times  before.  They  found  with  the 
testator  Stonor,  and  a  servant  woman,  named  Gibbing.  Stonor  said  to 
him  with  a  loud  voice,  "The  witnesses  to  your  Will  are  come,  Sir;"  and 
the  testator  seemed  to  understand  what  was  said,  and  said  something  to 
the  servant,  who  immediately  left  the  room.  The  Will  was  then  actually 
sealed;  and  the  testator  then  signed  his  name;  and  taking  a  seal,  then 
lying  upon  the  table,  in  his  hand,  put  it  upon  the  wax;  and  Stonor  said, 
"Now  publish  and  declare  this  to  be  your  last  Will;"  and  the  testator 
then  uttered  those  words,,  or  to  the  like  effect.  The  examinant  and  the 
other  witnesses  then  subscribed  in  the  presence  of  the  testator  and  of 
Stonor.  .  .  . 

This  witness  also  proved  the  Codicil;  but  stated,  that  he  had  great 
doubts,  whether  at  the  time  of  signing  the  Codicil  the  testator  was  of 
sound  mind,  &c.,  as  it  is  hard  to  know  what  is  within  a  man,  except  he 
saw  and  knew  more  of  a  man  than  he  did  of  Mr.  Blundell.  He  appeared 
to  be  dozing.  Stonor  put  his  hand  on  his  shoulder,  and  said,  the  witnesses 
were  come  to  witness  his  will,  and  Blundell  not  appearing  to  understand 
repeated  it;  to  which  he  answered  by  his  manner,  and  the  noise,  which 
issued  from  his  mouth,  as  if  he  understood  and  assented  to  it.  The 
Codicil  was  then  placed  before  him,  and  a  pen  given  to  him,  by  Stonor. 
Blundell  began  to  write  his  name;  but  Stonor  seeing  the  pen  did  not 
mark,  took  it  up,  and  dipped  it  in  the  ink,  and  returned  it  to  Blundell; 
who  then  signed  his  name.  .  .  .  When  they  went  down  to  the  servant's 
hall,  the  examinant  declared  to  the  other  witnesses,  and  the  butler,  that 
they  were  damned  rogues  for  what  they  had  just  been  doing,  for  there 
was  something  damnably  wrong,  he  was  sure;  at  which  time  there  was 
a  general  laugh;  but  Blanchard  said,  "  We  do  not  know  what  is  in  a  man." 
After  the  execution  of  the  Codicil  the  examinant  and  the  other  witnesses 
signed  a  paper,  written  by  Stonor,  expressing  that  the  testator  had 
acknowledged,  that  he  had  heard  the  Codicil  read.  .  .  . 

James  Goore,  the  third  attesting  witness,  proved  the  execution  of 
the  Will;  and  stated,  that  he  cannot  tell,  whether  at  the  time  Mr. 
Blundell  signed  he  was  of  sound  mind,  &c.  "I  neither  believe,  nor  I 
don't  disbelieve  it;  for  I  cannot  say  it."  He  also  proved  the  Codicil; 
stating,  that  it  is  more  than  he  can  say,  whether  at  the  time  of  signing 
it  Mr.  Blundell  was  of  sound  and  disposing  mind,  &c.  "  He  was  so  deaf 
and  blind,  that  it  is  more  than  the  examinant  can  say;"  and  he  never 
saw  him  after  it  was  signed. 

Mr.  Stonor  stated,  that  on  the  21st  of  July  he  read  over  and  fully 
explained  the  draft  of  the  Will  to  Mr.  Blundell;  who  expressed  his  satis- 
faction. .  .  . 

An  issue,  Devisavit  vel  non,  was  directed.     At  the  trial,  at  the  Assizes 


No.  353  PREFERENTIAL    RULES:     ATTESTING    WITNESS  523 

for  the  county  of  Lancaster,  the  counsel  for  the  plaintiffs  examined 
Blanchard,  to  prove  the  Will  and  Codicil;  declining  to  call  the  other  two 
subscribing  witnesses;  and  after  the  examination  of  the  surgeon  and 
physician,  whose  evidence  was  strong  as  to  the  general  capacity,  with 
temporary  stupor,  the  consequence  of  an  attack  of  jaundice,  the  counsel 
for  the  defendant,  who  was  present,  with  his  consent  gave  up  the  cause. 

Sir  Samuel  Rornilly  and  Mr.  Rovpell,  for  the  defendant,  moved  for 
a  new  trial;  complaining  of  the  manner  in  which  this  issue,  directed  for 
the  satisfaction  of  the  Court,  was  tried,  without  examining  all  the  attest- 
ing witnesses. 

Mr.  Hart,  Mr.  Bell,  and  Mr.  Home,  for  the  plaintiffs,  contended, 
that  the  rule  requiring  the  examination  of  all  the  witnesses  was  confined 
to  the  Court  of  Equity ;  and  could  not  be  applied  to  a  trial  at  Law  either 
by  ejectment  or  in  an  issue. 

The  Lord  Chancellor  (Eldon).  —  The  rule  of  this  court,  requiring 
that  to  establish  a  Will  of  real  estate  all  the  three  witnesses  shall  be 
examined,  is  not  by  any  means,  as  it  has  been  represented,  a  merely 
technical  rule.  .  .  .  This  proceeding  is  in  Equity,  to  establish  a  Will, 
aiming  to  say  to  the  heir,  that,  if  the  will  shall  be  once  established  against 
him,  he  can  never  claim  the  devised  property  again,  .  .  .  therefore, 
before  an  heir  shall  be  deprived  of  that  opportunity  which  the  Law  gives 
him,  .  .  .  the  Court,  as  it  will  know  the  whole  truth,  expects  that  all  the 
witnesses  shall  be  examined  on  the  one  side  or  the  other.  .  .  . 

February  13th.  The  Lord  Chancellor  (Eldon). —  From  the  account 
I  have  seen  of  what  passed  at  the  trial,  I  perceive  that  one  of  the  counsel, 
referring  to  a  dictum  (2  Bro.  C.  C.  503)  of  Lord  Thurlow,  in  the  case  of 
Powel  V.  Cleaver,  seems  to  consider  the  rule  of  this  Court,  as  to  proving 
a  will,  doubtful.  I  now,  therefore,  state  the  general  rule,  that  all  the 
witnesses  must  be  examined.  That  rule  is  laid  down  by  Lord  Hard- 
wiCKE  in  a  MS.  note  by  Mr.  Joddrell ;  where,  two  only  of  the  witnesses 
having  been  examined,  it  was  contended  on  a  Bill  of  Review,  that  this 
was  error  apparent  on  the  Record;  but  as  the  third  witness  was  dead. 
Lord  Hardwicke  held  that  to  be  a  necessary  exception  out  of  the  rule. 
So  in  another  case  in  1741,  Billing  v.  Brooksbank,  as  the  witness,  being 
out  of  the  kingdom,  could  not  be  examined.  Lord  Hardwicke  considered 
that  another  case  of  exception  out  of  the  general  rule;  which,  I  repeat,  is, 
that  all  the  witnesses  must  be  examined;  that  general  rule  admitting 
necessary  exceptions,  and  perhaps  not  applying  where  the  will  is  not 
wholly,  but  only  partially,  in  question.  .  .  . 

No  one  of  these  three  witnesses  denies  his  attestation.  Upon  the 
point  of  competency  Blanchard  says,  he  thinks  the  devisor  was  of  com- 
petent mind  at  the  execution  of  the  will,  doubting  a  little  as  to  the  codicil. 
Holland  says,  he  gave  a  sign,  and  seemed  to  assent;  and  Goore  will  not 
say,  that  he  was  not  competent.  If  they  had  all  denied  their  attestation, 
but  it  could  be  proved  by  circumstances  that  they  imjustlj'  denied  it, 
the  will  might  be  proved  to  be  a  good  will  by  other  circumstances. 


524  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  353 

The  whole  of  the  evidence  then  must  be  taken  together;  and  upon  the 
neutral  effect  of  Holland's  and  Goore's  testimony,  putting  this  question 
to  a  jury,  was  he  upon  the  24th  of  July,  and  in  that  hour  (for  I  should 
put  it  as  close  as  that),  when  he  executed  his  will,  competent  to  under- 
stand that,  which  he  did  undeniably  understand  on  the  21st,  and  direct 
to  be  prepared  for  his  execution,  attending  to  the  rules  of  evidence,  and 
the  legal  weight  to  be  given  to  testimony,  both  of  the  attesting  witnesses 
(differing,  as  I  do,  in  some  shades  from  what  I  have  heard  upon  that), 
I  should  have  felt  myself  bound  to  say,  this  was  a  good  will.  .  .  . 

Therefore,  though  the  rule  is  clear,  that  a  will  cannot  be  established, 
unless  all  the  three  witnesses  are  examined,  with  the  exception  of  cases  of 
necessity,  such  as  I  have  mentioned,  .  .  .  yet,  guarding  this  case  as  a 
precedent,  I  will  not  grant  a  new  trial,  the  heir  having  judged  for  himself 
at  the  time  of  this  trial;  and  I  so  determine  with  the  less  reluctance, 
thinking  it  impossible  to  shake  this  will,  and  in  all  probability  equally 
impossible  to  shake  the  codicil. 


354.   HOLMES  r.   HOLLOMAN 

Supreme  Court  of  Missouri.     1849. 

12  Mo.  536 

Appeal  from  Ste.  Genevieve  Circuit  Court. 

This  was  a  proceeding  in  the  Circuit  Court  of  Ste.  Genevieve  county, 
to  establish  the  will  of  Elizabeth  S.  Holmes,  probate  of  which  had  been 
denied  by  the  County  Court  of  that  county.  Richard  M.  Holmes  and 
James  W.  Holmes  were  the  attesting  witnesses,  and  they  were  heirs  at 
law  to  the  testatrix.  It  appeared  that  by  the  will  of  Elizabeth  Holmes, 
all  her  property  was  left  to  her  nephew,  Allen  Augustus  Holloman,  a 
minor,  by  whose  prochein  ami  this  proceeding  was  instituted.  The  pro- 
ceedings of  the  Probate  Court,  in  relation  to  the  will,  which  were  read 
in  the  Circuit  Court  without  objection,  showed  that  the  execution  of  the 
will  was  sworn  to  by  both  of  the  attesting  witnesses,  but  one  of  these 
testified  that  the  testatrix  was  of  unsound  mind. 

Upon  the  trial  of  the  issue,  devisavit  vel  non,  in  the  Circuit  Court,  the 
two  subscribing  witnesses  to  the  will,  who  had  been  heirs  at  law  cited  to 
appear,  refused  to  testify.  The  Court  thereupon  admitted  other  wit- 
nesses, who  established  the  handwriting  of  the  subscribing  witnesses, 
and  the  handwriting  and  signature  of  the  testatrix,  as  well  as  the  facts 
that  the  will  was  signed  and  attested  by  the  testatrix,  and  the  witnesses 
in  the  presence  of  each  other,  and  that  she  was  of  sound  mind.  These 
facts  were  found  by  the  jury  upon  instructions  from  the  Court. 

Frissell,  for  appellant.  ...  A  will  cannot  be  established  by  other 
evidence  that  that  of  the  subscribing  witnesses,  unless  they  are  dead  or 
out  of  the  jurisdiction  of  the  court.      1   Phillipps'  Evidence   (Hill  & 


No.   354  PIIEFERENTIAL    RULES:     ATTESTING    WITNESS  525 

Cowen)  496.  In  the  probate  of  a  will  made  in  the  Circuit  Court,  the 
subscribing  witnesses  must  be  examined  unless  they  are  dead,  or  cannot 
be  found.     Mo.  Stat.  1083,  §  34. 

Fitzgerald,  for  appellee.  ...  If  witnesses  refuse  to  testify,  the  attesta- 
tion may  be  proved  by  other  testimony.  1  Starkie's  Evidence,  324,  and 
notes.  3rd.  If  witnesses  of  a  will  be  interested,  on  proof  of  that  fact, 
other  testimony  may  be  offered  to  establish  the  will.  .  .  . 

Napton,  J.  (after  stating  the  facts  as  above).  The  only  points 
relied  on  in  this  cause  are  in  relation  to  the  admissibility  of  the  witnesses 
who  were  permitted  to  prove  the  execution  of  the  will.  .  .  .  Our  statute 
requires  a  will  to  be  attested  by  two  or  more  competent  witnesses,  but 
if  the  witnesses  are  competent,  at  the  time  of  the  execution  of  the  will, 
a  subsequent  incompetency  will  not  affect  the  validity  or  formality  of 
its  execution.  If  this  was  so,  the  purposes  of  a  testator  might  be  defeated 
by  events  which  no  precaution  on  his  part  could  anticipate  or  prevent. 
Hence,  it  is  held,  that  where  a  witness  to  a  will  is  competent,  when  he 
attests,  a  subsequent  commission  of  a  crime  or  succession  to  an  estate 
under  the  devise,  will  not  invalidate  the  execution,  but  in  such  cases  the 
handwriting  of  the  witnesses  may  be  proved. 

Our  statute  has  provided  for  several  cases  of  this  kind.  Thus, 
where  the  witnesses,  or  either  of  them,  are  dead,  insane,  or  their  residences 
unknown,  secondary  evidence  is  expressly  authorized.  These  instances 
are  not,  I  apprehend,  to  be  construed  upon  the  maxim  of  "expressio 
unius  exclusio  alterius,"  but  are  merely  a  codification  of  what  was  already 
the  common  law,  and  a  recognition  of  the  principle  upon  which  secondary 
evidence  may  be  admitted.  This  principle  will  apply  as  well  to  other 
cases  of  incompetency  arising  subsequent  to  the  execution  of  the  will  as 
to  the  cases  put. 

The  witnesses  to  the  will  were  clearly  competent  at  the  time  of  sub- 
scribing. They  were  heirs  at  law,  and  not  legatees  or  devisees  under 
the  will.  Their  interest  was  against  the  establishment  of  the  will,  and 
under  such  circumstances  this  Court  has  recognized  their  competency 
in  several  cases.  They  relied  upon  their  exemption  as  parties  to  the 
record,  and  reljnng  upon  the  privileges  incident  to  such  a  position, 
refused  to  testify.  If  such  a  refusal  should  have  the  effect  now  claimed, 
and  prevent  the  introduction  of  other  testimony  to  establish  the  will, 
the  intentions  of  the  testator  must  be  very  often  liable  to  be  defeated, 
and  a  will  valid  at  the  date  of  its  execution,  be  rendered  inoperative  by 
subsequent  circumstances  not  likely  to  be  foreseen. 

Judgment  aflBrmed. 


526  BOOK   i:     RULES    OF    ADMISSIBILITY  No.  355 

355.   McVICKER  v.   CONKLE 

Supreme  Court  of  Georgia.     1895 

96  Ga.  584;  24  S.  E.  23 

Complaint  for  land.  Before  Judge  Hunt.  Henry  Superior  Court. 
April  Term,  1894. 

The  plaintiff  in  error,  A.  V.  McVicker,  in  his  representative  capacity 
as  administrator  upon  the  estate  of  Kellett  Babb,  brought  an  action  of 
ejectment  against  the  defendant  for  the  premises  involved  in  the  pending 
controversy.  Both  parties  claimed  under  Kellett  Babb;  the  former  by 
virtue  of  his  possession  as  administrator,  and  the  latter,  being  the  grand- 
son of  Kellett  Babb,  claimed  title  under  and  by  virtue  of  a  deed  alleged 
to  have  been  executed  by  Kellett  Babb  on  the  11th  day  of  August,  1870, 
to  his  daughter  Rebecca  E.  Babb,  and  a  deed  from  Rebecca  E.  Babb  to 
himself,  dated  November  8th,  1890.  The  deed  from  Kellett  Babb  to 
Rebecca  E.  Babb  purports  to  have  been  signed  by  the  maker  in  the 
presence  of  two  witnesses,  Miles  H.  Campbell  and  Colville  Babb,  a  son 
of  Kellett  Babb  the  maker.  Upon  the  trial,  it  appeared  that  both  the 
maker  and  the  subscribing  witnesses  were  dead,  and  it  was  proven  that 
the  names  subscribed  to  the  deed  as  attesting  witnesses  were  in  the  hand- 
writing, respectively,  of  the  two  persons  who  purported  to  be  subscribing 
witnesses.  No  witness  testified  to  the  actual  signing  of  the  deed  by  the 
maker,  and  no  evidence  was  offered  showing  the  signature  of  the  alleged 
maker  to  have  been  in  the  handwriting  of  Kellett  Babb.  To  the  intro- 
duction of  this  deed  the  plaintiff  objected,  upon  the  ground  that  no  such 
evidence  of  its  execution  had  been  submitted  as  would  authorize  its 
admission  in  evidence,  which  objection  was  overruled,  and  this  is  one  of 
the  principal  grounds  urged  in  support  of  the  plaintiff's  motion  for  a 
new  trial  which  was  subsequently  made. 

E.  J.  Reagan,  for  plaintiff.  G.  W.  Bryan  and  W.  T.  Dicken,  for 
defendant. 

Atkinson,  Justice  (after  stating  the  facts  as  above).  The  ruling 
has  been  long  established,  that  an  instrument  purporting  to  be  attested 
by  a  subscribing  witness  must  be  proved  by  the  testimony  of  that  witness, 
if  he  be  accessible;  the  exceptions  to  the  general  rule  being  in  favor  of 
ancient  documents  which,  upon  the  presumption  of  authenticity  result- 
ing from  old  age  and  attendant  circumstances  of  verity,  are  said  to  prove 
themselves;  official  bonds  required  by  law  to  be  approved  or  attested 
by  a  particular  officer;  those  papers  which  are  only  incidentally  or 
collaterally  material  to  the  case.  Our  Code  provides,  that  if  the  witness 
is  not  produced,  or,  being  produced,  cannot  recollect  the  transaction, 
the  Court  may  hear  any  other  evidence  to  prove  its  execution.  See 
§  3838.  If  there  be  several  attesting  witnesses,  the  absence  of  all  must 
be  accounted  for  before  secondary  evidence  will  be  received;   but  when 


No.  355    PREFERENTIAL  RULES:  ATTESTING  WITNESS         527 

the  absence  of  all  the  attesting  witnesses  is  accounted  for,  it  will  be 
deemed  sufficient,  in  order  to  establish  the  execution  of  the  writing,  to 
prove  the  handwriting  of  one  of  them.  In  such  a  case,  proof  of  the 
subscribing  witness'  handwriting  is  evidence  of  the  execution  of  the 
insti'ument  by  the  party  therein  named  whose  signature  the  instrument 
purports  to  bear.  It  will  not  be  necessary  to  prove  the  handwriting  of 
the  party.     Phillipps  on  Evidence,  vol.  2,  p.  214.  .  .  . 

In  the  case  of  Stebbins  v.  Duncan,  108  U.  S.  44,  the  Court,  in  stating 
the  rule,  employs  the  following  language :  "  As  the  witnesses  to  the  deed 
were  shown  to  be  dead,  the  method  pointed  out  by  law  to  establish  the 
execution  of  the  deed  was  by  proof  of  the  handwriting  of  the  witnesses 
to  the  deed,"  citing  Clark  v.  Courtney,  5  Peters  319;  Cooke  v.  Woodrow, 
5  Cranch,  13.  .  .  .  In  the  case  of  Watts  v.  Kilburn,  7  Ga.  358,  Judge 
LuMPKLN,  speaking  for  the  Court,  states  the  rule  to  be:  "But  if  the 
witness  be  dead,  or  blind,  or  insane,  or  infamous,  or  interested  since  the 
execution  of  the  paper,  or  beyond  the  process  or  jurisdiction  of  the  court, 
or  not  to  be  found  after  diligent  search  and  inquiry,  the  course  is  to 
prove  his  handwriting."  Upon  the  general  features  of  the  rule,  he 
makes  the  following  observation:  "Distinguished  judges  have  thought 
that  proof  of  the  handwriting  of  the  party  executing  the  instrument  is 
better  evidence  of  the  execution  than  proof  of  the  handwriting  of  the 
attesting  witness;"  and  for  this  observation,  he  cites  3  Binn.  192;  2 
Johns.  451;  11  Mass.  309.  .  .  . 

While,  as  a  rule  of  evidence,  the  one  announced  is  too  firmly  es- 
tablished in  the  jurisprudence  of  this  State  to  be  called  in  question  or 
disregarded  by  the  judiciary,  the  writer,  in  the  discussion  which  follows, 
speaking  for  himself  alone,  is  of  the  opinion  that  it  may  well  be  doubted 
whether  its  literal  application  is  likely  to  produce  the  most  satisfactory 
results  in  the  course  of  judicial  investigation.  .  .  .  Our  investigations 
have  led  us  to  inquire  what  reasons  were  assigned  by  the  first  judges  who 
undertook  to  declare  the  rule  in  question;  for  investigation  will  reveal 
that  none  of  those  rules  which  enter  into  and  constitute  the  great  body 
of  the  law,  and  which,  among  the  vulgar  and  uninformed,  are  sometimes 
erroneously  termed  technicalities  of  the  law,  were  in  the  first  instance 
either  imwise  or  arbitrary,  but  were  always  based  upon  correct  principles 
of  reasoning  and  made  necessary  to  meet  conditions  existing  in  society, 
and  were  really  designed  to  be,  and  were  at  the  time  of  their  adoption, 
in  furtherance  of  substantial  justice.  But  times  change,  and  men  and 
conditions  change  with  them,  and  hence  that  other  maxim  of  the  law, 
that  when  the  reason  of  the  law  ceases,  the  law  ceases  with  it.  .  .  . 

In  the  earlier  history  of  England,  when  the  system  of  transferring 
estates  by  written  evidence  of  title  was  first  invented,  but  few,  even  of 
the  nobility,  were  familiar  with  the  art  of  ^vr^ting;  and  it  seems  that 
about  the  time  of  the  Norman  Conquest,  and  before,  seals  were  employed 
as  representing  and  standing  in  lieu  of  the  actual  signature  to  an  instru- 
ment by  the  maker.  ...  To  the  end  that  the  fact  of  execution  might  be 


528  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  355 

established,  it  was  requisite  that  this  signing  and  seaHng  should  be  in 
the  presence  of  witnesses,  who,  in  that  day  and  time,  if  the  deed  were 
called  in  question,  were  required  to  sit  upon  the  jury  to  assist  in  arriving 
at  what  was  the  true  contract  between  the  parties.  .  .  .  From  this  cir- 
cumstance, with  the  advance  of  knowledge,  and  the  improvements  in 
the  method  of  administering  the  law,  the  rule  was  evolved  which  required 
the  party  affirming  a  deed  to  prove  its  execution  by  those  who  were 
called  to  witness  the  same,  and  not  otherwise.  .  .  .  Inasmuch  as  few  of 
them  were  themselves  able  to  WTite,  they  were  not  required  to  sign  in 
person  their  own  names  upon  the  deed;  but  in  earlier  times  they  were 
indorsed  there  by  the  clerk  or  scrivener  who  drafted  the  deed,  he  himself 
acting  in  the  capacity  of  a  species  of  superior  subscribing  witness;  and 
inasmuch  as  usually  the  grantor  himself  was  incapable  of  signing  his 
name,  in  case  of  the  death  or  inaccessibility  of  all  of  these  witnesses 
especially  selected  to  attest  the  execution  of  the  instrument,  the  next 
highest  and  best  evidence  would  be  proof  of  the  handwriting  of  the 
subscribing  witnesses.  These  were  the  conditions  at  the  time  we  get 
the  first  glimpse  of  the  existence  of  the  rule  which  authorizes  the  proof  of 
the  execution  of  an  instrument  by  the  maker,  by  evidence  of  the  hand- 
writing of  the  subscribing  witnesses;  and  they  afford  a  good  reason  for 
the  adoption  of  the  rule  in  question.  It  arose  from  the  necessity  of 
the  case.  The  dense  and  almost  universal  ignorance  of  letters  which 
prevailed  in  England,  made  the  adoption  of  any  other  imprac- 
ticable. .  .  . 

If  this  be  the  correct  reason  for  the  existence  of  the  rule,  and  we  know 
of  no  other  or  better  that  has  been  assigned,  there  is  little  reason  why  in 
this  day  and  generation  it  should  be  continued.  In  the  onward  march 
of  civilization  and  of  letters,  man  has  advanced  to  a  point  where  there 
are  relatively  but  few  who  cannot  now  subscribe  their  names.  .  .  . 
Therefore,  whenever  an  issue  is  made  upon  the  execution  of  a  deed,  the 
primary  inquiry  is.  Was  it  signed  by  the  alleged  maker?  .  .  .  The  real 
question  then  upon  the  execution  of  a  deed  being  as  to  the  actual  signing, 
the  primary  inquiry  should  be  as  to  the  fact.  .  .  .  Let  us  assume  that  the 
evidence  is  doubtful  as  to  the  signatures  of  the  subscribing  witnesses, 
but  direct  and  positive  as  to  the  actual  execution  of  the  instrument  by 
the  maker;  who  can  doubt  but  that,  in  a  court  of  justice  seeking  for  the 
purest  and  most  direct  sources  of  information,  such  a  deed  ought  to  be 
established?  The  real  issue  being,  in  such  cases,  whether  the  maker 
in  fact  signed  his  name  to  the  paper,  the  chosen  witnesses  should  first 
be  called  to  prove  that  fact;  but  if  they  be  not  in  existence  or  be  inac- 
cessible, then  the  next  best  evidence  is  that  which  establishes  most 
directly  the  point  at  issue,  and  that  evidence  would  be  either  the  testimony 
of  some  witness  not  called  upon  to  attest  the  deed,  but  who  saw  the 
maker  sign  it,  or  evidence  that  the  signature  attached  to  the  deed  was  in 
the  actual  handwriting  of  the  maker.  And  yet,  according  to  the  rule 
under  discussion,  Courts  are  required  to  reject  such  direct  testimony. 


No.  356  PREFERENTIYL   RULES:     ATTESTING    WITNESS  529 

and  submit  to  the  jury  the  question  as  to  whether  or  not  the  execution 
is  satisfactorily  proven  by  the  inference  resulting  from  proof  of  the 
handwriting  of  the  alleged  subscribing  witnesses.  .  .  . 

As  an  abstract  principle  of  law,  the  rule  in  question  has  been  always 
of  force  in  Georgia;  but  under  §§  3838  and  3839  of  the  Code,  which 
provide,  in  speaking  of  subscribing  witnesses,  that  "if  the  witness  is  not 
produced,  or,  being  produced,  cannot  recollect  the  transaction,  the  Court 
may  hear  any  other  evidence  to  prove  its  execution";  "proof  of  hand- 
writing may  be  resorted  to  in  the  absence  of  direct  evidence  of  execu- 
tion," the  circuit  judges  have  been  accustomed  in  many  instances  to 
relax  somewhat  of  its  severity,  and,  assuming  that  under  the  sections 
quoted,  a  certain  discretion  was  conferred  upon  them,  in  the  classification 
of  secondary  evidence,  have  required  that  the  evidence  be  directed  to 
proof  of  the  handwriting  of  the  maker  of  the  instrument,  rather  than  to 
the  handwriting  of  the  subscribing  witnesses.  The  writer  is  of  the 
opinion,  that  since  no  better  reason  can  be  assigned  for  the  existence  of 
this  rule  than  its  antiquity,  and  since  under  conditions  at  present  existing 
the  reason  of  the  rule  has  long  since  ceased,  the  Legislature  might  well 
abrogate  it,  and  substitute  therefor  another,  less  arbitrary,  less  technical, 
and  better  adjusted  to  our  judicial  system.  .  .  .     Judgment  reversed. 


356.   GILLIS  V.   GILLIS 

Supreme  Court  of  Georgia.     1895 

96  Ga.  1 ;  23  S.  E.  107 

Appeal.  Before  Judge  Gamble,  Emanuel  Superior  Court.  April 
Term,  1894. 

Williams  &  Smith,  Hines  &  Hale  and  Felder  &  Davis,  for  plaintiffs  in 
error.  f| 

Cain  &  Polhill,  Evans  &  Evans,  Alfred  Herrington,  F.  H.  Saffold,  H. 
R.  Daniel  and  H.  D.  D.  Twiggs,  contra. 

Lumpkin,  Justice.  —  The  nominated  executors  of  the  alleged  last  will 
of  Sarah  Gillis  propounded  the  same  for  probate,  and  a  caveat  was  filed 
by  some  of  her  heirs  at  law.  On  the  trial  in  the  Superior  Court,  to  which 
court  the  case  had  been  carried  by  appeal,  there  was  a  verdict  for  the 
propounders;  and  the  caveators  bring  up  for  review  a  judgment  over- 
ruling their  motion  for  a  new  trial.  .  .  . 

The  paper  purporting  to  be  the  will  was  executed  by  the  testatrix  on 
the  12th  day  of  March,  1873.  It  bears  the  names  of  four  witnesses,  but 
it  was  conceded  that  the  last  of  them  signed  his  name  some  time  after 
the  execution  of  the  paper  by  the  testatrix  and  its  attestation  by  the  other 
witnesses,  and  it  does  not  appear  that  he  signed  in  her  presence.  The 
appearance,  therefore,  of  the  name  of  this  witness  upon  the  paper  counts 
for  nothing  in  determining  the  question  of  the  legality  of  its  execution. 


530  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  356 

Accordingly,  the  fact  that  he  signed  will  be  ignored  altogether,  and  it 
will  be  understood  that  in  speaking  of  the  subscribing  witnesses  to  the 
paper,  reference  to  the  other  three  only  is  intended.  One  of  these  signed 
by  making  her  mark.  Another  died  before  the  testatrix.  The  usual 
and  formal  attestation  clause  was  used.  The  paper  was  offered  for 
probate  soon  after  the  death  of  the  testatrix,  and  about  twenty  years 
after  its  execution  and  attestation.  At  the  time  of  probate,  the  two  sub- 
scribing witnesses  then  in  life  were  produced.  The  one  who  wrote  his 
own  name  proved  the  due  execution  of  the  paper  as  a  will.  The  signa- 
ture of  the  deceased  witness  was  shown  to  be  in  his  handwriting.  The 
illiterate  witness  testified  that  she  had  no  recollection  of  attesting  the 
will,  and  could  not  swear  to  the  making  of  her  mark.  At  the  same  time, 
however,  she  did  not  expressly  swear  that  she  did  not  attest  by  her  mark 
the  paper  propounded.  .  .  . 

Error  was  assigned  upon  the  admission  in  evidence  of  the  paper  pro- 
pounded, over  the  objection  that  there  was  no  sufficient  evidence  from  the 
subscribing  witnesses  as  to  its  execution;  and  also  upon  admitting  the 
testimony  of  Mary  Gillis  as  to  the  execution  of  the  paper  by  the  testatrix 
and  its  attestation  by  the  subscribing  witnesses,  over  the  objection  that 
she,  not  being  herself  a  subscribing  witness,  was  incompetent  to  testify 
as  to  these  matters. 

It  is  well  settled  that  the  subscribing  witnesses  to  a  will  must,  if 
practicable,  be  called  and  examined ;  but  the  fate  of  a  will  does  not  depend 
entirely  upon  their  testimony.  Upon  the  trial  of  an  application  to 
prove  a  will  in  solemn  form,  they  are,  all  of  them,  unless  accounted  for, 
indispensable  necessary  witnesses;  but  the  testimony,  even  as  to  the 
factum  of  execution,  is  not  confined  to  them.  The  fact  to  be  established 
is  the  proper  execution  of  the  will.  If  that  is  proved  by  competent 
testimony,  it  is  sufficient,  no  matter  from  what  quarter  the  testimony 
comes,  providing  the  attesting  witnesses  are  among  those  who  bear 
testimony,  or  their  absence  is  explained.  The  inquiry,  as  in  other  cases, 
is  whether,  taking  all  the  testimony  together,  the  fact  is  duly  established. 
It  is  not  required  that  any  one  or  more  of  the  essential  facts  should  be 
proved  by  all,  or  any  number,  of  the  attesting  witnesses.  The  right  is 
simply  to  have  the  attesting  witnesses  examined,  no  matter  what  their 
testimony  may  be.  The  law  does  not  allow  proof  of  the  valid  execution 
and  attestation  of  a  will  to  be  defeated  at  the  time  of  probate  by  the 
failure  of  the  memory  on  the  part  of  any  of  the  subscribing  witnesses. 
Deupree  v.  Deupree,  45  Ga.  442-443;  .  .  .  Lawyer  v.  Smith,  8  Mich. 
411,  77  Am.  Dec.  460;  Brown  v.  Clark,  77  N.  Y.  369;  ...  Or,  by  their 
even  denying  their  signatures  to  the  will  altogether,  when  such  denial  is 
overcome  by  other  competent  evidence.  Pearson  i\  Wightman,  1 
Mill  336,  12  Am.  Dec.  636;  Matter  of  Higgins,  94  N.  Y.  554.  .  .  . 
Gardner  v.  Granniss,  57  Ga.  555.  In  Deupree  t.  Deupree,.  supra, 
decided  in  the  year  1872,  McCay,  J.,  delivering  the  opinion  of  the 
court,  said:  .  .  . 


No.  357  PREFERENTIAL   RULES:     ATTESTING   WITNESS  531 

"How  many  wills  do  not  come  up  for  probate  until  many  years  after  the 
execution  of  them!  Sometimes,  the  witnesses  can  only  recognize  their  own 
handwriting;  sometimes  they  only  remember  the  fact  that  the  testator  signed, 
and  perhaps  only  that  they  signed.  Who  was  present,  and  all  other  details,  have 
passed  from  memory.  To  say  that  under  such  circumstances  the  will  is  not  to 
be  probated,  would  be  a  death-blow  to  wills."  .  .  . 

There  is  nothing  in  §  2424  of  the  Code,  upon  the  probate  of  wills  in 
solemn  form,  which,  rightly  construed,  conflicts  with  the  law  as  declared 
in  this  opinion.  This  section  does  not  require  that  the  subscribing 
witnesses  "in  existence  and  within  the  jurisdiction  of  the  court"  shall 
each  swear,  at  the  time  of  probate,  to  their  own  subscriptions  and  to  the 
signature  and  testamentary  capacity  of  the  testator,  in  order  to  make  a 
will  valid;  for  thus  construing  the  section  would  lead  to  obvious  and 
glaring  wrongs  and  absurdities.  It  simply  means  that  they  must  be 
produced  for  the  purpose  of  testifying  to  these  facts,  if  competent.  This 
section  of  the  code  must  be  taken,  not  literally  but  in  accordance  with 
common  sense  and  the  usual  rules  of  construction.  .  .  .  The  main  reason 
of  the  rule  for  calling  all  witnesses  in  a  proceeding  for  probate  in  solemn 
form  is,  to  give  the  other  party  an  opportunity  of  cross-examining  them; 
and  while  the  law  requires  a  will  to  be  attested  by  three  witnesses,  it 
does  not  necessarily  mean  that  all  three  must  concur  in  their  testimony 
to  prove  it  on  probate.  To  do  this  would  make  the  validity  of  the  will 
depend  upon  the  memory  and  good  faith  of  the  witnesses,  and  not  upon 
that  reasonable  proof  the  law  demands  in  other  cases.  .  .  . 

§  2424  does  not,  when  considered  in  connection  with  the  well-estab- 
lished law  on  the  subject  of  the  attestation  and  proof  of  wills,  as  already 
shown,  prevent  the  probate  of  a  will  on  account  of  defect  of  memory, 
or  even  perjury,  of  a  subscribing  witness,  when  the  deficiency  is  supplied 
by  other  evidence;  because  the  general  rules  of  evidence,  and  the  force 
and  eflFect  of  legal  evidence,  were  not  intended  to  be  disregarded  in 
probating  wills  even  in  solemn  form.  .  .  .  Judgment  affirmed. 


357.   MORE  V.   MORE 

Supreme  Court  of  Illinois.     1904 

211  III.  268;  71  N.  E.  988 

Writ  of  Error  to  the  Circuit  Court  of  DeWitt  county;  the  Hon. 
W.  G.  Cochran,  Judge,  presiding. 

On  the  15th  day  of  October,  1898,  the  plaintiff  in  error  produced  in 
the  County  Court  of  DeWitt  county  an  instrument  in  writing  purporting 
to  be  the  last  will  and  testament  of  one  George  More,  together  with  her 
certificate  and  affidavit,  duly  subscribed  and  sworn  to  before  the  clerk 
of  said  county  court,  showing  that  the  said  George  More  departed  this 


532  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  357 

life  on  the  27th  day  of  September,  1S98.     So  much  of  the  alleged  will 
as  is  necessary  to  be  here  shown  is  as  follows: 

"In  the  name  of  God,  amen.  I,  George  More,  of  the  county  of  De  Witt,  in 
the  State  of  Illinois,  of  the  age  of  about  fifty-four  years,  being  of  sound  mind  and 
memory  and  understanding  but  considering  the  uncertainty  of  this  transitory 
hfe,  do  make  and  publish  this  my  last  will  and  testament  in  manner  and  form 
following,  to-wit:  .  .  .  (Here  follow  devises  and  bequests  contained  in  four 
clauses  not  important  to  be  recited.) 

"And  lastly,  I  nominate,  constitute  and  appoint  my  said  wife,  Matilda  More, 
to  be  the  executrix  of  this  my  last  will,  hereby  revoking  all  other  wills  by  me  made 
and  declaring  this  and  no  other  to  be  my  last  will  and  testament;  and  further, 
that  my  wife  have  the  right  to  letters  of  executrix  without  giving  bond. 

"In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this  17th  day  of 
June,  A.D.  1881. 

George  More.  {L.  S.) 
"Witnesses:  Wm.  Fuller,  of  Clinton,  Illinois. 
Jas.  A.  Wilson,  Clinton,  Illinois." 

It  was  proven  that  William  Fuller  and  James  A.  Wilson,  whose  names 
appear  as  witnesses  to  said  will,  had  each  departed  this  life  prior  to  the 
death  of  the  said  George  jMore,  deceased. 

Such  proceedings  were  had  in  said  County  Court  as  resulted  in  an 
order  admitting  the  instrument  to  probate  as  the  last  will  and  testament 
of  the  said  George  ]More,  deceased.  From  this  order  an  appeal  was 
prosecuted  to  the  Circuit  Court  of  DeWitt  county.  .  .  .  No  testimony 
was  offered  except  that  produced  in  behalf  of  the  plaintiff  in  error.  It 
appeared  from  the  proof  that  the  will  bore  the  signature  of  the  said 
George  More,  deceased,  as  the  maker  thereof,  and  also  the  genuine 
signatures  of  the  said  William  Fuller  and  James  A.  Wilson  as  witnesses 
thereto;  that  the  body  of  the  will  was  in  the  handwriting  of  the  witness 
William  Fuller,  and  that  the  word  "witnesses"  was  also  in  the  hand- 
writing of  said  Fuller;  that  both  of  said  witnesses  were  dead  and  had 
died  prior  to  the  death  of  the  testator,  the  maker  of  the  will;  that  said 
Fuller  was  a  lawyer  and  had  been  for  many  years  engaged  in  the  practice 
of  his  profession;  that  James  A.  Wilson  was  a  well  known  citizen  of 
DeWitt  county  and  had  served  for  several  terms  as  county  treasurer  of 
the  county. 

The  contention  of  the  defendants  in  error  is  that  there  was  no  proof 
whatever  that  the  testator  was  of  sound  mind  and  memory  when  he 
signed  the  will,  or  that  the  witnesses  signed  in  the  presence  of  each  other, 
or  in  the  presence  of  the  testator,  or  at  his  request,  as  they  contend  is 
required  by  the  statute  to  be  proven.  .  .  . 

It  was  adjudged  that  the  evidence  produced  was  insufficient  to 
authorize  the  probate  of  the  will,  and  an  order  was  entered  refusing  pro- 
bate thereof.  This  is  a  WTit  of  error  sued  out  of  this  court  to  bring 
the  order  of  the  circuit  court  into  review.  .  .  . 


No.  357  PREFERENTIAL   RULES:     ATTESTING   WITNESS  533 

John  Fuller  and  George  W.  Ilerrick,  for  plaintiff  in  error.  0.  E.  Harris, 
and  E.  B.  Mitchell,  for  defendants  in  error. 

Mr.  Justice  BoGGS  (after  stating  the  facts  above)  delivered  the  opinion 
of  the  Court: 

Section  2  of  chapter  148,  entitled  "Wills,"  (Kurd's  Stat.  1903,  p. 
1905),  declares  what  shall  be  required  to  be  done  and  proven  in  order  to 
entitle  a  will  to  be  probated  in  cases  where  the  attesting  witnesses  are 
living.  Section  6  of  the  same  chapter  provides  for  the  proof  necessary 
to  be  made  where  any  one  or  more  of  the  attesting  witnesses  shall  have 
died.  .  .  .  We  think  the  proof  submitted  on  the  hearing  in  the  Circuit 
Court  met  the  requirements  of  the  provisions  of  said  section  6,  and  that 
the  trial  Court  erred  in  refusing  to  admit  the  will  to  probate. 

In  Hobart  v.  Hobart,  154  111.  610,  we  said  (p.  614): 

"The  death  of  the  witness  merely  changes  the  form  of  the  proof.  It  permits 
secondary  evidence  to  be  introduced  of  the  due  attestation  and  execution  of  the 
will.  The  attestation  is  then  to  be  shown,  as  it  would  be  in  case  of  deeds,  by 
proof  of  the  handwriting  of  the  witness.  As  to  him  it  is  to  be  presumed  that  he 
duly  attested  the  will  in  the  presence  of  the  testator." 

Out  of  the  evidence  in  this  case  the  presumption  arose  that  the 
witnesses  duly  attested  the  will  in  the  presence  of  the  testator.  If  a 
perfect  and  formal  attestation  clause,  reciting  that  all  statutory  require- 
ments had  been  complied  with,  had  been  signed  by  the  attesting  witnesses, 
the  presumption  of  regularity  and  compliance  with  statutory  require- 
ments would  have  arisen  and  warranted  the  admission  of  the  will  to 
probate.  (1  Underbill  on  Wills,  275,  276).  ...  It  is  not  indispensable, 
however,  that  the  witnesses  shall  sign  a  formal  clause  of  attestation. 
(Robinson  v.  Brewster,  140  111.  649.)  The  attestation  clause  may  consist 
of  a  single  word,  as  "witness,"  "attest"  or  "test,"  or  there  may  be  no 
words  at  all.  (Robinson  v.  Brewster,  supra;  1  Redfield  on  Wills,  132.) 
In  case  of  the  death  of  the  witnesses  to  a  will  which  on  the  face  thereof 
appears  to  have  been  regularly  executed  and  is  shown  to  bear  the  genuine 
signatures  of  the  testator  and  the  witnesses,  compliance  with  the  statu- 
tory requirement  is  to  be  presumed,  in  the  absence  of  express  recitals  to 
that  effect.     1  Jarman  on  Wills,  pp.  219,  220. 

The  act  of  attestation  of  a  will  is  not  merely  to  witness  the  mere  fact 
that  the  testator  signed  the  will  or  acknowdged  that  he  had  signed  the 
same,  but  the  attention  of  the  witnesses  is  called,  by  the  act  of  attestation, 
to  the  mental  condition  of  the  testator  and  as  to  whether  he  is  possessed 
of  a  sound,  disposing  mind,  and,  therefore,  if  the  will  appears  on  the  face 
thereof  to  have  been  duly  executed  and  it  is  proven  that  the  signatures 
thereto  are  the  genuine  writing  of  the  maker  and  the  witnesses,  if  the 
attesting  witnesses  be  dead  an  inference  arises,  from  the  mere  fact  of 
attestation,  that  the  witnesses  believed  that  the  testator  possessed 
testamentary  capacity  at  the  time  of  the  execution  of  the  will,  though 
there  be  no  formal  recital  to  the  effect.  .  .  .  This  inference  fairly  arose 


534  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  357 

in  the  case  at  bar,  and  was  supplemented  by  the  testimony  which  dis- 
closed that  the  deceased,  at  the  time  of  making  the  will,  transacted 
intelligently,  ordinary  business  affairs  of  life.  It  was  therefore  established 
prima  facie  by  the  proof,  and  the  inferences  and  presumptions  legally 
arising  therefrom,  that  said  George  More  signed  the  said  will  in  the 
presence  of  the  said  witnesses;  that  they  signed  it  as  witnesses  in  the 
presence  of  the  testator  and  in  the  presence  of  each  other  as  attesting 
witnesses;  that  they  believed  him  to  be  of  sound  and  disposing  mind  and 
that  he  in  fact  had  sufficient  mental  capacity  to  execute  a  will. 

The  will  should  have  been  admitted  to  probate.  The  order  of  the 
Circuit  Court  will  therefore  be  reversed  and  the  cause  will  be  remanded 
to  that  Court,  with  directions  to  enter  an  order  admitting  the  instrument 
to  probate  as  the  last  will  and  testament  of  the  said  George  More. 

Reversed  and  remanded,  with  directions. 

358.  Statutes.  California.  (C.  C.  P.  1872,  §  1308.)  [In  uncontested  wills,] 
the  testimony  of  one  of  the  subscribing  witnesses  [suffices].  lb.  §  1315.  [In 
contested  wills]  all  the  subscribing  witnesses  who  are  present  in  the  county  and 
who  are  of  sound  mind  must  be  produced  and  examined,  and  the  deatli,  absence, 
or  insanity  of  any  of  them  must  be  satisfactorily  sliown  to  the  Court;  if  none  of 
the  subscribing  witnesses  reside  in  the  county  at  the  time  appointed  for  proving 
the  Avill,  the  Court  may  admit  the  testimony  of  other  witnesses  to  prove  the 
sanity  of  the  testator  and  the  execution  of  the  will;  and,  as  evidence  of  such 
execution  it  may  admit  proof  of  the  handwriting  of  the  testator  and  of  the  sub- 
scribing witnesses  or  any  of  them. 

Illinois.  (Revised  Statutes  1874,  c.  148.  §  6.)  [Where]  any  one  or  more  of  the 
witnesses  of  any  wall  .  .  .  shall  die,  be  insane,  or  remove  to  parts  unknown  to 
the  parties  concerned,  so  that  his  or  her  testimony  cannot  be  procured,  ...  it 
shall  be  lawful  ...  to  admit  proof  of  the  handwTiting  of  any  such  deceased, 
insane,  or  absent  witness,  as  aforesaid,  and  such  other  secondary  evidence  as  is 
admissible  in  courts  of  justice,  to  establish  written  contracts  generally  in  similar 
cases. 

Wisconsin.  (Statutes,  1898,  §3788.)  If  none  of  the  subscribing  witnesses  shall 
reside  in  this  State  ...  or  if  any  one  or  more  of  them  shall  have  gone  to  parts 
unknown  and  the  Court  shall  be  satisfied  that  such  witness,  after  due  diligence 
used,  cannot  be  found,  [then  the  Court  may  admit  other  testimony  to  prove 
sanity]  and  the  execution  of  the  will,  and  may  admit  proof  of  his  handwTiting 
and  of  the  handwriting  of  the  subscribing  witnesses. 


Topic  2.    Rules  of  Preference  for  Sundry  Kinds  of  Witnesses 

359.   UNITED   STATES  v.   GIBERT 

United  States  Circuit  Court.     1834 

2  Sumner  19 

Indictment  against  the  officers  and  crew  of  the  ship  Panda,  for 
piracy  committed  on  the  brig  Mexican.     The  brig  Mexican  belonged  to 


No.  359  PREFERENTIAL   RULES:     SUNDRY   WITNESSES  535 

Salem,  and  was  owned  by  Joseph  Peabody.  It  sailed  from  Salem  for 
Rio  Janerio  on  the  29th  August,  1832,  under  the  command  of  Captain 
Butman;  having  on  board  a  valuable  cargo,  and  twenty  thousand  dollars 
in  specie.  On  the  20th  September,  in  33°  N.  lat.  and  34°  30'  W.  Lon., 
she  fell  in  with  a  suspicious-looking  vessel,  from  which  she  made  many 
efforts,  but  unsuccessfully,  to  escape.  .  .  .  Informaton  of  what  had 
taken  place  was  immediately  disseminated  throughout  this  and  other 
countries,  and  reached  the  coast  of  Africa,  where  Captain  Trotter,  com- 
manding the  British  brig  of  war  Curlew,  was  then  cruising.  Circum- 
stances led  that  gentleman  to  believe  that  the  schooner  Panda,  then 
lying  in  the  river  Nazareth,  was  the  vessel  which  had  captured  the 
Mexican.  He  immediately,  therefore,  proceeded  to  take  measures 
against  her.  These  measures  resulted  in  the  capture  of  the  Panda, 
but  the  escape,  for  the  time,  of  her  crew.  No  ship's  papers  or  log-book 
were  found  on  board  of  her,  although  diligently  sought  for;  and,  owing 
to  some  accident,  she  shortly  afterwards  blew  up,  thereby  killing  several 
of  the  Curlew's  men.  Captain  Trotter  then  sailed  to  other  ports,  still 
making  efforts  to  discover  the  crew  of  the  Panda,  and  at  last  succeeded 
in  arresting  the  prisoners,  and  carried  them  into  Portsmouth,  England. 
By  the  British  government,  they  were  sent  to  this  country  for  trial,  the 
offence  of  which  they  were  charged  having  been  committed  on  board  a 
vessel  of  the  United  States. 

After  verdict  and  before  judgment,  the  following  motion  for  a  new 
trial,  and  in  arrest  of  judgment,  was  filed  by  the  counsel  for  the  prisoners: 
...  12.  Because  the  said  Court  declined  to  instruct  the  jury  that  the 
failure  of  the  government  to  produce,  in  evidence  of  the  attempt  by  said 
Ruiz  to  blow  up  the  said  Panda,  the  only  witness  who  saw  the  match, 
as  applied  for  that  purpose,  and  who  is  testified  to  have  removed  it, 
affords  a  legal  presumption  against  the  truth  of  the  alleged  attempt  by 
said  Ruiz  to  destroy  the  said  Panda.   .  .  . 

Story,  J.  —  The  next  and  last  specification  under  this  head  is  that 
the  Court  declined  to  instruct  the  jury  that  the  failure  of  the  govern- 
ment to  produce  the  witness,  who  (it  was  testified)  saw  the  match  applied 
for  the  purpose  of  blowing  up  the  Panda,  and  removed  it,  afforded  a 
legal  presumption  against  the  truth  of  the  alleged  attempt  by  the  prisoner 
Ruiz  to  destroy  the  Panda.  .  .  .  The  argument  now  is,  that  although 
Mr.  Quentin,  who  was  upon  the  stand,  stated  that  he  was  on  board  at 
the  same  time  with  the  witness,  that  he  saw  the  smoke  coming  from  the 
cabin,  and  the  absent  witness  go  down,  and  bring  up  the  match,  and 
many  other  circumstances  to  establish  an  intention  to  set  the  Panda  on 
fire  and  blow  her  up;  yet  that  his  testimony  was  not  the  best  evidence 
on  this  point,  and  ought  to  be  rejected.  .  .   . 

It  appears  to  me  that  the  whole  basis  of  the  argument  is  founded  upon 
a  mistake  of  the  meaning  of  the  rule  of  law  as  to  the  production  of  the 
best  evidence.  The  rule  is  not  applied  to  evidence  of  the  same  nature 
and  degree;   but  it  is  applied  to  reject  secondary  and  inferior  evidence 


536  BOOK  i:     RULES   OF  ADMISSIBILITY  No.  359 

in  proof  of  a  fact  which  leaves  evidence  of  a  higher  and  superior  nature 
behind  in  the  possession  or  power  of  the  party.  Thus,  if  the  party  offers 
a  copy  of  a  paper  in  evidence,  when  he  has  the  original  in  his  possession, 
the  copy  will  be  rejected,  for  the  original  is  evidence  of  a  higher  nature. 
.  .  .  But  the  rule  does  not  apply  to  several  eye-witnesses  testifying  to 
the  same  facts  or  parts  of  the  same  facts,  for  the  testimony  is  all  in  the 
same  degree,  and  where  there  are  several  witnesses  to  the  same  facts,  they 
may  be  proved  by  one  only.  All  need  not  be  produced.  If  they  are  not 
produced,  the  evidence  may  be  less  satisfactory  or  less  conclusive,  but 
still  it  is  not  incompetent. 

And  to  apply  the  principle  to  the  present  objection,  Mr.  Quentin 
was  a  competent  witness  to  prove  all  the  facts,  which  he  knew,  which 
went  to  establish  an  intention  to  blow  up  the  Panda.  That  another 
witness  might  have  pro\'ed  more  and  other  facts  to  the  same  purpose, 
which  might  have  been  more  full  and  satisfactory  and  conclusive  to 
the  jury,  does  not  render  Mr.  Quentin's  testimony  incompetent.  The 
defects  in  the  evidence,  whatever  they  might  be,  are  very  proper  matters 
of  observation  to  the  jury,  to  create  doubts  or  justify  disbelief  of  any 
intention  to  blow  up  the  Panda.  But  the  jury  were  to  judge  of  all  these 
matters  in  weighing  the  whole  evidence  on  this  particular  point.  A 
witness  who  has  seen  a  party  write  several  times  is  a  good  witness  to 
prove  his  handwriting.  But  a  clerk  in  the  counting-room  of  the  party, 
who  has  seen  him  write  innumerable  times,  would  be  in  many  cases  a 
more  satisfactory  witness  to  prove  the  handwTiting.  But  nobody  can 
doubt  that  each  would  be  competent  witness  of  the  facts  within  his 
knowledge  to  prove  the  handwriting.  .  .  . 

I  agree  with  the  presiding  judge,  in  the  views  which  he  has  expressed 
on  the  motion  in  arrest  of  judgment,  as  well  as  with  those  on  the  motion 
for  a  new  trial,  excepting  in  the  instance  which  I  have  specified,  and  in 
the  result,  that  the  motions  be  overruled. 

360.   REGINA  v.   CHRISTOPHER 

Court  of  Criminal  Appeal.     1850 

4  Cox  Cr.  76 

The  following  case  was  stated  by  the  Recorder  of  Liverpool,  for  the 
opinion  of  the  judges,  under  stat.  11  &  12  Vict.  c.  78. 

The  prisoners,  John  Christopher,  John  Smith,  and  George  Thornton, 
were  indicted  at  the  General  Quarter  Sessions,  holden  in  and  for  the 
borough  of  Liverpool,  on  the  22nd  day  of  October,  1849,  for  felony. 
When  the  prisoners  were  first  brought  before  the  magistrate,  and  charged 
with  the  felony,  the  wutnesses  were  sworn,  examined  by  the  magistrate 
and  cross-examined  by  the  prisoners,  and  \\Titten  minutes  of  the  examina- 
tion and  cross-examination  were  made  by  the  clerk  of  the  magistrate 
under  the  inspection  of  the  -magistrate. 


No.  360  PREFERENTIAL    RULES:     SUNDRY    WITNESSES  537 

These  minutes  were  then  sent  to  the  office  of  the  clerk  of  the  magis- 
trate, and  there  dehvered  to  a  clerk  named  Tasker,  who  proceeded  to 
write  the  depositions  from  the  minutes.  The  witnesses  attended  in  the 
office,  and  in  the  course  of  writing  the  depositions  Tasker  put  some 
questions  to  each  of  them  for  the  purpose  of  rendering  the  depositions 
more  correct,  clear  and  complete.  The  answers  given  to  these  questions 
were  inserted  in  the  depositions.  The  magistrate  was  not  present,  nor 
were  the  prisoners,  at  the  office  of  the  clerk  to  the  magistrate.  The 
depositions  having  been  thus  written,  the  witnesses  appeared  again 
before  the  magistrate,  and  in  the  presence  of  the  prisoners  were  re-sworn ; 
the  depositions  were  read  over  to  them,  and  a  full  opportunity  was 
afforded  for  cross-examination  before  the  depositions  were  signed  by  the 
witnesses. 

Under  these  circumstances  appearing  on  the  trial,  the  counsel  for  the 
prisoners  proposed  to  ask  one  of  the  witnesses  for  the  Crown  the  following 
question,  —  "  Did  you  not  tell  Mr.  Tasker  that  you  were  watching  the 
prisoner  Christopher  till  a  quarter  before  one  o'clock?"  This  question 
was  material.  The  question  had  reference  to  what  was  said  by  the 
witness  in  answer  to  some  question  put  by  Mr.  Tasker,  as  above  stated, 
in  the  course  of  writing  the  depositions,  and  the  witness's  answer  would, 
according  to  the  evidence,  appear  on  the  depositions. 

The  depositions  were  not  read  or  tendered  in  evidence. 
The  counsel  for  the  prosecution  objected  to  the  question  proposed, 
and  the  question  was  overruled  by  the  Court. 
The  prisoners  were  all  convicted  of  felony. 

Judgment  was  postponed,  and  the  prisoners  were  committed  to  prison 
until  it  should  have  been  considered  and  decided  whether  the  question 
proposed  to  be  asked  was  properly  overruled,  and  whether  the  prisoners 
were  duly  convicted.  ... 

Hills.  —  Even  assuming  that  the  depositions  were  sufficiently  taken 
to  render  them  admissible  in  evidence,  it  by  no  means  follows  that  the 
question  put  to  the  witness  ought  not  to  have  been  answered.  The 
depositions  profess  only  to  contain  the  statements  made  before  the 
magistrate,  and  the  question  asked  related  to  a  statement  made,  not 
before  the  magistrate,  but  to  the  magistrate's  clerk  in  the  magistrate's 
absence.  Upon  what  principle  can  parol  evidence  of  that  statement 
be  excluded? 

Alderson,  B.  —  What  was  said  to  Tasker  is  not  to  be  excluded 
because  it  was  also  said  before  the  magistrates.  Tasker  was  not  a  judi- 
cial officer,  and  no  one  was  bound  by  what  he  wrote. 

Paget,  contra,  was  directed  to  confine  himself,  in  the  first  instance, 
to  the  last  point. 

Alderson,  B.  —  Suppose  the  depositions  to  be  perfect,  and  that  the 
answer  w^ould  appear  upon  them ;  still,  cannot  the  prisoner  ask  the  witness 
what  he  said,  not  before  the  magistrate  when  the  depositions  were  being 
taken,  but  at  some  other  time? 


538  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  360 

Paget.  —  The  finding  of  the  case  is  conclusive  as  to  that.  It  is  found 
that  "  the  question  had  reference  to  what  was  said  by  the  witness  in 
answer  to  some  question  put  by  Mr.  Tasker,  as  above  stated,  in  the 
course  of  writing  the  depositions,  and  the  ivitness's  ansiver  would,  according 
to  the  evidence,  appear  on  the  depositions."  If  that  be  so,  the  depositions 
are  the  proper  evidence. 

Alderson,  B.  —  There  is  the  fallacy.  The  depositions  contain  that 
which  Tasker  wrote,  and  that  which  the  witness  afterwards  stated  to  be 
true.  They  may  contain  the  true  answer  to  the  question  "  What  did  the 
witness  say  to  Tasker?"  But  the  witness  might  say  that  he  had  given  a 
different  answer  to  Tasker  from  that  which  the  deposition  contained.  .  .  . 

Paget.  —  This  statement  has  been  read  over  to  the  witness,  and  signed 
by  him  as  and  for  the  true  account.  If  the  witness  had  employed  Tasker 
to  write  his  statement,  had  seen  it  when  written,  had  signed  it  and 
transmitted  it  to  a  third  party,  the  witness  could  not  have  been  asked 
a  question  about  any  statement  in  that  paper  until  the  paper  had  been 
put  into  his  hands  (The  Queen's  case,  2  B.  &  B.  289). 

Alderson,  B.  —  That  was  the  case  of  a  letter,  and  it  did  not  appear 
that  the  writer  had  made  any  statement  except  in  writing.  In  this  case 
there  was  an  oral  statement  previously  to  the  writing;  could  it  not  have 
been  given  in  evidence  if  it  had  never  been  written  down?  .  .  . 

Paget.  —  For  this  part  of  the  case  the  depositions  are  assumed  to  be 
correctly  taken  under  the  authority  of  the  magistrate;  and  the  pre- 
sumption therefore  is,  that  they  contain  all  that  was  material  in  the  testi- 
mony of  the  witnesses.  That  being  so,  they  ought  to  be  produced  before 
any  question  can  be  asked  as  to  what  the  witness  said.  In  Leach  v. 
Simpson  (5  Mee.  &  W.  312),  Parke,  B.,  said: 

"The  presumption  is,  until  the  contrary  is  shown,  that  the  magistrate  took 
down  all  that  was  material  in  the  testimony  of  the  witness.  The  written  deposi- 
tion, therefore,  is  the  best  evidence  of  what  he  said,  and  must  first  be  produced 
before  you  can  inquire  by  other  means  as  to  what  passed  on  the  occasion;  then, 
if  it  appear  on  production  of  the  deposition  that  any  particular  statement  alleged 
to  have  been  made  is  not  contained  in  it,  you  may  add  to  it  by  parol  evidence 
of  that  statement." 

If  a  merchant  were  to  dictate  a  letter  to  a  clerk,  to  sign  it,  and  to  send  it, 
he  could  not  be  asked  what  he  had  dictated  unless  the  letter  were  first 
put  in. 

Maule,  J.  —  Mr.  Tasker  was  not  a  subordinate,  writing  at  the  dicta- 
tion of  the  witness,  but  a  person  assuming  to  have  authority  to  write 
down  what  the  witness  said. 

Alderson,  B.  —  In  such  a  case  it  is  the  communication  that  is  the 
evidence;  the  letter  is  the  communication,  and  therefore  the  letter  must 
be  put  in;  but  in  cases  in  which  the  declaration  is  the  evidence,  and  the 
declaration  was  by  words  spoken,  the  words  spoken  must  be  proved, 
tliorgh  they  were  written  down  after  they  were  spoken.     This  matter 


No.   361  PREFERENTIAL    RULES:     SUNDRY    WITNESSES  539 

is  correctly  and  ably  treated  in  a  note  to  Jeans  v.  Wheedon  (2  Mo.  &  R. 
487). 

Paget.  —  In  that  case  the  document  was  not  signed,  and  therefore  no 
deposition.     As  to  the  first  point  —  (He  was  stopped.) 

Wilde,  C.  J.  —  It  is  unnecessary  to  hear  any  further  argument  on 
this  first  point,  because  we  are  all  of  opinion  that  the  question,  the  right 
to  put  which  is  raised  by  the  second  point,  ought  to  have  been  allowed, 
and  that  an  answer  to  it  ought  to  have  been  required.  The  question 
was,  "  Did  you  not  tell  Mr.  Tasker  that  you  were  watching  the  prisoner 
Christopher  till  a  quarter  before  one  o'clock?"  The  objection  was  that 
the  answer  to  the  question  was  to  be  found  in  a  paper  WTitten  by  Tasker 
immediately  after  the  supposed  statement  to  Tasker  took  place,  and 
afterwards  signed  by  the  witness.  Was  that  paper  the  primary  evidence 
of  what  the  witness  had  told  Tasker?  .  .  . 

The  authority  of  a  deposition  is  derived  from  the  fact  that  the  law 
has  charged  the  magistrate  with  the  duty  of  recording  what  the  witness 
has  said.  The  law  presumes  that  he  will  do  his  duty;  and,  therefore, 
that  which  he  so  does  becomes  the  best  evidence.  Had  this  paper  pre- 
pared by  Tasker  any  analogy  to  the  deposition  which  it  afterwards  be- 
came? Was  there  in  the  paper  at  the  time  it  was  written  any  legal 
character,  the  effect  of  which  was  to  exclude  parol  evidence  of  what  was 
in  fact  said?  The  Court  thinks  that  there  was  not.  At  the  time  Mr. 
Tasker  wrote,  he  w^as  doing  an  act  to  which  the  law  gave  no  sanction, 
and,  therefore,  doing  it  as  a  mere  volunteer  between  himself  and  the 
witness.  The  primary  evidence  was  what  the  witness  said,  and  what  he 
said  cannot  be  excluded  because  another  man  committed  it  to  writing. 
.  .  .  The  law  has,  in  this  case,  no  security  that  what  the  witness  said  at 
the  time  to  which  the  question  is  confined  was  committed  to  writing. 

We  are,  therefore,  of  opinion  that  the  question  was  improperly  over- 
ruled, that  the  conviction  cannot  be  sustained,  and  that  a  verdict  of  not 
guilty  ought  to  be  entered.  Conviction  reversed. 

361.   BRICE  V.   MILLER 

Supreme  Court  of  South  Carolina.     1891 

35  S.  C.  537;   15  S.  E.  270 

Before  Kershaw,  J.,  Fairfield,  February,  1891. 

Action  by  Calvin  Brice  &  Co.  against  Elizabeth  Miller.  The  charge 
to  the  jury  was  as  follows : 

"This  action  is  founded  upon  two  notes;  notes  which  the  defendant 
here,  Mrs.  Elizabeth  Miller,  does  not  deny  that  she  made.  .  .  .  So,  if 
you  find  that  she  made  these  notes  and  mortgage,  your  next  important 
inquiry  will  be  whether  the  transaction  was  one  that  had  relation  to  her 
separate  property.  ...  I  think  she  is  liable,  and  the  plaintiffs  ought  to 
have  a  verdict,  if  that  is  the  nature  of  this  transaction.  .  .  . 


540  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  361 

"  It  has  been  urged  upon  me  to  charge  you,  .  .  .  that  W'hen  there  is 
a  record  kept  of  a  fact  in  writing  made  at  the  time,  it  is  better  evidence 
than  the  unaided  recollection  of  any  one.  Now,  as  to  this  point,  about 
what  this  good  lady,  Mrs.  Miller,  testified  to  at  the  last  court:  Mr. 
Brice  undertook  to  tell  what  he  recollected  about  it,  and  it  has  been  urged  upon 
you  that  his  recollection  is  not  correct,  and  the  record  kept  by  the  stenographer, 
a  sworn  officer  of  the  court,  was  read,  in  order  to  shoiv  that  Mr.  Brice  did  not 
recollect  what  the  lady  said  at  the  last  trial.  In  a  point  of  that  kind,  you  will 
go  by  what  the  stenographer  took  her  down  as  saying  at  the  time.  It  is  more 
worthy  of  belief  than  the  statement  of  the  witness;  the  preponderance 
is  in  favor  of  what  the  stenographer  took  down  at  the  time. 

"The  plaintiff  must  satisfy  you  by  the  preponderance  of  the  testi- 
mony that  he  is  entitled  to  recover.  .  .  .  We  have  the  word  of  Mr. 
Brice  as  to  what  he  remembers  this  lady  to  have  said,  and  we  have  the 
written  testimony  of  the  stenographer  as  to  what  she  said.  It  is  man 
against  man,  but  the  preponderance  is  in  favor  of  the  stenographer's 
notes  rather  than  the  witness.  That  is  what  is  meant  by  the  preponder- 
ance of  the  evidence.  ..." 

Verdict  was  for  plaintiff,  and  defendant  appealed  on  the  following 
exceptions:  ...  4.  For  that  his  honor  erred  in  permitting  the  plaintiff  to 
testify  his  recollection  as  to  what  the  defendant  said  while  testifying  on  a 
former  trial  of  this  cause,  her  testimony  being  in  writing  and  preserved 
as  the  records  of  the  court,  and  she  being  then  in  court  and  subject  to 
examination  by  him.  .  .  . 

Messrs.  Ragsdale  &  Ragsdale,  for  appellant.  Messrs.  McDonald  & 
Douglas,  contra. 

March  23,  1892.     The  opinion  of  the  Court  was  delivered  by 

Mr.  Chief  Justice  McIver.  This  is  an  action  on  two  notes  alleged 
to  have  been  made  by  the  defendant  in  favor  of  the  plaintiffs,  and  the 
complaint  is  in  the  ordinary  form  appropriate  to  such  an  action.  The 
only  defence  was,  that  defendant  is,  and  was  at  the  time  of  the  execution 
of  the  notes,  a  married  woman,  and  was;  therefore,  incapable  of  making 
the  contract  evidenced  thereby.  .  .  . 

The  fourth  subdivision  cannot  be  sustained.  There  can  be  no  doubt 
that  it  is  competent  for  one  party  to  show  what  the  other  party  to  the 
action  has  admitted,  or  said,  as  to  the  subject-matter  of  controversy  on 
a  previous  occasion,  whether  on  a  former  trial  or  not.  But  the  point  of 
this  particular  allegation  of  error  seems  to  be  that,  inasmuch  as  the 
testimony  of  the  defendant  at  the  former  trial  had  been  taken  down  by  the 
stenographer  in  writing,  that  constituted  the  best  evidence  as  to  what 
her  testimony  had  been,  and,  therefore,  it  was  not  competent  for  the 
plaintifF  to  state  what  the  defendant  had  said  on  a  former  trial. 

We  know  of  no  rule  of  law  which  would  sustain  this  position.  While 
it  may  be  true  that  what  a  witness  writes  down  himself,  or  what  is  con- 
tained in  some  paper  WTitten  by  another  and  signed  by  himself,  may  be 
the  best  evidence  of  what  the  witness  has  said  on  a  former  occasion,  it 


No.  3G1  PREFERENTIAL    RULES:     SUNDRY    WITNESSES  541 

does  not  follow  that  where  a  third  person,  be  he  a  stenographer  or  not, 
takes  down  in  writing  what  a  witness  said,  this  writing  is  the  best  evidence, 
in  such  a  sense,  as  to  exclude  any  other.  Stenographers  are  no  more 
infallible  than  any  other  human  beings;  and  while,  as  a  rule,  they 
may  be  accurate,  intelligent,  and  honest,  they  are  not  always  so; 
and  therefore  it  will  not  do  to  lay  down  as  a  rule  that  the  stenogra- 
pher's notes,  when  translated  by  him,  are  the  best  evidence  of  what  a 
witness  has  said,  in  such  a  sense  as  to  exclude  the  testimony  of  an  intelli- 
gent bystander,  who  has  heard  and  paid  particular  attention  to  the 
testimony  of  the  witness,  as  to  what  such  witness  may  have  said  on  a 
former  trial.  The  Circuit  Judge,  in  his  comments  to  the  jury  upon  this 
subject,  went  quite  as  far  (if  not  too  far)  as  it  was  proper  to  go,  when  he 
told  them  that  the  stenographer's  notes  would  outweigh  the  testimony 
of  a  person  who  spoke  from  memory  only.  .  .  . 

The  judgment  of  this  Court  is,  that  the  judgment  of  the  Circuit  Court 
be  affirmed. 


542  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  364 


TITLE  III.    ANALYTIC  RULES   (SEAMSAT  RULE)^ 

SUB-TITLE    I.     THE   HEARSAY    RULE    ITSELF 
Topic  1.     Theory  and  History  of  the  Rule 

364.  Introductory.  There  is  but  one  rule  of  the  Analytic  type,  —  the 
Hearsay  rule,  though  this  rule  rule  involves  two  branches  or  processes,  Cross- 
examination  and  Confrontation. 

Nature  of  Hearsay,  as  an  Extra-judicial  Testimonial  Assertion.  Wlien  a 
witness  A  on  the  stand  testifies,  "B  told  me  that  event  X  occurred,"  his  testimony 
may  be  regarded  in  two  ways:  (1)  He  may  be  regarded  as  asserting  the  event  X 
upon  his  own  credit,  i.e.  as  a  fact  to  be  believed  because  he  asserts  that  he  knows 
it.  But  when  it  thus  appears  that  his  assertion  is  not  based  on  personal  observa- 
tion of  event  X,  his  testimony  to  that  event  is  rejected,  because  he  is  not  qualified 
by  proper  sources  of  knowledge  to  speak  to  it.  This  involves  a  general  principle 
of  Testimonial  Knowledge,  already  examined  (ante,  Nos.  108-120),  and  does  not 
involve  the  Hearsay  rule  proper. 

(2)  But  suppose,  in  order  to  obviate  that  objection,  that  we  regard  A  as  not 
making  any  assertion  about  event  X  (of  which  he  has  no  personal  knowledge), 
but  as  testifying  to  the  utterance  in  his  hearing  of  B's  statement  as  to  event  X. 
To  this,  A  is  clearly  qualified  to  testify,  so  that  no  objection  can  arise  on  that  score. 
The  only  question,  then,  can  be  whether  this  assertion  of  B,  reported  by  A,  is 
admissible  as  evidence  of  the  event  X,  asserted  by  B  to  have  occurred.  It  is 
clear  that  what  we  are  now  attempting  to  do  is  to  prove  event  X  by  B's  assertion; 
the  utterance  of  B's  assertion  being  itself  proved  by  A's  testimony  to  it.  In 
other  words,  merely  the  making  of  B's  assertion  is  properly  proved  by  A;  but  the 
occurrence  of  event  X  is  also  sought  to  be  proved,  by  this  assertion  of  B,  which 
was  uttered  out  of  court,  but  is  offered  testimonially  for  the  same  purpose  as 
if  it  were  being  made  presently  by  B  on  the  stand.  It  is  these  extra-judicial 
testimonial  assertions  which  the  Hearsay  rule  prohibits.  The  Hearsay  rule 
points  out  that  B's  assertion,  offered  testimonially,  is  not  made  on  the  stand  and 
presently,  but  out  of  court  anteriorly,  and  challenges  it  upon  that  ground.  It 
tells  us  that  B's  assertion  cannot  be  accepted,  because  it  has  not  been  made  at 
a  time  and  place  where  it  could  be  subjected  to  certain  essential  tests  or  investiga- 
tions calculated  to  demonstrate  its  real  value  by  exposing  such  latent  sources  of 
error.  The  Hearsay  rule  predicates  a  contrast  between  assertions  untested  and 
assertions  tested;   it  insists  upon  having  the  latter. 

What  is  the  nature  of  the  test  thus  required  by  the  Hearsay  rule? 

The  fundamental  test,  shown  by  experience  to  be  invaluable,  is  the  test  of 
Cross-examination.  The  rule,  to  be  sure,  calls  for  two  elements.  Cross-examina- 
tion proper,  and  Confrontation;  but  the  former  is  the  essential  and  indispensable 
feature,  the  latter  is  only  subordinate  and  dispensable.  The  theory  of  the  Hear- 
say rule  is  that  the  many  possible  deficiencies,  suppressions,  sources  of  error  and 
untrustworthiness,  which  lie  underneath  the  bare  untested  assertion  of  a  witness 
may  be  best  brought  to  light  and  exposed  by  the  test  of  Cross-examination. 


^  In  No.  2,  ante,  the  distinction  between  these  several  groups  of  rules  have 
been  explained. 


No.  364  HEARSAY  RULE:  IN  GENERAL  543 

Confrontation.  A  process  commonly  spoken  of  as  Confrontation  is  also  often 
referred  to  as  an  additional  and  accompanying  test  or  as  the  sole  test.  Now 
Confrontation  is,  in  its  main  aspect,  merely  another  term  for  the  test  of  Cross- 
examination.  It  is  the  preliminary  step  to  securing  the  opportunity  of  cross- 
examination.  The  witness  is  confronted  with  the  party,  so  that  the  party  may 
cross-examine  him.  Confrontation  also  involves  a  subordinate  and  incidental 
advantage,  namely,  the  observation  by  the  tribimal  of  the  witness'  demeanor  on 
the  stand,  as  a  minor  means  of  judging  the  value  of  his  testimony.  But  this 
minor  advantage  is  not  regarded  as  essential,  i.e.  it  may  be  dispensed  with  when 
it  is  not  feasible.  Cross-examination,  however,  the  essential  object  of  confronta- 
tion, remains  indispensable. 

Cross-examination  as  a  Distinctive  and  Vital  Feature  of  our  Law.  For  two 
centuries  past,  the  policy  of  the  Anglo-American  system  of  evidence  has  been  to 
regard  the  necessity  of  testing  by  cross-examination  as  a  vital  feature  of  the  law. 
The  belief  that  no  safeguard  for  testing  the  value  of  human  statements  is  com- 
parable to  that  furnished  by  cross-examination,  and  the  conviction  that  no 
statement  (unless  by  special  exception)  should  be  used  as  testimony  until  it  has 
been  probed  and  sublimated  by  that  test,  has  found  increasing  strength  in  lengthen- 
ing experience.  Not  even  the  abuses  and  the  puerilities  which  are  so  often  found 
associated  with  cross-examination  have  availed  to  overbalance  its  value.  It 
may  be  that  (in  more  than  one  sense)  it  takes  the  place  in  our  system  which 
torture  occupied  in  the  medieval  system  of  the  civilians.  Nevertheless,  it  is 
beyond  any  doubt  the  greatest  legal  engine  ever  invented  for  the  discovery  of 
truth.  However  difficult  it  may  be  for  the  layman  or  the  foreign  jurist  to  appre- 
ciate this  its  wonderful  power,  there  has  probably  never  been  a  moment's  doubt 
upon  this  point  in  the  mind  of  a  lawyer  of  experience.  "You  can  do  anything," 
said  Wendell  Phillips,  "with  a  bayonet  —  except  sit  upon  it."  A  Jawyer  can  do 
anything  with  a  cross-examination,  —  if  he  is  skilful  enough  not  to  impale  his 
own  cause  upon  it.  He  may,  it  is  true,  do  more  than  he  ought  to  do;  he  may 
"make  the  worse  appear  the  better  reason,  to  perplex  and  dash  maturest  counsels," 
—  may  make  the  truth  appear  like  falsehood.  But  this  abuse  of  its  power  is  able 
to  be  remedied  by  proper  control.  The  fact  of  this  unique  and  irresistible  power 
remains,  and  is  the  reason  for  our  faith  in  its  merits.  If  we  omit  political  con- 
siderations of  broader  range,  then  cross-examination,  not  trial  by  jury,  is  (as 
Bentham  said)  the  great  and  permanent  contribution  of  the  Anglo-American 
system  of  law  to  improved  methods  of  trial-procedure. 

Striking  illustrations  of  its  power  to  expose  inaccuracies  and  falsehoods  are 
plentiful  in  our  own  records. 

Illustrations  of  the  theory  and  the  art.  To  illustrate  the  theory  and  the  art  of 
cross-examination,  the  follownng  examples  must  here  suffice. 

1.  Examples  of  the  utility  of  a  cross-examination,  in  bringing  out  desirable 
facts  of  the  case,  modifying  the  direct  examination  or  otherwise  adding  to  the  cross- 
examiner's  own  case: 

David  Paul  Brown,  The  Forum,  (1S56)  II,  456  [this  celebrated  Pennsyl- 
vanian  advocate  is  describing  a  case  of  alleged  infanticide  by  poison,  admin- 
istered by  its  mother,  whose  seducer  had  deserted  her:]  "It  was  shown  that 
a  day  or  two  before  the  death  of  her  infant,  the  mother  had  sent  for  half-an- 
ounce  of  arsenic  to  a  grocer's.  That  after  the  death  the  arsenic  was  taken  to 
the  grocer's,  and  was  weighed,  and  had  lost  twenty-four  grains  in  its  weight. 
This  circumstance,  together  with  the  opinion  of  the  chemist,  presented  a 


544  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  364 

strong  case.  Neither  was  sufficient  in  itself,  but  together  they  were  danger- 
ous. Of  course,  the  cross-examination  as  to  the  weight  was  very  rigid  and 
severe.  Upon  this  particular  point  it  ran  thus:  'When  the  arsenic  was  pur- 
chased, how  did  you  weight  it?'  'I  weighed  it  by  shot.'  'How  many  shot?' 
'Six.'  'Of  what  description?'  'No.  8.'  'When  it  was  returned,  did  you 
weigh  it  in  the  same  scales?'  'Yes.'  'Did  you  weigh  it  with  the  same  shot?' 
'I  weighed  it  with  shot  of  the  same  number  —  for  I  had  no  other  number.' 
'How  much  less  did  it  weigh?'  'Twenty-four  grains  less.'  It  was  plain 
that  this  testimony  bore  hard  upon  the  prisoner  —  but  at  this  stage  of  the 
case  the  Court  adjourned.  Immediately  my  colleague  (]Mr.  Boyd)  and  my- 
self visited  the  stores  of  all  the  grocers,  and  took  from  various  uncut  bags  of 
No.  8,  the  requisite  number  of  shot,  subjected  them  to  weight  in  the  most 
accurate  scales,  and  found  that  the  same  number  of  these  different  parcels  of 
shot  varied  more  in  weight  than  the  difference  referred  to  as  detected  in  the 
arsenic  at  the  time  of  its  return.  The  shot  —  the  grocers  - —  the  apothecary 
—  the  scales  —  were  all  brought  before  the  Court.  They  clearly  established 
the  facts  stated,  and  enabled  us  fairly  to  contend  that  there  had  been  no 
portion  of  the  arsenic  used,  —  which  argument,  aided  by  the  excellent  char- 
acter of  the  prisoner,  proved  entirely  successful,  and  after  a  painful  and  pro- 
longed trial,  she  was  acciuitted;  so  that  her  life  may  be  said  to  have  been 
saved  by  a  shot." 

John  C.  Reed,  Conduct  of  a  Lawsuit  (1885)  §  400:  "When  your  evidence 
is  but  slight  and  that  of  the  other  side  is  very  strong,  you  may  be  reckless  in 
spurring  his  witnesses  to  make  a  complete  statement.  Your  case  is  so  bad 
that  any  change  in  it  may  be  for  the  better.  We  add  an  entertaining  and  apt 
illustration.  Some  time  ago  the  wTiter  while  waiting  in  Court  watched  the 
trial  of  a  case  where  the  plaintiff  sought  to  recover  damages  for  a  breach  of 
warranty.  The  defendant  had  sold  him  a  horse  with  an  express  warranty 
that  he  was  sound  and  kind  and  free  from  all  'outs.'  The  next  day  the  plain- 
tiff noticed  that  a  shoe  was  loose,  and  he  undertook  to  drive  him  to  a 
blacksmith's  shop  to  have  him  shod,  when  the  horse  exhibited  such  \aolent 
reluctance  that  he  was  obhged  to  abandon  the  attempt.  Repeated  efforts 
made  it  e\adent  that  he  never  would  be  shod  willingly,  and  therefore  he  was 
obliged  to  sell  him.  The  defendant  called  two  witnesses.  The  first,  an  honest, 
clean-looking  man,  testified  that  he  was  a  blacksmith,  that  he  knew  the  horse 
in  question  perfectly  well,  and  he  had  shod  him  about  the  time  referred  to  in 
the  plaintiff's  testimony.  'Did  you  have  any  difficulty  in  shoeing  him?' 
asked  the  defendant's  counsel.  'Not  the  least.  He  stood  perfectly  quiet. 
Never  had  a  horse  stand  quieter.'  The  other,  a  venerable-looking  man,  with 
a  clear,  blue  eye,  testified  that  he  had  owned  the  horse  and  that  he  was  per- 
fectly kind.  'Did  you  ever  have  any  trouble  about  getting  him  into  a  black- 
smith's shop?'  'Well,  sir,  I  don't  remember  that  I  ever  had  occasion  to 
carry  him  to  a  blacksmith's  shop  while  I  owned  him.'  The  plaintiff's  counsel 
e\'idently  thought  that  cross-examination  would  only  develop  this  unpleasant 
testimony  more  strongly,  so  he  let  the  witnesses  go.  The  jury  found  for  the 
defendant.  The  next  morning,  as  the  WTiter  was  sitting  in  court  waiting  for 
a  verdict,  a  man  behind  him,  whom  he  recognized  as  the  blacksmith,  leaned 
forward  and  said,  'You  heard  that  horse  case  tried  yesterday,  didn't  you? 
Well,  that  fellow  who  tried  the  case  for  the  plaintiff  didn't  know  how  to  cross- 
examine  worth  a  cent.  I  told  him  that  the  horse  stood  perfectly  quiet  while 
I  shod  him;  and  so  he  did.     I  didn't  tell  him  that  I  had  to  hold  him  by  the 


No.  .3(J4  HEARSAY  rule:    in  general  545 

nose  with  a  pair  of  pincers  to  make  him  stand.  The  old  man  said  he  never 
took  him  to  a  blacksmith's  shop  while  he  had  him.  No  more  he  did.  He 
had  to  take  him  out  into  an  open  lot  and  cast  him  before  he  could  shoe  him.' 
Of  course  the  plaintiff's  counsel  should  have  been  more  searching  in  the  exami- 
nation, where  he  could  not  possibly  have  made  his  own  case  worse." 

2.    Examples  of  the  utility  of  a  cross-examination,  in  bringing  out,  from  the 
witness  himself,  facts  to  lessen  his  personal  credit. 

Langhorn's  Trial  (1679,  Howell's  State  Trials,  VH,  417,  452).  [Gates, 
the  informer,  had  testified  that  the  Popish  Plotters  met  in  London  on 
April  24,  and  that  he  had  come  over  to  the  meeting  from  the  Jesuit  College 
at  St.  Omer  in  France  with  Sir  John  Warner.  One  of  the  Jesuit  attendants 
was  put  on  by  the  defense  to  prove  that  Warner  had  not  left  the  College  at 
that  time.] 

Witness:  "He  lived  there  all  that  while." 

Mr.  J.  Pejiberton:  "Was  Sir  John  Warner  there  all  June?"  Witness: 
"My  lord,  I  cannot  tell  that;   I  only  speak  to  April  and  May." 

L.  C.  J.  ScROGGS :  "Where  was  Sir  John  Warner  in  June  and  July? "  Wit- 
ness:  "I  cannot  tell." 

L.  C.  J. :   "You  were  gardener  there  then?"     Witness:   "Yes,  I  was." 

L.  C.  J. :  "Why  cannot  you  as  well  tell  me,  then,  w  here  he  was  in  June  and 
July,  as  in  April  and  May ? "     Witness:  "I  cannot  be  certain." 

L.  C.  J.:  "Why  not  so  certain  for  those  two  months  as  you  are  for  the 
other?"     Witness:  "Because  I  did  not  take  so  much  notice." 

L.  C.  J. :  "How  came  you  to  take  more  notice  of  the  one  than  the  other?" 
Witness:  "Because  the  question  that  I  came  for,  my  lord,  did  not  fall  upon 
that  time." 

L.  C.  J.:   "That,  without  all  question,  is  a  plain  and  honest  answer." 

Mr.  J.  Dolben:  "Indeed,  he  hath  forgot  his  lesson;  you  should  have 
given  him  better  instructions." 

L.  C.  J. :  "Now  that  does  shake  all  that  was  said  before,  and  looks  as  if  he 
came  on  purpose  and  prepared  for  those  months." 

James  Ram,  On  Facts  as  Subjects  of  Inquiry  by  a  Jury.  (3rd  Amer.  ed.,  1873, 
p.  140).  "Wlienever  any  person  makes  a  relation  of  facts,  be  it  on  a  judicial  in- 
quiry or  not,  and  whether  he  tells  his  story  spontaneously,  and  without  being 
questioned,  or  on  request  and  tlirough  questions  put  to  him,  it  .is  certain  the 
tale  is  often  imperfectly  or  falsely  told;  and  when  this  is  known  or  suspected 
to  be  the  case,  and  it  is  desired  to  have  the  exact  truth,  to  ascertain  what 
part  of  the  story  is  true,  what  false,  and  what  is  left  out,  these  matters  may 
be  learned  by  searching  for  them  through  questions  put  to  the  relator;  an 
inquiry  that  is  called  cross-examination. 

'He  that  is  first  in  his  own  cause  seemeth  just,  but  his  neighbor  cometh  and 
searcheth  him.'  ^ 

The  command  by  the  mouth  of  Samuel  to  Saul  was  'Go  and  smite  Amalek, 
and  utterly  destroy  all  that  they  have;  slay  both  man  and  woman,  infant  and 
suckling,  ox  and  sheep,  camel  and  ass.'  Saul's  imperfect  tale,  —  'I  have 
performed  the  commandment  of  the  Lord,'  would  not  bear  the  scrutiny  of 
Samuel;  who  instantly  replied,  'What  meaneth  then  this  bleating  of  the 
sheep  in  mine  ears,  and  the  lowing  of  the  oxen  which  I  hear?'  ^  .  .  . 

1  Proverbs,  xviii. 
^  1    Samuel,    xv. 


546  BOOK   i:     RULES   OF    ADMISSIBILITY  No.  364 

"Fingal  being  talked  of,  Dr.  Johnson  averred  his  positive  disbelief  of  its 
authenticity.  And  on  a  gentleman  then  saying,  'Fingal  is  certainly  genuine, 
for  I  have  heard  a  great  part  of  it  rcjjeated  in  the  original,'  Dr.  Johnson  asked 
him,  'Sir,  do  you  understand  the  original?'  And  the  reply  being,  'No,  sir.* 
'Why,  then,'  said  Dr.  Johnson,  'we  see  to  what  this  testimony  comes.'"  ^ 

On  a  trial,  the  cross-examination  of  witnesses  is  often  of  the  utmost  im- 
portance and  service  toward  discovering  the  truth,  and  the  extent  to  which 
the  witnesses  are  to  be  believed.  .  .  .  For  on  every  trial,  after  a  witness' 
examination  by  his  own  side,  or  examination  in  chief  as  it  is  called,  is  closed, 
these  considerations  may  arise  in  the  mind  of  the  opposite  party :  The  witness 
may  have  spoken  truth,  but  not  the  whole  truth;  or  he  may  have  spoken  the 
truth,  and  something  besides  the  truth;  or  some  of  the  truth  may  not  have 
been  brought  out,  because  questions  suited  to  elicit  it  were  not  put  to  him; 
the  witness  may  be  mistaken  in  a  matter  which  he  has  stated  as  a  fact;  he 
may  have  misapprehended  it;  he  may  not  have  seen  what  he  thinks  he  saw, 
or  heard  what  he  thinks  he  heard;  he  may  have  spoken  to  a  fact  with  greater 
confidence  than  is  justified  by  his  imperfect  knowledge  of  it;  his  present 
story  may  not  be  consistent  with  his  relation  of  it  on  some  former  occasion; 
the  witness'  character  may  require  to  be  searched  into,  to  judge  how  far  his 
evidence  is  to  be  believed. 

On  certain  criminal  trials,  a  cross-examination  has  had  the  following 
objects : 

1 .  To  show  that  the  w'itness  did  not  see  what  he  said  he  saw :  as,  .  .  .  that 
the  witness,  who  said  he  saw  the  prisoner  coming  from  a  particular  place, 
was  at  the  time  of  seeing  him  (as  he  said)  unable,  from  the  distance  (220 
yards)  of  the  prisoner  fi"om  him,  to  recognize  the  prisoner,  to  distinguish  his 
features,  to  know  him  to  be  the  prisoner;  or,  that  the  witness,  who  said  he 
saw  the  prisoner  fire  a  pistol  at  another  man,  was  at  the  time  of  seeing  him 
(as  he  said)  unable,  from  the  distance  (220  yards)  of  the  prisoner  from  him, 
to  recognize  the  prisoner. 

2.  To  show  that  the  witness  did  not  hear  what  he  said  he  heard:  as,  that 
the  witness,  who  said  he  heard  particular  words  spoken  by  the  prisoner  to  a 
clamorous  mob,  was,  at  the  time  he  heard  (as  he  said)  the  words,  under  some 
agitation  of  mind,  was  in  a  degree  in  a  considerable  flurry  of  spirits;  or,  that 
at  the  time  when  the  witness  (as  he  said)  heard  certain  words  spoken  by  a  man 
at  the  head  df  a  mob,  and  addressed  to  the  witness  and  others,  the  witness 
being  nearest  to  the  speaker,  there  was  a  good  deal  of  noise  and  confusion; 
and  that  the  witness  was  alarmed ;  and  that,  considering  the  noise  that  pre- 
vailed at  the  time,  and  the  witness'  situation,  and  his  alarm,  the  witness 
might  not  be  able  to  swear  positively  to  the  precise  words  used. 

3.  To  show  that  the  witness  spoke  from  hearsay:  as,  that  the  witness, 
who  said  a  mob  set  fire  to  a  chapel,  did  not  see  them  do  it;  that  it  was  on  fire 
when  the  witness  first  saw  it,  and  who  set  it  on  fire  he  did  not  know;  nor  did 
he  know  that  it  was  a  chapel,  only  somebody  told  him  so. 

4.  To  test  the  truth  of  what  the  witness  has  said  in  general  terms,  by 
making  him  particularize:  as,  when  the  witness  has  spoken  in  general  terms 
of  many  persons,  saying,  for  instance,  that  many  persons  were  present  at  a 
particular  place,  or  many  persons  were  forced  to  do  a  particular  act  against 
their  will,  to  test  the  truth  of  the  witness'  evidence  by  asking  him  to  tell  the 


1  "Life  of  Johnson,"  by  Boswell,  Vol.  V.  p.  138,  ed.  1835. 


No.  365  HEA.RSAY   RULE:     IN    GENERAL  547 

names  of  some  persons,  or  the  name  of  even  one  person  present,  or  forced  to 
do  the  act  mentioned;  or,  when  the  witness  has  given  evidence  of  words 
spoken  by  tlie  prisoner  to  a  large  body  of  men,  to  test  the  truth  of  his  evidence 
by  asking  the  witness  whether  he  can  name  any  person  who  was  present  when 
the  prisoner  spoke  the  words  mentioned. 

6.  To  procure  an  explanation  of  words  used  by  the  witness:  as,  tliat  the 
witness,  who  said  the  prisoner  was  at  home  on  particuhir  days,  did  not  mean 
that  the  prisoner  did  not  go  out  on  those  days,  but  only  that  he  was  at  home 
some  part  of  each  of  those  days. 

7.  To  show  that  the  conduct  of  the  prisoner  was  consistent  with  his  inno- 
cence, was  inconsisfenf  with  guilt,  was  open,  without  concealment:  as,  that, 
with  regard  to  papers  which  the  witness  found  and  seized  at  the  prisoner's 
house,  during  the  whole  time  the  witness  was  employed  in  searching  for 
them,  there  was  not  any  endeavor  made  by  the  prisoner,  or  any  of  his  family, 
to  conceal  or  secrete  any  of  them;  ...  or,  that  the  prisoner,  who  went  on 
board  a  ship  at  Portsmouth  about  a  week  before  it  sailed,  and  who,  on  the 
part  of  the  prosecution,  it  was  alleged,  went  on  board  to  fly  from  the  accusa- 
tion against  him,  did,  when  on  board,  pass  by  his  own  name,  and  at  Ports- 
mouth came  on  shore  several  times,  and  went  publicly  about  the  streets. 

365.  History.^  I.  Hearsay  statevjents  in  general.  (1)  In  the  first  period, 
then,  there  is  no  exclusion  of  hearsay  statements.  Through  the  1500s  and  dow^n 
beyond  the  middle  of  the  1600s,  hearsay  statements  are  constantly  received,  even 
against  opposition.  They  are  often  objected  to  by  accused  persons,  and  are  some- 
times said  by  the  judge  to  be  of  no  value  or  to  be  insufficient  of  themselves,  and  are 
even  occasionally  excluded.  In  short,  they  are  regarded  as  more  or  less  question- 
able, and  the  doubt  particularly  increases  in  the  1600s;  but,  in  spite  of  all,  they 
are  admissible  and  admitted.  Nor  is  this  result  due  to  arty  abuse  or  irregularity 
peculiar  to  trials  for  treason  or  other  State  prosecutions;  it  is  equally  apparent 
in  the  rulings  in  the  few  civil  cases  that  are  reported.  The  practice  is  unmis- 
takable. 

(2)  In  the  meantime,  the  appreciation  of  the  impropriety  of  using  hearsay 
statements  by  persons  not  called  is  growing  steadily.  By  the  second  decade 
after  the  Restoration,  this  notion  receives  a  fairly  constant  enforcement,  both 
in  civil  and  in  criminal  cases.  No  precise  date  or  ruling  stands  out  as  decisive; 
but  it  seems  to  be  between  1675  and  1690  that  the  fixing  of  the  doctrine  takes 
place. 

(3)  In  the  meantime,  the  general  rule  excluding  hearsay  statements  came 
^  over  into  the  1700s  as  something  established  within  living  memory.     It  is  clear 

that  its  firm  fixing  (as  above  observed)  did  not  occur  till  about  1680;  and  so  in 
the  treatises  of  the  early  1700s  the  rule  is  stated  with  a  prefatory  "It  seems." 
By  the  middle  of  the  1700s  the  rule  is  no  longer  to  be  struggled  against;  and 
henceforth  the  only  question  can  be  how  far  there  are  to  be  specific  exceptions 
.to  it. 

II.  Hearsay  statements  under  oath.  (1)  As  early  as  the  middle  of  the  1500s 
a  first  step  had  been  attempted  by  statute  towards  requiring  the  personal  pro- 
duction of  those  who  had  already  made  a  statement  upon  oath.  This  require- 
ment was  limited  to  trials  for  treason. 


^  Abridged  from  the  present  Compiler's  "Treatise  on  Evidence"   (1905), 
Vol.  II,  §1364. 


548  BOOK   l:     RULES    OF    ADMISSIBILITY  No.  365 

This  statute  of  1553  was  St.  5  Edw.  VI,  c.  12,  §  22.  This  was  followed  by  a 
similar  provision  in  1554,  St.  1  &  2  P.  &  M.  c.  10,  §  11.  But  this  early  step  was 
premature;  the  innovation  was  too  much  in  advance  of  the  times;  and  it  had  only 
a  short  life.  From  the  very  year  of  the  latter  enactment,  until  the  end  of  the 
succeeding  century,  it  remained  by  judicial  construction  a  dead  letter.  This 
judicial  construction  was  perhaps  strained,  and  was  abandoned  after  the  Revolu- 
tion and  under  William  Ill's  government.  Nevertheless  it  was  clear  law  for  a 
century  and  a  half;  and,  when  Sir  Walter  Raleigh  insisted  so  urgently  on  the 
production  of  Lord  Cobham,  he  was  truly  answered  by  Chief  Justice  Popham 
that  "he  had  no  law  for  it." 

Raleigh's  trial  is  a  good  example  of  the  older  practice,  before  the  rule  was 
established : 

Sir  W^alter  Raleigh's  Case  (J.  G.  Phillimore,  "History  and  Principles 
of  the  Law  of  Evidence,"  1850,  p.  157).  (1603.  Raleigh  was  tried  for  a  con- 
spiracy of  treason  to  dethrone  Elizabeth  and  to  put  Arabella  Stuart  in  her 
place,  by  the  aid  of  Spanish  money  and  intrigue.  Sir  Edward  Coke,  attorney- 
general,  conducted  the  prosecution.  The  principal  evidence  against  him 
was  the  assertion  of  Lord  Cobham,  a  supposed  fellow-conspirator,  who  had 
betrayed  Raleigh  in  a  sworn  statement  made  before  trial.  Cobham  himself 
was  in  prison,  and  was  not  produced  on  the  trial.)  To  dilate  upon  Sir  Walter 
Raleigh's  murder  is  almost  superfluous.  No  one,  without  reading  it,  can 
form  a  complete  notion  of  what  then  went  by  the  name  of  a  trial  in  an  English 
Court  of  Justice,  or  of  the  unspeakable  malignity  of  Cecil.  .  .  .  How  the 
law  was  enforced,  and  how  these  rights  were  protected  by  English  judges  in  a 
criminal  trial,  where  the  life  of  perhaps  the  most  illustrious  man  England  ever 
has  produced  was  at  stake,  the  following  extracts  may  serve  to  shew :  — 

Raleigh.  "But  it* is  strange  to  see  how  you  press  me  still  with  my  Lord 
Cobham,  and  yet  will  not  produce  him;  it  is  not  for  gaining  of  time  or 
prolonging  my  life  that  I  urge  this;  he  is  in  the  house  hard  by,  and  may  soon 
be  brought  hither;  let  him  be  produced,  and  if  he  will  yet  accuse  me  or 
avow  this  confession  of  his,  it  shall  convict  me  and  ease  you  of  further 
proof." 

Lord  Cecil.  "Sir  Walter  Raleigh  presseth  often  that  my  Lord  Cobham 
should  be  brought  face  to  face;  if  he  ask  a  thing  of  grace  and  favour,  they 
must  come  from  him  only  who  can  give  them ;  but  if  he  ask  a  matter  of  law, 
then,  in  order  that  we,  who  sit  here  as  commissioners,  may  be  satisfied,  I  de- 
sire to  hear  the  opinions  of  my  Lords,  the  judges,  whether  it  may  be  done 
by  law." 

The  Judges  all  answered,  "that  in  respect  it  might  be  a  mean  to  cover 
many  with  treasons,  and  might  be  prejudicial  to  the  King,  therefore,  by 
the  law,  it  was  not  sufferable." 

Popham,  C.  J.  "There  must  not  such  a  gap  be  opened  for  the  destruction 
of  the  King  as  would  be  if  we  should  grant  this;  you  plead  hard  for  yourself, 
but  the  laws  plead  as  hard  for  the  King.  Where  no  circumstances  do  con- 
cur to  make  a  matter  probable,  then  an  accoser  may  be  heard;  but  so  many 
circumstances  agreeing  and  confirming  the  accusation  in  this  case,  the 
accuser  is  not  to  be  produced;  for,  having  first  confessed  against  himself 
voluntarily,  and  so  charged  another  person,  if  we  shall  now  hear  him  again 
in  person,  he  may,  for  favour  or  fear,  retract  what  formerly  he  hath  said, 
and  the  jury  may,  by  that  means,  be  inveigled.".  .  . 


No.  365  HEARSAY  RULE:  IN  GENERAL  549 

Raleigh.  —  "I  never  had  intelligence  with  Cobham  since  I  came  to  the 
Tower." 

Lord  Cecil.  —  "Sir  Walter  Raleigh,  if  my  Lord  Cobham  will  now  affirm, 
that  you  were  acquainted  with  his  dealings  with  Count  Areml)erg,  that  you 
knew  of  the  letter  he  received,  that  you  were  the  chief  instigator  of  him,  will 
you  then  be  concluded  by  it?" 

Raleigh.  —  "Let  my  Lord  Cobham  speak  before  God  and  the  King,  and 
deny  God  and  the  King  if  he  speak  not  truly,  and  will  then  say  that  ever  I 
knew  of  Arabella's  matter,  or  the  money  out  of  Spain,  or  the  Surprising  Trea- 
son, I  will  put  myself  upon  it." 

Lord  Henry  Howard.  —  "But  what  if  my  Lord  Cobham  affirm  anything 
equivalent  to  this;   what  then?" 

Raleigh.  —  "My  Lord,  I  put  myself  upon  it." 

Attorney-General.  —  "I  shall  now  produce  a  witness  viva  voce:" 

He  then  produced  one  Dyer,  a  pilot,  who,  being  sworn,  said,  "Being  at 
Lisbon,  there  came  to  me  a  Portugal  gentleman,  who  asked  me  how  the  King 
of  England  did,  and  whether  he  was  crowned?  I  answered  him,  that  I  hoped 
our  noble  king  was  well,  and  crowned  by  this;  but  the  time  was  not  come 
when  I  came  from  the  coast  for  Spain.  'Nay,'  said  he  'your  king  shall  never 
be  crowned,  for  Don  Cobham  and  Don  Raleigh  will  cut  his  throat  before  he 
come  to  be  crowned.'  And  this,  in  time,  was  found  to  be  spoken  in  mid 
July." 

Raleigh.  —  "This  is  the  saying  of  some  wild  Jesuit  or  beggarly  priest; 
but  what  proof  is  it  against  me?" 

Attorney-General.  —  "It  must  perforce  arise  out  of  some  preceding  intelli- 
gence, and  shews  that  your  treason  had  wings."  .  .  . 

Thus  on  the  single  evidence  of  Cobham,  never  confronted  with  Raleigh, 
who  retracted  his  confession,  and  then  (according  to  the  advocates  of  the 
Crown)  recalled  his  retractation,  did  an  English  jury,  to  the  amazement 
and  horror  of  the  bystanders,  and  the  perpetual  disgrace  of  the  English 
name,  find  the  most  illustrious  of  their  fellow  subjects  guilty  of  high  treason. 

(2)  That  at  this  time,  then  (say,  until  the  early  1600s),  the  general  absence  of 
any  hearsay  rule  allowed  the  use  of  extrajudicial  statements  taken  under  oath,  is 
clear  enough.      It  appears  as  well  in  ordinary  felony  trials  as  in  treason  trials. 

(3)  About  this  time,  however,  and  markedly  by  the  middle  of  the  1600s 
(coincidently  with  the  general  movement  already  considered),  the  notion 
tends  to  prevail,  and  gradually  becomes  definitely  fixed,  that  even  an  extra- 
judicial statement  under  oath  should  not  be  used  if  the  deponent  can  be  per- 
sonally had  in  court.  This  much  has  now  been  gained;  and  it  is  seen  in  civil 
and  in  criminal  'trials  equally.  But  no  further  settlement  came  under  the 
Commonwealth,  nor  under  the  Restoration,  nor  directly  upon  the  Revolution. 

(4)  By  1680-1690  (as  already  noted)  had  come  the  establishment  of  the 
general  rule  against  unsworn  hearsay  statements.  This  must  have  helped  to 
emphasize  the  anomaly  of  leaving  extrajudicial  sworn  statements  unaffected 
by  the  same  strict  rule.  By  1696,  or  nearly  a  decade  after  the  Revolution, 
that  anomaly  ceased  substantially  to  exist.  In  that  year  it  was  decisively 
achieved  in  the  trials  of  Paine  and  of  Sir  John  Fenwick.  The  former  was  a 
ruling   by    the   King's   Bench    after   full    argument,    and   came    in    January.^ 

^  R.  V.  Paine,  5  Mod.  163  (libel;  a  deposition  of  B.,  examined  by  the  mayor 
of  Bristol  upon  oath  but  not  in  P.'s  presence,  was  offered;   it  was  objected  that 


550  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  365 

The  latter,  coming  in  the  next  November,  involved  a  lengthy  debate  in 
Parliament;  and,  though  the  vote  finally  favored  the  admission  of  the  deposi- 
tion, the  victory  of  reaction  was  in  appearance  only;  for  the  weighty  and 
earnest  speeches  in  this  debate  must  have  burned  into  the  general  conscious- 
ness the  vital  importance  of  the  rule  securing  the  right  of  cross-examination, 
and  made  it  impossible  thereafter  to  dispute  the  domination  of  that  rule  as  a 
permanent  element  in  the  law.'  From  the  beginning  of  the  1700s  the  writers 
upon  the  law  assume  it  as  a  settled  doctrine;  and  the  reason  of  the  rule  in  this 
connection  is  stated  in  the  same  language  already  observed  in  the  history 
of  the  rule  in  general,  namely,  that  statements  used  as  testimony  must  be 
made  where  the  maker  can  be  subjected  to  cross-examination. 


Topic  2.    Modes  of  Satisfying  the  Rule  of  Cross-Examination 

368.   CAZENOVE  v.  VAUGHAN 

King's  Bench.     1813 

1  M.   &  S.4: 

Park  in  the  last  term  obtained  a  rule  nisi  for  entering  a  nonsuit  in 
this  action,  which  was  upon  a  policy  of  assurance,  (in  which  the  plaintiffs 
had  recovered  a  verdict  before  Lord  Ellenborough,  C.  J.,  at  the  Lon- 
don sittings,)  upon  an  objection  made  to  the  admissibihty  of  the  deposi- 
tion of  one  Lewis  Phtt,  which  had  been  received  in  evidence  for  the 
plaintiffs;  respecting  which  it  appeared  by  his  Lordship's  report,  that 
the  plaintifPs,  after  the  commencement  of  this  action  on  the  5th  of  May 
last  filed  a  bill  in  the  Court  of  Chancery  against  the  defendant,  for  a  com- 
mission to  examine  witnesses  abroad,  and  for  the  examination  of  the  said 
Plitt  "  de  bene  esse,"  to  which  the  defendant  did  not  put  in  any  answ^er; 
on  the  15th  of  May  the  plaintiffs  obtained  an  order  of  the  Court  for  the 
examination  of  Plitt  de  bene  esse,  and  gave  regular  notice  thereof  to  the 

"B.  being  dead,  the  defendant  had  lost  all  opportunity  of  cross-examining  him," 
and  the  use  of  examinations  before  coroners  and  justices  rested  on  the  special 
statutory  authority  given  them  to  take  such  depositions;  the  King's  Bench  con- 
sulted with  the  Common  Pleas,  and  "it  was  the  opinion  of  both  Courts  that  these 
depositions  should  not  be  given  in  evidence,  the  defendant  not  being  present 
when  they  were  taken  before  the  mayor  and  so  had  lost  the  benefit  of  a  cross- 
examination." 

1  Fenwick's  Trial,  13  How.  St.  Tr.  537,  591-607,  618-750  (the  sworn  statement 
before  a  justice  of  the  peace  of  one  Goodman,  said  to  have  absented  himself  by  the 
accused's  tampering,  was  offered  on  a  trial  in  Parliament;  a  prolonged  debate 
took  place,  and  this  deposition,  termed  hearsay,  was  opposed  on  the  precise 
ground  of  "a  fundamental  rule  in  our  law  that  no  evidence  shall  be  given  against 
a  man,  when  he  is  on  trial  for  his  life,  but  in  the  presence  of  the  prisoner,  because 
he  may  cross-examine  him  ,who  gives  such  evidence,"  "by  which  much  false 
swearing  was  often  detected"  ;  the  deposition  was  finally  admitted,  Nov.  16, 
by  218  to  145  in  the  Commons,  and  the  attainder  passed  by  189  to  156  in  the 
Commons  and  by  66  to  60  in  the  Lords). 


No.  368  HEARSAY    RULE:     CROSS-EXAMINATION  551 

defencfant,  and  served  him  with  a  copy  of  the  interrogatories  in  chief; 
and  the  witness  was  examined  on  the  evening  of  that  day ;  at  which  time 
no  cross-interrogatories  were  filed,  nor  did  any  one  on  the  part  of  the  de- 
fendant attend  such  examination.  On  the  25th  of  June  following,  the 
plaintiffs  obtained  a  further  order  for  publication,  which  after  reciting  that 
it  was  prayed  that  the  depositions  of  Plitt,  taken  de  bene  esse  in  the  cause, 
under  the  order  of  that  Court  might  be  published,  in  order  that  the  same 
might  be  read  as  evidence  for  the  plaintiffs  at  the  trial  of  this  and  other 
actions  mentioned  in  the  bill ;  the  order  then  proceeded  thus,  "  Where- 
upon and  upon  hearing  counsel  for  the  defendant,  this  Court  doth  order 
that  the  depositions  of  L.  Plitt  in  this  cause  be  forthwith  published." 
On  the  day  after  his  examination,  Plitt,  who  was  a  foreigner,  left  London 
for  the  coast,  from  whence  he  embarked  in  a  few  daj^s  for  Sweden,  where 
he  still  remains. 

The  Solicitor-General  and  Scarlett,  who  now  showed  cause,  after 
stating  that  the  reading  of  the  deposition  was  opposed  at  the  trial  on  the 
general  rule,  that  depositions  before  an  answer  put  in  are  not  admitted 
to  be  read,  agreed  to  that  rule,  but  contended  that  it  was  subject  to  the 
following  exceptions;  viz.:  unless  the  defendant  appear  to  be  in  con- 
tepipt,  or  has  had  liberty  to  cross-examine;  and  that  his  declining  to 
cross-examine  will  not  vary  the  exception.  The  necessity  of  such 
qualifications  of  the  rule  is  apparent,  for  otherwise  it  would  be  in  the 
power  of  any  defendant,  by  his  obstinacy  in  refusing  to  answer,  or  cross- 
examine  the  witnesses,  to  deprive  the  adverse  party  of  the  benefit  of 
their  testimony.  Here  it  appears  that  the  defendant  had  due  notice  of 
the  interrogatories  proposed  to  be  put  to  the  witness,  and  it  was  his 
fault  that  he  did  not  put  cross-interrogatories;  he  cannot  therefore  be 
permitted  afterwards  to  avail  himself  of  his  own  neglect. 

Park,  (with  Richardson  and  Newnham,)  contra,  admitting  the  excep- 
tions, contended  nevertheless  that  the  general  rule  ought  to  prevail, 
unless  the  defendant  is  clearly  brought  within  one  of  the  exceptions; 
and  that  the  party  who  claims  to  read  the  deposition  is  bound  to  show 
the  adverse  party  either  in  contempt,  or  that  he  has  had  liberty  to  cross- 
examine  according  to  the  practice  of  the  court,  and  has  neglected  it. 
Here  it  is  plain  the  defendant  was  not  in  contempt,  and  it  does  not  appear 
that  according  to  the  practice  of  the  Court  of  Chancery,  he  had  liberty 
to  cross-examine;  for  the  order  for  examination  was  only  made  on  the 
15th  of  May,  and  on  the  same  evening  the  witness  was  examined,  and  left 
London  the  next  morning.  The  presumption  therefore  is,  that  the 
defendant  had  no  time  to  prepare  and  file  his  cross-interrogatories 
according  to  the  practice  of  the  court. 

Lord  Ellenborough,  C.  J.  —  Perhaps  it  may  be  as  well  to  state  what 
the  rule  of  the  common  law  is  upon  this  subject,  which  puts  an  end  to  the 
question.  The  rule  of  the  common  law  is,  that  no  evidence  shall  be 
admitted  but  what  is  or  might  be  under  the  examination  of  both  parties; 
and  it  is  agreeable  also  to  common  sense,  that  what  is  imperfect,  and, 


552  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  368 

if  I  may  so  say,  but  half  an  examination,  shall  not  be  used  in  the  same 
way  as  if  it  were  complete.  But  if  the  adverse  party  has  had  liberty  to 
cross-examine,  and  has  not  chosen  to  exercise  it,  the  case  is  then  the 
same  in  effect  as  if  he  had  cross-examined;  otherwise  the  admissibility 
of  the  evidence  would  be  made  to  depend  upon  his  pleasure,  whether  he 
will  cross-examine  or  not;  which  would  be  a  most  uncertain  and  unjust 
rule. 

Here  then  the  question  is  whether  the  defendant  had  an  opportunity 
of  cross-examining. 

Now  it  appears  that  the  plaintiffs  filed  their  bill  for  the  express  pur- 
pose of  examining  the  witness;  and  when  they  obtained  the  order  for  his 
examination,  gave  the  defendant  a  regular  notice  of  it,  and  of  the  in- 
terrogatories intended  to  be  put  to  the  witness.  But  it  is  said  that  the 
defendant  had  no  time  to  file  cross-interrogatories,  and  therefore  the 
notice  was  of  no  use;  yet  if  he  had  intimated  a  wish  to  cross-examine, 
and  addressed  himself  to  the  Court  praying  for  further  time  for  that 
purpose,  there  can  be  no  doubt  but  that  he  might  have  obtained  it;  but 
he  contents  himself  simply  with  paying  no  attention  to  the  notice. 
Then  comes  the  order  for  publication.  .  .  . 

I  must  conclude  then  that  the  judge  was  satisfied  before  he  directed 
such  order  to  be  made,  that  the  adverse  party  had  all  the  liberty  to  cross- 
examine  which  the  practice  of  the  court  requires ;  and  upon  the  principle 
of  the  common  law  I  have  already  stated  that  there  is  no  objection. 

Grose,  J.,  concurred.  .  .  . 

Bayley,  J.  —  I  think  it  must  be  taken,  from  the  circumstances  stated, 
that  the  defendant  had  liberty  to  cross-examine,  and  did  not  choose  to 
exercise  it;  for  when  the  interrogatories  in  chief  were  served  upon  him, 
he  might  have  applied  for  time,  had  he  been  desirous  of  putting  cross- 
interrogatories  ;  and  there  was  no  proof  at  the  trial  that  it  was  his  inten- 
tion to  cross-examine.  Rule  discharged. 


369.  Statutes.  England.  Rules  of  the  Suprevte  Court,  1883  (under  38 
&  39  Vict.  c.  77,  §  17),  Order  XXXVII :  I.  Evidence  Generally.  1.  In  the  absence 
of  any  agreement  between  the  solicitors  of  all  parties,  and  subject  to  these  Rules, 
the  witnesses  at  the  trial  of  any  action  or  at  any  assessment  of  damages  shall  be 
examined  viva  voce  and  in  open  court,  but  the  Court  or  a  Judge  may  at  any  time 
for  sufficient  reason  order  that  any  particular  fact  or  facts  may  be  proved  by 
affidavit,  or  that  the  affidavit  of  any  witness  may  be  read  at  the  hearing  or  trial, 
on  such  conditions  as  the  Court  or  Judge  may  think  reasonable,  or  that  any 
witness  whose  attendance  in  court  ought  for  some  sufficient  cause  to  be  dispensed 
with,  be  examined  by  interrogatories  or  otherwise  before  a  commissioner  or 
examiner;  provided  that  where  it  appears  to  the  Court  or  Judge  that  the  other 
party  bona  fide  desires  the  production  of  a  witness  for  cross-examination,  and  that 
such  witness  can  be  produced,  an  order  shall  not  be  made  authorising  the  evidence 
of  such  witness  to  be  given  by  affidavit. 

Order  XXXVIII:  Affidavits  and  Depositions:  1.  Upon  any  motion,  petition, 
or  summons  evidence  may  be  given  by  affidavit;  but  the  Court  or  a  Judge  may. 


No.  369  HEARSAY   RULE:     CROSS-EXAMINATION  553 

on  the  application  of  either  party,  order  the  attendance  for  cross-examination 
of  the  person  making  any  such  affidavit. 

Order  XXXVII,  Rule  20:  Any  party  or  witness  having  made  an  affidavit 
to  be  used  or  which  shall  be  used  on  any  proceeding  in  the  cause  or  matter  shall 
be  bound,  on  being  served  with  such  subpoena  [from  the  opposite  party],  to  attend 
before  such  officer  or  person  [appointed  by  the  Court]  for  cross-examination. 

Order  XXXVII:  II.  Examination  of  Witnesses.  ...  5.  The  Court  or  a 
Judge  may,  in  any  cause  or  matter  where  it  shall  appear  necessary  for  the  purposes 
of  justice,  make  an  order  for  the  examination  upon  oath  before  the  Court  or 
Judge  or  any  officer  of  the  Court,  or  any  other  person,  and  at  any  place,  of  any 
witness  or  person,  and  may  empower  any  party  to  any  such  cause  or  matter  to 
give  such  deposition  in  evidence  therein  on  such  terms,  if  any,  as  the  Court  or  a 
Judge  may  direct.  ...  10,  11.  Where  any  witness  or  person  is  ordered  to  be 
examined  before  any  officer  of  the  Court,  or  before  any  person  appointed  for  the 
purpose,.  .  .  .  the  examination  shall  take  place  in  the  presence  of  the  parties, 
their  counsel,  solicitors,  or  agents,  and  the  witnesses  shall  be  subject  to  cross- 
examination  and  re-examination. 

United  States.  (Revised  Statutes,  1878.  §  863).  (For  depositions  de  bene  esse, 
"reasonable  notice  must  first  be  given  in  WTiting";  and  "whenever,  by  reason  of 
the  absence  from  the  district  and  want  of  an  attorney  of  record  or  other  reason, 
the  giving  of  the  notice  herein  required  shall  be  impracticable,  it  shall  be  lawful 
to  take  such  depositions  as  there  shall  be  urgent  necessity  for  taking,  upon  such 
notice  as  any  judge  authorized  to  hold  courts  in  such  circuit  or  district  shall 
think  reasonable  and  direct");  §  866  (for  depositions  by  "dedimus  potestatem" 
"to  prevent  a  failure  or  delay  of  justice,"  the  provisions  of  the  above  section 
"shall  not  apply  "). 

Illinois.  (Revised  Statutes,  1874,  c.  51).  Depositions  of  Resident  Witnesses, 
in  Chancery.  §  24.  When  the  testimony  of  any  witness,  residing  or  being  within 
this  State,  shall  be  necessary  in  any  suit  in  chancery  in  this  State,  the  party 
wishing  to  use  the  same  may  cause  the  deposition  of  such  witness  to  be  taken 
before  any  judge,  justice  of  the  peace,  clerk  of  a  court,  master  in  chancery  or 
notary  public,  without  a  commission  or  filing  interrogations  for  such  purpose,  on 
giving  to  the  adverse  party  or  his  attorney  ten  days'  notice  of  the  time  and  place 
of  taking  the  same,  and  one  day  in  addition  thereto  (Sundays  inclusive)  for  every 
fifty  miles'  travel  from  the  place  of  holding  the  court  to  the  place  where  such 
deposition  is  to  be  taken.  If  the  party  entitled  to  notice  and  his  attorney  resides 
in  the  county  where  the  deposition  is  to  be  taken,  five  days'  notice  shall  be  suffi- 
cient.    (R.  S.  1845,  p.  234,  §  11.) 

DejMsition  of  Resident  Witnesses,  in  Law.  §  25.  And  it  shall  also  be  law- 
ful, upon  satisfactory  affidavit  being  filed,  to  take  the  depositions  of  witnesses 
residing  in  this  State,  to  be  read  in  suits  at  law,  in  like  manner  and  upon  like 
notice  as  is  above  provided,  in  all  cases  where  the  witness  resides  in  a  different 
county  from  that  in  which  the  court  is  held,  is  about  to  depart  from  the  State,  is 
in  custody  on  legal  process,  or  is  unable  to  attend  such  court  on  account  of 
advanced  age,  sickness  or  other  bodily  infirmity.     (R.  S.  1845,  p.  234,  §  11.) 

Deposition  —  When  Witness  is  Non-Resident,  etc.  —  Notice.  §  26.  When 
the  testimony  of  any  witness  residing  within  this  State  more  than  one  hundred 
miles  from  the  place  of  holding  the  court,  or  not  residing  in  this  State,  or  who  is 
engaged  in  the  military  or  naval  service  of  this  State  or  of  the  United  States,  and 
is  out  of  this  State,  shall  be  necessary  in  any  civil  cause  pending  in  any  court  of 
law  or  equity  in  this  State,  it  shall  be  lawful  for  the  party  wishing  to  use  the  same. 


554  BOOK  l:     RULES   OF  ADMISSIBILITY  No.  369 

on  giving  to  the  adverse  party,  or  his  attorney,  ten  days'  previous  notice,  together 
with  a  copy  of  the  interrogatories  intended  to  be  put  to  such  witness,  to  sue  out 
from  the  proper  clerk's  office  a  dedivms  j^otestatevi  or  commission,  under  the  seal 
of  the  court,  directed  to  any  competent  and  disinterested  person,  as  commissioner, 
or  to  any  judge,  master  in  chancery,  notary  public  or  justice  of  the  peace  of  the 
county  or  city  in  which  such  witness  may  reside,  or  in  case  it  is  to  take  the  testi- 
mony of  a  person  engaged  in  such  military  service,  "to  any  commissioned  officer 
in  the  military  or  naval  service  of  this  State  or  the  United  States,"  authorize  and 
requiring  him  to  cause  such  witness  to  come  before  him,  at  such  time  and  place 
as  he  may  designate  and  appoint,  and  faithfully  to  take  his  deposition  upon  all 
such  interrogatories  as  may  be  inclosed  with  or  attached  to  said  commission,  both 
on  the  part  of  the  plaintiff  and  defendant,  and  none  others;  and  to  certify  the 
same,  when  thus  taken,  together  with  the  said  commission  and  interrogatories, 
into  the  court  in  which  such  cause  shall  be  pending,  with  the  least  possible  delay. 
(R.  S.  1845,  p.  233,  §  10). 

27.  Notice  to  Non-Resident  Partii,  etc.  §  27.  Wlien  the  deposition  of  any 
witness  is  desired  to  be  taken  under  the  provisions  of  this  act,  and  the  adverse 
party  is  not  a  resident  of  the  county  in  which  the  suit  is  pending,  or  is  in  default, 
and  no  attorney  has  appeared  for  him  in  such  cause,  upon  filing  an  affidavit  of 
such  fact  and  stating  the  place  of  residence  of  such  adverse  party,  S  known,  or 
that  upon  diligent  inquiry,  his  place  of  residence  cannot  be  ascertained,  the  notice 
required  by  this  act  may  be  given  by  sending  a  copy  thereof  by  mail,  postage 
paid,  addressed  to  such  party  at  his  place  of  residence,  if  known,  oi-  if  not  known, 
by  posting  a  copy  of  such  notice  at  the  door  of  the  court  house  where  the  suit  is 
pending,  or  publishing  the  same  in  the  nearest  newspaper,  and  when  interroga- 
tories are  recjuired,  filing  a  copy  thereof  with  the  clerk  of  the  court  ten  days  before 
the  time  of  suing  out  such  commission.     (L.  1845,  p.  580,  §  1). 

Oral  Examination.  §  28.  When  a  party  shall  desire  to  take  the  evidence 
of  a  non-resident  witness,  to  be  used  in  any  cause  pending  in  this  State  the  party 
desiring  the  same,  or  where  notice  shall  have  been  given  that  a  commission  to 
take  the  testimony  of  a  non-resident  witness  will  be  applied  for,  the  opposite 
party,  upon  giving  the  other  tliree  days'  notice  in  wTiting  of  his  election  so  to  do, 
may  have  a  commission  directed  in  the  same  manner  as  provided  in  section  26 
of  this  act,  to  take  such  evidence,  upon  interrogatories  to  be  propounded  to  the 
witness  orally;  upon  the  taking  of  which  each  party  may  appear  before  the  com- 
mission, in  person  or  by  attorney,  and  interrogate  the  witness.  The  party 
desiring  such  testimony  shall  give  to  the  other  the  following  notice  of  the  time 
and  place  of  taking  the  same,  to-wit:  ten  days,  and  one  day  in  addition  thereto 
(Sundays  included)  for  every  one  hundred  miles'  travel  from  the  place  of  holding 
the  court  to  the  place  where  such  deposition  is  to  be  taken.  .  .  . 

Hoiv  Depositions  Taken  and  Certified.  §  30.  Previous  to  the  examination 
of  any  witness  whose  deposition  is  about  to  be  taken  as  aforesaid,  he  or  she  shall 
be  sworn  (or  affirmed)  by  the  person  or  persons  authorized  to  take  the  same,  to 
testify  the  truth  in  relation  to  the  matter  in  controversy,  so  far  as  he  or  she  may 
be  interrogated;  whereupon  the  said  commissioner,  judge,  master  in  chancery, 
notary  public,  justice  of  the  peace,  clerk,  or  other  person  authorized  to  take 
depositions  (as  the  case  may  be),  shall  proceed  to  examine  such  witness  upon  all 
such  interrogatories  as  may  be  inclosed  with  or  attached  to  any  such  commission 
as  aforesaid,  and  which  are  directed  to  be  put  to  such  witness,  or  where  the  testi- 
mony is  taken  upon  oral  interrogatories,  upon  all  such  interrogatories  as  may  be 
directed  to  be  put  by  either  party  litigant;   and  shall  cause  such  interrogatories, 


No.  370  HEARSAY  rule:   cross-examination  555 

together  with  the  answers  of  the  witness  thereto,  to  be  reduced  to  writing  in  the 
order  in  which  they  shall  be  proposed  and  answered,  and  signed  by  such  witness; 
after  which,  it  shall  be  the  duty  of  the  person  taking  such  deposition  to  annex  at 
the  foot  thereof  a  certificate,  subscribed  by  himself,  stating  that  i-t  was  sworn  to 
and  signed  by  the  deponent,  and  the  time  and  place  when  and  where  the  same  was 
taken.  And  every  such  deposition,  when  thus  taken  and  subscribed,  and  all 
exhibits  produced  to  the  said  commissioner,  judge,  master  in  chancery,  notary 
public,  justice  of  the  peace,  or  clerk,  or  other  person  authorized  to  take  depositions, 
as  aforesaid,  or  which  shall  be  proved  or  referred  to  by  any  witness,  together  with 
the  commission  and  interrogatories,  if  any,  shall  be  inclosed,  sealed  up,  and  directed 
to  the  clerk  of  the  court  in  which  the  action  shall  be  pending,  with  the  names  of 
the  parties  litigant  indorsed  thereon:  Provided,  that  when  any  deposition  shall 
be  taken  as  aforesaid,  by  any  judge,  master  in  chancery,  notary  public,  or  justice 
of  the  peace  out  of  this  state,  or  other  officer,  such  return  shall  be  accompanied 
by  a  certificate  of  his  official  character,  under  the  great  seal  of  the  state,  or  under 
the  seal  of  the  proper  court  of  record  of  the  county  or  city  wherein  such  deposition 
shall  be  taken.     (R.  S.  1845,  p.  234,  §  12). 

Deposition  —  Unsealed,  Etc. — Informal.  §31.  Every  deposition  that  shall 
be  returned  to  the  court  unsealed,  or  the  seal  of  which  shall  be  broken  pre- 
vious to  its  reception  by  the  clerk  to  whom  it  is  directed,  shall,  if  objection  be 
made  thereto  in  proper  time,  be  regarded  by  the  court  as  informal  and  insuffi- 
cient.    (R.  S.  1845,  p.  235,  §  16). 

Opening  Deposition  —  Penalty.  §  32.  It  shall  not  be  lawful  for  any  party 
litigant,  or  the  clerk  of  the  court  into  which  any  deposition  may  be  returned 
as  aforesaid,  to  break,  the  seal  of  the  same,  either  in  term  time  or  in  vacation, 
unless  by  consent  of  parties  or  their  attorneys,  indorsed  thereon  by  permission  of 
the  court.  .  .  . 

Dictating,  Etc.,  Effect  of.  §  33.  The  party,  his  attorney,  or  any  person 
who  shall  in  anywise  be  interested  in  the  event  of  the  suit,  shall  not  be  permitted 
to  dictate,  write  or  draw  up  any  deposition  which  may  at  any  time  be  taken  under 
this  Act,  or  be  present  during  the  taking  of  any  deposition  by  written  interroga- 
tories; and  every  deposition  so  dictated,  written  or  drawn  up,  or  during  the 
taking  of  which  any  such  party,  his  attorney,  or  any  person  interested  is  present 
when  the  same  is  taken  upon  written  interrogatories,  as  aforesaid,  shall  be  rejected 
by  the  court  as  informal  and  insufficient.     (R.  S.  1845,  p.  235,  §  16). 

Effect  of  Deposition.  §  34.  Every  examination  and  deposition  which  shall 
be  taken  and  returned  according  to  the  provisions  of  this  act,  may  be  read  as  good 
and  competent  evidence  in  the  cause  in  which  it  shall  be  taken,  as  if  such  witness 
had  been  presented  and  examined  by  parol  in  open  court,  on  the  hearing  or  trial 
thereof.     (R.  S.  1845,  p.  235,  §  13). 


370.   EVANS  V.  ROTHSCHILD 

Supreme  Court  of  Kansas.     1895 

54  Kan.  747;  39  Pac.  701 

Error  from  Washington  District  Oourt. 

Replevin  by  Emanuel  Rothschild  &  Bros,  against  Evans,  as  sheriff, 
and  others.    Judgment  for  plaintiffs.    The  defendants  bring  the  case  here. 


556  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  370 

This  was  an  action  of  replevin,  brought  by  the  defendants  in  error 
as  partners,  under  the  firm  name  of  E.  Rothschild  &  Bros.,  against  the 
sheriff  of  Washington  county,  to  recover  certain  merchandise.  On  his 
own  application,  William  Morrison  was  made  a  party,  and  answered, 
claiming  ownership  of  the  property  in  controversy.  On  the  22d  of  Octo- 
ber, 1890,  the  plaintiffs  served  a  notice  on  the  attorney  for  the  sheriff 
that  they  would  take  depositions  in  Chicago  on  the  28th  of  October, 
1890,  between  the  hours  of  8  o'clock  a.m.  and  6  o'clock  p.m.  They  also, 
at  the  same  time,  served  another  notice  that  they  would  take  depositions 
on  the  day  stated  in  the  other  notice,  in  St.  Joseph,  Mo.  The  defendant 
appeared  by  attorney,  and  attended  the  taking  of  depositions  at  St. 
Joseph,  but  did  not  appear  at  Chicago.  Before  the  commencement  of 
the  trial,  the  defendants  duly  excepted  to  the  depositions  taken  at 
Chicago,  on  the  ground  that  they  had  elected  to  appear  and  attend  the 
taking  of  the  depositions  at  St.  Joseph,  and  that  they  could  not  be 
required  to  attend  in  two  places,  distant  from  each  other,  at  the  same 
time.  The  Court  overruled  the  exceptions,  and  permitted  both  deposi- 
tions to  be  read  at  the  trial. 

Omar  Powell,  for  plaintiffs  in  error.  T.  P.  Roney,  and  J.  W.  Rector,  for 
defendants  in  error. 

The  opinion  of  the  Court  was  delivered  by 

Allen,  J.  (after  stating  the  facts  as  above). 

Section  352  of  the  Code  of  Civil  Procedure  provides  for  the  service 
of  a  notice  of  the  time  and  place  of  taking  depositions,  as  follows :  "  The 
notice  shall  be  served  so  as  to  allow  the  adverse  party  sufficient  time,  by 
the  usual  route  of  travel,  to  attend,  and  one  day  for  preparation,  exclu- 
sive of  Sunday  and  the  day  of  service."  Does  this  permit  the  service  of 
two  or  more  notices  to  take  depositions  at  places  widely  separate  from 
each  other,  on  the  same  day,  provided  only  the  notice  is  served  in  suffi- 
cient time  to  give  the  party  an  opportunity  to  go  to  either  place  desig- 
nated? W^e  think  the  spirit,  if  not  the  letter,  of  the  statute,  clearly 
prohibits  any  such  practice. 

W'here  testimony  is  taken  by  deposition,  it  is  in  one  sense  a  part  of 
the  trial  of  the  cause,  and  the  only  chance  given  to  the  opposing  party 
to  confront  the  witnesses  whose  depositions  are  taken  under  the  notice 
is  to  attend  before  the  officer  who  takes  them.  The  only  opportunity 
to  apply  the  tests  necessary  to  correct  errors  or  detect  falsehood  in  the 
statements  drawn  out  on  direct  examination  is  that  afforded  by  cross- 
examination  at  the  same  time.  A  party  to  an  action  has  a  right,  if  he 
deems  it  necessary,  to  be  personally  present  when  depositions  are  being 
taken  affecting  his  interests.  He  is  not  required  to  employ  a  multitude 
of  attorneys  to  protect  his  interests  at  different  places  on  the  same  day, 
nor  does  the  fact  that  he  chooses  to  intrust  his  interests  to  the  care  of  an 
attorney  (other  than  the  one  who  tries  the  case  for  him)  at  one  place, 
require  him  or  his  principal  counsel  to  attend  on  the  same  day  at  another 
place.     A  reasonable  construction  of  the  statute,  in  the  light  of  its  evi- 


No.  371  HEARSAY    RULE:     CROSS-EXAMINATION  557 

dent  purpose,  constrains  us  to  hold  that  a  party  giving  notices  to  take 
depositions  at  different  places  must  so  arrange  the  times  as  to  allow  the 
adverse  party  to  attend  each  one,  and  that  sufficient  time  must  elapse 
after  the  conclusion  of  the  taking  of  one  deposition  to  allow  the  party 
at  least  time  sufficient  to  reach  the  place  where  another  is  to  be  com- 
menced.    (Weeks,  Dep.,  §  264;  Fant  ».  Miller,  17  Gratt.  187.) 

As  the  testimony  included  in  the  deposition  taken  at  Chicago  is  of 
vital  importance  to  the  plaintiffs'  case,  and  as  the  defendant  had  no 
opportunity  to  appear  and  cross-examine  the  witnesses,  the  error  in 
refusing  to  suppress  the  deposition  compels  a  reversal  of  the  case.  .  .  . 
The  judgment  is  reversed,  and  a  new  trial  ordered. 

All  the  justices  concurring. 


371.   WALKERTON  v.  ERDMAN 

Supreme  Court  of  Canada.     1894 

23  Can.  Sup.  352 

Appeal  from  a  decision  of  the  Court  of  Appeal  for  Ontario,  affirming 
the  judgment  of  the  Divisional  Court  by  which  a  new  trial  was 
ordered. 

The  action  in  this  case  was  brought  under  Lord  Campbell's  Act  in 
consequence  of  the  death  of  John  B.  Erdman,  from  injuries  received  by 
falling  into  an  excavation  in  one  of  the  streets  of  the  town.  Erdman 
before  his  death  had  instituted  an  action,  for  damages  for  such  injuries, 
in  which  by  order  of  the  Court  his  evidence  was  taken  de  bene  esse, 
counsel  for  the  town  appearing  at  such  examination  and  cross-examining. 
The  sole  question  to  be  decided  on  this  appeal  is  whether  or  not  such  evi- 
dence was  admissible  on  the  trial  of  the  present  action.  .  .  . 

The  writ  in  that  action  was  issued  on  9th  ISIarch,  1892.  On  17th 
March  Erdman's  solicitors  gave  to  the  town  notice  that  they  would 
apply  to  a  master  on  the  21st  March  for  an  order  for  his  examination. 
Prior  to  the  21st  March  the  town  gave  notice  to  Heughan  of  a  motion 
to  be  made  to  the  local  High  Court  Judge  that  he  should  be  made  a 
co-defendant  under  the  act  of  Ontario,  55  Vict.  c.  42,  §  531.  Such  an 
order  was  duly  made  on  the  25th  March,  1892.  Upon  the  return  of 
Erdman's  summons  on  21st  March,  1892,  the  master  ordered  that  the 
examination  of  Erdman  de  bene  esse  be  made  on  the  23rd  March  upon 
notice  to  defendants,  and  to  Heughan,  who  was  stated  in  the  order  to 
have  been  served  with  a  third  party  notice  by  defendants.  The  examina- 
tion of  Erdman  took  place  on  23rd  March,  the  solicitor  for  the  town 
appearing  and  cross-examining,  but,  so  far  as  appears,  notice  of  the 
examination  was  not  served  on  Heughan,  he  not  having  then  in  fact  been 
made  a  party  to  the  suit.  Erdman  died  on  1st  April,  1892,  and  his 
widow,  having  proved  his  will,  began  this  action  on  the  6th  June,  1892, 


558  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  371 

for  her  own  benefit  as  his  widow,  and  for  the  benefit  of  four  of  his 
children. 

Upon  the  trial,  before  Street,  J.,  the  deposition  of  Erdman  was 
tendered  in  evidence  and  rejected,  and  there  being  otherwise  no  proof  of 
the  cause  of  the  injury  the  plaintiff  was  non-suited.  The  non-suit  was 
set  aside  and  a  new  trial  ordered  by  the  Divisional  Court  (Armour,  C.  J., 
and  Falcon  BRIDGE,  J.)  and  such  judgment  has  been  affirmed  by  the 
unanimous  judgment  of  the  Court  of  Appeal. 

Aylesworth,  Q.  C,  for  the  appellants.  Lord  Campbell's  Act  gives  a 
new  cause  of  action  and  one  entirely  different  from  that  which  deceased 
had  in  his  lifetime.  .  .  . 

As  regards  this  action  the  plaintiff  is  in  no  way  in  privity  with  the 
deceased.  .  .  . 

Shaw,  Q.  C,  for  respondent.  The  issues  in  both  actions  are  substan- 
tially the  same,  and  the  evidence  comes  within  the  rules  laid  down  in 
the  books.  .  .  . 

O'Connor,  Q.  C,  for  third  party. 

FouRNiER,  J.  —  I  am  of  opinion  that  this  appeal  should  be  dismissed. 

Taschereau,  J.  — -I  would  allow  this  appeal.  I  concur  in  my 
brother  Gwynne's  opinion. 

GwYNNE,  J.  .  .  .  The  question  is  whether  the  depositions  of  the 
said  John  B.  Erdman,  so  taken,  are  admissible  as  evidence  for  the  plaintiff 
in  the  present  action,  against  the  contention  of  the  defendants,  the 
Corporation  and  Heughan,  that  they  are  not;  and  I  am  of  opinion  that 
the  learned  trial  Judge's  decision  that  they  were  not  was  correct  and 
sound,  and  should  be  maintained  upon  the  grounds  following: 

Upon  the  authority  of  the  recent  cases  and  especially  since  the 
judgment  of  the  Privy  Council  in  Robinson  v.  Canadian  Pacific  Railway 
Co.  (1892,  A.  C.  481)  it  cannot  be  disputed  in  this  court  that  the  present 
action  at  the  suit  of  the  widow  of  the  deceased,  John  B.  Erdman,  is  a 
wholly  different  action  in  every  particular  from  that  instituted  by 
Erdman  in  his  lifetime.  It  is  between  wholly  different  parties  and 
founded  upon  wholly  different  rights.  Although  the  plaintiff  is  personal 
representative  of  the  deceased  she  claims  not  in  right  of  the  deceased  or 
of  his  estate,  but  being  personal  representative  she  is  by  statute  authorized 
in  that  character  to  assert  her  own  independent  rights  and  those  of  her 
children. 

The  evidence  is  sought  to  be  used  in  the  present  action  not  only 
against  the  Corporation  of  Walkerton  but  against  the  defendant 
Heughan  also,  and  as  no  judgment  in  favor  of  the  plaintiff  can  be 
rendered  herein  w^hich  is  not  conclusively  binding  upon  Heughan  as 
well  as  upon  the  corporation,  he  cannot  be  affected  by  depositions 
taken  in  an  action  to  w'hich  he  was  not  a  party;  "etergo"  depositions 
so  taken  cannot  be  used  as  evidence  for  the  plaintiff  in  the  present 
action.  ... 

For  these  reasons  I  am  of  opinion  that  the  learned  trial  judge  was 


No.  371  HEARSAY    RULE:     CROSS-EXAMINATION  559 

correct  in  his  ruling  at  the  trial  and  that  therefore  this  appeal  must  be 
allowed  with  costs  and  that  judgment  of  non-suit  be  ordered  to  be 
entered  in  the  court  below. 

Sedgewick,  J.  —  I  am  of  opinion  that  the  appeal  should  be  dismissed. 
I  think  the  evidence  was  properly  admitted. 

King,  J.  .  .  .  Notwithstanding  the  able  argument  of  Mr.  Ayles- 
worth,  I  think  that  the  judgment  of  the  appeal  court  should  be  affirmed. 

The  rule  of  evidence  is  thus  stated  in  Taylor  on  Evidence,  §  464 : 

"Where  a  witness  has  given  his  testimony  under  oath  in  a  judicial  proceeding, 
in  which  the  adverse  Htigant  had  the  power  to  cross-examine,  the  testimony  so 
given  will,  if  the  witness  himself  cannot  be  called,  be  admitted  in  any  subsequent 
suit  between  the  same  parties,  or  those  claiming  under  them,  provided  it  relates 
to  the  same  subject  or  substantially  involves  the  same  material  questions." 

And  thus,  in  another  work  on  evidence  (Stephen,  Art.  32.)  — 

"Evidence  given  by  a  witness  in  a  previous  action  is  relevant  for  the  purpose  of 
proving  the  matter  stated  in  a  subsequent  proceeding  .  .  .  when  the  witness  is 
dead,  provided  the  person  against  whom  the  evidence  is  to  be  given  had  the  right 
and  opportunity  to  cross-examine  the  declarant  when  he  was  examined  as  a  wit- 
ness; that  the  questions  in  issue  were  substantially  the  same  in  the  first  as  in  the 
second  proceeding;  and  that  the  proceeding,  if  civil,  was  between  the  same 
parties,  or  their  representatives  in  interest." 

The  evidence  of  Erdman  was  testimony  under  oath  in  a  judicial 
proceeding,  and  (as  Mr.  Justice  Osler  points  out)  was  not  the  less  so 
because  taken  de  bene  esse  and  never  actually  used  on  the  trial  of  the 
action  in  which  it  was  taken. 

1.  Subject  to  the  observations  to  be  made  respecting  the  position  of 
the  third  party,  it  also  satisfies  the  rule  that  the  party  against  whom  it  is 
offered  in  the  present  action,  viz.:  the  Corporation  of  Walkerton,  had 
the  right  and  opportunity  to  cross-examine  the  declarant  when  he  was 
examined  as  a  witness,  and  in  fact  exercised  the  right. 

2.  Then  as  to  the  second  requirement  of  the  rule,  viz.:  that  the 
questions  in  issue  shall  be  substantially  the  same,  or  (as  stated  in  Taylor) 
that  the  evidence  relate  to  the  same  subject,  or  substantially  involve  the 
same  material  question,  —  this  does  not  require  that  all  the  issues  in 
the  two  actions  shall  correspond.  It  is  satisfied  if  the  evidence  relates 
to  any  material  issues  that  are  substantially  the  same  in  both  actions. 
Now  the  question  of  fact  whether  the  injury  to  Erdman  (the  alleged 
cause  of  his  death)  was  occasioned  by  the  negligent  act  or  omission  of 
the  town  was  a  material  issue  in  the  action  brought  by  him,  and  it  is 
equally  a  material  issue  in  the  present  action,  as  the  plaintiff  is  bound 
to  show  that  the  death  was  occasioned  by  an  act  or  default  of  the  town 
which  gave  to  Erdman  a  right  of  action  against  the  town  at  the  time  of 
his  death.  And  the  evidence  in  question  was  tendered  in  support  of 
that  issue. 

If  indeed  the  admissibility  of  the  evidence  were  to  depend  upon  the 


560  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  371 

causes  of  action  being  the  same  the  respondent  could  not  hope  to  succeed, 
because  it  is  conclusively  established  that  the  cause  of  action  given  by 
the  statute  is  different  from  that  which  the  deceased  had  in  his  lifetime. 
.  .  .  But,  while  the  present  cause  of  action  is  new  and  different  from  that 
brought  in  his  lifetime  by  Erdman,  it  is  nowhere  stated  that  the  causes  of 
action  are  to  be  identical  in  order  to  render  admissible  in  a  later  action 
evidence  given  in  an  earlier  one.  It  is  sufficient  that  material  issues  to 
which  the  evidence  is  relevant,  and  for  the  proof  of  which  it  is  in  each 
case  adduced,  are  substantially  the  same  in  both  proceedings.  Here 
the  second  cause  of  action  embraces  what  goes  to  constitute  the  first 
together  with  other  things.  I  conclude  therefore  that  the  second  re- 
quirement of  the  rule  is  met. 

3.  Then  as  to  the  third  requirement,  viz.:  that  the  proceedings  in 
the  two  actions  shall  be  between  the  same  parties,  or  those  claiming  under 
them.  The  plaintiff  in  this  action,  although  suing  as  executrix,  fills  a 
mere  nominal  or  formal  position  in  the  action.  As  expressed  in  more 
than  one  case,  the  plaintiff  so  suing  is  a  mere  instrument  acting  on  behalf 
of  the  person  (whether  widow,  child  or  parent)  claiming  to  have  sus- 
tained pecuniary  loss  through  the  death  of  the  deceased.  What  has  to  be 
regarded,  therefore,  is  the  relation  which  the  beneficial  parties  to  the 
action  bear  in  point  of  interest  to  the  deceased.  Can  they  be  said  to 
claim  under  him?  ...  In  the  interpretation  of  the  provision  of  the 
statute  that  the  wrongful  act  causing  the  death  shall  be  such  as  would, 
but  for  the  death,  have  entitled  the  person  injured  to  maintain  an  action, 
it  has  been  held  that  this  means  a  right  of  action  subsisting  in  him  down 
to  the  time  of  his  death;  and  that,  if  previously  having  a  right  of  action, 
he  released  it,  or  discharged  it  by  accord  and  satisfaction,  the  statutory 
cause  of  action  could  not  arise  upon  the  death.  This  is  the  result  of 
decisions  such  as  Read  v.  Great  Eastern  Railway  Co.  (L.  R.  3"Q.  B.  555), 
and  is  supported  by  the  before  quoted  observations  of  Lord  Selborne, 
in  Seward  v.  Vera  Cruz,  10  App.  Cas.  59.  I  think  it  follows  upon  this 
that  the  persons  seeking  the  benefit  of  this  action,  the  widow  and  children 
of  Erdman,  are  in  effect  claiming  through  him.  .  .  . 

I  therefore  think  that  the  judgment  below  is  correct. 

I  also  agree  that  the  case  is  not  affected  by  the  circumstance  of  the 
third  party  proceedings.  The  plaintiff  may  succeed  against  the  town  and 
fail  as  to  Heughan.  ...  In  order  to  make  the  third  party  liable  it  must 
be  established  on  the  trial,  as  against  him,  that  the  damages  were  sus- 
tained by  reason  of  an  obstruction,  excavation  or  opening  placed,  made, 
left  or  maintained  by  him.  This  is  not  made  out  as  against  him  by 
evidence  admissible  against  the  town  but  not  against  him,  although 
such  evidence  maj'  establish  a  case  against  the  original  defendant.  .  .  . 

For  these  reasons  I  think  the  appeal  should  be  dismissed. 

Appeal  dismissed  with  costs. 


No.  372  HEARSAY    RULE:     CROSS-EXAMINATION  561 

372.   ANSONIA  v.  COOPER 
Supreme  Court  of  Errors  of  Connecticut.     1895 

66  Conn.  184;  33  N.  E.  905 

Action  in  the  nature  of  interpleader,  brought  to  the  Superior  Court 
in  New  Haven  County  and  tried  to  the  Court,  George  W.  Wheeler,  J. ; 
facts  found  and  judgment  rendered  in  favor  of  Henry  G.  AlHng,  and 
appeal  by  Elizabeth  Downs  for  alleged  errors  in  the  ruling  of  the  Court. 
No  error.     The  case  is  sufficiently  stated  in  the  opinion. 

George  B.  Carroll,  for  the  appellant,  Elizabeth  Downs.  .  .  .  The 
Court  erred  in  its  ruling  respecting  the  depositions.  .  .  . 

V.  Mnnger,  for  the  appellee,  Henry  G.  Ailing.  .  .  .  The  Court  com- 
mitted no  error  in  respect  to  the  depositions.  The  deposition  taken 
at  the  instance  of  a  party  to  an  action,  and  not  used  by  him,  may  be 
read  in  evidence  by  the  opposite  party,  against  the  objection  of  the  party 
at  whose  instance  it  was  taken.  .  .  . 

Torrance,  J.  —  This  is  a  proceeding  in  the  nature  of  a  bill  of  inter- 
pleader between  Henry  G.  Ailing  and  Elizabeth  Downs,  to  determine 
which  of  them  is  entitled  to  a  fund  paid  into  Court  by  the  town  of  An- 
sonia,  as  the  appraised  value  of  land  taken  by  said  town  for  a  school- 
house  site.  .  .  . 

We  come  now  to  the  rulings  upon  questions  of  evidence,  the  more 
important  of  which  relate  to  the  depositions  used  in  the  case. 

It  appears  that  the  appellant  had  taken  in  due  form  the  depositions 
of  Alfred  Cooper,  and  of  his  wife  and  daughter.  Counsel  for  both  parties 
had  stipulated  that  the  depositions  should  be  filed  with  the  clerk,  and 
might  be  opened  and  taken  away  by  counsel  for  Downs,  to  be  typewrit- 
ten and  copied  for  the  convenience  of  Court  and  counsel,  and  that  one 
typewritten  copy  should  be  considered  as  the  original.  The  original 
and  typewritten  copy  were  both  lying  upon  the  table  before  the  Court, 
and  apparently  in  the  physical  possession  of  counsel  for  appellant.  Ai- 
ling offered  to  read  from  these  depositions  and  to  lay  in  evidence  the 
portion  so  read.  Thereupon  the  appellant  objected,  chiefly  on  the 
ground  that  she  herself  had  not  offered  them  in  evidence.  The  Court, 
against  the  objection  of  the  appellant,  ruled  that  under  these  circum- 
stances Ailing  might  use  them. 

Upon  a  careful  examination  of  the  record,  it  is  difficult  to  see  how 
this  ruling,  even  if  erroneous,  can  have  harmed  the  appellant.  The 
depositions  were  those  of  her  own  witnesses,  whose  testimony,  from  the 
nature  of  the  case,  would  presumably,  be  favorable  to  her.  A  good  deal 
of  that  testimony,  so  far  as  it  appears  on  the  record,  relates  to  matters  not 
seriously  disputed,  and  as  a  whole  it  appears  to  be  favorable  to  her,  or 
at  least  it  does  her  no  harm.  The  fact  that  the  ruling  did  not  harm  the 
appellant  would  justify  us  in  passing  this  matter  without  further  con- 


562  BOOK   i:     RULES   OF   ADMISSIBILITY  No,  372 

sideration ;  but  as  the  question  involved  is  one  which,  so  far  as  we  are 
aware,  has  not  been  decided  by  this  Court,  and  is  one  of  some  impor- 
tance in  practice,  it  seems  advisable  to  express  our  views  upon  it. 

In  most  cases  depositions  are  taken  for  the  purpose  of  being  used  by 
the  party  taking  them.  The  cases  where  they  are  not  so  used  are  com- 
paratively few  in  number;  but  in  such  cases  if  the  right  to  use  the  depo- 
sitions be  denied  to  the  adverse  party,  it  may  work  a  great  hardship 
and  injustice.  It  will  seldom  be  known  in  advance  of  the  actual  trial, 
whether  the  party  taking  the  deposition  does  or  does  not  intend  to  use 
them,  and  when  it  is  known  that  he  will  not  use  them,  it  will  usually  be 
too  late  for  the  adverse  party  to  avail  himself  of  the  testimony  of  the 
deponents  in  any  way,  although  he  may  have  relied  on  that  testimony 
in  support  of  his  case.  If  this  right  be  denied  to  the  adverse  party,  it 
will  in  very  many  cases  necessitate  the  taking  of  two  sets  of  depositions 
of  the  same  witnesses,  involving  a  useless  expenditure  of  time  and  money. 
We  see  no  good  reason  why  this  should  be  done,  at  least  not  in  cases  like 
the  present,  where  the  depositions  were  filed  with  the  clerk,  in  whose 
custody  they  must  by  statute  remain,  unless  suppressed  by  the  Court, 
until  final  judgment  in  the  cause. 

On  the  whole,  we  see  no  good  reason  on  principle  for  denying  this 
right  to  the  adverse  party;  and  such  appears  to  be  the  prevailing  opin- 
ion as  expressed  in  statutes,  or  rules  of  practice,  or  by  the  decisions  of 
Courts.  See  the  authorities  cited  in  5  Amer.  &  Eng.  Ency.  of  Law,  p. 
607.  It  is  true,  as  claimed  by  the  appellant,  that  some  of  the  authori- 
ties there  cited  in  support  of  this  right,  are  not  in  point,  as  for  instance 
the  case  of  Henshaw  v.  Clark,  2  Root  103;  but  after  all,  we  think  it  does 
appear  that  the  weight  of  authority  is  in  favor  of  this  right.  We  think 
the  Court  did  not  err  in  ruling  as  it  did  on  this  point.  .  .  . 

In  this  opinion  the  other  judges  concurred. 


Topic  3.     Modes  of  Satisfying  the  Rule  of  Confrontation 

373.  Introductory.  In  the  period  when  the  Hearsay  rule  is  being  estab- 
lished, and  ex  parte  depositions  are  still  used  against  an  accused  person,  we  find 
him  frequently  protesting  that  the  witnesses  should  be  "brought  face  to  face," 
or  that  he  should  be  "confronted"  with  the  witnesses  against  him.  The  final 
establishment  of  the  Hearsay  rule,  in  the  early  1700s,  meant  that  this  protest 
was  sanctioned  as  a  just  one,  ■ —  in  other  words,  that  Confrontation  was  required. 
What  was,  in  principle,  the  meaning  and  purpose  of  this  Confrontation? 

It  is  generally  agreed  that  the  process  of  confrontation  has  two  purposes,  a 
main  and  essential  one,  and  a  secondary  and  subordinate  one.  (1)  The  main 
and  essential  purpose  of  confrontation  is  to  secure  the  opportunity  of  cross-examina- 
tion. The  opponent  demands  confrontation,  not  for  the  idle  purpose  of  gazing 
upon  the  witness,  or  of  being  gazed  upon  by  him,  but  for  the  purpose  of  cross- 
examination,  which  cannot  be  had  except  by  the  direct  and  personal  putting  of 
questions  and  obtaining  of  immediate  answers. 

(2)  There  is,  however,  a  secondary  advantage  to  be  obtained  by  the  personal 


No.  374  HEARSAY  rule:    confrontation  563 

appearance  of  the  witness;  the  judge  and  the  jury  are  enabled  to  obtain  the 
elusive  and  incommunicable  evidence  of  a  witness'  deportment  while  testifying, 
and  a  certain  sul)jective  moral  effect  is  produced  upon  the  witness.  This  second- 
ary advantage,  however,  does  not  arise  from  the  confrontation  of  the  opponent  and 
the  witness;  it  is  not  the  consequence  of  those  two  being  l)rought  face  to  face.  It 
is  the  witness'  presence  before  the  trihxmal  that  secures  this  secondary  advantage, 
—  which  might  equally  be  ol)tained  whether  the  opponent  was  or  was  not  allowed 
to  cross-examine.  In  other  words,  this  secondary  advantage  is  a  result  acci- 
dentally associated  with  the  process  of  confrontation,  whose  original  and  funda- 
mental object  is  the  opponent's  cross-examination. 

Nevertheless,  the  secondary  advantage,  incidentally  obtained  for  the  tribunal 
by  the  witness'  presence  before  it  —  the  demeanor-evidence  —  is  an  advantage 
to  be  insisted  upon  wherever  it  can  be  had.  But  it  is  merely  desirable.  Where 
it  cannot  be  obtained,  it  need  not  be  required.  It  is  no  essential  part  of  the 
notion  of  confrontation;  it  stands  on  no  better  footing  than  other  evidence  to 
which  special  value  is  attached;  and  just  as  the  original  of  a  document,  or  a 
preferred  witness,  may  be  dispensed  with  in  case  of  unavailability,  so  demeanor- 
evidence  may  be  dispensed  with  in  a  similar  necessity.  Accordingly,  supposing 
that  the  indispensable  requirement  of  cross-examination  has  already  been  satisfied, 
the  only  remaining  inquiry  is  whether  the  demeanor-evidence,  to  be  obtained  by 
the  witness'  production  before  the  tribunal,  is  available. 

374.  Statutes.  England.  Rules  of  Supreme  Court,  under  Judicature  Act 
of  1875,  c.  77,  Order  XXXVII,  Rule  IS.  Except  where  by  this  Order  otherwise 
provided,  or  directed  by  the  Court  or  a  Judge,  no  deposition  shall  be  given  in 
evidence  at  the  hearing  or  trial  of  any  cause  or  matter  without  the  consent  of  the 
party  against  whom  the  same  may  be  offered,  unless  the  Court  or  Judge  is  satisfied 
that  the  deponent  is  dead  or  beyond  the  jurisdiction  of  the  Court,  or  unable  from 
sickness  or  other  infirmity  to  attend  the  hearing  or  trial. 

United  States.  Constihdion  (1787),  Amendment  VI.  In  all  criminal  prosecu- 
tions, the  accused  shall  enjoy  the  right  ...  to  be  confronted  with  the  witnesses 
against  him. 

Ibid.  Revised  Statutes,  1878,  §  861.  The  mode  of  proof  in  trials  of  actions  at 
common  law  shall  be  by  oral  testimony  and  examination  of  witnesses  in  open 
court,  except  as  hereinafter  provided. 

lb.  §  863.  In  civil  cause  in  a  district  or  circuit  court  a  deposition  may  be 
taken  "when  the  witness  lives  at  a  greater  distance  from  the  place  of  trial  than 
100  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the  United  States, 
or  out  of  the  district  in  which  the  case  is  to  be  tried,  and  to  a  greater  distance  than 
100  miles  from  the  place  of  trial,  before  the  time  of  trial,  or  when  he  is  ancient  and 
infirm. 

lb.  §  865.  Unless  it  appears  to  the  satisfaction  of  the  Court  that  the  witness  is 
then  dead,  or  gone  out  of  the  United  States,  or  to  a  greater  distance  than  100  miles 
from  the  place  where  the  Court  is  sitting,  or  that,  by  reason  of  age,  sickness,  bodily 
infirmity,  or  imprisonment,  he  is  unable  to  travel  and  appear  at  court,  such 
deposition  shall  not  be  used  in  the  cause. 

lb.  §  866.  In  any  case  where  it  is  necessary,  in  order  to  prevent  a  failure  or 
delay  of  justice,  any  of  the  courts  of  the  United  States  may  grant  a  "dedimus 
potestatem"  to  take  depositions  according  to  common  usage;  .  .  .  and  the  pro- 
visions of  §  863,  864,  and  865  shall  not  apply  to  any  deposition  to  be  taken  under 
the  authority  of  tliis  section. 


564  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  375 

375.   GREENLEE  v.   MOSNAT 

Supreme  Court  of  Iowa.     1907 

136  la.  639;  111  N.  W.  996 

Appeal  from  District  Court,  Benton  County;  Obed  Caswell, 
Judge. 

Action  to  recover  money  received  by  J.  J.  Mosnat,  deceased,  as 
attorney  for  plaintiff,  on  certain  fire  insurance  policies  placed  in  his 
hands  by  plaintiff  for  collection.  For  defendant  a  settlement  was 
pleaded  in  which,  as  alleged,  the  full  amount  of  the  money  received  by 
Mosnat  beyond  his  reasonable  fees  as  attorney  for  plaintiff  had  been 
paid  over  or  accounted  for.  The  action  was  first  commenced  during 
the  lifetime  of  INIosnat,  and"  there  was  a  judgment  for  plaintiff  on  a  ver- 
dict in  his  favor  which  was  reversed  on  appeal.  See  116  Iowa,  535. 
On  a  second  trial  there  was  again  a  verdict  for  plaintifp,  which  was  re- 
versed on  appeal.  See  126  Iowa  330.  Pending  the  second  appeal 
the  death  of  the  defendant  was  suggested,  and  his  executrix  was  substi- 
tuted. The  present  appeal  is  by  defendant  from  a  judgment  on  a  verdict 
in  plaintiff's  favor  rendered  on  the  third  trial  of  the  case.     Reversed. 

Tom  H.  Milner,  Nichols  &  Nichols,  and  Randall  &  Harding,  for 
appellant. 

C.  W.  E.  Snyder,  Whipple  <&  Brown,  and  Montgomery  &  .Chambers, 
for  appellee. 

McClain,  J.  —  For  the  purpose  of  determining  the  question  of  law 
now  submitted  to  us,  it  is  sufficient  to  say  that  the  issues  of  fact  were 
as  to  whether  there  was  an  oral  contract  between  plaintiff  and  deceased 
by  which  deceased  was  to  receive  ten  per  cent,  of  the  money  collected 
for  plaintiff  on  the  insurance  policies,  and  was  therefore  bound  to  account 
to  plaintiff  for  all  the  money  received  by  him  as  plaintiff's  attorney  in 
excess  of  the  agreed  consideration,  the  claim  of  defendant  being  that  no 
agreement  as  to  the  amount  of  the  fee  had  been  made,  and  whether  a 
certain  payment  by  check  of  deceased  to  plaintiff  was  in  full  satisfaction 
of  all  claims  with  reference  to  the  money  received  by  deceased  for  plain- 
tiff, it  being  claimed  by  plaintiff  that  the  check  was  expressly  accepted 
only  as  payment  on  account.  On  the  former  trial  both  plaintiff  and 
the  deceased,  who  was  then  alive,  testified  as  to  whether  there  was  an 
oral  agreement  for  a  ten  per  cent,  fee,  and  as  to  whether  there  was  any 
statement  by  plaintiff  at  the  time  the  check  was  received  that  it  was 
only  accepted  in  part  payment.  Testimony  of  the  defendant  was  offered 
with  reference  to  services  rendered  by  him  to  plaintiff  as  attorney  before 
the  insurance  policies  were  placed  in  his  hands  for  collection,  but  this 
testimony  was  excluded,  and  the  judgment  for  plaintiff  was  reversed 
for  this  reason.  On  the  trial  from  the  judgment  in  which  his  appeal  is 
taken,  plaintiff  was  called  as  a  witness,  and  testified  with  reference  to 


No.  375         HEARSAY  RULE:  CONFRONTATION  565 

the  fire  insurance  policies  and  the  institution  of  suit  thereon  by  deceased 
as  his  attorney,  but  his  offered  testimony  as  to  a  conversation  with  de- 
ceased with  reference  to  employment  in  the  insurance  cases  was  objected 
to  because  of  the  incompetency  of  plaintiff  as  a  witness  to  testify  to  per- 
sonal transactions  or  communications  with  deceased  in  view  of  the 
provisions  of  Code,  §  4604,  which  prohibit  a  party  to  any  action  being 
"examined  as  a  witness  in  regard  to  any  personal  transaction  or  com- 
munication between  such  witness  and  a  person  in  the  commencement 
of  such  examination  deceased,  insane  or  lunatic,  against  the  executor, 
administrator,  heir  at  law,  next  of  kin,  assignee,  legatee,  devisee  or 
survivor  of  such  deceased  person,  or  the  assignee  or  guardian  of  such 
insane  person  or  lunatic."  This  objection  being  sustained,  the  tran- 
script of  the  shorthand  notes  of  the  evidence  of  plaintiff  given  on  the 
former  trial  while  Mosnat  was  living  and  the  defendiant  in  the  case  was 
offered,  and  over  defendant's  objection  was  received,  as  tending  to  show 
the  terms  of  the  employment  of  deceased  by  plaintiff,  and  as  bearing 
on  the  question  whether  the  check  then  given  by  deceased  to  plaintiff 
was  accepted  in  full  satisfaction  and  by  way  of  settlement.  In  the  same 
manner  the  transcript  of  the  testimony  of  plaintiff  with  reference  to  a 
conversation  with  deceased  in  the  presence  of  a  witness  whose  testi- 
mony on  the  former  trial  was  read  in  defendant's  behalf  was  received  in 
rebuttal.  The  admissibility  of  the  testimony  of  plaintiff  thus  introduced 
by  means  of  the  transcript  of  the  shorthand  notes  of  the  evidence  on  the 
former  trial  is  the  sole  question  presented  for  consideration.  If  the 
ruling  of  the  Court  admitting  the  testimony  of  plaintiff  introduced  by 
means  of  the  transcript  was  correct,  the  judgment  is  to  be  affirmed.  If 
it  W'as  erroneous,  a  reversal  must  necessarily  follow,  for  without  this 
testimony  plaintiff  had  no  proof  of  the  contract  relied  upon  by  him  that 
the  fees  of  deceased  should  be  limited  to  ten  per  cent,  of  the  recovery 
on  the  insurance  policies. 

The  admissibility  in  evidence  of  the  transcript  of  plaintiff's  testi- 
mony on  the  former  trial  is  contended  for  under  the  provisions  of  chapter 
9,  p.  16,  Acts  27th  Gen.  Assem.  (Code  Supp.  1902,  §  24oa),  the  material 
portion  of  which  is  as  follows:  "The  original  shorthand  notes  of  the 
evidence,  or  any  part  thereof,  heretofore  or  hereafter  taken  upon  the 
trial  of  any  cause  or  proceeding,  in  any  court  of  record  in  this  State,  by 
the  shorthand  reporter  of  such  court,  or  any  transcript  thereof,  duly 
certified  by  such  reporter,  when  material  and  competent,  shall  be  ad- 
missible in  evidence  on  any  retrial  of  the  case  or  proceeding  in  which  the 
same  were  taken,  and  for  purposes  of  impeachment  in  any  case,  and  shall 
have  the  same  force  and  effect  as  a  deposition,  subject  to  the  same 
objections  so  far  as  applicable."  For  convenience  we  wdll  separately 
discuss  two  views  presented  by  appellee  with  reference  to  the  admissi- 
bility of  plaintiff's  evidence  given  on  the  former  trial:  First,  would 
such  evidence  be  competent  as  against  the  prohibition  of  Code,  §4604; 
and,  second,  is  it  rendered  competent  by  an  accompanying    statutory 


566  BOOK  i:     RULES   OF  ADMISSIBILITY  No.  375 

provision  to  which  reference  will  be  made  in  the  second  division  of  this 
opinion? 

1.  It  is  evident  that  the  objection  under  Code,  §  4604,  is  as  to  the 
witness  as  witness,  and  not  to  the  testimony  as  evidence.  McDonald 
V.  Young,  109  Iowa  704;  Burdick  v.  Raymond,  107  Iowa  228.  The 
provision  is  that  "no  party  .  .  .  shall  be  examined  as  a  witness  in 
regard  to  any  personal  transaction,"  etc.  The  incompetency  of  a  wit- 
ness may  be  based  on  various  grounds.  He  may  be  incompetent  because 
of  insanity,  and  the  objection  on  that  ground  would  be  available  in  any 
case,  or  at  common  law  he  might  be  incompetent  on  account  of  interest 
in  the  particular  case;  and  the  objection  on  either  ground  might  exist 
at  one  trial,  and  not  at  a  subsequent  trial,  or  vice  versa.  It  is  evident, 
therefore,  that  the  question  of  incompetency  of  a  witness  depends  for 
its  solution  on  the  particular  ground  as  to  which  it  is  urged.  If  the 
witness  has  died  after  the  first  trial  or  has  become  incompetent  to  testify 
by  reason  of  insanity  or  interest  under  the  common-law  rule,  his  testi- 
mony on  the  first  trial  may  be  proven.  No  doubt  the  same  reasoning 
applies  with  reference  to  the  common-law  rule  that  conviction  for  felony 
disqualifies  as  a  witness,  with  the  result  that  testimony  given  before 
conviction  for  a  felony  may  be  subsequently  used  w^hen  the  witness  has 
become  incompetent  by  reason  of  such  conviction.  Likewise,  inability 
to  produce  the  witness  on  account  of  illness,  or  infirmity  or  because  he 
is  beyond  the  reach  of  process  will  be  a  reason  for  admitting  his  testi- 
mony on  a  former  trial.  Central  R.  &  B.  Co.  v.  Murray,  97  Ga.  326; 
Jack  V.  Woods,  29  Pa.  375;  State  v.  New  Orleans  Waterworks  Co.,  107 
La.  1;  Evans  v.  Reed,  78  Pa.  415;  Wells  v.  Insurance  Co.,  187  Pa.  166; 
State  V.  Valentine,  29  N.  C.  225;  2  Wigmore,  Evidence,  §§  1401-1410; 
2  Jones,  Evidence,  §§  339-345. 

But  all  of  these  illustrations  relate  to  incapacity  in  general  to  give 
any  testimony  whatever  at  the  time  of  the  second  trial.  The  objection 
we  are  now  considering,  however,  relates  to  incapacity  to  testify  as  to  a 
particular  subject-matter;  that  is,  the  objection  is  not  to  the  capacity 
of  the  witness,  but  to  any  testimony  by  him  relating  to  the  subject 
inquired  about.  The  statutory  prohibition  seems  to  be  as  to  the  ad- 
missibility of  the  witness'  testimony  at  the  time  of  the  trial  when  it  is 
offered,  if  at  the  commencement  of  such  trial  the  other  party  to  the 
transaction  or  communication  against  whose  executor  or  administrator 
the  testimony  is  to  be  used  is  dead;  and  we  think  it  is  immaterial, 
under  the  statute,  whether  the  evidence  of  such  witness  is  offered  by 
way  of  oral  testimony  at  the  trial,  or  by  way  of  proof  of  the  evidence 
given  by  him  on  a  former  trial.  With  reference  to  such  transaction 
or  communication,  he  has  become  incompetent  to  speak,  and  he  can 
neither  speak  at  that  time  nor  can  he  then  speak  through  his  testimony 
given  at  another  time.  Counsel  on  either  side  have  referred  to  several 
cases  in  this  State  as  throwing  light  on  the  particular  question  now 
before   us,  but   we   do  not   find   that   the  point  has  been  considered. 


No.  375         HEARSAY  RULE:  CONFRONTATION  567 

and  we  must  now  reach  a  solution  of  the  language  and  reason  of  the 
statute. 

Some  light  is  thrown  upon  the  question,  however,  by  what  has  been 
decided  with  reference  to  the  introduction  after  the  decease  of  one  party 
of  depositions  previously  given  by  the  adverse  party  with  relation  to  a 
personal  transaction  or  communication  between  them.  If  the  witness 
is  in  Court,  his  deposition  in  a  law  case  cannot  be  introduced.  Lanza  v. 
Le  Grand  Quarry  Co.,  124  Iowa  659.  But  in  analogy  to  the  rule  in 
regard  to  testimony  given  on  a  former  trial  it  has  been  held  that  a 
deposition  taken  before  the  incompetency  of  the  witness  accrues  may  be 
used  after  he  has  become  incompetent  by  reason  of  insanity,  interest, 
or  otherwise,  although  he  is  physically  present.  Tift  v.  Jones,  74  Ga. 
469;  2  Wigmore,  Evidence,  §§  1401-1411;  13  Cyc.  995.  Now,  this 
Court  has  held  prior  to  the  enactment  of  Code,  §  4605,  referred  to  in  the 
second  division  of  this  opinion,  and  under  a  provision  corresponding  to 
Code,  §  4604,  that  the  deposition  of  one  party  taken  before  the  death  of 
the  adverse  party,  and  relating  to  a  personal  transaction  or  communi- 
cation between  them,  could  not  be  introduced  after  the  objection  by 
reason  of  the  death  of  the  adverse  party  had  arisen,  and  the  Court  says 
that  the  objection  is  as  to  the  right  to  testify  and  that  by  a  deposition 
the  witness  testifies  when  such  deposition  is  offered  in  evidence.  Quick 
V.  Brooks,  29  Iowa  484.  There  are  cases  to  the  contrary.  See  Armitage 
V.  Snowden,  41  Md.  119;   Neis  v.  Farquharson,  9  Wash.  508. 

But  so  much  depends  on  the  language  of  the  statute  to  be  construed 
that  we  cannot  give  these  cases  controlling  weight.  Our  statute  says 
that  no  party  shall  be  examined  as  a  witness  in  regard  to  such  trans- 
actions, and  in  the  last  sentence  of  the  section  the  question  whether  the 
testimony  of  the  living  witness  shall  be  received  is  made  to  depend  on 
whether  the  testimony  of  the  deceased  party  is  given  in  evidence,  from 
which  w^e  infer  that  the  whole  section  has  relation  to  the  receipt  of  the 
testimony  at  the  trial  in  whatever  form  it  may  be  taken  or  preserved. 

Much  is  said  by  counsel  for  appellee  in  favor  of  the  general  proposi- 
tion that,  as  plaintiff  was  competent  to  testify  when  his  former  testi- 
mony was  given  and  has  only  been  rendered  incompetent  by  subsequent 
events,  his  former  testimony  ought  to  be  accepted.  But  the  policy  of 
the  statute  seems  not  to  be  in  harmony  with  this  view.  It  is  not  on 
account  of  anything  which  has  happened  to  the  witness  that  he  is  unable 
to  testify  on  this  trial.  It  is  because  an  obstacle  has  arisen  to  the 
enforcement  of  his  claim  as  based  on  his  own  testimony  by  reason  of  the 
death  of  the  other  party,  and  that  obstacle,  as  the  statute  provides, 
renders  his  testimony  incompetent,  unless  in  some  way  such  obstacle 
is  removed.  If  in  this  conclusion  there  is  any  apparent  injustice,  it  is 
one  incident  to  the  application  of  the  Code  provision.  It  is  not  of 
infrequent  occurrence  that  the  prohibitions  of  that  section  prevent  the 
establishment  of  meritorious  claims  against  the  estate  of  a  deceased 
person.     With  the  general  policy  of  the  statute  we  have  nothing  to  do. 


568  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  375 

The  Legislature  has  seen  fit  to  fix  a  rule  of  evidence  for  our  guidance 
which  in  some  cases  works  injustice,  but  which  it  must  be  presumed  on 
the  whole  tends  to  the  promotion  of  Justice.  The  rule  may  be  a  hard 
one  in  individual  cases,  but  it  is  not  for  us  to  abrogate  it  on  that 
account. 

We  think  that  this  case  furnishes  an  illustration  of  the  ultimate 
expediency  of  the  rule  which  the  Legislature  has  prescribed.  As  already 
indicated,  the  deceased  was  denied  the  right  on  the  former  trial,  erro- 
neously as  was  held  on  the  former  appeal,  to  testify  with  reference  to 
defensive  matter  against  this  very  claim.  If  plaintiff  is  allowed  to  es- 
tablish it  by  his  own  testimony  given  on  a  former  trial,  the  case  must 
now  be  decided  without  the  advantage  which  the  defendant  should  have 
had  from  such  excluded  testimony.  The  best  we  can  do  in  any  event 
is  to  apply  the  rule  of  the  statute  in  the  cases  in  which  it  is  found  to  be 
applicable.  .  .  . 

We  reach  the  conclusion  that  the  transcript  of  plaintiff's  testimony 
in  the  former  trial  was  erroneously  admitted,  and  the  judgment  is  re- 
versed. 

Sherwin,  J. —  I  cannot  agree  to  the  rule  announced  in  the  second 
division  of  the  opinion. 

Deemer,  J. —  On  authority  of  Lanza  v.  Quarry  Co.,  124  Iowa  659, 
100  N.  W.  488,  I  concur  in  the  dissent  of  Sherwin,  J.  The  question  is 
not  the  competency  of  the  testimony,  but  of  the  witness.  Under  section 
4605  the  testimony  was  competent  by  statute  and  the  witness  was  made 
competent  by  statute.  Regard  must  be  had  of  the  change  in  the  statute 
brought  into  the  law  by  Chapter  9,  p.  16,  Acts  27th  Gen.  Assem. 


376.    HUGHES  v.  CHICAGO,  ST.  PAUL,  MILWAUKEE  & 
OMAHA  R.   CO. 

Supreme  Court  of  Wisconsin.     1904 

122  Wis.  258;  99  N.  W.  897 

Appeal  from  Circuit  Court,  Douglas  County;    A.  J.  Vinje,  Judge. 

Action  by  Thomas  Hughes,  by  guardian  ad  litem,  against  the  Chicago, 
St.  Paul,  Minneapolis  &  Omaha  Railway  Company.  From  a  judgment 
for  plaintiff,  defendant  appeal.     Reversed. 

This  is  an  action  to  recover  damages  for  personal  injuries  sustained 
by  being  struck  by  an  engine  of  the  defendant  while  crossing  Ogden 
avenue,  in  Superior.  Issue  being  joined,  and  trial  had,  the  jury  returned 
a  special  verdict.  .  .  .  From  the  judgment  entered  upon  that  verdict 
in  favor  of  the  plaintiff  for  the  amount  stated,  the  defendant  brings 
this  appeal.  .  .  . 

Pierce  Butler  and  S.  L.  Perrin,  for  appellant.  W.  P.  Crawford  and 
W.  D.  Dyer,  for  respondent. 


No.  376         HEARSAY  RULE:  CONFRONTATION  569 

Cassoday,  C.  J.  (after  stating  the  facts).  The  defendant  claims  that 
a  verdict  should  have  been  directed  in  favor  of  the  defendant  on  several 
grounds.  .  .  . 

5.  November  29,  1902,  under  section  4096,  Rev.  St.  1898,  the  plain- 
tiff examined  J.  P.  Cleary,  who  was  the  conductor  of  the  train  in  question 
at  the  time  of  the  accident,  and  also  Robert  G.  Wilson,  who  was  the 
engineer  on  the  locomotive  in  question  at  the  time  of  the  accident.  At 
the  time  of  the  trial,  in  June,  1903,  and  when  the  plaintiff  offered  in 
evidence  the  depositions  of  those  two  witnesses  so  taken  under  section 
4096,  the  defendant  objected  to  the  same  on  the  ground  that  both  of 
such  witnesses  were  then  and  there  present  in  the  Court;  and  it  appears 
in  the  record  that  they  were  both,  in  fact,  then  and  there  present  in  the 
courtroom.  The  Court  overruled  the  objection,  and  the  defendant 
excepted. 

This  Court  held,  20  years  ago,  and  repeatedly  since,  that  the  section 
of  the  statute  under  which  these  depositions  were  taken  "  was  intended 
as  a  substitute  for  a  bill  of  discovery,"  but  that  "the  examination  of  a 
party  under"  that  section  was  "not  limited  to  the  cases  in  which  a  dis- 
covery might  have  been  had  in  equity."  Cleveland  ?).  Burnham,  60  Wis. 
16;  Kelly  v.  C.  &  N.  W.  Ry.  Co.,  60  Wis.  480,  521;  W^hereatt  v.  Ellis, 
65  Wis.  639;  Meier  v.  Paulus,  70  Wis.  165,  170,  171;  Frawley  v.  Cosgrove, 
83  Wis.  441;  Schmidt  v.  Menasha  Wooden  Ware  Co.,  92  Wis.  529.  In 
Meier  v.  Paulus,  supra,  Mr.  Justice  Taylor  said : 

"The  very  object  of  the  old  bill  of  discovery  was  to  procure  evidence  against 
the  opposite  party,  to  be  used  on  the  trial  of  an  action;  and  it  was  never  held  that 
the  answer  of  the  party  to  the  bill  could  not  be  uged  against  him  if  he  appeared 
at  the  trial  of  the  action  in  aid  of  which  it  was  taken,  and  was  willing  to  submit 
himself  to  an  examination  in  such  action.  .  .  .  The  examination  of  a  party  is  in 
the  nature  of  an  admission,  so  far  as  his  answers  are  material  to  the  issues  in  the- 
action,  and  such  admissions  are  always  admitted  as  original  evidence  against  him." 

Subsequently  to  the  Revision  of  1878  the  scope  of  the  section  was  en- 
larged so  that,  "in  case  a  private  corporation  be  a  party,  the  examina- 
tion of  the  president,  secretary  or  other  principal  officer  or  general 
managing  agent  of  such  corporation"  might  be  taken  by  deposition  at 
the  instance  of  the  adverse  party.  Section  4096,  Rev.  St.  1898.  By  a 
recent  statute  the  section  has,  in  terms,  been  extended  to  the  "  agent  or 
employe"  of  such  corporation  or  of  such  adverse  party.  Chapter  244, 
p.  328,  Laws  1901. 

Neither  of  the  witnesses  in  question  was  an  officer  of  the  defendant, 
nor  in  any  sense  a  party  to  this  action.  On  the  contrary,  each  was  a 
mere  employe  in  the  capacity  mentioned.  Assuming  that  their  deposi- 
tions were  rightfully  taken  under  the  statute  cited,  the  question  recurs 
whether  it  was  error  to  allow  the  same  to  be  read  in  evidence  on  the 
trial  against  the  objection  of  the  defendant,  when  both  witnesses  were 
then  and  there  present  in  Court,  subject  to  be  called  and  examined  as 
witnesses   in    the  ordinary  way.     Certainly  there  is   no    adjudication 


570  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  376 

of  this  Court  justifying  such  admission  under  the  circumstances  men- 
tioned. The  cases  cited  are  to  the  effect  that  such  "deposition  of  a 
party"  so  taken  "is  admissible  on  the  trial  as  original  evidence 
against  him,  although  he  is  present  at  the  trial,"  on  the  ground  that 
such  "  examination  of  a  party  is  in  the  nature  of  an  admission  so  far  as 
his  answers  are  material  to  the  issues  in  the  action,  and  such  admissions 
are  always  admitted  as  original  evidence  against  him."  Meier  v.  Paulus, 
supra.  At  the  time  of  Blackstone  the  want  of  power  to  examine  wit- 
nesses abroad  was  troublesome  to  Courts  of  law,  but  he  said  it  might 
"  be  done  indirectly  at  any  time,  through  the  channel  of  a  Court  of  equity, 
but  that  such  practice  had  never  been  directly  adopted  as  the  rule  of  a 
Court  of  law."  3  Blackstone,  Commentaries,  383.  Mr.  Greenleaf  dis- 
cusses at  length  the  question  of  taking  the  testimony  of  absent  witnesses 
by  depositions,  and,  among  other  things,  says,  in  effect,  that  "  the  Court 
of  chancery  has  always  freely  exercised  this  power"  of  taking  deposi- 
tions in  such  cases ;  that  the  inconvenience  to  Courts  of  law  was  remedied 
by  statutes  in  England  and  this  country;  and  finally  concludes  that 
"  depositions  thus  taken  may  be  used  at  the  trial  by  either  party,  whether 
the  witness  was  or  was  not  cross-examined,  if  it  shall  appear,  to  the 
satisfaction  of  the  Court,  that  the  witnesses  are  then  dead,  or  gone  out 
of  the  United  States,  or  more  than  a  hundred  miles  from  the  place  of 
trial,  or  that  by  reason  of  age,  sickness,  bodily  infirmity,  or  imprison- 
ment, they  are  unable  to  travel  and  appear  at  court."  1  Greenleaf, 
Evidence,  §§  320-322.  .  .  .  Mr.  Weeks,  in  his  work  on  the  Law  of  Dep- 
ositions, gives  similar  views,  and,  among  other  things,  says  that  "depo- 
sitions are  a  species  of  evidence  of  a  secondary  character,  admissible 
where  the  viva  voce  testimony  or  examination  of  the  deponent  is  not 
attainable."  Sections  4-6.  Such  was  the  common  law  when  our  Con- 
stitution was  adopted,  and  that  declares  that  "the  testimony  in  causes 
in  equity  shall  be  taken  in  like  manner  as  in  cases  at  law,  and  the  office 
of  master  in  chancery  is  hereby  prohibited."  Section  19,  art.  7,  Const. 
Wis.  This  provision  seems  to  recognize  the  rule  of  the  common  law  for 
the  taking  of  testimony  "in  cases  at  law,"  and  to  require  that  the  "testi- 
mony in  cases  in  equity  shall  be  taken  in  like  manner  as  in  cases  at  law." 
The  question  was  not  squarely  involved  in  Noonan  v.  Orton,  5  Wis.  60, 
61,  but  the  Court  there  said  that: 

"  We  have  no  doubt  that  each  party  to  a  suit  in  chancery  is,  under  our  Consti- 
tution, entitled  to  have  his  witnesses  examined  in  open  court,  subject,  of  course, 
to  the  occasional  exceptions  provided  for  in  cases  at  law.  He  may,  perhaps,  be 
entitled,  if  he  demands  it,  to  have  the  witnesses  of  the  adverse  party  so  examined, 
subject  to  the  Hke  occasional  exceptions." 

Such  expressions  were  fully  sanctioned  in  the  later  case  of  Brown  v. 
Runals,  14  Wis.  693,  where  it  was  held  that,  under  the  constitutional 
clause  in  question,  "a  party  to  an  action  such  as  was  formerly  denomi- 
nated equitable  is  entitled  to  have  the  testimony  in  the  case  taken  in 
open  Court,  subject  to  the  same  exceptions  as  are  allowed  by  law  in 


No.  377         HEARSAY  RULE:  CONFRONTATION  571 

actions  such  as  were  formerly  denominated  legal."  That  was  an  action 
in  equity,  and  it  was  reversed  because  it  was  referred  to  take  the  testi- 
mony against  the  objection  of  the  defendant.  After  referring  to  the  clear 
and  terse  language  of  the  provision  of  the  Constitution  in  question,  it 
is  said  in  the  opinion  of  the  Court  that: 

"How  is  testimony  taken  in  actions  at  law?  With  few  exceptions,  it  is  taken 
by  the  examination  of  witnesses  on  the  trial  before  the  Court  and  jury.  This  is 
the  almost  imiversal  practice  of  taking  testimony  in  common-law  cases.  And 
the  advantages  of  tliis  method  of  investigating  facts,  where  the  witnesses  are  orally 
examined,  and  where  their  appearance,  manner,  and  conduct  in  giving  their 
testimony  can  be  seen  by  the  Court  and  jury,  are  too  obvious  to  need  comment. 
...  It  was  the  benefit  of  this  system  of  taking  testimony  which  the  framers  of 
the  Constitution  intended  to  secure  to  the  parties  in  equity  cases."     Page  698. 

That  opinion  was  reaffirmed  a  few  months  afterwards,  and  it  was  held 
that  an  act  of  the  Legislature  requiring  all  testimony  in  a  certain  class 
of  equity  cases  to  be  taken  before  a  referee  was  void,  among  other  reasons, 
because  it  deprived  the  party  of  his  constitutional  right  to  have  his 
witnesses  examined  in  open  Court.  Oatman  v.  Bond,  15  Wis.  20,  27, 
We  must  hold  that  it  was  error  to  allow  the  depositions  to  be  read 
against  the  objections  of  the  defendant. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  for  a  new  trial. 


377.   STATE  v.   HEFFERNAN 
Supreme  Court  of  South  Dakota.     1909 

24  S.  D.  1;   123  N.  W.87 

On  rehearing.  Judgment  affirmed. 
For  former  report,  see  118  N.  W.  1027. 
McCoy,  J. — The  former  opinion  in  this  case,  reversing  the  judgment 
of  the  trial  Court,  is  reported  in  118  N.  W.  1027.  Petition  for  rehearing 
having  been  granted,  the  cause  is  again  before  this  Court  for  all  purposes 
upon  reargument  of  the  entire  record.  There  is  but  one  debatable 
question  in  the  record.  The  defendants  were  convicted  of  the  crime  of 
adultery.  On  the  trial  in  the  Circuit  Court  certain  witnesses,  children 
of  the  defendant  Taylor,  were  absent  from  this  State  and  beyond  the 
jurisdiction  of  the  trial  Court,  having  but  a  short  time  prior  to  the  trial 
left  the  State  of  South  Dakota  and  gone  to  the  State  of  Iowa.  These 
witnesses  testified  in  behalf  of  the  State  on  the  preliminary  examination 
held  before  the  county  judge  of  Kingsbury  county  acting  as  committing 
magistrate  in  the  presence  of  defendants,  and  were  cross-examined  by 
defendant's  counsel,  and  the  testimony  thus  given  was  taken  in  short- 
hand by  a  stenographer.  On  the  trial  in  the  Circuit  Court,  after  show- 
ing the  absence  of  these  witnesses  from  the  jurisdiction  of  the  Court,  the 


572  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  377 

State  called  Mr.  Scott,  the  stenographer  who  took  the  testimony  on  the 
preliminary  hearing,  as  a  witness,  and  by  him,  using  his  transcript  of 
the  evidence  of  said  witnesses  to  refresh  his  memory,  gave  the  testi- 
mony of  each  of  said  witnesses  before  the  jury.  The  defendants  made 
proper  objections  to  the  offer  and  admission  of  this  testimony,  which 
objections  were  overruled,  and  proper  exceptions  taken  thereto.  De- 
fendants now,  as  on  the  former  hearing,  urge  that  the  admission  of  such 
evidence  was  reversible  error. 

It  is  contended  on  the  part  of  defendants  that  the  admission  of  this 
testimony  was  in  violation  of  section  7,  Code  Cr.  Proc,  which,  among 
other  things,  provides  that :  "  In  a  criminal  action  the  defendant  is  en- 
titled to  be  confronted  with  the  witnesses  against  him  in  the  presence 
of  the  Court."  It  is  evident  the  learned  trial  Court  overrruled  the  ob- 
jections to  the  testimony  in  question  on  the  theory  that  it  was  admissi- 
ble under  a  well-known  exception  to  the  "hearsay  rule."  The  reason 
for  excluding  hearsay  evidence  is  that  it  was  not  given  under  the  sanction 
of  an  oath,  and  that  there  was  no  opportunity  for  cross-examination. 

It  has  long  been  a  settled  rule  of  evidence,  as  one  of  the  exceptions 
to  the  general  rule  excluding  hearsay,  that  the  testimony  of  a  witness 
given  in  a  former  action,  or  at  a  former  stage  of  the  same  action,  is 
competent  in  a  subsequent  action,  or  in  a  subsequent  proceeding  of 
the  same  action,  where  it  is  shown  that  such  witness  is  dead,  has 
become  insane  or  disqualified,  is  beyond  the  jurisdiction  of  the  Court 
(that  is,  out  of  the  State),  cannot  conveniently  be  found,  or  has  been 
kept  away  by  the  opposite  party,  where  it  is  also  shown  that  the  former 
giving  of  such  testimony  was  under  oath,  and  that  opposing  party 
cross-examined  or  was  afforded  an  opportunity  to  cross-examine  such 
witness.  This  rule  has  been  generally  applied  in  criminal  causes,  and 
has  been  held  not  to  be  in  conflict  with  article  6  of  the  United  States 
Constitution  amendments,  providing  that  "in  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  be  confronted  with  the  witnessses 
against  him,"  nor  in  conflict  with  the  State  Constitution,  such  as 
ours  (article  6,  §  7),  which  provides  that  "in  all  criminal  prosecutions 
the  accused  shall  have  the  right  to  meet  the  witnesses  against  him 
face  to  face";  it  being  held  that,  where  the  defendant  has  once  at 
some  proper  stage  of  the  proceeding  been  confronted  Avith  and  met  such 
witness  face  to  face,  has  cross-examined  him,  or  been  given  the  privilege 
to  do  so,  the  provisions  of  these  Constitutions  have  been  satisfied,  and 
that  such  evidence  is  not  objectionable  on  that  account.  Elliott,  Evi- 
dence, §  503;  Jones,  Evidence,  §  339;  Wigmore,  E\idence,  §§  1365-1395; 
12  Cyc.  543;  16  Cyc.  1091;  Mattox  v.  United  States,  156  U.  S.  237,  15 
Sup.  Ct.  337,  39  L  Ed.  409;  Bishop,  Crim.  Pro.  1194;  State  v.  Mannion, 
19  Utah,  505,  67  Pac.  542,  45  L.  R.  A.  638,  75  Am.  St.  Rep.  753.  This 
rule  seems  to  have  come  into  existence  of  necessity  by  reason  of  the  fact 
that  to  hold  otherwise  would  often  result  in  a  failure  or  miscarriage  of 
justice.     The  defendant  in  the  case  at  bar  contends  that  because  the 


No.  377         HEARSAY  RULE:  CONFRONTATION  573 

legislators  of  this  State  who  framed  this  section  7,  Code  Cr.  Proc,  added 
thereto  the  clause  "in  the  presence  of  the  Court,"  it  confers  upon  a  de- 
fendant in  a  criminal  action  some  greater  or  broader  or  additional  right 
than  is  conferred  by  the  provisions  of  the  State  and  Federal  Constitutions, 
and  that  the  adding  of  this  clause,  "in  the  presence  of  the  Court,"  has 
the  effect  to  limit  the  former  testimony  that  may  be  given  under  the 
above-mentioned  exception  to  the  "hearsay  rule"  to  only  such  testi- 
mony as  might  be  given  "  in  the  presence  of  the  Court  wherein  the  action 
is  being  tried";  or,  in  other  words,  that  the  confrontation  mentioned  in 
this  section  of  the  Code  can  only  take  place  in  the  presence  of  the  Court 
wherein  the  action  is  being  tried.  Upon  further  and  more  careful  con- 
sideration, w^e  are  of  the  opinion  that  this  position  is  unsound  and  un- 
tenable, and  not  sustained  by  authority. 

Formerly,  according  to  the  history  of  these  provisions  of  the  State 
and  Federal  Constitutions  and  like  statutes,  defendants  in  criminal 
actions  were  prosecuted  and  convicted  upon  ex  parte  depositions  and 
affidavits,  taken  in  the  absence  of  the  defendant  and  his  counsel,  and  to 
remedy  this  evil  such  constitutional  provisions  and  statutes  were  brought 
into  existence,  the  intended  effect  of  which  was  to  secure  to  the  defendant 
the  right  or  privilege  of  cross-examination  of  the  witnesses  against  him, 
that  he  might  propound  or  have  propounded  to  such  witnesses  personally 
questions  which  they  were  required  to  answer  on  oath  in  his  presence. 
It  seems  to  be  held  everywhere  and  by  all  Courts  of  last  resort  that  "  to 
be  confronted  with  the  witnesses  against  him"  and  to  "meet  the  wit- 
nesses face  to  face"  mean  one  and  the  same  thing;  that  is,  that  the 
accused  shall  have  the  right  or  privilege  to  cross-examine  the  witnesses 
against  him.  To  confront  a  witness  means  that  you  shall  have  the  right 
or  privilege  or  opportunity  to  meet  such  witness  personally  face  to  face 
for  the  purpose  of  cross-examination.  Elliott,  Evidence,  §  503 ;  Wigmore, 
Evidence,  §§  1365-1395;  12  Cyc.  543;  Mattox^.  U.  S.,  156  U.  S.  237,  15 
Sup.  Ct.  337,  39  L.  Ed.  409;  Bishop,^Crim.  Pro.  1194,  1197,  1294;  State 
V.  Mannion,  19  Utah,  505,  57  Pac.  54*2,  45  L.  R.  A.  638,  75  Am.  St.  Rep. 
753.  It  would  be  an  absurdity,  and  statement  of  a  physical  impossi- 
bility, to  say  that  the  "confrontation"  or  meeting  of  a  witness  "face  to 
face"  which  resulted  in  cross-examination  in  the  presence  of  the  defend- 
ant could  take  place  without  the  witness  being  personally  present  at  the 
place  of  the  "confrontation"  or  place  of  such  meeting  "face  to  face." 
It  is  plainly  apparent  that  the  framers  of  the  State  and  Federal  Consti- 
tutions contemplated  and  had  in  mind  and  impliedly  intended  that  this 
"confrontation"  and  "meeting  face  to  face"  should  take  place  some- 
where. It  is  also  plainly  apparent  that  they  did  not  intend  that  such 
confrontation  and  meeting  face  to  face  should  take  place  out  on  the 
railroad  track  or  in  some  dimly  lighted  back  alley,  but  it  is  evident  they 
intended  it  should  take  place  in  the  presence  of  the  Court  or  tribunal 
where  the  cross-examination  or  opportunity  to  cross-examine  might 
properly  and  lawfully  take  place.    Elliott,  Evidence  §§  503-507 ;  Wigmore, 


574  BOOK   i:     RULES   OF   ADMISSIBILITY  No,  377 

Evidence,  §§  1373, 1375, 1395.  In  general,  the  principle  is  clearly  accepted 
that  testimony  taken  before  any  tribunal  employing  cross-examination 
as  a  part  of  its  procedure  is  admissible.  Wigmore,  Evidence,  §  1373. 
These  constitutional  provisions  mean  that  the  "confrontation"  or 
"meeting  face  to  face"  must  take  place  in  the  presence  of  the  Court 
having  jurisdiction  to  permit  the  privilege  of  cross-examination.  They 
could  by  no  possibility  mean  otherwise.  Hence  there  was  nothing  added 
to  the  legal  effect  of  section  7,  Code  Cr.  Proc,  by  the  incorporation 
therein  of  the  clause  "in  the  presence  of  the  Court,"  as  used  in  this  sec- 
tion of  the  statute.  .  .  . 

But  considering  this  section  of  the  statute  in  the  light  of  the  purpose 
sought  to  be  obtained,  and  in  the  light  of  the  reasons  which  brought  it 
about,  viz.,  to  remedy  the  evil  of  ex  parte  depositions  and  affidavits  by 
securing  to  the  defendant  the  right  to  cross-examine  the  witness  against 
him,  it  is  plainly  apparent  that  the  legislative  mind  by  the  use  of  the 
clause  "in  the  presence  of  the  Court"  had  in  view  the  court  wherein  this 
right  or  privilege  of  cross-examination  might  be  legally  exercised,  whether 
it  was  Justice  court,  county  court,  or  Circuit  court;  the  object  being  to 
shut  out  all  possibility  of  the  use  of  ex  parte  depositions  not  taken  in  the 
presence  of  the  accused.  It  was  simply  re-enactment  of  the  constitu- 
tional right  then  already  existing.  This  is,  in  effect,  the  view  taken  by 
the  United  States  Supreme  Court  in  Mattox  v.  United  States,  supra. 
.  .  .  This  seems  to  be  the  view  taken  by  the  Courts  of  last  resort  of 
other  States  having  similar  statutes.  .  .  .  The  case  of  People  v.  Fish, 
125  N.  Y.  136,  26  N.  E.  319,  holds  that  neither  this  same  section  8,  Code 
Cr.  Proc.  N.  Y.,  containing  this  clause,  "in  the  presence  of  the  Court," 
nor  section  14  of  the  New  York  Bill  of  Rights  (1  Rev.  St.  pt.  1,  c.  4),  nor 
the  Federal  Constitution,  were  ever  intended  to  secure  the  accused  the 
right  to  be  confronted  with  the  witnesses  against  him  upon  his  final  trial, 
but  to  protect  him  against  ex  parte  affidavits  and  depositions  taken  in 
his  absence.  .  .  . 

Mr.  Wigmore,  in  his  valuable  work  on  Evidence,  reaches  the  same 
conclusion.  He  has  gone  into  the  history  and  purpose  of  this  question 
so  thoroughly  and  to  such  length  that  it  is  impracticable  to  fully  quote 
the  whole  of  his  argument.  Volume  2,  §§  1365-1418,  inclusive.  In  the 
period  when  the  hearsay  rule  is  being  established  and  ex  parte  deposi- 
tions are  still  used  against  an  accused  person,  we  find  him  frequently 
protesting  that  the  witnesses  should  be  "brought  face  to  face"  or  that 
he  should  be  "confronted"  with  the  witnesses  against  him.  The  final 
establishment  of  the  hearsay  rule  meant  that  this  protest  was  sanctioned 
as  a  just  one;  in  other  words,  that  confrontation  was  required.  What 
was,  in  principle,  the  meaning  and  purpose  of  this  confrontation?  So 
far  as  there  is  a  rule  of  confrontation,  what  is  the  process  that  satisfies 
this  rule?  It  is  generally  agreed  that  the  process  of  confrontation  has 
two  purposes  —  the  main  and  essential  one,  and  a  secondary  one.  The 
main  and  essential  purpose  of  confrontation  is  to  secure  the  opportunity 


No.  377         HEARSAY  RULE:  CONFRONTATION  575 

of  cross-examination.  The  opponent  demands  confrontation,  not  for 
the  idle  purpose  of  gazing  upon  a  witness  or  of  being  gazed  upon  by  him, 
but  for  the  purpose  of  cross-examination,  which  cannot  be  had  except 
by  the  direct  and  personal  putting  of  questions  and  obtaining  immediate 
answers.  That  this  is  the  true  and  essential  significance  of  confronta- 
tion is  demonstrated  by  counsel  and  judges  from  the  beginning  of  the 
hearsay  rule  to  the  present  day.  There  is,  however,  a  secondary  ad- 
vantage to  be  obtained  from  the  personal  appearance  of  the  witness. 
The  judge  and  jury  are  enabled  to  obtain  the  elusive  and  incommunicable 
evidence  of  a  witness'  deportment  while  testifying,  and  a  certain  sub- 
jective moral  effect  is  produced  upon  the  witness.  This  secondary 
advantage,  however,  does  not  arise  from  the  confrontation  of  the  oppo- 
nent and  the  witness.  It  is  not  the  consequence  of  those  two  being  brought 
face  to  face.  It  is  the  witness'  presence  before  the  tribunal  that  secures 
this  secondary  advantage,  which  might  equally  be  obtained  whether  the 
opponent  was  or  was  not  allowed  to  cross-examine.  In  other  words, 
this  secondary  advantage  is  a  result  accidentally  associated-  with  the 
process  of  confrontation,  whose  original  and  fundamental  object  is  the 
opponent's  cross-examination.  The  witness'  presence  before  the  tri- 
bunal may  be  dispensed  with  if  not  obtainable.  The  question,  then, 
whether  there  is  a  right  to  be  confronted  with  opposing  witnesses,  is 
essentially  a  question  whether  there  is  a  right  of  cross-examination.  If 
there  has  been  a  cross-examination,  there  has  been  a  confrontation.  The 
satisfaction  of  the  right  of  cross-examination  disposes  of  any  objection 
based  on  the  so-called  right  of  confrontation.  Nevertheless,  the  second- 
ary advantage  incidentally  obtained  for  the  tribunal  by  the  witness' 
presence  before  it  —  the  demeanor-evidence  —  is  an  advantage  to  be 
insisted  upon  whenever  it  can  be  had.  No  one  has  doubted  that  it  is 
highly  desirable  if  only  it  is  available.  But  it  is  merely  desirable.  Where 
it  cannot  be  obtained,  it  need  not  be  required.  It  is  no  essential  part  of 
the  motion  of  confrontation.  It  stands  on  no  better  footing  than  other 
evidence  to  which  special  value  is  attached,  and  just  as  the  original  of 
a  document,  or  a  preferred  witness  may  be  dispensed  with  in  case  of 
unavailability,  so  demeanor-evidence  may  be  dispensed  with  in  a 
similar  necessity.  Accordingly,  supposing  that  the  indispensable  re- 
quirement of  cross-examination  has  been  satisfied,  the  only  remaining 
inquiry  is  whether  the  demeanor-evidence,  to  be  obtained  by  the  witness' 
production  before  the  tribunal,  is  available. 

This  inquiry,  the  conditions  of  unavailability  of  demeanor-evidence 
by  reason  of  death,  illness,  and  the  like,  remains  now  to  be  made.  But 
first  the  effect  must  be  considered  of  the  constitutional  sanction  in  the 
United  States  of  the  principle  of  confrontation;  for  this  has  often  er- 
roneously affected  the  judicial  attitude  towards  demeanor-evidence. 
In  the  United  States  most  of  the  Constitutions  have  given  a  permanent 
sanction  to  the  principle  of  confrontation  by  provisions  requiring  that 
in  criminal  cases  the  accused  shall  "be  confronted  with  the  witnesses 


376  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  377 

against  him"  or  "brought  face  to  face"  with  them.  The  question  thus 
arises  whether  these  constitutional  provisions  affect  the  common-law 
requirement  of  confrontation  otherwise  than  by  putting  it  beyond  the 
possibility  of  abolition  by  an  ordinary  legislative  body.  The  only 
opening  for  argument  lies  in  the  circumstance  that  these  brief  provisions 
are  unconditional  and  absolute  in  form;  i.e.,  they  do  not  say  that  the 
accused  shall  be  "confronted"  except  where  the  witness  is  deceased,  ill, 
out  of  the  jurisdiction,  or  otherwise  unavailable,  but  imperatively  pre- 
scribes that  he  "shall  be  confronted."  Upon  this  feature  the  argument 
has  many  times  been  founded  that,  although  the  accused  has  had  the 
fullest  benefit  of  cross-examining  a  witness  now  deceased  or  otherwise 
unavailable,  nevertheless,  the  witness'  presence  before  the  tribunal  being 
constitutionally  indispensable,  his  decease  or  the  like  is  no  excuse  for 
dispensing  with  his  presence. 

That  this  argument  is  unfounded  is  doubtless;  and  the  answer  to  it 
may  be  put  in  several  forms:  (1)  There  never  was  at  common  law  any 
recognized  right  to  an  indispensable  thing  called  confrontation  as  dis- 
tinguished from  cross-examination.  There  was  a  right  to  cross-examine 
as  indispensable,  and  that  right  was  involved  in  and  secured  by  con- 
frontation. It  was  the  same  right  under  different  names.  This  much 
is  clear  enough  from  the  history  of  the  hearsay  rule,  and  from  the  con- 
tinuous understanding  and  exposition  of  the  idea  of  confrontation.  It 
follows  that,  if  the  accused  has  had  the  right  of  cross-examination,  he 
has  had  the  very  privilege  secured  to  him  by  the  Constitution.  (2) 
Moreover,  this  right  of  cross-examination  thus  secured  was  not  a  right 
devoid  of  exceptions.  The  right  to  subject  opposing  testimony  to  cross- 
examination  is  the  right  to  have  the  hearsay  rule  enforced,  for  the  hear- 
say rule  is  the  rule  requiring  cross-examination.  Now,  the  hearsay  rule 
is  not  a  rule  without  exceptions.  There  never  was  a  time  when  it  was 
without  exceptions.  There  were  a  number  of  well-established  ones  at 
the  time  of  the  earliest  Constitutions,  and  others  might  be  expected  to 
develop  in  the  future.  The  rule  had  always  involved  the  idea  of  ex- 
ceptions, and  the  Constitution  makers  indorsed  the  general  principle 
merely  as  such.  They  did  not  care  to  enumerate  exceptions.  They 
merely  named  and  described  the  principle  sufficiently  to  indicate  what 
was  intended.  The  rule  sanctioned  by  the  Constitution  is  the  hearsay 
rule  as  to  cross-examination,  with  all  the  exceptions  that  may  legitimately 
be  found,  developed,  or  created  therein.  (3)  The  net  result  then,  under 
the  constitutional  rule,  is  that,  so  far  as  testimony  is  required  under 
the  hearsay  rule  to  be  taken  infrajudicially  (that  is,  within  the  presence 
of  the  Court),  it  shall  be  taken  in  a  certain  way,  namely,  subject  to 
cross-examination,  not  secretly  or  ex  parte  away  from  the  accused.  2 
Wigmore,  Evidence,  §§  1365,  1395,  1396,  1397.  For  decisions  sustain- 
ing the  view  that  these  provisions  of  the  Constitutions  were  passed  in 
view  of  the  hearsay  rule,  and  in  view  of  the  exceptions  thereto,  and  did 
not  have  the  effect  of  destroying  such  exceptions,  see  Jackson  v.  State, 


No.  377         HEARSAY  RULE:  CONFRONTATION  577 

81  Wis.  127,  51  N.  W.  89;  Summons  v.  State,  5  Ohio  St.  341;  State  v. 
McO'Blenis,  24  Mo.  416,  435;  Mattox  v.  U.  S.,  supra;  State  v.  Mannion, 
19  Utah  505,  57  Pae.  542. 

And,  again,  the  statute  in  question  is  general,  and  contains  no  ex- 
ceptions, any  more  than  does  the  Federal  or  State  Constitutions.  And 
if  it  is  to  receive  a  literal  construction  without  exception,  then  it  logically 
and  necessarily  follows  that  dying  declarations  and  the  former  testimony 
of  deceased  witnesses  must  hereafter  be  rejected  in  this  State,  as  those 
exceptions  are  in  the  same  category  and  stand  upon  the  same  basis 
as  the  former  testimony  of  a  witness  who  is  beyond  the  seas  or  out  of 
the  jurisdiction  of  the  Court.  But,  if  it  was  the  intention  that  this 
section  of  our  statute  was  passed  in  view  of  the  hearsay  rule,  with  all 
the  exceptions  thereto,  which  we  are  constrained  to  believe,  then  all  the 
recognized  exceptions  to  that  rule  are  available  just  the  same  under  the 
provisions  of  the  Federal  and  State  Constitutions.  .  .  . 

The  former  testimony  of  a  witness  who  is  absent  from  the  State — 
that  is,  beyond  the  jurisdiction  of  the  Court — is  one  of  the  well-recognized 
necessities  within  the  exceptions  of  the  hearsay  rule.  A  party  desiring 
to  offer  the  testimony  of  a  witness  who  is  out  of  the  jurisdiction  and 
beyond  the  reach  of  a  subpoena  or  other  compulsory  process  of  the  trial 
Court  is  helpless.  This  branch  of  the  rule  stands  upon  the  same  reason- 
ing and  basis  as  the  former  testimony  of  a  deceased  witness.  Wigmore, 
Evidence,  §  1404;  Jones,  Evidence,  §345;  1  Greenleaf,  Evidence,  §  163; 
1  Elliott,  Evidence,  §  500. 

Finding  no  error  in  the  record,  the  judgment  of  the  Circuit  Court  is 
affirmed. 

Haney,  p.  J.,  dissents.     Whiting,  J.,  took  no  part  in  this  decision. 


578  BOOK   l:     RULES    OF   ADMISSIBILITY  No,  380 


SUB-TITLE    II.     EXCEPTIONS   TO    THE   HEARSAY   RULE 

380.  Introductory.  Principle  of  the  Exceptions  to  the  Hearsay  Rule.  The 
purpose  and  reason  of  the  Hearsay  rule  is  the  key  to  the  exceptions  to  it.  The 
theory  of  the  Hearsay  rule  is  that  the  many  possible  sources  of  inaccuracy  and 
untrustworthiness  which  may  lie  underneath  the  bare  untested  assertion  of  a 
witness  can  best  be  brought  to  light  and  exposed,  if  they  exist,  by  the  test  of  cross- 
examination.  But  this  test  or  security  may  in  a  given  instance  be  superfluous; 
it  may  be  sufficiently  clear,  in  that  instance,  that  the  statement  offered  is  free 
from  the  risk  of  inaccuracy  and  untrustworthiness,  so  that  the  test  of  cross- 
examination  would  be  a  work  of  supererogation.  Moreover,  the  test  may  be  im- 
possible of  employment  —  for  example,  by  reason  of  the  death  of  the  declarant — , 
so  that,  if  his  testimony  is  to  be  used  at  all,  there  is  a  necessity  for  taking  it  in 
the  untested  shape.  These  two  considerations  ■ —  a  Circumstantial  Guarantee  of 
Trustworthiness,  and  a  Necessity  for  the  evidence  —  may  be  examined  more 
closely,  taking  first  the  latter. 

(1)  Necessity.  The  Necessity  principle  implies  that  since  we  shall  lose  the  bene- 
fit of  the  evidence  entirely  unless  we  accept  it  untested,  there  is  thus  a  greater  or 
less  necessity  for  receiving  it.  The  reason  why  we  shall  otherwise  lose  it  may  be 
one  of  two.  (1)  The  person  whose  assertion  is  offered  may  now  be  dead,  or  out 
of  the  jurisdiction,  or  insane,  or  otherwise  unavailable  for  the  piu-pose  of  testing. 
This  is  the  commoner  and  more  palpable  reason.  It  is  found  in  the  exception  for 
Dying  Declarations  and  in  the  next  ensuing  ones.  (2)  The  assertion  may  be  such 
that  we  cannot  expect,  again  or  at  this  time,  to  get  evidence  of  the  same  value 
from  the  same  or  other  sources.  This  appears  more  or  less  fully  in  the  exception 
for  Spontaneous  Declarations,  for  Reputation,  and  in  part  elsewhere.  Here  we 
are  not  threatened  (as  in  the  first  case)  with  the  entire  loss  of  a  person's  evidence, 
but  merely  of  some  valuable  source  of  evidence.  The  necessity  is  not  so  great; 
perhaps  hardly  a  necessity,  only  an  expediency  or  convenience,  can  be  predicated. 
But  the  principle  is  the  same. 

(2)  Circumstantial  Guarantee  of  Trustworthiness.  The  second  principle,  which, 
combined  with  the  first,  satisfies  us  to  accept  the  evidence  untested,  is  in  the 
nature  of  a  practicable  substitute  for  the  ordinary  test  of  cross-examination. 
This  circumstantial  guarantee  of  trustworthiness  is  found  in  a  variety  of  cir- 
cumstances sanctioned  by  judicial  practice.  The  following  different  classes  of 
reasons  can  be  distinguished: 

(a)  Where  the  circumstances  are  such  that  a  sincere  and  accurate  statement 
would  naturally  be  uttered,  and  no  plan  of  falsification  be  formed; 

(6)  Where,  even  though  a  desire  to  falsify  might  present  itself,  other  con- 
siderations, such  as  the  danger  of  easy  detection  or  the  fear  of  punishment,  would 
probably  counteract  its  force; 

(c)  Where  the  statement  was  made  under  such  conditions  of  publicity  that 
an  error,  if  it  had  occurred,  would  probably  have  been  detected  and  corrected. 

It  is  not  always  that  an  exception  is  founded  merely  on  a  single  one  of  these 
considerations.  Often  it  rests  on  the  operation,  in  difi^erent  degrees,  of  two  of 
them.  For  example,  the  exceptions  for  Declarations  of  Mental  Condition, 
Spontaneous  Declarations,  and  Declarations  against  Interest  rest  entirely  on 
Reason  a;  while  the  exception  for  Declarations  about  Family  History  (Pedigree). 


No.  381  HEARSAY   rule:     EXCEPTIONS  579 

rests  largely  upon  Reason  a,  though  partly  also  on  Reason  r.  The  exception  for 
Dying  Declarations  rests  entirely  on  Reason  b  (the  fear  of  divine  punishment). 
The  exception  for  Regular  Entries  rests  chiefly  on  Reason  b,  though  partly  also 
on  Reasons  a  and  c.  The  exception  for  Official  Statements  rests  chiefly  on  Reasons 
b  and  c,  though  a  also  enters.  Mixed  considerations  have  thus  often  prevailed. 
The  exceptions  have  been  established  casually,  in  the  light  of  practical  good  sense, 
and  with  little  or  no  effort  (except  in  modern  times)  at  generalization  or  com- 
prehensive planning.  The  Courts  have  had  in  mind  merely  to  sanction  certain 
situations  as  a  sufficient  guarantee  of  trustworthiness. 

{?>)  M'ifncss-Qualifiraiions,  and  other  Rules,  also  to  be  applied  to  Stafevjents 
admitted  vnder  the  Exceptions.  The  Hearsay  rule  is  merely  an  additional  test  or 
safeguard  to  be  applied  to  testimonial  evidence  which  would  be  otherwise  admissi- 
ble. Hence,  these  extrajudicial  statements  may  be  inadmissible  because  of  their 
failure  to  fulfil  the  ordinary  rules  about  testimonial  qualifications.^  For  example, 
in  the  Pedigree  Exception  there  are  rules  about  membership  in  the  family,  which 
rest  solely  on  the  necessity  of  knowledge  in  the  person  whose  statement  is  offered, 
— i.e.  a  rule  of  Testimonial  Qualifications.  In  the  same  way,  the  allowance  of 
an  exception  to  the  Hearsay  rule  does  not  of  itself  dispense  with  the  application 
of  the  other  Auxiliary  Rules  of  Policy,  of  which  the  Hearsay  rule  is  only  one.  For 
example,  when  a  wTitten  entry  is  offered  under  an  exception  to  the  Hearsay  rule, 
the  rule  about  Producing  the  Original  of  a  Document  comes  into  application  and 
must  be  observed;  in  offering  a  dying  declaration,  the  rule  of  Completeness  may 
come  into  play;  and  the  rules  of  Testimonial  Preference  are  often  invoked  through- 
out the  exceptions.  These,  with  the  rule  of  Authentication,  and  the  rule  of 
Integration  or  Parol  Evidence,  are  the  auxiliary  rules  that  find  most  frequent 
application  to  testimony  admitted  under  hearsay  exceptions. 


Topic  1.    Dying  Declarations 

381.  WRIGHT  DEM.   CLYMER  v.  LITTLER 

King's  Bench.     1761 

3  Burr.  1244 

This  was  an  ejectment  for  certain  copyhold  lands  within  the  manor 
of  Barnes  in  the  county  of  Surrey ;  in  which  manor,  there  is  a  custom  of 
Burrough-English. 

The  lessor  of  the  plaintiflF,  William  Clymer,  made  out  his  title,  under 
a  regular  and  undisputed  will  of  his  grandfather  John  Clymer,  dated 
17th  February,  1743.  .  .  .  The  title  of  the  defendants  (who  were  pur- 
chasers under  another  William  Clymer,  second  and  youngest  son  of  John, 
and  uncle  to  William  the  lessor  of  the  plaintiff)  depended  upon  another 
subsequent  will  (or  instrument  which  they  called  a  will)  made  by  the 
said  John,  as  they  alleged,  on  the  20th  of  September,  1745;   which,  they 

1  1881,  Lord  Blackburn,  in  Dysart  Peerage  Case,  L.  R.  6  App.  Cas.  489,  504: 
"It  is  impossible  to  say  that  if  a  person  said  something,  and  could  not  himself 
if  alive  have  been  permitted  to  give  testimony  to  prove  it,  he  can  by  dying  render 
that  statement  admissible.     I  think  that  is  a  self-evident  proposition." 


580  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  381 

contended,  was  at  least  a  revocation  of  his  former  will  in  1743.  And  if 
it  be  ojily  a  revocation  of  the  former  will,  then  William  the  youngest  son 
of  John  must  inherit  as  heir  in  Burrough-English.  This  will  or  instru- 
ment of  1745  (which  was  not  under  seal)  was  all  written  by  one  William 
Medlicott,  who  was  son-in-law  to  the  said  John  Clymer,  (having  married 
his  only  daughter  Amey.)  It  was  also  endorsed  on  the  back,  in  the  same 
handwriting  of  the  said  William  Medlicott,  in  these  words  — "  The 
Covenant  and  Agreement  of  John  Clymer;"  and  it  was  witnessed  by 
the  same  William  Medlicott  and  one  Elizabeth  Mitchell.  .  .  . 

W'illiam  Medlicott  died  in  May,  1747.  He  had  the  custody  of  both 
wills,  till  a  few  weeks  before  his  death.  The  latter  will  was  found  amongst 
his  papers.  At  the  trial,  the  lessor  of  the  plaintiff  produced  and  proved 
the  will  of  1743;  under  which,  he  was  devisee  of  this  estate,  in  fee.  To 
encounter  this  evidence,  the  defendants  produced  this  will  or  instrument 
of  1745;  and  both  the  witnesses  to  it  (Elizabeth  Mitchell  and  W^illiam 
Medlicott)  being  dead,  they  proved  their  handwritings,  and  also  the 
handwriting  of  old  John  Clymer,  in  the  common  and  ordinary  form. 

Whereupon  the  plaintiff's  counsel  insisted,  that  this  will  or  instru- 
ment was,  in  the  first  place,  an  absolute  forgery.  .  .  .  And  they  called 
Mary  Victor,  sister  to  the  said  William  Medlicott,  who  was  one  of  the 
subscribing  witnesses  to  the  will  or  instrument  of  1745:  which  Mary 
Victor  swore,  "  That  whilst  she  was  attending  her  said  brother  William 
Medlicott  in  his  last  illness,  and  about  three  weeks  before  his  death,  he 
pulled  out  of  his  bosom  the  will  of  1743,  and  said,  *It  was  the  true  will 
of  John  Clymer;'  and  then  delivered  it  to  her,  with  directions  to  deliver 
it  over  to  William  Clymer  the  lessor  of  the  plain tifP,  or  to  Mr.  Faulkner." 
.  .  .  Upon  Mary  Victor's  cross-examination  by  the  counsel  for  the 
defendants,  she  not  only  persisted  in  what  she  had  before  deposed,  but 
also  added  that  at  the  same  time  that  William  Medlicott  produced  the 
will  of  1743,  as  the  true  will  of  old  John  Clymer,  he  acknowledged  and 
declared  to  her  "That  the  said  will  or  instrument  of  1745  was  iorged  by 
himself."  No  objection  was  made  to  this  evidence,  by  the  counsel  for 
the  defendants,  at  the  trial. 

The  judge  and  jury  (a  special  one)  perused  and  examined  the  two  in- 
struments of  1743  and  1745,  and  their  different  signatures;  —  and  took 
notice  of  the  circumstances  of  the  latter,  being  all  of  the  handwriting 
of  this  William  Medlicott  himself;  and  disposing  of  a  fee  to  Medlicott's 
own  wife;  and,  upon  the  whole,  they  were  all  of  opinion,  "That  it  was  a 
forgery."  And  the  judge  directed  the  jury  to  find  for  the  plaintiff; 
which  they  did.  .  .  . 

This  cause  coming  on  to  be  argued  yesterday,  (19th  November, 
1761,)  Mr.  Justice  W^ilmot  reported  the  evidence  from  Lord  Chief 
Justice  WiLLES,  who  tried  the  cause,  and  who  was  satisfied  with  the 
evidence,  and  reported  that  no  objection  was  made,  at  the  trial,  to  the 
evidence  given  by  this  witness  Mary  Victor.  .  .  . 

Mr.  Norton  proceeded.     He  objected  to  the  admission  of  this  evi- 


No.  382  HEARSAY   RULE:     EXCEPTIONS  581 

dence,  as  being  only  hearsay  evidence.  What  Medlicott  said,  ought 
not  to  be  achnitted  or  regarded;  for  it  was  not  said  upon  oath,  nor  was 
there  any  opportunity  of  cross-examining  him.  .  .  . 

Mr.  Harvey  and  Mr.  Lee  argued  for  the  lessor  of  the  plaintiff,  William 
Clymer,  the  grandson.  ...  As  to  the  evidence  itself,  —  it  was  strictly 
and  legally  admissible.  It  was  not  given  in  order  to  prove  the  forgery; 
but  to  discredit  their  evidence  arising  from  the  proof  of  Medlicott's 
hand.  .  .  .  This  evidence  is  admissible;  because  it  was  the  solemn 
declaration  of  a  dying  man  to  his  nearest  relation;  which  is  equal  to  an 
oath;  for  such  declarations  of  dying  men  have  been  admitted  as  evidence 
even  in  cases  of  murder.  So  that  it  ought  not  to  be  called  "  mere  hearsay 
evidence."  .  .  . 

Lord  Mansfield.  ...  As  to  the  first  ground,  the  defendants  com- 
plain, that  the  Chief  Justice  misdirected  the  jury,  by  leaving  to  them  as 
evidence  of  the  declaration  of  Medlicott  "That  he  forged  it." 

Answer.  —  It  came  out  upon  their  own  examination;  they  made  no 
objection  to  it  at  the  trial;  and  it  certainly  was  a  circumstance  proper 
for  the  jury  to  consider. 

The  competence  of  evidence  depends  upon  the  circumstances  under 
which  it  is  given.  The  will  of  1743  is  set  up  after  fifteen  years.  It  was 
necessary  to  show  how  it  was  secreted,  and  how  discovered ;  the  declara- 
tion pf  Medlicott  in  his  last  illness,  when  he  produced  and  delivered  it 
for  the  use  of  the  plaintiff,  is  allowed  to  be  competent  and  material 
evidence.  The  instrument  of  1743  was  equally  in  his  custody  and 
secreted.  The  account  he  gave  of  it  in  his  last  moments  is  equally 
proper,  .  .  .  as  the  account  was  a  confession  of  great  iniquity,  and  as  he 
could  be  under  no  temptation  to  say  it,  but  to  do  justice  and  ease  his 
conscience;  I  am  of  opinion  "The  evidence  was  proper  to  be  left  to  the 
jury."  ... 

The  three  other  judges  declared  their  entire  concurrence ;  but  declined 
expatiating  upon  it,  or  entering  into  particulars,  as  Lord  Mansfield 
had  so  very  fully  gone  through  it. 


382.   STOBART  v.   DRYDEN 

Exchequer.     1836 

1  M.  &  W.  615 

Covenant  on  a  mortgage  deed  for  the  payment  of  800£.  with  interest 
at  4£.  per  cent.     Pleas  —  first,  non  est  factum.  .  .  . 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  last  Summer  Assizes 
for  Durham,  the  deed  on  which  the  action  was  brought  being  produced 
in  evidence  there  appeared  to  be  two  attesting  witnesses  to  its  execution 
by  the  defendant;  one  named  Potts,  the  other  M'Cree.  M'Cree  was 
dead;  but  Potts  being  called,  denied  all  recollection  of  his  having  attested 


582  BOOK    l:     RULES   OF   ADMISSIBILITY  No.  382 

such  a  deed,  and  stated  that  he  doubted  the  genuineness  both  of  his  own 
signature  and  the  defendant's.  A  witness  was  then  called,  who  proved 
the  handwriting  of  M'Cree.  .  .  .  For  the  defence,  it  was  proposed  to 
give  evidence  of  certain  letters  and  statements  of  M'Cree,  subsequent 
to  the  execution  of  the  deed,  which,  although  they  did  not  in  terms 
admit  that  the  deed  was  a  forgery,  contained  admissions  that  he  had 
been  guilty  of  some  improper  dealings  with  respect  to  it,  and  might,  as 
it  was  alleged,  have  induced  the  jury  to  believe  that  the  deed  was  either 
forged  'or  fraudulently  altered  by  M'Cree.  The  Lord  Chief  Baron, 
however,  rejected  the  evidence.  W  itnesses  were  then  called,  who  denied 
the  genuineness  of  the  defendant's  and  plaintiff's  signatures.  The 
jury,  however,  found  a  verdict  for  the  plaintiff. 

In  Michaelmas  Term,  Cresswell  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  that  the  evidence  rejected  ought  to  have  been  admitted: 
citing  Wright  v.  Littler,  3  Bur.  1244,  1  W.  Bla.  346.  .  .  . 

Alexander  and  W.  H.  ]]\dso7i  showed  cause. — The  declarations  of 
M'Cree,  even  assuming  that  they  would  have  gone  to  the  extent  of 
proving  a  forgery  of  the  deed,  were  inadmissible  in  evidence.  .  .  .  Then, 
does  this  case  fall  within  any  of  the  recognized  exceptions  to  the  general 
rule  of  law?  They  are  stated  by  Mr.  Phillipps  to  consist  of  the  following 
classes :  —  First,  dying  declarations ;  secondly,  hearsay  in  questions  of 
pedigree ;  thirdly,  hearsay  in  questions  of  public  right,  custom,  boundary, 
&c. ;  fourthly,  old  leases,  rent-rolls,  surveys,  &c.,  in  certain  cases;  fifthly, 
declarations  against  interest;  sixthly,  rectors'  and  vicars'  books;  and 
lastly,  tradesmen's  books.  (Parke,  B.  —  The  sixth  are  rather  a  class 
of  the  fourth).  It  is  submitted  that  the  declarations  tendered  in  this 
case  fall  within  none  of  these  classes.  It  is  said  that  the  case  of  Wright 
V.  Littler  affords  an  authority  in  support  of  their  admissibility;  but  it  is 
not  so,  when  that  case  is  carefully  looked  at.  .  .  .At  that  period,  dying 
declarations  were  held  admissible  and  material  on  many  questions,  though 
they  have  since  been  restricted  to  the  single  case  where  the  death  of  the 
party  is  itself  the  subject  of  inquiry.  Doe  v.  Ridgway,  4  B.  &  Aid.  53; 
Rex  V.  Mead,  2  B.  &  C.  605.  .  .  . 

The  judgment  of  the  Court  was  now  delivered  by 

Parke,  B.  —  This  was  an  action  on  a  covenant  in  a  mortgage  deed, 
to  which  there  was  a  plea  of  non  est  factum.  .  .  .  We  who  heard  the 
argument  are  all  of  opinion  that  the  evidence  was  properly  rejected. 

The  general  rule  is,  that  hearsay  evidence  is  not  admissible  as  proof 
of  a  fact  which  has  been  stated  by  a  third  person.  This  rule  has  been 
long  established  as  a  fundamental  principle  of  the  law  of  evidence; 
but  certain  exceptions  have  also  been  recognized,  some  from  very  early 
times,  upon  the  groimd  of  necessity  or  convenience.  The  simple  question 
for  us  to  decide  is,  whether  such  a  declaration  as  this  be  one  of  the  allowed 
exceptions  to  the  general  rule.  .  .  . 

Thefirstcasereferred  to  is  that  of  Wright  ?J.  Littler  [ar?/e.  No.  381].  .  .  . 

From  this  report  it  is  clear,  that  Lord  ]\Iansfield  by  no  means  lays 


No.   383  HEARSAY   RULE:     EXCEPTIONS  583 

it  down  distinctly  as  an  established  rule  of  evidence,  that  such  a  declara- 
tion, even  when  made  "in  extremis,"  is  admissible.  If  it  had  been  in 
his  opinion  a  rule  of  law,  that  such  statements  were  evidence,  it  is  not 
likely  that  he  would  have  assigned  so  many  other  reasons  for  refusing  a 
new  trial;  and  if  we  look  at  the  report  of  the  same  case  in  Sir  William 
Blackstone's  Reports,  that  impression  is  confirmed;  for  his  lordship  is 
stated  to  have  declared  distinctly,  that  "  no  general  rule  could  be  drawn 
from  it,"  and  that  unless  manifest  injustice  had  been  done  in  the  whole 
case,  there  was  no  ground  for  a  new  trial.  .  .  . 

And  when  it  is  considered  in  how  qualified  a  manner  the  opinion  of 
Lord  Mansfield,  the  origin  and  foundation  of  the  others,  is  expressed; 
and  when  it  is  recollected  that  both  then  and  at  the  time  of  the  Nisi 
Prius  trial  before  Mr.  Justice  Heath,  an  opinion  prevailed  (which  is 
now  properly  exploded),  that  any  declaration  "in  extremis"  was  admissi- 
ble, on  the  ground  that  the  solemnity  of  the  occasion  was  equivalent  to 
a  declaration  on  oath,  which  consideration  certainly  had  an  influence  on 
the  mind  of  Lord  Mansfield  at  least,  it  is  impossible  to  say  that  there 
is  any  such  weight  of  authoiity,  however  great  our  respect  for  the  eminent 
Judges  whose  names  have  been  mentioned,  as  to  induce  us  to  hold  that 
this  case  is  established  and  recognized  as  an  exception  from  the  great 
principle  of  our  law  of  evidence,  that  facts,  the  truth  of  which  depends 
on  parol  evidence,  are  to  be  proved  by  testimony  or  oath. 

If  we  had  to  determine  the  question  of  the  propriety  of  admitting 
the  proposed  evidence,  on  the  ground  of  convenience,  apart  from  the 
consideration  of  the  expediency  of  abiding  by  general  rules,  we  should 
say  that  it  was  at  the  least  very  doubtful,  whether,  generally  speaking, 
it  would  not  cause  greater  mischief  than  advantage  in  the  investigation 
of  truth.  An  extreme  case  might  occur,  as  there  seems  to  have  done 
before  Mr.  Justice  Heath,  where  the  exclusion  of  evidence  of  a  death-bed 
declaration  would  probably  have  been  the  exclusion  of  one  mode  of 
discovering  the  truth.  The  same  may,  perhaps,  be  said  of  all  solemn 
assertions  "in  extremis"  by  deceased  witnesses.  But,  on  the  other 
hand,  if  any  declarations,  at  any  time  from  the  mouth  of  subscribing 
witnesses  who  are  dead  are  to  be  admitted  in  evidence  (and  you  cannot 
stop  short  of  that,  for  no  one  contends  that  the  exception  is  to  be  confined 
to  death-bed  declarations,  and  if  so  confined,  the  evidence  would  be 
inadmissible  in  the  present  case),  the  result  would  be,  that  the  security 
of  solemn  instruments  would  be  much  impaired.  .  .  . 

We  therefore  think  the  rule  for  a  new  trial  must  be  discharged. 

Rule  discharged. 

383.  J.  G.  Phillimore.  Histori/  and  Principles  of  the  Lair  of  Evidence. 
(1850.  p.  554).  I  now  come  to  a  case  which,  to  the  scandal  of  our  jurisprudence, 
has  been  overruled;  though  I  still  hope,  for  the  honour  of  the  Bar,  that  such  a 
triumph  over  reason  will  not  be  considered  final.  I  allude  to  the  case  of  Wright 
on  the  demise  of  Clymer  against  Littler  [ante,  No.  381],  in  which  Lord  Mansfield 
admitted  evidence  of  the  dying  declarations  of  a  witness  that  he  had  forged  a  bond. 


584  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  383 

Inconceivable  as  the  narrowness  of  our  judges  often  is,  and  shocking  as  the  conse- 
quences are  to  which  it  leads,  I  do  not  know  any  case,  from  Lord  Coke  down- 
wards, in  the  whole  disgusting  series  of  judicial  bigotry,  that  exemplifies  it  in  a 
manner  more  humiliating  than  that  of  Stobart  v.  Dryden  [ante,  No.  382],  in  which 
this  case  was  overruled.  .  .  . 

It  shews  that  the  incapacity  for  large  and  liberal  views,  and  for  reasoning  on 
general  principles,  which  the  study  of  our  law  develops,  becomes,  after  a  certain 
time,  incorrigible.  Lord  Mansfield,  as  I  have  mentioned,  had,  in  the  case  of 
Clymer  r.  Littler,  admitted  the  solemn  declaration  of  a  dying  man  that  he  had 
forged  a  will.  .  .  .  The  ground  upon  which  these  cases  were  placed,  was  not  the 
narrow  and  sandy  basis  suggested  by  the  Court  of  Exchequer;  but  the  deep, 
broad,  adamantine  foundation,  wliich  alone  can  support  the  pillars  of  jurispru- 
dence. The  reason  of  its  admission  was  drawn  from  the  principles  of  our  common 
'nature,  —  principles  attested  by  those  for  whom  the  heart  of  man  had  no  secrets, 
and  whom  age  after  age  had  revered  as  the  almost  inspired  oracles  of  all  the  hopes, 
fears,  wishes  and  intentions,  that  had  ever  fluttered  and  throbbed  within  it. 
These  great  men  did  not  think,  with  the  Barons  of  the  Exchequer,  that  the  declara- 
tions on  a  death-bed  are  lightly  made  and  heedlessly  repeated:  they  thought 
that  , 

"The  tongues  of  dying  men 
Enforce  attention,  like  deep  harmony."  .  .  . 
Poets,  moralists,  and  philosophers,  have,  in  all  ages,  arrived  at  a  conclusion 
directly  the  reverse  of  that  which  the  Barons  of  the  Exchequer  have  done  what 
they  could  to  brand  upon  the  law  of  England,  by  the  decision  in  Stobart  v.  Dry- 
den, —  that  monumental  proof  of  judge-made  law!  For  the  Court  of  Exchequer 
were  not  content  without  a  flimsy  distinction :  covetous  of  technicality,  they  have 
actually  decided  that  dying  declarations  are  admissible  precisely  where  they  are 
most  suspicious;  that  though  they  are  inadmissible  on  all  other  occasions,  they 
may  be  used  to  shew  how  the  djang  man  came  by  his  death,  and  for  no  other 
purpose. 

384.   MONTGOMERY  v.  STATE 

Supreme  Court  of  Indiana.     1881 

80  Ind.  338 

From  the  Elkhart  Circuit  Court. 

J.  M.  Vanfleet,  for  appellant.  B.  P.  Baldwin,  Attorney-General, 
J .  S.  Drake,  Prosecuting  Attorney,  and  W.  L.  Stoncx,  for  the  State. 

Elliott,  C.  J.  —  Appellant  was  tried  and  convicted  upon  a  count  in 
an  indictment  charging  him  with  a  violation  of  section  1923  of  the  R.  S. 
of  1881.  That  section  reads  thus:  "Whoever  prescribes  or  administers 
to  any  pregnant  woman,  or  to  any  woman  whom  he  supposes  to  be 
pregnant,  any  drug,  medicine,  or  substance  whatever,  with  intent  thereby 
to  procure  the  miscarriage  of  such  woman ;  or,  wdth  like  intent,  uses  any 
instrument  or  means  whatever,  unless  such  miscarriage  is  necessary  to 
preserve  her  life,  —  shall,  if  the  woman  miscarries  or  dies  in  consequence 
thereof,  be  fined  not  more  than  five  hundred  dollars  nor  less  than  fifty 
dollars,  and  be  imprisoned  in  the  State  prison  not  more  than  fourteen 


No.  384  PEARS  AY  rule:    exceptions  585 

years  nor  less  than  three  years."  It  is  charged  in  the  indictment,  and 
there  is  evidence  tending  to  prove,  that  the  woman  upon  whom  the 
wrongful  act  is  alleged  to  have  been  committed  died  from  its  effect. 

Over  the  appellant's  objection,  the  State  was  permitted  to  give  in 
evidence  the  dying  declarations  of  the  woman.  This  ruling  presents  the 
controlling  question  in  the  case. 

1 .  It  is  contended  on  the  part  of  the  prosecution  that  the  death  of  the 
woman  is  the  gravamen  of  the  offence,  and  that,  where  death  results 
from  an  unlawful  act  in  producing  abortion,  the  crime  is  homicide.  .  .  . 
It  has  long  been  settled  that  dying  declarations  are  admissible  only  in 
cases  of  homicide.  Starkie  saj's  of  the  rule  admitting  dying  declara- 
tions :  "  But  so  jealous  is  the  law  of  any  deviation  from  the  general  rule, 
that  it  confines  the  exception  to  the  necessity  of  the  case,  and  only 
renders  such  declarations  admissible  when  they  relate  to  the  cause  of 
death,  and  are  tendered  on  a  criminal  charge  respecting  it."  Starkie, 
Ev.  32.  The  generally  accepted  doctrine  is  that  stated  in  Rex  v. 
Mead,  2  B.  &  C.  605,  where  it  was  said  that  they  are  only  admissible 
"where  the  death  of  the  deceased  is  the  subject  of  the  charge,  and  the 
circumstances  of  the  death  the  subject  of  the  dying  declaration."  Whar- 
ton's Criminal  Evidence,  §288;  Roscoe's  Criminal  Evidence,  p.  32; 
1  Greenleaf,  Evidence,  §  156.  This  Court  has  adopted  and  enforced  this 
principle.  Binns  v.  The  State,  46  Ind.  311;  Duling  v.  Johnson,  32  Ind. 
155;  Morgan  v.  The  State,  31  Ind.  193.  It  has  been  often  decided, 
that  in  prosecutions  for  producing  an  abortion,  dying  declarations  are 
not  admissible.  Rex  v.  Lloyd,  4  C.  &  P.  233;  Wilson  v.  Boerem,  15 
Johns.  286;  Regina  v.  Hind,  8  Cox  C.  C.  300;  Wooten  v.  Wilkins,  39  Ga. 
223.  If  the  prosecution  were  for  producing  an  abortion,  and  death 
were  not  an  essential  ingredient  of  the  crime,  our  way  would  be  plain. 
We  should  be  compelled  to  declare  that  the  evidence  was  incompetent. 

There  are  peculiar  features  distinguishing  the  case  from  one  where 
the  only  charge  is  that  an  abortion  was  produced  by  the  accused.  The 
statute  makes  death  an  element  of  the  offence,  and  death  is,  therefore, 
the  subject  of  judicial  investigation.  The  death  was  the  result  of  an 
unlawful  act,  for  to  produce  the  abortion  was  expressly  forbidden  by 
law.  If  there  were  no  special  statutory  provision  upon  this  subject, 
the  crime  of  which  the  appellant  is  accused  would  have  been  a  felonious 
homicide.  ...  Is  the  offence  any  the  less  homicide  because  of  the  prose- 
cution being  under  one  statute  rather  than  another?  Is  the  manner  of 
the  death  any  the  less  the  subject  of  investigation  than  it  would  have 
been  if  the  indictment  had  charged  manslaughter  or  murder?  .  .  . 

If  the  statute  had  in  express  terms  declared  that  the  offence  should 
be  deemed  murder  or  manslaughter,  the  evidence  Avould  have  been 
competent.  Can  it  make  any  difference  that  the  statute  either  gives 
the  offence  no  name  or  names  it  something  else  than  murder  or  man- 
slaughter? Courts  are  to  look  to  the  substance  of  the  offence  defined; 
they  are  not  to  be  guided  by  mere  names.     If,  in  reality,  the  offence  is 


586  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  384 

homicide  and  the  subject  of  inquiry  the  manner  of  the  deceased's  death, 
the  settled  rules  of  evidence  which  prevail  in  such  cases  should  be  enforced. 
Wisconsin  has  a  statute  very  similar  to  ours.  The  principal  difference 
between  the  two  statutes  is  that  the  former  declares  that  the  person 
producing  the  abortion  which  results  in  death  shall  be  deemed  guilty  of 
manslaughter.  It  was  held  in  State  v.  Dickinson,  41  Wis.  299,  that,  in 
a  prosecution  under  the  statute  referred  to,  dying  declarations  were 
admissible.  .  .  .  The  statute  of  Ohio  is  somewhat  like  ours,  and  it  was 
held  in  The  State  v.  Harper,  35  Ohio  St.  78,  that  the  dying  declarations 
of  the  deceased  were  not  competent.  .  .  .  We  think  that  the  unlawful 
act  possesses  all  the  distinctive  and  essential  features  of  felonious  homi- 
cide, and  that  to  declare  that  it  is  not  homicide  is  to  sacrifice  the  sub- 
stance to  the  shadow.  Whether  the  statute  characterizes  the  act  as  a 
felonious  killing  or  not,  is  immaterial,  if  it  plainly  appears  that  it  is 
such.  .  .  . 

We  conclude,  where  death  results  from  the  unlawful  attempt  to  pro- 
duce an  abortion,  that  death  is  the  subject  of  enquiry,  and  that  dying 
declarations  are  competent.  If  we  adopt  any  other  view,  we  shall 
sacrifice  principle  to  a  mere  form  of  words,  and  give  an  effect  to  a  statute, 
intended  to  secure  punishment  by  an  explicit  definition  of  an  offence, 
exactly  the  reverse  of  what  its  framers  intended.  We  regard  the  statute 
as  clearly  intending  that  death  shall  be  deemed  a  controlling  element  of 
the  offence,  and  in  this  respect  it  differs  from  the  statutes  of  New  York 
and  Ohio,  as  construed  by  the  courts  of  those  States.  .  .  . 

Specific  objections  were  made-  to  the  statement  of  the  dying  woman, 
and  these  now  require  consideration. 

2.  It  is  undoubtedly  the  law  that  the  statements  must  be  such  as 
would  have  been  admissible  had  the  dying  person  been  sworn  as  a  witness. 
A  statement  in  a  dying  declaration,  which  a  witness  upon  the  stand  would 
not  be  allowed  to  make,  is  not  competent.  Jones  v.  The  State,  71  Ind. 
66;  Binns  v.  The  State,  46  Ind.  311.  Matters  of  opinion  contained  in  a 
dying  declaration  are  not  admissible.  Wharton,  Criminal  Evidence, 
§294. 

It  is  earnestly  contended  that  the  sentence  contained  in  the  statement 
reading  as  follows:  "The  operation  was  performed  for  the  purpose  of 
producing  an  abortion,"  should  have  been  excluded.  We  think  this 
position  must  be  sustained.  What  the  purpose  of  an  act  was  is  an 
inference  from  facts,  and  witnesses  must  state  the  facts  and  not  their 
conclusions.  A  witness  would  have  been  required  to  state  what  was 
said  and  done.  .  .  .  But  we  need  not  discuss  this  question,  for  it  is  well 
settled  that  dying  declarations  must  speak  to  facts  only,  and  not  to  mere 
matters  of  opinion.  Binns  t.  State,  supra;  Roscoe's  Criminal  Evidence, 
32;  Wharton,  Criminal  Evidence,  §  294;  W^arren  v.  State,  35  Am.  R. 
745. 

3.  Dying  declarations  are  admissible  to  prove  what  was  done  at  the 
time  of  the  commission  of  the  unlawful  act  which  caused  death,  but  they 


No.  385  HEARSAY  RULE:  EXCEPTIONS  587 

are  not  admissible  to  prove  what  occurred  before  or  afterwards.  The 
cases  of  Jones  v.  State,  supra,  and  Binns  v.  State,  supra,  declare  that 
they  are  not  competent  for  the  purpose  of  proving  what  occurred  anterior 
to  the  time  the  act  which  produced  death  was  done,  and  this  doctrine  is 
well  supported  by  the  text-writers  and  the  adjudged  cases.  McHugh  v. 
The  State,  31  Ala.  317;  Barnett  v.  The  People,  54  111.  325;  Mose  v.  The 
State,  35  Ala.  422;  Nelson  ?'.  The  State,  7  Humph.  542.  .  .  .  The  rule  is 
confined  to  a  statement  of  .the  circumstances  connected  with  the  fatal 
act  and  forming  part  of  the  same  transaction.  ...  In  the  case  at  bar, 
statements  were  included  in  the  dying  declaration,  of  the  condition  of 
the  woman  several  days  after  the  unlawful  act  was  committed,  and  also 
of  a  fact  entirely  distinct  from  the  act  itself.  In  admitting  these  state- 
ments the  Court  plainly  erred.  .    .  . 

Judgment  reversed.     The  clerk  will  enter  the  proper  order  for  the 
T-eturn  of  the  prisoner. 


Topic  2.     Statements  of  Facts  against  Interest 

385.   MIDDLETON  v.   MELTON 

King's  Bench.     1829 

10  B.  &  C.  317 

[Action  against  a  surety  on  a  bond  given  by  one  Squire,  a  collector 
of  taxes.] 

Plea,  that  Squire  in  his  lifetime  paid  the  sums  collected  by  him,  and 
upon  that  issue  was  joined. 

At  the  trial  before  Alexander,  C.  B.,  at  the  Spring  Assizes  for  the 
county  of  Surrey,  1829,  it  appeared  that  the  defendant,  together  with 
John  Frost  and  Squire,  had  executed  the  bond  stated  in  the  declaration; 
that  a  duplicate  assessment  had  been  delivered  to  Squire,  in  which  he 
occasionally  made  entries  of  the  sums  received  from  the  persons  assessed ; 
from  the  entries  made  in  that  assessment,  it  did  not  appear  that  he  had 
received  any  monies  that  he  had  not  paid  over  to  the  commissioners. 
It  appeared  also  that  for  his  own  convenience  he  kept  a  private  book, 
containing  entries  (copied  from  the  duplicate  assessment)  of  the  names 
of  the  persons,  and  of  the  sums  for  which  they  were  respectively  assessed, 
and  that  it  was  his  usual  habit  to  collect  by  that  private  book,  and  to 
mark  with  ticks  all  the  sums  he  receiA'ed  from  the  several  persons  therein 
mentioned.  .  .  .  The  sums  which  appeared  to  be  due  from  Squire  by 
the  entries  he  himself  had  made  in  the  private  book,  over  and  above 
what  appeared  by  the  duplicate  assessment  to  have  been  collected  by  him, 
amounted  to  996£. ;  for  some  of  these  sums  the  plaintiff  further  produced 
receipts  given  to  several  persons  for  taxes  paid  to  Squire,  and  signed  by 
him.  It  was  objected,  first,  that  the  receipts  were  not  receivable  in 
evidence,  because  the  parties  who  paid  the  money  might  have  been 


588  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  385 

called;  and,  secondly,  that  although  entries  made  by  Squire  in  any 
book  which  he  in  the  course  of  his  duty  as  collector  was  bound  to  keep 
would  be  evidence  against  the  surety,  yet  that  entries  made  by  him  in  a 
private  book  kept  for  his  own  convenience  were  not  receivable  in  evidence 
to  charge  the  surety. 

The  learned  Judge  received  the  evidence,  but  reserved  liberty  to  the 
defendant  to  move  to  enter  a  nonsuit,  if  the  Court  should  be  of  opinion 
that  neither  the  entries  in  the  private  book  nqr  the  receipts  were  evidence, 
or  to  reduce  the  verdict,  if  they  should  be  of  opinion  that  the  entries  in 
the  private  book  were  not  admissible  in  evidence,  but  that  the  receipts 
were.  A  verdict  having  been  found  for  the  plaintiff  for  996£.  a  rule  nisi 
had  been  obtained  pursuant  to  the  leave  reserved. 

Andrews  Serjt.  and  Hutchinson,  now  showed  cause.  The  entries  in 
the  private  book  of  the  deceased  collector  were  declarations  made  by  him 
against  his  interest,  for  he  thereby  charged  himself  with  the  receipt  of 
certain  sums  of  money,  which  he  was  bound  by  law  to  pay  over  to  other 
persons.  The  entries  were  therefore  admissible  in  evidence  on  the 
ground  that  they  were  made  by  an  individual  cognizant  of  a  fact  not 
in  dispute,  and  who  at  the  time  when  they  were  made  had  no  interest 
in  making  false  entries,  and  that  they  tended  to  charge  himself.  .  .  . 

Spankie  Serjt.  and  Chitty,  contra.  The  question  is,  whether  the 
entries  made  by  Squire  in  his  private  book,  if  that  book  had  been  pro- 
duced, would  have  been  admissible  against  the  defendant  as  surety?  .  .  . 
Entries  made  by  a  principal  for  his  own  purposes  might  have  been  evi- 
dence against  the  principal  himself,  but  are  not  to  charge  a  surety.  The 
best  evidence  should  be  produced.  Cutler  v.  Newlin  (Manning's  Digest, 
137)  shows  that  an  admission  by  a  principal  is  not,  while  he  is  alive, 
sufficient  to  charge  a  surety. 

Bayley,  J.  —  The  question  in  this  case  is.  Whether  a  private  book 
kept  by  a  collector  of  taxes,  containing  entries  wherein  he  acknowledges 
the  receipt  of  sums  of  money  in  his  character  of  collectoi-,  can  be  given  in 
evidence  against  a  surety,  the  collector  having  been  appointed  to  collect 
the  taxes  mentioned  in  the  bond  pursuant  to  the  provisions  of  an  act  of 
Parliament.  In  this  case  Squire  was  the  collector,  and  his  private  book 
was  found  after  his  death,  and  given  by  his  daughter  to  the  defendant. 
There  was  evidence  to  show,  therefore,  that  it  was  left  in  the  defendant's 
possession,  and  he  having  refused  to  produce  it  at  the  trial  after  notice, 
secondary  evidence  of  its  contents  was  admissible.  It  was  proved  that 
it  was  the  collector's  usual  habit  to  collect  by  his  private  book,  and  to 
mark  the  sums  he  received  with  ticks,  and  that  those  ticks  denoted  that 
those  sums  had  been  received  by  him.  If  the  entries  mentioned  in  the 
book  were  admissible  evidence  to  show  that  he  received  those  sums,  they 
will  be  sufficient  to  entitle  the  plaintiff  to  retain  the  verdict  for  the  full 
amount;  and  the  question  as  to  the  admissibility  of  the  receipts  will  not 
necessarily  arise.  .  .  .  The  question  then  is,  AMiether  such  an  entry, 
made  by  an  individual  against  his  own  interest,  may  be  evidence  of  the 


No.  385  ijEARSAY  rule:    exceptions  589 

fact  of  the  receipt  of  the  money  aj^ainst  a  third  party?  It  is  a  general 
principle  of  evidence,  that  declarations  or  statements  of  deceased  persons 
are  admissible  when  they  appear  to  have  been  made  against  their  interest. 
An  entry  in  a  book,  whereby  the  party  making  it  charges  himself  with  the 
receipt  of  money  on  account  of  a  third  person,  or  acknowledges  the  pay- 
ment of  money  due  to  himself,  has  been  held  to  be  evidence  of  the  receipt 
or  payment  of  such  money.  .  .  .  These  cases  establish  that  where  a 
person  makes  an  entry  charging  himself  with  the  receipt  of  a  sum  of 
money,  that  entry  is  evidence  of  the  fact  of  the  receipt  of  that  money 
against  a  third  person.  The  question  as  to  the  receipts  then  becomes 
immaterial.  But  if  the  entries  in  the  book  are  admissible  in  evidence, 
because  the  tick  marked  against  them  denotes  that  the  collector  had 
received  the  money,  the  receipts  signed  by  him  must  be  evidence  of  the 
fact  of  such  receipt  of  the  money  upon  the  same  principle. 

LiTTLEDALE,  J.  —  I  am  of  the  same  opinion.  I  at  one  time  enter- 
tained great  doubts  whether  entries  made  in  a  private  book  kept  by 
a  person  for  his  own  convenience  could  be  evidence  against  a  third 
party.  .  .  .  Warren  v.  Greenville,  2  Str.  1129,  Barry  v.  Bebbington,  4  T.  R. 
514,  and  Higham  v.  Ridgway,  10  East,  109,  establish  this  general  principle, 
that  where  a  person  has  peculiar  means  of  knowing  a  fact,  and  makes  a 
declaration  or  written  entry  of  the  fact,  which  is  against  his  interest  at 
the  time,  it  is  evidence  of  the  fact  as  between  third  persons  after  his 
death. 

Parke,  J.  —  I  am  of  the  same  opinion.  .  .  .  The  general  rule 
undoubtedly  is,  that  facts  must  be  proved  by  testimony  upon  oath. 
This  case,  however,  falls  within  the  exception  necessarily  engrafted  upon 
that  rule,  viz.,  that  an  admission  of  a  fact  made  by  a  deceased  person, 
which  is  against  the  interest  of  the  party  making  it  at  the  time,  is  evidence 
of  that  fact  as  between  third  persons.  Upon  that  ground  entries  made 
by  receivers,  stewards,  and  other  agents,  charging  themselves  with  the 
receipt  of  money,  have  been  held,  after  their  death,  to  be  admissible  in 
evidence,  to  prove  the  fact  of  the  receipt  of  such  money,  and  that  without 
reference  to  the  particular  character  of  the  person  who  made  such  entries. 
In  Warren  v.  Greenville  (2  Str.  1129),  the  party  who  made  the  entry  was 
an  attorney;  in  Manning  v.  Lechmere  (1  Atk.  453),  a  bailiff;  in  Higham 
^.Ridgway (10  East,  109),  a  surgeon.  ...  I  think  those  decisions  may 
be  supported  on  the  more  general  principle,  that  an  entry  made  by  a 
party  cognizant  of  a  fact,  and  having  no  interest  to  make  a  false  entry, 
whereby  he  charges  himself  with  the  receipt  of  a  sum  of  money,  is  evidence 
of  the  fact  of  the  receipt  of  such  money.  It  is  unnecessary  to  consider 
the  question  as  to  the  receipts,  because  the  entries  in  the  book,  if  admissi- 
ble, are  sufficient  to  entitle  the  plaintiff  to  the  full  amount  of  the  damages 
which  he  has  recovered.  But  I  cannot  help  thinking  that  they  were 
admissible;  and  I  doubt  the  propriety  of  that  part  of  the  decision  in  the 
case  of  Goss  v.  Watlington  (3  Brod.  &  Bingh.  132),  by  which  the  receipts 
of  the  deceased  collector  were  held  inadmissible.  Rule  discharged. 


590  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  386 

386.   SMITH  V.  MOORE 
SuPKEME  Court  of  North  Carolina.     1906 

142  N.  C.  277;  55  S.  E.  275 

Appeal  from  Superior  Court,  New  Hanover  County ;  W.  R.  Allen, 
Judge. 

Action  by  Louise  B.  Smith  against  Susan  E.  Moore  and  others. 
From  a  judgment  in  favor  of  plaintiff,  defendant  Susan  E.  Moore  appeals. 
Reversed,  and  new  trial  granted. 

The  object  of  the  action  is  to  set  aside  a  deed  for  a  lot  in  the  city  of 
Wilmington  at  the  northeast  corner  of  Second  and  Red  Cross  streets 
which  was  executed  to  Mr.  Moore,  the  husband  of  the  defendant  Susan 
E.  Moore,  and  the  father  of  her  codefendants,  by  Mrs.  Mary  E.  Smith 
and  her  daughter,  the  plaintiff,  and  which  it  is  alleged  was  obtained  by 
fraud.  .  .  .  The  plaintiff  attacked  the  deed  from  her  mother  and  herself 
to  Mr.  Moore  upon  the  ground  that,  at  the  time  it  was  executed,  his 
attorney  stated  to  her  in  the  presence  of  her  mother  and  Mr.  Moore 
that  it  was  a  will;  that  she  was  ill  at  the  time  and  confined  to  her  bed, 
and  that  she  signed  the  deed  thinking  that  it  was  a  will  and  she  did  not 
know  it  was  a  deed  until  after  Mr.  Moore's  death.  .  .  .  The  plaintiff 
put  in  evidence  a  letter  from  Mrs.  Smith  to  Mrs.  Moore's  attorney, 
dated  March  2,  1885,  in  which  she  expressed  the  greatest  affection  and 
esteem  for  her  son-in-law,  Mr.  Moore.  .  .  .  The  defendant  put  in  evi- 
dence the  deposition  of  Mrs.  Boudinot,  and  proposed  to  prove  by  her 
that  Mrs.  Smith,  who  was  her  sister,  had  stated  to  her  that  she  had  exe- 
cuted the  deed  to  Mr.  Moore,  and  gave  substantially  the  same  reasons 
for  so  doing  as  those  set  forth  in  the  letter  to  the  attorney.  The  testi- 
mony was  excluded  by  the  court,  and  the  defendants  excepted.  On 
cross-examination  she  testified  that  Mrs.  Smith  had  told  her  the  deed 
had  been  executed,  giving  in  detail  what  was  said  by  her  about  the 
deed.  .  .  .  The  jury  for  their  verdict  found  that  the  deed  was  procured 
by  fraud,  and,  judgment  having  been  entered  thereon,  the  defendant 
appealed,  and  especially  assigned  as  errors  the  several  rulings  and  the 
instructions  of  the  court  to  which  exceptions  had  been  taken. 

Rovntree  &  Carr  and  Bellamy  &  Bellamy,  for  appellant.  John  D. 
Bellamy  &  Son  and  E.  K.  Bryan,  for  appellee. 

Walker,  J.  (after  stating  the  case).  .  .  . 

The  second  assignment  of  error,  embracing  the  next  six  exceptions, 
relates  to  the  exclusion  of  a  part  of  Mrs.  Boudinot's  testimony  which  was 
taken  by  deposition.  She  deposed,  among  other  things,  that  Mrs. 
Smith,  who  was  her  sister,  had  told  her  that  she  had  made  a  deed  to  Mr. 
Moore  for  the  lot,  and,  in  the  conversation  with  her,  used  language 
substantially  similar  to  that  which  is  contained  in  her  letter  to  Mr. 
Moore's  attorney,  dated  March  2,  1885.  .  .  .  The  testimony  was  evi- 


iVo.  386  HEARSAY   RULE:     EXCEPTIONS  591 

dently  ruled  out  by  the  Court  because  it  was  regarded  as  nothing  more 
than  hearsay,  but  we  think  it  comes  within  one  of  the  well-known  excep- 
tions to  the  rule  excluding  such  testimony.  Declarations  of  a  person, 
whether  verbal  or  written,  as  to  facts  relevant  to  the  matter  of  inquiry, 
are  admissible  in  evidence,  even  as  between  third  parties,  where  it  appears: 
(1)  That  the  declarant  is  dead;  (2)  that  the  declaration  was  against  his 
pecuniary  or  proprietary  interest;  (3)  that  he  had  competent  knowledge 
of  the  fact  declared;  (4)  that  he  had  no  probable  motive  to  falsify  the 
fact  declared.  1  Elliott  on  Evidence,  §§  439-454,  where  the  subject  is 
fully  discussed.  .  .  .  The  earliest  case  on  the  subject  of  such  declarations 
is  Searle  v.  Lord  Barrington,  2  Strange,  826;  Lord  Barrington  v.  Searle 
(on  appeal)  3  Brown's  Cases,  535;  Id.,  8  Mod.  278.  In  that  case,  decided 
in  1730,  an  indorsement  of  a  payment  of  interest  on  a  note  was  admitted 
to  repel  the  statute  of  limitations.  ...  It  is  regarded  as  the  first  and 
leading  case,  and  is  reviewed,  in  connection  with  the  subsequent  cases 
on  the  same  question  to  the  year  1833,  in  Gleadon  v.  Atkin,  3  Tyrwh.  289. 
.  .  .  The  rule  as  thus  established  is  said  to  be  founded  on  a  knowledge 
of  human  nature.  Self-interest  induces  men  to  be  cautious  in  saying 
anything  against  themselves,  but  free  to  speak  in  their  own  favor.  We" 
can  safely  trust  a  man  when  he  speaks  against  himself,  and  the  law,  in 
this  instance,  substitutes  for  the  sanction  of  a  judicial  oath  the  more 
powerful  one  arising  out  of  the  sacrifice  of  a  man's  own  interests.  This 
natural  disposition  to  speak  in  favor  of,  rather  than  against  interest,  is 
so  strong,  that  when  one  has  declared  anything  to  his  own  prejudice,  his 
statement  is  so  stamped  with  the  image  and  superscription  of  truth  that 
it  is  accepted  by  the  law  as  proof  of  the  correctness  and  accuracy  of  what 
was  said,  and  the  fact  that  it  was  against  interest  is  taken  as  a  full  guar- 
anty of  its  truthfulness  in  place,  not  only  of  an  oath,  but  of  cross-examina- 
tion as  well,  they  being  the  usual  tests  of  credibility.  A  discussion  of 
this  rule  of  evidence,  which  shows  how  thoroughly  it  has  been  adopted 
by  the  Courts,  whether  the  declarations  are  in  the  form  of  mere  words  or 
of  written  entries  will  be  found  in  1  Greenleaf,  Evidence  (16th  Ed.) 
§§  147-154;  2  Wigmore,  Evidence,  §§  1455-1471 ;  McKelvey  on  Evidence, 
pp.  254-261.  The  case  of  Higham  v.  Ridgeway,  10  East,  109,  3  Smith's 
L.  C.  (9th  Am.  Ed.)  1,  recognized  the  principle  to  its  fullest  extent  and 
held  that  it  embraced,  not  only  the  particular  statement  which  was 
against  interest,  but  others  contained  in  it.  Lord  Ellenborough  saying 
that  it  is  idle  to  admit  a  part  without  the  context.  "All  parts  of  the 
speech  or  entry  may  be  admitted  which  appear  to  have  been  made  while 
the  declarant  was  in  the  trustworthy  condition  of  mind  which  permitted 
him  to  state  what  was  against  his  interest."  2  Wigmore,  Evidence, 
§  1465.  Especially  should  the  part  of  the  declaration  that  is  not  disserv- 
ing be  admitted  if  it  is  not  in  itself  self-serving  and  tending,  therefore,  to 
promote  the  interest  of  the  declarant.  .  .  . 

The  three  leading  cases  we  have  cited  have  been  approved  in  the 
later  decisions,  and  are  regarded  by  the  law-writers  as  having  firmly 


592  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  386 

settled  the  principle  to  which  they  severally  relate.  This  species  of 
evidence  was  at  one  time  said  to  be  anomalous  and  to  stand  on  the 
ultimate  rule  of  competent  testimony,  but  an  unbroken  line  of  decisions 
in  England,  and  one  almost  so  in  this  country,  have  established  beyond 
question  that  verbal  declarations  are  receivable  under  the  conditions 
we  have  mentioned,  even  in  controversies  between  third  parties. 

There  is  nothing  that  so  strongly  attests  the  truth  of  what  a  person 
declares,  not  even  his  oath  and  the  searching  light  of  a  cross-examination, 
as  when  he  has  asserted  the  existence  of  a  fact  and  it  appears  that  his 
interest  at  the  time  lay  the  other  way.  Doe  v.  Jones,  supra.  The 
words  of  sacred  writ,  "  He  that  sweareth  to  his  own  hurt  and  changeth 
not,"  were  uttered  long  before  the  era  of  our  jurisprudence,  and  set 
before  us,  not  only  one  of  the  most  exalted  attributes  possessed  by  the 
exemplar  of  true  virtue  and  probity,  but  embodied  at  the  same  time  the 
highest  standard  by  which  we  can  safely  gauge  our  trust  and  confidence 
in  human  testimony.  It  is  not  at  all  a  matter  for  surprise,  therefore, 
that  the  common-law  jurists  should  have  regarded  it  as  a  perfectly  safe 
test  for  discerning  the  truth  in  judicial  investigation. 

We  must  now  consider  whether  the  declaration  of  Mrs.  Smith  to 
Mrs.  Boudinot  comes  within  the  rule  stated.  Was  it  a  declaration 
against  her  interest  at  the  time  she  made  it?  We  think  it  was.  She  was 
then  in  possession  of  the  lot  and  ostensibly  the  owner  thereof,  and  when 
she  declared  that  she  had  parted  with  her  title  and  did  not  own  the 
estate  of  which  she  was  apparently  seised,  it  could  not  be  anything 
other  than  such  a  declaration.  We  have  seen  that  any  other  state- 
ment associated  in  the  declaration  with  the  one  against  interest  is  just 
as  competent  as  the  latter,  and  especially  is  that  true  in  a  case  like  the 
one  at  bar  where  the  collateral  statement  bears  directly  on  the  other  and 
tends  to  confirm  and  strengthen  it.  The  deed  to  Mr.  Moore  is  attacked 
for  fraud,  because  what  was  in  fact  a  deed  was  represented  to  be  a  will, 
and  the  declaration  by  Mrs.  Smith  to  Mrs.  Boudinot  was,  not  only  that 
she  had  made  a  deed,  and  therefore,  knew  the  character  and  contents  of 
the  paper  writing,  but  that  she  executed  it  upon  a  meritorious  considera- 
tion, and  substantially  that  she  acted  freely  and  voluntarily  when  she 
did  so.  What  could  be  more  against  her  interest  than  such  a  statement, 
and  what  could  carry  with  it  more  conclusive  evidence  of  its  truth  and 
accuracy?  It  was  in  disparagement  of  her  apparent  title  and  made  at 
a  time  which  was  recent  with  respect  to  the  date  of  the  main  transaction, 
when  it  must  be  supposed  she  had  a  clear  recollection  of  what  had  occurred, 
and  also  long  prior  to  the  beginning  of  this  controversy  —  ante  litem 
motam.  .  .  .  But  it  may  be  suggested  that  she  was  not  in  privity  with 
her  daughter,  the  plaintiff,  as  she  had  but  a  life  estate  and  her  daughter 
a  contingent  remainder,  which,  since  the  death  of  her  mother,  has  become 
a  vested  one  in  interest  and  possession.  This  is  true,  but  it  does  not 
prevent  the  application  of  the  rule,  for,  the  declaration  being  against 
interest,  it  is  admitted  because  of  the  likelihood  of  its  being  true  and  of  its 


No.  386a  hearsay  rule:    exceptions  593 

general  freedom  from  any  reasonable  probability  of  fraud  or  imposition, 
and  is  for  that  reason  held  to  be  competent  as  to  third  parties.  It  is 
not,  therefore,  within  the  principle  of  exclusion,  as  being  res  inter  alios 
acta.  Lyon  v.  Ricker,  141  N.  Y.  225;  Higham  v.  Ridgeway,  supra.  .  .  . 
We  are  constrained  to  think  that  the  evidence  is  both  competent  and 
relevant,  and  should  be  heard  by  the  jury  in  its  entirety. 

P'or  the  reason  we  have  already  stated  a  new  trial  is  awarded. 

New  trial. 

Hoke,  J.,  concurs  in  the  result. 


386a.   DONNELLY  v.   UNITED   STATES 
Supreme  Court  of  the  United  States.     1913 
228  U.  S.  243;   33  Sup.  449 

Plaintiff  in  error  was  convicted  in  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  California,  upon  an  indictment  for 
murder,  and,  having  been  sentenced  to  life  imprisonment,  sues  out  this 
writ  of  error.  The  indictment  charged  him  with  the  murder  of  one 
Chickasaw,  an  Indian,  within  the  limits  of  an  Indian  reservation  known 
as  the  Extension  of  the  Hoopa  Valley  Reservation,  in  the  County  of 
Humboldt,  in  the  State  and  Northern  District  of  California.  The  evi- 
dence tended  to  show  that  Chickasaw,  who  was  an  Indian  and  a  member 
of  the  Klamath  Tribe,  was  shot  through  the  body  and  mortally  wounded 
while  he  was  in  or  near  the  edge  of  the  water  of  the  Klamath  River,  at  a 
place  within  the  exterior  limits  of  the  Extension. 

The  trial  proceeded  upon  the  theory  that  the  crime  was  committed 
within  the  river  bed  and  below  ordinary  high-water  mark  —  a  theory 
favorable  to  the  plaintiff  in  error,  in  that  it  furnishes  the  basis  for  one 
of  the  principal  contentions  made  in  his  behalf.  ...  It  was  contended 
that  the  Circuit  Court  was  without  jurisdiction,  first,  because  the  place 
of  the  commission  of  the  alleged  offence  was  not  within  the  limits  of  the 
Extension  of  the  Hoopa  Valley  Reservation,  but  was  upon  the  Klamath 
River,  and  therefore  outside  of  those  limits;  and,  secondly,  because  it 
did  not  appear  that  the  defendant  was  an  Indian.  ...  In  addition,  it 
was  contended  that  the  Circuit  Court  erred  in  refusing  to  permit  the 
plaintiff  in  error  to  introduce  evidence  tending  to  show  that  one  Joe 
Dick,  a  deceased  Indian,  had  confessed  just  before  his  death  that  it  was 
he  who  had  shot  and  killed  the  Indian  Chickasaw. 

Mr.  Justice  Pitney  (after  stating  the  case  as  above)  delivered  the 
opinion  of  the  Court. 

...  In  our  opinion,  the  offence  with  which  the  plaintiff  in  error 
was  charged  was  punishable  in  the  Federal  Courts  under  §§  2145  and 
5339  Rev.  Stat. 

The  only  remaining  question  arises  out  of  the  exclusion  by  the  trial 


594  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  386a 

judge  of  testimony  offered  by  the  plaintiff  in  error  for  the  purpose  of 
showing  that  one  Joe  Dick,  an  Indian,  since  deceased,  had  confessed  that 
it  was  he  who  had  shot  Chickasaw.  Since  the  circumstances  of  the  crime, 
as  detailed  in  the  evidence  for  the  Government,  strongly  tended  to 
exclude  the  theory  that  niore  than  one  person  participated  in  the  shoot- 
ing, the  Dick  confession,  if  admissible,  would  have  directly  tended  to 
exculpate  the  plaintiff  in  error.  By  way  of  foundation  for  the  offer, 
plaintiff  in  error  showed  at  the  trial  that  Dick  was  dead,  thereby  account- 
ing for  his  not  being  called  as  a  witness,  and  showed  in  addition  certain 
circumstances  that,  it  was  claimed,  pointed  to  him  as  the  guilty  man, 
viz.,  that  he  lived  in  the  vicinity  and  therefore  presumably  knew  the 
habits  of  Chickasaw;  that  the  human  tracks  upon  a  sand  bar  at  the 
scene  of  the  crime  led  in  the  direction  of  an  acorn  camp  where  Dick  was 
stopping  at  the  time,  rather  than  in  the  direction  of  the  home  of  the 
plaintiff  in  error;  and  that  beside  the  track  there  was  at  one  point  an 
impression  as  of  a  person  sitting  down,  indicating,  as  claimed,  a  stop 
caused  by  shortness  of  breath,  which  would  be  natural  to  Dick,  who  was 
shown  to  have  been  a  sufferer  from  consumption. 

Hearsay  evidence,  with  a  few  well  recognized  exceptions,  is  excluded 
by  Courts  that  adhere  to  the  principles  of  the  common  law.  The  chief 
grounds  of  its  exclusion  are,  that  the  reported  declaration  (if  in  fact 
made)  is  made  without  the  sanction  of  an  oath,  with  no  responsibility  on 
the  part  of  the  declarant  for  error  or  falsification,  without  opportunity 
for  the  Court,  jury,  or  parties  to  observe  the  demeanor  and  temperament 
of  the  witness,  and  to  search  his  motives  and  test  his  accuracy  and 
veracity  by  cross-examination,  these  being  most  important  safeguards  of 
the  truth,  where  a  witness  testifies  in  person,  and  as  of  his  own  knowl- 
edge; and,  moreover,  he  who  swears  in  court  to  the  extra-judicial  declara- 
tion does  so  (especially  where  the  alleged  declarant  is  dead)  free  from  the 
embarrassment  of  present  contradiction  and  with  little  or  no  danger  of 
successful  prosecution  for  perjury.  It  is  commonly  recognized  that  this 
double  relaxation  of  the  ordinary  safeguards  must  very  greatly  multiply 
the  probabilities  of  error,  and  that  hearsay  evidence  is  an  unsafe  reliance 
in  a  Court  of  justice. 

One  of  the  exceptions  to  the  rule  excluding  it  is  that  which  permits 
the  reception,  under  certain  circumstances  and  for  limited  purposes,  of 
declarations  of  third  parties  made  contrary  to  their  own  interest.  But  it 
is  almost  universally  held  that  this  must  be  an  interest  of  a  pecuniary 
character;  and  the  fact  that  the  declaration,  alleged  to  have  been  thus 
extra-judicially  made,  would  probably  subject  the  declarant  to  a  criminal 
liability  is  held  not  to  be  sufficient  to  constitute  it  an  exception  to  the 
rule  against  hearsay  evidence.  So  it  was  held  in  two  notable  cases  in  the 
House  of  Lords  - —  Berkeley  Peerage  Case  (1811),  4  Camp.  401;  Sussex 
Peerage  Case  (1844),  11  CI.  &  Fin.  85,  103,  109;  8  Eng.  Reprint  1034, 
1042,  —  recognized  as  of  controlling  authority  in  the  Courts  of  England. 

In  this  country  there  is  a  great  and  practically  unanimous  weight  of 


No.  386a  hearsay  rule:    exceptions  595 

authority  in  the  State  courts  against  admitting  evidence  of  confessions 
of  third  parties  made  out  of  Court  and  tending  to  exonerate  the  accused. 
.  .  .  A  few  of  them  (West  r.  State,  76  Ahi.  98;  Davis  i'.  Commonwealth, 
95  Ky.  19;  and  People  v.  Hall,  94  Cal.  595,  599)  are  precisely  in  point 
with  the  present  case,  in  that  the  alleged  declarant  was  shown  to  be 
deceased  at  the  time  of  the  trial.  ...  In  People  v.  Hall  it  appeared  that 
defendant  and  one  Kingsberry  were  arrested  together  for  an  alleged 
burglary,  attempted  to  escape,  were  fired  upon  and  wounded  by  one 
of  the  captors;  that  a  physician  was  sent  for  to  treat  them,  and  that 
Kingsberry  died  from  the  effects  of  his  wound  before  any  complaint  was 
filed  against  either  of  the  parties.  "  In  his  own  behalf  the  defendant 
offered  to  prove  that  after  a  careful  examination  the  physician  was  sat- 
isfied that  Kingsberry's  wounds  were  necessarily  fatal,  and  that  he  so 
informed  him  at  the  time;  that  Kingsberry  admitted  to  the  physician 
that  he  fully  realized  that  he  was  mortally  wounded  and  was  on  the  point 
of  death,  and  had  given  up  all  hope  of  ever  getting  well;  that  he  was 
conscious  of  death,  and  that  thus  having  a  sense  of  impending  death, 
and  without  hope  of  reward,  he  made  a  full,  free,  and  complete  confession 
to  said  physician  in  relation  to  this  alleged  crime,  stating  that  he  himself 
had  planned  the  entire  scheme,  and  that  Hall  had  nothing  to  do  with  it 
and  was  not  connected  with  the  guilt,  and  was  in  all  respects  innocent  of 
any  criminal  act  or  intent  in  the  matter."  This  evidence  was  excluded, 
and  the  Supreme  Court  of  California  sustained  the  ruling,  saying:  "The 
rule  is  settled  beyond  controversy  that  in  a  prosecution  for  crime  the 
declaration  of  another  person  that  he  committed  the  crime  is  not  admissi- 
ble. Proof  of  such  declarations  is  mere  hearsay  evidence,  and  is  always 
excluded,  whether  the  person  making  it  be  dead  or  not"  (citing  cases 
that  are  among  those  included  in  the  note). 

We  do  not  consider  it  necessary  to  further  review  the  authorities, 
for  we  deem  it  settled  by  repeated  decisions  of  this  Court,  commencing 
at  an  early  period,  that  declarations  of  this  character  are  to  be  excluded 
as  hearsay:  .  .  .  Mima  Queen  and  Child  v.  Hepburn  (1813),  7  Cranch. 
290,  295;"^ Davis  v.  Wood  (1816),  1  Wheat.  6,  8;  Lessee  of  Scott  v.  Ratliffe 
(1831),  5  Pet.  81,  86;  EUicott  v.  Pearl  (1836),  10  Pet.  412,  436,  437; 
Wilson  V.  Simpson  (1850),  9  How.  109,  121;  Hopt  v.  Utah  (1883),  110 
U.  S.  574,  581.     And  see  United  States  v.  Mulholland,  50  Fed.  413,  419. 

The  evidence  of  the  Dick  confession  was  properly  excluded. 

No  error  appearing  in  the  record,  the  judgment  is 

Affirmed. 

Mr.  Justice  Van  Deventer  concurs  in  the  result. 

Mr.  Justice  Holmes,  dissenting.  —  The  confession  of  Joe  Dick,  since 
deceased,  that  he  committed  the  murder  for  which  the  plaintiff  in  error 
was  tried,  coupled  with  circumstances  pointing  to  its  truth,  would  have 
a  very  strong  tendency  to  make  any  one  outside  of  a  Court  of  justice 
believe  that  Donnelly  did  not  commit  the  crime.  (I  say  this,  of  course, 
on  the  supposition  that  it  should  be  proved  that  the  confession  really  was 


596  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  386a 

made,  and  that  there  was  no  ground  for  connecting  Donnelly  with  Dick.) 
The  rules  of  evidence  in  the  main  are  based  on  experience,  logic,  and 
common  sense,  less  hampered  by  history  than  some  parts  of  the  substan- 
tive law.  There  is  no  decision  by  this  Court  against  the  admissibility 
of  such  a  confession;  the  English  cases  since  the  separation  of  the  two 
countries  do  not  bind  us;  the  exception  to  the  hearsay  rule  in  the  case  of 
declarations  against  interest  is  well  known;  no  other  statement  is  so 
much  against  interest  as  a  confession  of  murder,  it  is  far  more  calculated 
to  convince  than  dying  declarations,  which  would  be  let  in  to  hang  a 
man,  Mattox  v.  United  States,  146  U.  S.  140;  and  when  we  surround  the 
accused  with  so  many  safeguards,  some  of  which  seem  to  me  excessive, 

1  think  we  ought  to  give  him  the  benefit  of  a  fact  that,  if  proved,  com- 
monly would  have  such  weight.  The  history  of  the  law  and  the  argu- 
ments against  the  English  doctrine  are  so  well  and  fully  stated  by 
Mr.  Wigmore  that  there  is  no  need  to  set  them  forth  at  greater  length. 

2  Wigmore,  Evidence,  §§  1476,  1477. 

Mr.  Justice  Lurton  and  Mr.  Justice  Hughes  concur  in  this  dissent. 


Topic  3.     Statements  about  Family  History 

387.   VOWLES   v.   YOUNG 

Chancery.     1806 

13  Ves.  Jr.  140 

An  issue  having  been  directed  under  a  bill  of  redemption,  the  plain- 
tiffs claiming  as  co-heirs  at  law,  upon  the  trial  before  Baron  Graham, 
at  the  Assizes,  a  verdict  was  found  for  the  plaintiff. 

A  motion  was  made  for  a  new  trial,  upon  two  grounds:  1st.  That 
the  Judge  had  improperly  rejected  the  evidence  of  Thomas  Roberts, 
that  he  had  heard  Samuel  Noble,  the  husband  of  Mary  Noble,  say,  she 
was  illegitimate.  .  .  . 

The  Solicitor-General  and  Mr.  Hart,  in  support  of  the  motion,  ob- 
served, that  the  first  point  was  a  question  rather  of  construction  than  of 
law:  viz.,  whether  the  husband  is  to  be  considered  for  this  purpose  as  a 
part  of  the  wife's  family;  and  contended  that  as  the  declarations  of  any 
person  connected  with  the  family  of  the  person  from  whom  the  pedigree 
is  deduced,  are  clearly  to  be  admitted,  declarations  by  the  husband 
ought  to  be  received  in  preference  to  those  of  a  first  or  second 
cousin.  ... 

Serj.  Lens,  Mr.  Richards,  Mr.  Burrovgh,  and  Mr.  Hcald,  in  support 
of  the  verdict.  The  general  rule,  that  declarations  by  any  person  con- 
nected with  the  family  are  to  be  received,  is  admitted.  But  the  effect 
of  the  guarded  manner  in  which  the  question  was  put  to  this  witness 
upon  the  trial,  is,  that  the  husband  must  be  considered  as  a  mere  stran- 
ger;  and  therefore  within  the  rule,  as  laid  down  by  Lord  Ken  yon,  and 


No.  387  HEARSAY   RULE:     EXCEPTIONS  597 

always  acted  upon,  that  declarations  by  a  mere  stranger  to  the  family 
cannot  be  received.  .  .  . 

The  Solicitor-General,  in  reply.  The  foundation  of  this  evidence  is 
tradition,  collected  from  declarations  at  different  times  as  to  the  fact  of 
legitimacy,  by  a  person  a  part  of  the  family.  .  .  .  The  attempt  to  dis- 
tinguish the  husband  from  the  family,  for  this  purpose,  was  never  before 
made;  and  is  most  unreasonable.  Evidence  of  declarations  by  a  woman, 
that  her  third  cousins,  once  removed,  were  her  nearest  kin,  have  been 
admitted;  and  can  the  husband's  declarations  as  to  the  legitimacy  of  his 
wife  be  refused?  A  point  certainly  of  some  importance  to  him,  if  the 
stigma  is  considered.  ... 

The  Lord  Chancellor  [Erskine].  Two  questions  arise  upon  this 
application  for  a  new  trial:  1st.  Whether  Roberts  ought  to  have  been 
received  to  say  that  he  had  heard  Samuel  Noble  declare  his  wife,  Mary 
Noble,  was  illegitimate.  .  .  . 

The  first  of  these  questions  is  certainly  of  very  considerable  moment. 
Courts  of  law  are  obliged  in  cases  of  this  kind  to  depart  from  the 
ordinary  rules  of  evidence,  as  it  would  be  impossible  to  establish 
descents  according  to  the  strict  rules  by  which  contracts  are  estab- 
lished, and  subjects  of  property  regulated;  requiring  the  facts  from  the 
mouth  of  the  witness  who  has  the  knowledge  of  them.  In  cases  of 
pedigree  therefore  recourse  is  had  to  a  secondary  sort  of  evidence,  — 
the  best  the  nature  of  the  subject  will  admit,  establishing  the  descent 
from  the  only  sources  that  can  be  had.  ...  If  the  declaration  of  the 
husband  is  not  to  be  received  to  prove  the  legitimacy  or  illegitimacy  of 
his  wife;  as  a  distant  relation  might,  which  seems  to  be  contended,  the 
extent  of  that  proposition  must  be  considered.  Suppose  the  question 
were  whether  she  w^as  the  daughter  of  A.  or  B.,  his  evidence  might 
equally  be  rejected  upon  the  question  whether  she  descended  from  one 
stock  or  another;  yet,  as  far  as  hearsay  is  evidence  of  anything  within 
the  knowledge  of  a  man,  no  man  can  be  supposed  ignorant  of  the  repu- 
tation of  the  descent  of  his  wife;  and  the  law,  admitting  probability 
upon  such  a  subject,  always  receives  reputation  of  descent.  .  .  .  Upon 
questions  of  pedigree,  inscriptions  upon  tombstones  are  admitted,  as  it 
must  be  supposed  the  relations  of  the  family  would  not  permit  an  in- 
scription without  foundation  to  remain.  So  engravings  upon  rings  are 
admitted,  upon  the  presumption  that  a  person  would  not  wear  a  ring 
with  an  error  upon  it.  —  I  take  this  question  with  the  qualification  that 
has  been  stated,  not  whether  the  husband  had  heard  the  fact  from  any 
of  his  wife's  relations,  but  whether  he  knew  it;  viz.  whether  he  had  such 
knowledge  as  is  necessary  to  establish  that  kind  of  fact. 

My  opinion  is,  that  the  Judge  has  given  too  narrow  a  construction 
to  "  the  fomih/"  of  the  person  whose  descent  or  legitimacy  is  to  be  es- 
tablished. .  .  .  The  law  resorts  to  hearsay  of  relations  upon  the  princi- 
ple of  interest  in  the  person  from  whom  the  descent  is  to  be  made  out; 
and  it  is  not  necessary  that  evidence  of  consanguinity  should  have  the 


598  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  387 

correctness  required  as  to  other  facts.  If  a  person  says  another  is  his 
relation  or  next  of  kin,  it  is  not  necessary  to  state  how  the  consanguinity 
exists.  It  is  sufficient  that  he  says  A.  is  his  relation,  without  stating 
the  particular  degree,  which  perhaps  he  could  not  tell  if  asked.  But  it 
is  evidence,  from  the  interest  of  that  person  in  knowing  the  connections 
of  the  family.  Therefore  the  opinion  of  the  neighborhood,  of  what  passed 
among  acquaintance,  will  not  do.  .  .  . 

Upon  that  point  I  think  there  must  be  a  new  trial. 


388.  JOHNSON  v.  LAWSON 

Common  Pleas.     1824 

2  Bing.  86 

The  question  for  the  jury  was,  whether  one  Francis  Lidgbird  (whose 
claim  the  plaintiff  supported)  or  Henry  Wilding  (whose  claim  the  de- 
fendant supported)  was  heir-at-law  to  Henry  Lidgbird,  who  died  seised 
of  certain  lands  in  October,  1820,  and  was  the  son  of  John  Lidgbird, 
formerly  sherifp  of  Kent.  In  consequence  of  a  separation  having  taken 
place  between  John  the  sheriff  and  his  wife,  their  son  Henry  was  brought 
up,  from  about  the  age  of  nine  months,  with  Miss  Weller,  afterwards 
Mrs.  HoUinworth,  till  he  went  to  college,  and  he  spent  his  vacations  at 
Mrs.  Hollinworth's  house:  John  Lidgbird,  the  sheriff,  was  on  the  point 
of  marriage  with  Mrs.  HoUinworth  (which  was  prevented  by  his  son 
Henry),  and  after  the  death  of  John,  Henry  lived  with  Mrs.  HoUinworth 
for  twenty-three  or  twenty-four  years,  and  she  was  the  only  person  in 
his  confidence;  this  was  proved  by  Mrs.  Lucretia  Pakenham,  niece  of 
Mrs.  HoUinworth,  who  had  died  before  the  trial.  On  the  part  of  the 
plaintiff  it  was  proposed,  among  other  evidence,  to  give  evidence  of 
declarations  made  by  Mrs.  HoUinworth,  as  to  Francis  Lidgbird  being 
the  heir  of  Henry,  who  died  seised;  but  the  learned  judge  refused  to 
receive  such  evidence.  It  was  then  proved  by  Mrs.  Elizabeth  Withers, 
that  a  Mrs.  King  had  been  Henry  Lidgbird's  housekeeper  for  twenty- 
four  years,  and  it  was  proposed  to  give  evidence  of  declarations  by  Mrs. 
King,  who  was  no  longer  living,  as  to  Francis  Lidgbird  being  the  heir 
to  Henry,  but  this  was  objected  to  by  defendant's  counsel:  and  Mr. 
Baron  Graham  rejected  it,  saying  "  that  it  seemed  to  him  to  be  carrying 
the  principle  of  hearsay  evidence  too  far;  De  Grey,  C.  J.,  having  laid 
it  down,  that  it  must  be  confined  to  persons  who  are  members  of  the 
family." 

A  verdict  having  been  found  for  the  defendants,  Pcake,  Serjt.,  ob- 
tained a  rule  nisi  for  a  new  trial,  against  which 

Taddy,  Serjt.,  was  to  have  shown  cause;   but  the  Court  called  on 

Peake  to  support  his  rule.  In  questions  concerning  pedigree  the 
declarations  of  persons  related  to  the  family  have  always  been  received 


No.  388  HEARSAY   RULE:     EXCEPTIONS  599 

in  evidence,  upon  the  ground,  that  men  are  supposed  to  take  an  interest 
in  knowing  the  number  and  particulars  of  their  kindred.  But  upon  this 
principle  it  will  be  most  expedient  to  admit,  and  most  unjust  to  exclude, 
the  declarations  of  persons  who  have  long  lived  in  a  family  as  respected 
and  confidential  servants,  or  as  intimate  acquaintances.  It  is  obvious 
that  such  persons  must  have  a  more  lively  interest  in,  and  from  frequent 
conversation  a  more  accurate  knowledge  of  the  concerns  of  the  family, 
than  a  distant  relation,  who  may  never  have  conversed  with  any  of  the 
parties  concerned;  and  yet  the  declarations  of  such  distant  relation  would 
be  admitted  without  scruple.  .  .  .  The  declarations  of  a  husband  have 
been  received  with  regard  to  the  kindred  of  his  wife;  and  in  Vowles  v. 
Young,  13  Ves.  146  [ante,  No.  387],  and  Whitelocke  v.  Baker,  13  Ves. 
514,  the  arguments  of  the  Lord  Chancellor  only  go  to  the  exclusion  of 
entire  strangers.  Buller,  J.,  in  Rex  v.  Eriswell,  3  T.  R.  719,  says,  that 
declarations  of  persons  not  of  the  family  may  be  received,  and  he  refers 
to  Brown  v.  Shelly,  Easter,  1776.  (Burrough,  J.  —  I  went  the  same 
circuit  as  Buller,  J.,  and  I  never  knew  such  evidence  admitted.)  .  .  . 

Best,  C.  J.  —  This  is  a  question  of  great  importance.  ...  As  a  gen- 
eral rule,  hearsay  is  not  admissible  evidence,  but  to  this  general  rule 
pedigree-causes  form  an  exception,  from  the  very  nature  of  the  case.  .  .  . 
But  evidence  of  that  kind  must  be  subject  to  limitation,  otherwise  it 
would  be  a  source  of  great  uncertainty,  and  the  limitation  hitherto  pur- 
sued, namely,  the  confining  such  evidence  to  the  declarations  of  relations 
of  the  family  affords  a  rule  at  once  certain  and  intelligible.  .  .  .  What 
then,  has  been  the  practice?  To  limit  the  admissibility  to  declarations 
of  members  of  the  family.  It  is  true,  a  different  opinion  was  expressed 
by  a  most  learned  judge  in  Rex  v.  Eriswell.  But  that  judge  must  have 
been  misled  into  the  opinion  by  the  manuscript  case  which  has  been 
cited.  .  .  . 

Park,  J.  —  I  am  of  the  same  opinion.  .  .  .  My  objection  to  the  pro- 
posed evidence  is,  that  if  it  were  to  be  admitted  the  practice  would  be  so 
loose  as  to  occasion  great  inconvenience;  whereas,  if  the  rule  be  confined 
to  members  of  a  family,  the  path  to  be  pursued  is  clear  and  certain.  I 
think,  therefore,  we  ought  to  adhere  to  the  old  rule,  and  not  admit  any- 
thing so  vague  as  that  which  is  now  proposed. 

Burrough,  J.  .  .  .  This  exception,  from  the  general  rule  that 
hearsay  shall  not  be  admitted,  must  be  construed  strictly;  and  the 
natural  limits  of  it  are  the  declarations  of  members  of  the  family.  If  we 
go  beyond,  where  are  we  to  stop?  Is  the  declaration  of  a  groom  to  be 
admitted?  of  a  steward?  of  a  chambermaid?  of  a  nurse?  may  it  be  ad- 
mitted if  made  a  week  after  they  have  joined  the  family?  and  if  not, 
at  what  time  after?  We  should  have  to  try  in  every  case  the  life  and 
habits  of  the  party  who  made  the  declaration,  and  on  account  of  this 
uncertainty  such  evidence  must  be  excluded.  The  argument  for  the 
defendant  rests  on  here  and  there  a  loose  expression  from  a  judge,  and 
on  the  circumstance  that  there  is  no  case  in  which  such  evidence  is 


600  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  388 

reported  to  have  been  excluded ;  but  before  we  can  admit  it,  we  must  be 
referred  to  some  case  to  warrant  its  admission.  We  have  heard  of  no 
such  case,  and  therefore  the  present  rule  must  be  discharged. 


389.   HARTMAN'S  ESTATE 

Supreme  Court  of  California.     1910 

157  Cal.  206;   107  Pac.  105 

Appeal  from  the  Superior  Court  of  San  Joaquin  County  —  Frank 
H.  Smith,  Judge. 

The  record  presents  two  appeals,  one  from  an  order  distributing  the 
estate  of  William  Hartman,  deceased,  and  the  other  from  an  order 
denying  a  new  trial  of  the  matter. 

By  the  provisions  of  his  will  the  deceased  left  the  sum  of  two  thou- 
sand dollars  to  the  Stockton  Branch  of  the  California  Conference  Asso- 
ciation of  the  Seventh  Day  Adventists,  and  the  entire  residue  of  his 
estate  to  the  said  California  Association  of  the  Seventh  Day  Adventists. 
The  petition  for  distribution  stated  these  facts  and  asked  distribution 
accordingly.  The  last  named  body  is  an  eleemosynary  or  charitable 
corporation  and  it  includes  the  so-called  Stockton  Branch,  named  as  the 
recipient  of  the  two  thousand  dollar  legacy.  Hartman  executed  said 
will  more  than  thirty  days  before  his  death.  He  died  on  February  8, 
1904.  Annie  Hartman  Burns  appeared  and  filed  a  counter  petition  for 
distribution,  alleging  that  she  is  the  daughter  of  Peter  Hartman,  de- 
ceased, and  that  Peter  was  a  brother  of  the  testator,  W'illiam  Hartman, 
that  she  is  an  heir  of  the  testator,  that  the  gift  of  the  entire  estate  to  said 
charitable  corporation  is  void,  under  section  1313  of  the  Civil  Code, 
except  as  to  one-third  thereof,  and  asking  that  the  two-thirds  be  dis- 
tributed to  her  as  the  only  heir.  The  corporation  appeared  and  denied 
her  relationship  to  the  testator.  The  Court  found  that  she  is  a  niece 
of  the  testator,  as  alleged,  and  his  only  heir  at  law.  Distribution  was 
made,  accordingly,  of  two-thirds  to  her  and  one-third  to  said  corporation, 
$2000  thereof  being  for  the  use  of  the  Stockton  Branch.  The  corpora- 
tion is  the  appellant. 

For  Appellants,  E.  E.  Perlin.  For  Respondent,  0.  B.  Parkinson. 
For  Executor,  Aylett  R.  Cotton. 

Shaw,  J.  (after  stating  the  case  as  above).  The  main  question  pre- 
sented is  the  sufficiency  of  the  evidence  to  support  the  finding  that  Annie 
Hartman  Burns  is  a  niece  of  the  testator.  W'e  think  there  was  evidence 
justifying  that  conclusion.  A  brief  statement  of  the  facts  which  the 
evidence  tends  to  prove  will  show  its  sufficiency. 

William  Hartman  came  to  San  Joaquin  county  prior  to  1864  and 
continued  to  reside  there  until  his  death.  So  far  as  known,  he  never 
married  and  left  no  children.     He  was  a  native  of  Hanover,  Germany, 


No.  389  HEARSAY   RULE:     EXCEPTIONS  601 

and  was  naturalized  in  18G6.  In  1864  he  boarded  at  a  hotel  in  Stockton, 
California,  kej^t  by  Jacob  Byer,  now  of  Lancaster,  New  York.  He  told 
Byer  at  that  time  that  he  came  from  I^ancaster,  but  did  not  say  whether 
it  was  in  New  York  or  Pennsylvania.  In  1862,  Peter  Hartman  lived  at 
Lancaster,  New  York.  He  and  one  William  Hartman  were  together 
there  at  that  time,  in  presence  of  E.  J.  Silvernail.  They  called  each 
other  brother,  and  by  their  first  names,  William  and  Peter.  William 
talked  of  going  to  California  and  was  trying  to  persuade  Peter  not  to 
enlist  in  the  army  of  the  United  States.  Peter  enlisted  and  in  July,  1862, 
he  and  Silvernail's  father,  who  had  enlisted  in  the  same  company,  were 
both  injured  by  lightning  and  were  sent  home  to  Buffalo  on  furlough. 
.  .  .  No  other  William  Hartman  had  ever  been  known  to  reside  in 
San  Joaquin  county.  Annie  Hartman  Burns  testified  that  she  was  the 
daughter  of  Peter  Hartman  and  Mary  Hartman,  who  were  husband  and 
wife,  that  she  was  born  on  January  22,  1868,  at  East  Aurora,  that  her 
father  died  at  Cowlesville,  New  York,  in  1879,  that  her  mother  died  in 
1903,  that  she  had  no  living  brother,  sister  or  other  relative  to  her  knowl- 
edge, that  her  father  had  told  her  he  had  a  brother  named  W'illiam 
Hartman,  who  had  gone  to  California  at  the  time  of  the  Civil  W^ar,  and 
who  lived  there,  that  he  had  received  letters  from  W^illiam  Hartman, 
that  he  several  times  spoke  of  having  a  brother  W^illiam,  in  California. 
East  Aurora,  Cowlesville,  and  Lancaster  are  towns  in  western  New  York 
a  few  miles  apart. 

The  declarations  of  Peter  Hartman  to  his  daughter,  made  in  the 
lifetime  of  William  Hartman,  that  he  had  a  brother  W^illiam  in  Cali- 
fornia, were  properly  admitted  in  evidence  to  prove  the  relationship. 
The  appellant  on  this  point  cites  the  rule  given  in  Taylor  on  Evidence 
and  in  some  of  the  decisions  on  the  question.  Taylor  states  it  as  follows: 
"Before,  however,  a  declaration  can  be  admitted  in  evidence,  the  rela- 
tionship of  the  declarant  with  the  family  must  be  established  by  some 
proof  other  than  the  declaration  itself."  (1  Taylor  on  Evidence,  640.) 
To  this  Mr.  Wharton  adds:  "for  it  would  be  a  petitio  principii  to  say 
that  the  declarations  are  receivable  because  he  is  a  member  of  the  family 
and  he  is  a  member  of  the  family  because  his  declarations  are  receivable." 
(1  Wliarton,  Evidence,  §  218.) ' 

On  the  other  hand,  however,  it  seems  absurd  to  require,  as  a  founda- 
tion for  the  admission  of  the  declaration,  proof  of  the  very  fact  which 
the  declaration  is  offered  to  establish.  The  preliminary  proof  would 
render  the  main  evidence  unnecessary.  There  are  statements  in  the 
cases  which  seem  to  recognize  a  rule  thus  rigid  and  absurd.  (W'ise  v. 
Wynn,  59  Miss.  588;  Anderson  v.  Smith,  2  Mackey  381;  Blackburn  v. 
Crawford,  70  U.  S.  187.)  But  for  the  most  part  the  statements  to  this 
effect  in  the  opinions  mean  no  more  than  that  the  declarations  of  persons 
not  of  kin,  either  to  the  claimant  or  to  the  person  from  whom  descent  is 
claimed,  can  not  be  admitted  to  prove  kinship.  (See  Rulofson  v.  Billings, 
140  Cal.  459;   Est.  of  James,  124  Cal.  661.)  .  .  . 


i 


602  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  389 

In  the  present  case  it  was  sufficiently  shown  that  Peter  Hartman  was 
a  member  of  the  family,  within  the  meaning  of  the  rule.  Annie  Hart- 
man  Burns,  his  daughter,  is  the  claimant  and  she  testified  to  the  relation- 
ship between  herself  and  Peter  Hartman.  On  this  question  the  latest 
edition  of  Greenleaf  on  Evidence  says: 

"It  is  sometimes  said  that  where,  for  example,  the  question  is  whether  A  is 
B's  heir,  the  declarant  must  appear  to  be  related  to  B,  and  not  merely  to  A;  this 
seems  erroneous,  however,  since  all  relationship  is  mutual,  and  the  question 
whether  A  is  related  to  B  or  a  member  of  B's  'family'  is  also  and  just  as  much  a 
question  whether  B  is  related  to  A  or  a  member  of  A's  family,  and  on  this  point 
a  person  claiming  to  belong  to  A's  family  is  competent  to  speak;  the  circumstance 
that  the  estate  to  be  claimed  is  in  A's  or  B's  family  being  immaterial."  (1  Green- 
leaf  on  Evidence,  16th  ed.,  sec.  114c.) 

Mr.  Wigmore  treats  the  question  at  greater  length,  as  follows : 

"  It  follows,  in  applying  the  foregoing  principle,  that  where  an  alleged  relation- 
ship between  Doe  and  Roe  is  to  be  testified  to,  a  relation  of  Doe  may  speak  to  it, 
because  it  concerns  the  relationships  of  Doe's  family,  while  a  relation  of  Roe  may 
equally  speak  to  it,  because  it  concerns  the  relationships  of  Roe's  family;  hence, 
all  that  is  required  of  the  declarant  is  a  connection  with  either  one  or  the  other,  but 
not  with  both.  This  truth,  however,  has  been  obscured  by  what  must  be  regarded 
as  erroneous  rulings.  The  question  being  whether  Doe  is  related  to  Roe  (for 
example,  so  as  to  share  in  Roe's  inheritance),  the  argument  has  been  that  it  would 
be  idle  to  require  merely  that  the  declarant  should  be  shown  to  be  related  to  Doe 
alone,  because  then  any  family  could  connect  itself  with  any  other  by  its  members' 
mere  assertion  of  the  relationship.  But  the  proper  way  to  approach  the  question 
seems  to  be  a  different  one,  and  is  as  follows:  Any  member  of  D's  line  may 
declare  as  to  the  relationships  {i.e.  memberships)  of  that  family,  and  any  member 
of  Roe's  line  may  declare  as  to  the  relationships  (i.e.  memberships)  of  that  family; 
and  the  qualifications  of  the  declarant,  as  such  member,  must  of  course  be  shown 
beforehand,  like  the  qualifications  of  any  witness  (ante,  sec.  1486).  Thus,  before 
declarations  of  a  supposed  member  of  Doe's  family  can  be  admitted,  the  declarant's 
membership  in  Doe's  family  —  for  example,  that  he  is  Doe's  son  —  must  be  shown. 
But  that  is  the  whole  effect  of  this  requirement.  The  further  question,  if  any,  is, 
whether  a  declaration  of  Doe's  son  that  Doe  is  related  to  Roe  (for  example,  is 
Roe's  cousin)  is  a  declaration  as  to  Doe's  family  at  all,  —  i.e.  whether  it  is  not,  for 
the  case  in  hand,  solely  a  declaration  about  Roe's  family-relationships,  as  to  which 
Doe's  son  is  by  hypothesis  not  yet  shown  to  be  a  qualified  declarant.  Now  the 
state  or  condition  of  relationship  must  always  in  effect,  though  not  in  form,  be 
double  or  mutual;  i.e.  the  fact  that  Doe  is  cousin  to  Roe  is  also  the  fact  that 
Roe  is  related  as  cousin  to  Doe.  Hence,  a  statement  of  Doe's  son  that  Doe  is 
cousin  to  Roe,  though  in  one  form  an  assertion  of  Roe's  relationships,  is  also 
equally  a  declaration  that  one  of  the  relations  of  Doe  (i.e.  one  of  the  members 
of  Doe's  family)  is  Roe,  —  for  example,  that  one  of  the  grandsons  of  Doe's 
grandfather  is  Roe.  It  is  therefore  a  declaration  upon  which  Doe's  son  is  qualified 
to  speak.  The  doubt,  then,  can  only  be  as  to  whether  it  should  make  any  difference 
that  in  the  case  at  hand  it  is  Roe's  descendants  who  are  seeking  Doe's  estate, 
or  Doe's  who  are  seeking  Roe's  estate.  This  surely  can  not  affect  the  evidential 
value  of  the  declarations;  for  that  must  depend  on  the  circumstances  at  the  time 
of  making,  and  no  one  has  ever  contended  that,  apart  from  the  lis  mota  and  kindred 


No.  391  HEARSAY  RULE:  EXCEPTIONS  603 

limitations  {ante,  sees.  1483,  1484),  it  makes  any  difference  whether  a  parent 
belongs  to  a  poor  or  obscure  branch  of  the  family  or  to  a  rich  and  notorious  one. 
Moreover,  it  is  usually  at  a  later  day  only  that  it  has  become  apparent  which 
branch  would  have  a  pecuniary  interest  in  connecting  itself  with  the  other.  The 
diiference,  then,  is  a  matter  of  the  form  of  the  statement  only,  and  such 
assertions  as  the  above  must  be  treated  as  in  substance  declarations  as  to 
Doe's  family-relationships;  whether  it  is  Doe's  or  Roe's  family  that  now  happens 
to  be  seeking  the  inheritance  is  immaterial."     (2  Wigmore  on  Evidence,  §  1491.) 

The  following  cases  are  in  accord  with  this  doctrine:  Sitler  v.  Gehr, 
105  Pa.  St.  597;  Fowler  v.  Simpson,  79  Tex.  614;  Louder  v.  Schluter, 
78  Tex.  105;  De  Leon  v.  McMurray,  5  Tex.  Civ.  App.  283;  Brown  v. 
Lazarus,  Id.  84. 

The  confusion  seems  to  have  arisen  from  the  idea  that  such  declara- 
tions were  competent  as  admissions  against  interest.  They  do  not 
derive  their  evidential  value  or  competency  from  that  consideration. 
They  are  admitted  from  reasons  of  necessity,  because  otherwise  it 
would  frequently  be  impossible  to  prove  the  kinship  of  members  of 
a  family  after  those  who  knew  the  facts  are  dead.  Their  evidential 
value  comes  not  from  their  being  admissions  against  the  interest  of  the 
person  making  them,  but,  as  Wigmore  points  out,  from  "  the  probability 
that  the  'natural  effusions'  (to  use  Lord  Eldon's  often-quoted  phrase) 
of  those  who  talk  over  family  affairs  when  no  special  reason  for  bias  or 
passion  exists  are  fairly  trustworthy."  (2  Wigmore  on  Evidence,  sec. 
1482.)  "The  evidence  is  in  its  nature  of  an  unsuspicious  kind;  it  is 
generally  brought  from  remote  times,  when  no  question  was  depending 
or  even  thought  of,  and  when  no  purpose  would  apparently  be  answered." 
(Rex  V.  Eriswell,  3  T.  R.  720.) 

Such  declarations  are  safe-guarded  against  the  possibility  of  their 
being  declarations  in  the  interest  of  the  part}''  making  them  by  the 
requirement  that  they  must  appear  to  have  been  made  before  any  con- 
troversy over  the  property  arose.  To  satisfy  the  rule  that  the  best 
evidence  must  be  produced  and  to  show  necessity,  it  is  made  a  condition 
of  their  admission  that  the  declarant  is  dead  at  the  time  they  are  offered; 
or  out  of  the  jurisdiction ;  and  they  are  sometimes  excluded  when  it 
appears  that  there  are  living  persons  whose  testimony  on  the  subject 
could  be  produced. 
.     The  orders  appealed  from  are  affirmed. 

Sloss,  J.,  and  Angellotti,  J.,  concurred. 

Hearing  in  Bank  denied. 

Topic  4.    Regular  Entries 

391.  History.'  (1)  (a)  First,  there  appears  in  England,  at  least  as  early  as 
the  1600s,  a  custom  to  receive  the  shop-books  of  "divers  men  of  trades  and 
handicraftsmen"  in  evidence  of  "the  particulars  and  certainty  of  the  wares 

^  Abridged  from  the  present  Compiler's  "Treatise  on  Evidence"  (1905), 
Vol.  II,  §  1518. 


604  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  391 

delivered";  and  this  whether  the  books  were  kept  by  the  party  himself  or  by  a 
clerk,  and  whether  the  entrant  were  living  or  dead.  But  there  was  more  or  less 
abuse  of  this  evidence,  in  "leaving  the  same  books  uncrossed  and  any  way  dis- 
charged" and  still  suing  for  the  claim.  Moreover,  the  whole  proceeding  was  also 
discredited  as  involving  the  making  of  evidence  for  one's  self,  for  "the  rule  is  that 
a  man  cannot  make  evidence  for  himself."  In  1609,  then,  a  statute  (7  Jac. 
I,  c.  12)  after  reciting  these  considerations,  forbade  this  use  of  parties'  shop- 
books  "in  any  action  for  any  money  due  for  wares  hereafter  to  be  delivered  or  for 
work  hereafter  to  be  done,"  except  within  one  year  after  the  delivery  of  the  wares 
or  the  doing  of  the  work,  or  where  a  bill  of  debt  existed,  or  "between  merchant  and 
merchant,  merchant  and  tradesman,  or  between  tradesman  and  tradesman," 
for  matters  within  the  trade.  The  higher  Courts,  applying  the  principle  that  a 
man  cannot  make  evidence  for  himself,  ultimately  made  this  exclusion  complete, 
by  refusing  to  recognize  these  books  at  all,  after  the  expiration  of  the  year.  In 
the  lower  courts,  it  is  true  (the  Small  Causes  Court  of  London  and  provincial  Court 
of  Requests,  succeeded  by  the  County  Courts),  where  the  jurisdiction  was  limited 
to  small  claims,  the  use  of  these  books  continued  to  be  a  common  practice,  in 
many  if  not  in  all,  —  where  indeed  the  general  rules  of  evidence  were  perhaps,  in 
the  absence  of  counsel,  more  or  less  relaxed.  But,  apart  from  this  local  usage, 
the  books  of  a  party  ceased  after  the  1600s  to  form  the  subject  of  a  hearsay  excep- 
tion at  common  law  in  England.  They  came  in  again  only  under  statutory  rules 
of  the  late  1800s. 

(b)  Next,  however,  it  appears  that  before  the  ^nd  of  the  same  century  of  the 
above  statute  (1600)  the  entries  of  a  deceased  clerk  (even  a  clerk  of  a  party) 
began  to  be  admitted,  on  a  principle  distinctly  that  of  the  preceding  Hearsay 
exceptions  —  necessity  and  trustworthiness.  The  admission  of  these  books  was 
treated  as  anomalous,  and  it  was  distinctly  understood  that  their  use,  though 
affording  some  concession  to  parties,  was  an  essentially  different  thing  from  the 
use  of  books  kept  by  a  living  party  himself.  The  cases  begin  with  the  1700s; 
Price  v.  Lord  Torrington  is  the  one  most  frequently  taken  as  the  landmark  of  the 
rule. 

The  admission  thus  far  made  covered  only  the  books  of  the  clerk  of  a  party. 
But  already  there  were  instances  foreshadowing  a  wider  principle.  In  several 
rulings,  books  regularly  kept  by  persons  then  deceased  had  been  admitted,  his 
death  and  the  regularity  of  the  book  being  more  or  less  explicitly  recognized  as 
the  grounds  of  admission.  Finally,  in  1832,  in  Doe  r.  Tiu-ford,  following  one  or 
two  minor  cases,  the  doctrine  was  placed  on  a  firm  footing,  and  the  general  scope 
of  the  exception  was  recognized.  It  was  understood  to  cover  all  entries  made 
"by  a  person,  since  deceased,  in  the  ordinary  course  of  liis  business  and  duty" 
whether  a  person  wholly  unconnected  with  the  parties,  or  the  clerk  of  a  party; 
and  it  is  this  general  exception  that  to-day  is  universally  recognized. 

(2)  (a)  The  history  of  the  doctrine  was  widely  different  in  the  United  States. 
The  Einglish  statute  of  1609,  or  a  similar  one,  for  parties'  shop-books,  was  in 
force,  to  a  considerable  extent,  in  the  Colonies.  In  the  Plymouth  Laws,  as  well  as 
in  the  later  laws  of  Massachusetts,  Connecticut,  and  other  New  England  States, 
the  use  of  parties'  account-books  was  limited,  but  still  authorized,  by  statutes; 
a  special  action  of  "book-debt"  was  in  some  places  authorized.  In  New  York 
and  New  Jersey  the  use  seems  clearly  traceable  to  Dutch  practice,  w^hich  however 
did  not  vary  in  essentials  from  the  English.  In  most  of  the  jurisdictions  (though 
not  in  all)  the  party  was  allowed  and  required  to  verify  the  accounts  by  a  "supple- 
tory"  oath;   but  in  all  jurisdictions,  though  there  were  practically  no  limitations 


No.  392  HEARSAY   RULE:     EXCEPTIONS  605 

of  time  (as  there  were  in  England)  to  the  use  of  the  books,  there  were  many  restric- 
tions as  to  the  kind  of  business,  the  kind  of  transaction,  and  the  hke,  which  rested 
on  the  same  distrust  of  a  party's  own  evidence  and  seriously  limited  the  use  of 
the  books.  But  a  cardinal  feature  of  the  attitutle  of  the  Courts,  peculiar  to  the 
United  States,  was  that  the  evidence  was  treated  on  the  same  grounds  already 
set  forth  as  underlying  the  Hearsay  exceptions  generally,  —  the  princi])les  of 
necessity  and  of  a  circumstantial  guarantee  of  trustworthiness.  The  necessity 
was  the  fact  that  so  many  small  traders,  in  the  then  condition  of  the  country, 
keeping  no  clerk,  and  being  as  parties  incompetent  to  take  the  stand,  were  totally 
bereft  of  any  means  of  proof  except  their  own  extrajudicial  statements  in  these 
books.  The  guarantee  of  trustworthiness  was  that  which  we  now  recognize  in 
the  regularity  of  the  entries.  What  is  to  be  noticed,  then,  is  that  the  books  were 
received  practically  on  the  footing  of  a  special  Hearsay  exception. 

At  that  time  the  party  was  unavailable  as  a  witness  for  himself.  But  between 
1850  and  1870  statutes  everywhere  made  parties  competent  to  take  the  stand. 
Thus  the  necessity  for  a  hearsay  exception  ceased.  Nevertheless,  by  other 
statutes  this  exception  had  been  expressly  sanctioned;  and  these  statutes  were 
not  repeated.     Hence,  the  Exception  survives  in  statutory  form,  though  needless. 

(b)  Up  to  the  earliest  part  of  the  1800s,  no  other  exception  of  the  sort  appears 
to  have  been  recognized  in  the  United  States,  —  that  is,  there  was  no  using  of 
regular  entries  except  this  limited  use  of  a  party's  shop-books.  But  a  knowledge 
of  the  doctrine  of  Price  v.  Lord  Torrington  (1703)  seems  to  have  been  then  brought 
about;  and  shortly  after  1813,  some  well-considered  rulings  established  on  a  firm 
footing  the  large  and  general  principle  of  admitting  regular  entries  by  deceased 
persons.  In  these  two  decisions  the  Exception  found  a  recognition  entirely  inde- 
pendent of  the  use  of  parties'  books;  and  it  was  only  in  the  course  of  time,  espe- 
cially through  Professor  Greenleaf's  treatment  in  his  work  on  Evidence,  that  the 
two  branches  of  the  exception  became  associated  and  their  analogy  recognized. 

When  this  relation  came  to  be  appreciated,  certain  difficulties  had  to  be 
solved;  for  example,  one  of  the  questions  presented  to  American  Courts  was 
whether  the  books  of  a  deceased  or  an  absent  party  should  be  treated  according 
to  the  parties'-books  doctrine  or  from  the  point  of  view  of  the  broad  and  inclusive 
exception  admitting  regular  entries  of  deceased  persons  generally.  Another  and 
analogous  question  was  the  place  to  be  assigned  to  books  kept  by  a  deceased  clerk 
of  a  party.  These  questions  concerning  the  delimitation  of  the  two  divisions  still 
trouble  the  waters  of  precedent. 


Sub-topic  A.     Party's  Books  of  Account 

392.   EASTMAN  v.   MOULTON 

Superior  Court  of  Judicature  of  New  Hampshire.     1825 

3  N.  H.  156 

Assumpsit.  The  defendant  pleaded  the  general  issue,  and  filed,  by 
way  of  set-off,  an  account,  one  item  of  which  was  a  charge  of  1109  yards 
of  cloth,  and  another  item  a  charge  of  187  yards  of  cloth.  The  cause  was 
tried  here  at  February  term,  1824. 

To  prove  his  set-off,  the  defendant  offered  in  evidence  his  book  of 


606  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  392 

accounts,  accompanied  with  his  own  oath,  that  the  book  offered  contained 
the  original  entries  of  the  articles  mentioned  in  his  set-off;  that  the  entries 
were  made  at  the  times  they  purported  to  be  made,  and  at  or  near  the 
time  when  the  respective  articles  were  delivered.  He  was  then  cross- 
examined  by  the  plaintiff's  counsel  in  the  same  manner,  that  witnesses 
in  chief  are  cross-examined;  .  .  .  He  stated,  that  the  said  parcels  of 
cloth,  mentioned  in  the  set-off,  were  delivered  not  to  the  plaintiff,  but  to 
the  servants  of  the  plaintiff.  After  the  arguments  of  counsel  to  the  jury, 
on  both  sides,  were  closed,  the  plaintiff's  counsel  objected,  that  the 
book  of  accounts  could  not  go  to  the  jury,  as  evidence  of  the  delivery  of 
the  cloth,  because  it  appeared,  that  it  was  in  the  power  of  the  defendant 
to  produce  better  evidence,  the  testimony  of  those,  to  whom  it  was 
delivered.     But  the  Court  overruled  the  objection,  as  made  too  late. 

The  jury  having  returned  a  verdict  in  favor  of  the  defendant,  the 
plaintiff  moved  the  Court  to  grant  a  new  trial,  on  the  ground,  .  .  . 
that  the  book  of  the  defendant  had  been  improperly  submitted  to  the 
jury,  as  evidence  of  the  delivery  of  the  cloth. 

Noyes,  for  the  plaintiff. 

Webster,  for  the  defendant. 

Richardson,  C.  J. —  It  has  long  been  the  settled  practice  in  this 
State,  to  permit  the  account  books  of  a  party,  supported  by  his  supple- 
mentary oath,  to  go  to  the  jury,  as  evidence  of  the  delivery  of  articles 
sold,  and  of  the  performance  of  work  and  labor.  But  as  this  is  in  truth 
the  admission  of  a  party  to  be  a  witness  in  his  own  cause,  the  practice  is 
confined  to  cases  where  it  may  be  presumed  there  is  no  better  evidence, 
and  has  many  limitations. 

In  the  first  place,  it  must  appear  that  the  charges  are  in  the  hand- 
writing of  the  party  who  is  sworn;  because,  if  the  charges  are  in  the 
handwriting  of  a  third  person,  such  third  person  is  presumed  to  know 
the  facts,  and  may  be  a  witness;  so  that  there  is  no  necessity  of  admitting 
the  party  to  testify  in  his  own  cause.  The  book  is,  therefore,  in  such  a 
case,  rejected. 

The  charges  in  the  handwriting  of  the  party  must  appear  in  such  a 
state,  that  they  may  be  presumed  to  have  been  his  daily  minutes  of  his 
transactions  and  business.  For  if  it  appear  in  any  way,  that  many 
charges,  purporting  to  be  made  at  different  dates,  were  in  fact  made  at 
the  same  time,  the  book  is  not  evidence.  The  charges  must  appear  to 
be  the  original  or  first  entries  of  the  party,  made  at  or  near  the  time  of 
the  transactions  to  be  proved;  and  if  the  contrary  appear,  the  book 
cannot  be  admitted  as  evidence. 

There  must  be  no  fraudulent  appearances  upon  the  book,  such  as 
gross  alterations.  And  where  it  appears  by  post  marks,  or  otherwise, 
that  the  account  has  been  transferred  to  another  book,  such  other  book 
must  be  produced. 

If  it  appear  by  the  book  itself,  or  by  the  examination  of  the  party, 
that  there  is  better  evidence,  the  book  cannot  go  to  the  jury  as  evidence. 


No.  393  HEARSAY   RULE:     EXCEPTIONS  607 

Thus,  if  an  article  be  charged  in  the  book  as  delivered  by  or  to  a  third 
person,  or  if  the  party  on  his  examination  admit  that  to  be  the  fact,  the 
book  is  not  evidence  of  the  delivery  of  such  article. 

The  party,  when  called,  is  in  the  first  instance  permitted  to  state 
only,  that  the  book  produced  is  his  book  of  original  entries;  that  the 
charges  are  in  his  handwriting;  that  they  were  made  at  the  times  they 
purport  to  have  been  made,  and  at  or  near  the  time  of  the  delivery  of 
the  articles,  or  of  the  performance  of  the  services.  He  may,  however, 
be  cross-examined  by  the  other  party.  .  .  . 

[In]  the  case  now  before  us,  as  soon  as  it  appeared  that  the  cloth  was 
delivered  to  a  third  person,  the  book  became  incompetent  evidence  to 
prove  the  delivery  of  that  article;  and  the  jury  ought  to  have  been  so 
instructed.  '  New  trial  granted. 

393.  Statutes.  Georgia.  Code  1895,  §  5182.  The  books  of  account  of  any 
merchant,  shopkeeper,  physician,  blacksmith,  or  other  person  doing  a  regular 
business  and  keeping  daily  entries  thereof,  may  be  admitted  in  evidence  as  proof 
of  such  accounts,  upon  the  following  conditions:  1.  That  he  kept  no  clerk,  or 
else  the  clerk  is  dead  or  otherwise  inaccessible,  or  for  any  other  reason  the  clerk 
is  disqualified  from  testifying;  2.  Upon  proof  (the  party's  oath  being  sufficient) 
that  the  book  tendered  is  his  book  of  original  entries;  3.  Upon  proof  (by  his 
customers)  that  he  usually  kept  correct  books;  4.  Upon  inspection  by  the  Court, 
to  see  if  the  books  are  free  from  any  suspicion  of  fraud. 

Illinois.  Revised  Statutes  1874,  c.  51,  §  3.  Where  in  any  civil  action,  suit, 
or  proceeding,  the  claim  or  defense  is  founded  on  a  book  account,  any  party  or 
interested  person  may  testify  to  his  account-book,  and  the  items  therein  contained; 
that  the  same  is  a  book  of  original  entries,  and  that  the  entries  therein  were  made 
by  himself,  and  are  true  and  just;  or  that  the  same  were  made  by  a  deceased 
person,  or  by  a  disinterested  person,  a  non-resident  of  the  State  at  the  time  of  the 
trial,  and  were  made  by  such  deceased  or  disinterested  person  in  the  usual  course 
of  trade,  and  of  his  duty  or  employment  to  the  party  so  testifying;  and  thereupon 
the  said  account-book  and  entries  shall  be  admitted  as  evidence  in  the  cause. 

Iowa.  Code  1897,  §  4622.  The  entries  and  other  writings  of  a  decedent, 
made  at  or  near  the  time  of  the  transaction  and  in  a  position  to  know  the  facts 
stated  therein,  may  be  read  as  prima  facie  evidence  of  the  facts  stated  therein,  .  .  . 
2,  when  it  [the  entry]  was  made  in  a  professional  capacity,  or  in  the  ordinary 
course  of  professional  conduct;  3,  when  it  was  made  in  the  performance  of  a  duty 
specially  enjoined  by  law. 

lb.  §  4623.  Books  of  account,  containing  charges  by  one  party  against  an- 
other, made  in  the  ordinary  course  of  business,  are  receivable  in  evidence  only 
under  the  following  circumstances.  .  .  .  First,  the  books  must  show  a  con- 
tinuous dealing  with  persons  generally,  or  several  items  of  charges  at  different 
times  against  the  other  party  in  the  same  book  or  set  of  books;  Second,  it  must 
be  shown,  by  the  party's  oath  or  otherwise,  that  they  are  his  books  of  original 
entries;  Third,  it  must  be  shown  in  like  manner  that  the  charges  were  made 
at  or  near  the  time  of  the  transaction  therein  entered,  unless  satisfactory  reasons 
appear  for  not  making  such  proof;  Fourth,  the  charges  must  also  be  verified  by 
the  party  or  the  clerk  who  made  the  entries,  to  the  effect  that  they  believe  them 
just  and  true,  or  a  sufficient  reason  must  be  given  why  the  verification  is  not  made 


608  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  394 

394.   CONKLIN  v.   STAMLER 

Common  Pleas  of  New  York  City.     1859 

8  Abb.  Pr.  400 

Appeal  from  a  judgment. 

By  the  Court.  Brady,  J.  —  The  only  proof  made  in  the  Court  below, 
was  that  the  plaintiff  had  no  clerk  or  bookkeeper,  and  that  persons 
dealing  with  him  had  settled  with  him  by  his  books.  There  is  no  evi- 
dence either  that  the  defendant  dealt  with  him,  or  of  the  delivery  of  any 
one  of  the  articles  named  in  the  bill  of  items.  The  Courts  have  required, 
in  similar  cases,  that  a  foundation  should  be  laid  for  the  introduction  of 
this  kind  of  evidence,  which  consists  of  proof  that  the  plaintiff  had  no 
clerk;  that  some  of  the  articles  charged  have  been  delivered;  that  the 
books  produced  are  the  account-books  of  the  party;  and  that  he  keeps 
fair  and  honest  accounts,  and  this  by  those  who  have  dealt  and  settled 
with  him.  (Per  curiam,  Vosburgh  v.  Thayer,  12  Johns.  461 ;  Lemuel  v. 
Sutherland,  11  Wend.  568.)  The  admissibility  of  the  books,  on  such 
proofs,  is  put  upon  the  ground  of  necessity,  arising  from  the  former 
incompetency  of  the  claimant  to  be  a  witness  in  his  own  behalf. 

The  reason  of  the  rule  seems  to  have  been  destroyed  by  the  act  of 
the  Legislature,  authorizing  the  examination  of  parties  in  their  own 
behalf;  but,  however  that  may  be,  the  testimony  on  behalf  of  the  plain- 
tiff was  not  sufficient  to  make  the  book  produced  evidence,  and  the 
judgment  must  be  reversed.  There  was  neither  evidence  that  the  de- 
fendant dealt  with  the  plaintiff,  nor  of  the  delivery  of  any  of  the 
articles.  Judgment  reversed. 

Daly,  F.  J.— In  Morrill  a.  Whitehead  (4  E.  D.  Smith  239),  it  was 
proved  that  the  books  produced  were  the  account-books  of  the  party; 
that  he  had  no  clerk,  and  that  he  kept  fair  and  honest  accounts;  but 
as  there  was  no  proof  that  any  one  of  the  services  entered  in  the  book 
had  been  actually  rendered,  we  reversed  the  judgment.  This  is  the  first 
case  in  this  State  that  has  gone,  I  think,  that  length,  or  in  which  it  was 
distinctly  determined  that  some  of  the  articles  or  services  charged  in 
the  account  must  be  shown  to  have  been  actually  delivered  or  rendered; 
though  it  has  been  frequently  intimated  that  that  proof  was  essential 
before  the  books  could  be  received  or  used  in  evidence.  (Vosburgh 
a.  Thayer,  12  Johns.  461;  Sickles  a.  Mather,  20  Wend.  76;  Foster  a. 
Coleman,  1  E.  D.  Smith  86.)  The  decision  in  Morrill  a.  'NMiitehead 
is  decisive  in  the  present  case,  as  the  only  proof  before  the  justice 
here  was  that  the  plaintiff  had  no  clerk,  and  that  persons  who  had 
dealt  with  him  and  had  settled  by  his  books  had  found  them  to  be 
correct. 

But  even  if  this  proof  had  been  supplied,  I  am  of  opinion  that  it 
would  not  now  be  sufficient  to  authorize  a  judgment.     The  practice 


No.  394  HEARSAY   RULE:     EXCEPTIONS  609 

of  allowing  the  party's  books  of  accounts  to  be  received  as  sufficient 
evidence  of  the  existence  of  the  debt,  which  was  contrary  to  the  English 
rule,  came  into  use  in  this  State  and  in  New  Jersey  with  the  early  Dutch 
colonists,  in  whose  courts  merchants  and  traders  were  always  allowed  to 
exhibit  their  books  of  accounts,  where  it  was  acknowledged  or  proved 
that  there  had  been  a  dealing  between  the  parties,  —  provided  the  books 
had  been  regularly  kept,  with  the  proper  distinction  of  persons,  things, 
year,  month,  and  day.  Full  faith  and  credit  were  then  given  to  them, 
especially  where  they  were  strengthened  by  the  oath  of  the  party,  or 
where  the  creditor  was  dead.  And  the  practice,  long  established  in  the 
Eastern  States,  of  receiving  such  books  as  evidence,  is  presumed  to  have 
been  introduced  by  the  English  colonists  from  Holland,  who  settled 
New  England.  In  the  Dutch  colonial  courts,  the  parties  appeared 
before  the  court  and  made  their  own  statement,  and  if  they  differed  as 
to  a  fact  which  the  Court  thought  material,  either  party  might  be  put 
to  his  oath;  so  that  the  objection  made  to  this  species  of  evidence  was, 
ip  these  tribunals,  of  less  force,  as  the  party  who  made  the  entries  could 
be  interrogated  in  respect  to  the  truth  or  correctness  of  each  item.  In 
New  England,  they  very  wisely  retained  the  feature  of  the  suppletory 
oath  of  the  party  substantiating  the  truth  of  the  entries,  in  connection 
with  the  practice  of  allowing  such  books  as  evidence;  and  where  the 
matter  is  not  regulated  by  statute,  which  is  the  case  in  Maine  and  Rhode 
Island,  long  usage  has  established  that  the  books  of  account  must  be 
supported  by  the  oath  of  the  party.  In  Case  a.  Porter  (8  Johns.  211), 
the  practice  of  allowing  the  entries  of  the  parties  made  in  the  usual 
course  of  business  to  be  received  as  evidence,  was  recognized  as  a  usage 
established  in  the  courts  of  this  State.  .  .  . 

But  the  important  change  recently  made  in  the  law  of  this  State, 
by  which  a  party  may  testify  the  same  as  any  other  witness,  has  obviated 
the  difficulty  that  was  supposed  to  exist  when  the  rule  above  referred 
to  was  made,  and  there  is  now  no  occasion  for  resorting  to  the  books, 
unless  it  may  be  to  refresh  the  party's  memory  as  to  the  items,  or  in 
cases  where  there  is  a  failure  of  recollection.  In  the  latter  case,  the  books, 
if  they  contain  the  original  entries  of  the  transaction,  would'still,  I  appre- 
hend, be  evidence  within  the  rule  recognized  in  Merrill  a.  Ithaca  &  Os- 
wego Railroad  Company  (16  Wend.  586);  that  is,  if  the  party  who 
made  the  entries  had  entirely  forgotten  the  facts  which  he  recorded,  but 
can  swear  that  he  would  not  have  entered  them  if  he  had  not  known 
them  at  the  time  to  be  true,  and  that  he  believes  them  to  be  correct. 
But  I  agree  with  Judge  Brady,  that  the  books,  except  in  the  cases  above 
put,  can  no  longer  be  received  as  sufficient  evidence  of  the  sale  and  de-\ 
livery  of  goods,  or  of  the  performance  of  services,  by  merely  probing 
the  preliminary  facts  which  heretofore  made  them  sufficient  evidence; 
but  that  the  party,  if  he  had  no  other  means  of  establishing  the  facts, 
must  go  upon  the  stand  as  a  witness,  resorting  to  his  books  only  where 
it  is  necessary  to  refresh  his  memory  as  to  the  items,  or  where,  from  a 


610  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  394 

failure  of  recollection,  he  is  compelled  to  rely  upon  them  alone,  and  can 
swear  to  what  is  required  to  warrant  their  introduction  as  evidence  to 
be  submitted  to  the  tribunal  that  is  to  pass  upon  the  facts. 

Judgment  reversed. 

395.   HOUSE  V.   BEAK 

Supreme  Court  of  Illinois.     1892 

141  ///.  290;  30  N.  E.  1065 

Appeal  from  the  Appellate  Court  for  the  First  District;  —  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon. 
George  Driggs,  Judge,  presiding. 

This  is  an  action  of  assumpsit,  begun,  on  April  16,  1889,  in  the  Cir- 
cuit Court  of  Cook  County,  by  Amelia  Beak  and  Alfred  Bucher,  late 
partners  under  the  firm  name  of  Beak  &  Bucher,  suing  for  the  use  of 
Wight  Bros.,  a  firm  composed  of  Louis  Wight  and  J.  Franklin  Wight 
against  Sidney  Guy  Lea,  Belden  Seymour,  Jr.,  W.  T.  Moore,  Frank 
Conover  and  Everett  House,  composing  the  firm  of  Lea  &  Co.  Of  the 
defendants,  Lea  and  House  alone  were  served  with  process;  the  other 
defendants  were  not  found  by  the  Sheriff.  The  declaration  consists  of 
the  common  counts  only.  Default  was  entered  against  Lea.  The 
appellant.  House,  entered  his  appearance,  and  filed  plea  of  general  issue, 
with  affidavit  of  merits.  The  case  was  tried  before  a  jury.  The  only 
evidence  introduced  was  produced  by  the  plaintiffs.  The  jury  returned 
a  verdict  of  $4089.91  in  favor  of  the  plaintiffs,  upon  which  the  Circuit 
Court  entered  judgment.  The  Appellate  Court  has  affirmed  the  judg- 
ment of  the  Circuit  Court,  and  from  such  judgment  of  affirmance  the 
present  appeal  is  prosecuted. 

Beak  &  Bucher  were  wholesale  merchants  in  Chicago,  engaged  in  the 
business  of  manufacturing  and  selling  furs,  hats  and  caps.  They  failed 
in  the  latter  part  of  December,  1885,  and  assigned  their  accounts  to 
Wight  Bros.  .  .  .  By  the  books  and  other  evidence,  it  was  shown,  that, 
between  September  17  and  December  23,  1885,  Beak  &  Bucher  con- 
signed to  Lea  &  Co.  goods  to  the  amount  of  $6832.03,  upon  which  amount 
they  were  entitled  to  credits  of  $3097.50,  leaving  a  balance  of  $3734.53; 
and  that,  between  September  17  and  December  17,  1885,  they  sold  to 
Lea  &  Co.  goods  to  the  amount  of  $2257.02,  upon  which  credits  to  the 
amount  of  $1902.44  were  due,  leaving  a  balance  of  $355.38;  making  the 
entire  claim,  on  both  accounts,  $4089.91.  The  two  accounts  consisted 
of  a  large  number  of  items  on  both  the  debit  and  credit  sides  thereof. 

Alfred  Bucher  swore  that  he  was  the  book-keeper  of  the  firm;  that 
Beak  &  Bucher  sold  and  consigned  goods  to  Lea  &  Co.  .  .  .  that  wit- 
ness made  the  entries  on  the  ledger  and  cash-books,  but  not  on  the  sales- 
books,  or  delivery  books,  or  receipt  books;  .  .  .  .  that  he  had  checked 
up  the  charges  for  bills  as  rendered  with  the  receipts,  that  is,  the  total 


No.  395  HEARSAY   RULE:     EXCEPTIONS  611 

of  each  delivery,  and  found  the  receipts  to  correspond.  Lewis  Henry 
swore,  that  he  was  bill-clerk  for  plaintiff's  during  said  months;  that  he 
entered  the  charges  for  goods  sold;  that  he  kept  the  original  sales-books 
and  the  assignment  book  and  made  the  entries  therein;  that  the  entries 
were  made  therein  in  the  regular  course  of  trade  at  the  times  when  they 
bear  date,  and  as  a  part  of  his  duty,  and  were  true  and  correct;  .  .  . 

Charles  P'elcher  also  testified,  that  he  drove  an  express  wagon  for 
Beak  &  Bucher  during  said  period,  and  delivered  to  Lea  &  Co.  at  their 
store  in  Chicago,  boxes  and  packages  of  goods,  and  took  receipts  from 
them  for  the  goods;  .  .  . 

Edward  E.  Gray,  one  of  the  attorneys  for  plaintiffs,  swore  that  he 
presented  the  account  sued  upon  to  Lea  in  the  latter  part  of  December, 
1885,  and  informed  him  of  its  assignment  to  Wight  Bros.,  and  told  him 
to  make  payments  at  the  office  of  said  attorneys;  that  Lea  took  the 
account  and  said  "all  right;"  that  the  books  of  Beak  &  Bucher  have 
been  in  the  possession  of  said  attorneys  from  December,  1885,  to  April, 
1889,  and  a  great  many  statements  have  been  made  from  them  and 
they  have  been  found  correct. 

Messrs.  Flower,  Smith  &  Musgrave,  for  the  appellant. 

Messrs.  Weigley,  Bulkey  &  Gray,  for  the  appellees. 

Mr.  Chief  Justice  Magruder  delivered  the  opinion  of  the  Court: 

It  is  assigned  as  error,  that  the  trial  Court  received  in  evidence  the 
books  of  account  of  Beak  &  Bucher,  showing  the  items  of  the  accounts 
sued  upon.  It  is  claimed  that  a  proper  foundation  "was  not  laid  for  the 
introduction  of  the  books,  and  that,  therefore,  they  should  not  have  been 
admitted. 

We  think  that  the  books  were  properly  admitted,  in  connection  with 
the  evidence  set  forth  in  the  statement  of  facts.  .  .  . 

The  third  section  of  the  Act  in  regard  to  Evidence  and  Depositions 
in  Civil  Cases  is  as  follows:  [ante,  No.  393]  .  .  .  This  statute  permits 
the  party  himself  to  testify  to  his  own  books.  The  party  himself  was 
not  allowed  so  to  testify  at  common  law.  The  common  law  requires 
that  the  entries  in  the  book  should  be  proved  by  the  clerk  or  servant 
who  made  them,  if  such  clerk  or  servant  be  alive  and  can  be  produced. 
(Burnham  v.  Adams,  5  Vt.  313.)  .  .  .  Section  3,  which  was  first  passed 
in  1867  (Laws  of  1867,  §  3,  p.  184,)  adds  to  and  enlarges,  but  does  not 
repeal,  the  common  law  rule.  A  contrary  statement  made  in  Presby- 
terian Church  V.  Emerson,  66  111.  269,  was  mere  dictum,  and  not  neces- 
sary to  the  decision  of  the  case.  It  was  not  the  intention  of  the  statute 
to  prohibit  the  introduction  in  evidence  of  accovmt  kept  by  a  clerk,  when 
such  clerk  is  living  in  the  State  and  is  able  to  testify  to  the  correctness 
of  the  books.  In  Taliaferro  v.  Ives,  51  111.  247,  we  said  that  this  statute 
of  1867  did  not  materially  change  the  rule  announced  in  Boyer  v.  Sweet, 
3  Scam.  120.  .  .  .  The  existence  of  the  common  law  rule,  which  per- 
mits the  clerk  who  has  kept  the  books  to  testify,  was  again  recognized 
in  Stettauer  v.  White,  98  111.  72. 


612  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  395 

In  a  number  of  cases,  we  have  held,  that  there  are  certain  hmitations 
upon  the  rule  permitting  such  books  of  account  to  be  introduced  in 
evidence.  In  Boyer  v.  Sweet,  supra,  where  the  party  kept  the  books 
himself,  the  books  of  original  entries  were  held  to  be  admissible  to  sus- 
tain an  account  composed  of  many  items,  upon  proof  being  made  that 
some  of  the  articles  were  delivered  at  or  about  the  time  the  entries  pur- 
ported to  have  been  made;  that  the  entries  were  in  the  handwriting  of 
the  party  producing  the  books;  that  he  kept  no  clerk  at  the  time;  and 
that  persons  having  dealings  with  him  had  settled  by  the  books,  and  found 
them  to  be  fair  and  correct. 

In  Humphreys  v.  Spear,  15  111.  275,  the  same  state  of  facts  was  shown 
to  exist  as  in  Boyer  v.  Sweet,  except  that  the  books  were  kept,  not  by 
the  tradesman  himself,  but  by  his  clerk;  the  clerk  was  introduced  as  a 
witness  and  gave  evidence  tending  to  show  the  correctness  of  the  account; 
and  we  there  said: 

"It  is  very  clear  that  the  books  were  admissible  in  evidence  in  connection 
with  the  testimony  of  the  clerk.  ...  If  it  appears  that  some  of  the  goods  were 
delivered  contemporaneously  with  the  entries  made  by  the  clerk,  and  that  the 
books  were  fairly  and  honestly  kept,  the  jury  may  reasonably  conclude  that  the 
entire  account  is  correct." 

(See  also,  Lawrence  v.  Stiles,  16  Brad.  489.)  The  doctrine  of  Hum- 
phreys V.  Spear  was  not  changed  by  the  statute  of  1867. 

In  Stettauer  v.  White,  supra,  it  was  held,  that,  where  the  clerk  who 
makes  the  entries  has  no  knowledge  of  their  correctness,  but  makes 
them  as  the  items  are  furnished  by  another,  it  is  essential  that  the  party 
furnishing  the  items  should  testify  to  their  correctness,  or  that  satis- 
factory proof  thereof  (such  as  the  transactions  were  reasonably  suscep- 
tible of,)  from  other  sources  should  be  produced.  It  is  to  be  observed 
that,  in  the  Stettauer  case,  there  was  no  evidence  except  the  carrier's 
shipping  receipt,  that  any  portion  of  the  articles  had  been  delivered. 
In  Kent  v.  Garvin,  1  Gray  148,  one  of  the  cases  upon  which  the  Stettauer 
case  is  based,  the  failure  "to  show  that  at  the  time  the  charges  were 
made,  any  articles,  similar  in  character  to  those  charged,  were  delivered 
by  the  plaintiff  to  the  defendant"  is  commented  upon  as  significant. 

In  the  case  at  bar,  there  is  e^^dence  that,  of  the  goods  described  in 
the  accounts,  an  amount  exceeding  in  value  S5000.00  was  delivered  to 
the  defendants;  and  not  only  does  Henry,  who  kept  the  books  of  orig- 
inal entries,  swear  to  their  correctness;  but,  in  addition  to  this,  Richard 
Beak,  who  furnished  the  items  to  Henry,  testifies  to  the  correctness  of 
the  items. 

The  proof  establishes  all  the  facts  necessary  to  bring  the  present  case 
A\'ithin  the  requirements  of  the  cases  of  Boyer  v.  Sweet,  Humphreys  v. 
Speer,  Ruggles  v.  Gatton,  (50  111.  412)  and  Stettauer  v.  AYhite,  —  except 
as  to  one  matter.  We  find  no  evidence  by  any  customer  of  Beak  & 
Bucher,  that  he  settled  with  them  by  their  books  and  found  them  correct. 


No,  396        HEARSA'Y  rule:  exceptions  (ji;j 

(Ingersoll  v.  Banister,  41  111.  388.)  The  failure  of  the  proof,  however,  in 
this  regard  would  not  have  justified  the  exclusion  of  the  books,  in  view 
of  the  facts  that  the  defendants  paid  $1000.00  upon  the  account  late  in 
December  without  questioning  it,  and  accepted  a  statement  of  the  account 
as  assigned,  with  the  remark  that  it  was  "all  right,"  and,  although  more 
than  three  years  elapsed  after  the  account  was  presented  before  suit  was 
brought,  during  which  time  many  applications  were  made  to  them  or 
some  one  of  them  for  payment,  they  at  no  time  ever  urged  any  objections 
to  the  correctness  of  the  account.  A  careful  examination  of  the  author- 
ities hereinbefore  referred  to  will  show,  that,  before  the  statute  of  1867 
was  passed,  testimony  from  third  persons  as  to  settlements  made  by  the 
books  was  more  especially  required  in  cases  where  the  tradesman  had  no 
clerk  but  kept  his  own  books.  In  such  cases,  the  party  testifying  to 
the  correctness  of  the  books  being  interested,  it  was  held  that  his  testi- 
mony should  be  supported  by  that  of  customers  who  had  settled  by  the 
books.  (Boyer  v.  Sweet,  supra;  Ingersoll  v.  Banister,  supra;  Ruggles  v. 
Gatton,  supra;  Waggeman  v.  Peters,  22  111.  42.)  .  .  . 
The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 

396.  LEWIS  V.  ENGLAND 

Supreme  Court  of  Wyoming.     1905 

14  Wyo.  128;  82  Pac.  869 

Error  to  District  Court,  Carbon  County;   David  H.  Craig,  Judge. 

Action  by  Ida  Lewis,  as  administratrix  of  the  estate  of  Charles  Lewis, 
deceased,  against  Mary  England,  as  ■  administratrix  of  the  estate  of 
Richard  England,  deceased.  From  a  judgment  in  favor  of  defendant, 
plaintiff  brings  error.     Reversed. 

On  November  21,  1901,  Charles  Lewis,  as  plaintiff,  brought  an  action 
in  the  District  Court  of  Carbon  county  against  the  defendant  in  error 
alleging  that  Richard  England  during  his  lifetime,  and  on  the  26th  day 
of  May,  1901,  was  indebted  to  the  plaintiff  in  the  sum  of  $1,821.95  for 
balance  due  on  an  account  for  goods  sold  and  delivered  and  for  divers 
sums  of  money  advanced  to  the  said  England  by  the  plaintiff.  The 
petition  further  alleges  that  Richard  England  died  intestate  on  the  26th 
day  of  May,  1901,  and  thereafter  the  defendant  in  error  was  duly  ap- 
pointed administratrix  of  the  said  England's  estate,  and  that  on  the 
18th  day  of  November,  1901,  the  account  sued  upon,  verified  as  required 
by  law,  was  presented  to  the  defendant  as  administratrix  and  by  her 
rejected  and  disallowed.  .  .  .  On  the  14th  day  of  March  following  the 
Court  approved  and  confirmed  the  report  and  findings  of  the  commis- 
sioner in  all  respects,  and  entered  judgment  generally  against  the  plaintiff 
and  in  favor  of  the  defendant.  From  this  judgment,  plaintiff*  prosecutes 
error  to  this  court. 


614  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  396 

The  original  plaintiff,  Lewis,  was  a  saloon  keeper  at  Medicine  Bow, 
and,  being  unable  either  to  read  or  write,  was  obliged  in  the  conduct  of 
his  business  to  intrust  the  keeping  of  his  accounts  to  others.  The  evi- 
dence discloses  that  the  accounts  were  kept  by  his  employees,  by  his 
wife,  and  in  two  instances  by  school  teachers  who  lived  at  his  house. 
It  also  appears  that  regular  books  of  account,  as  the  term  is  generally 
understood,  were  not  kept  by  the  plaintiff.  At  the  saloon  there  was  kept 
what  was  called  a  "tablet,"  consisting  of  plain  sheets  of  paper.  Each 
day  there  was  entered  on  the  tablet  the  charges  that  were  made  against 
various  parties  fkiring  that  day;  the  date  being  entered  at  the  head  of 
each  sheet  as  the  same  was  used.  .  .  .  Each  day  the  sheets  containing 
the  charges  for  the  day's  business  were  filed  away,  and  at  frequent  periods 
these  "day  slips,"  as  they  were  called,  were  taken  to  Lewis'  house,  and 
there  transferred  to  other  slips  of  paper  called  "ledger  slips."  .  .  .  These 
charges,  on  being  transferred  to  the  ledger  slips,  were  entered  against 
the  individuals  separately;  in  other  words,  the  account  of  each  individual 
was  entered  on  the  ledger  slips  under  his  name.  The  day  slips  and  ledger 
slips  were  both  offered  in  evidence  by  the  plaintiff  and  objected  to  by 
the  defendant.  It  was  contended  by  counsel  for  defendant  that  the 
day  slips  and  ledger  slips  had  not  been  kept  in  such  a  manner,  as  books  of 
account,  as  to  entitle  them  to  admission  as  evidence.  The  commissioner 
in  his  findings  admitted  the  day  slips,  but  refused  to  admit  the  ledger 
slips,  on  the  ground  that  they  did  not  constitute  books  of  original  entry. 
The  failure  of  the  commissioner  to  admit  the  ledger  slips  is  assigned  as 
error.  .  .  . 

W.  R.  Stoll,  for  plaintiff  in  error.  N.  R.  Greenfield,  for  defendant  in 
error. 

Van  Orsdel,  J.  (after  stating  the  facts  as  above).  The  law  prescribes 
no  regular  mode  or  method  in  which  accounts  must  be  kept  in  order  to 
make  them  competent  as  evidence.  The  question  of  competency  must 
be  determined  by  the  appearance  and  character  of  the  book ;  regard  being 
had  to  the  degree  of  education  of  the  party,  the  nature  of  his  business, 
the  manner  of  his  charges  against  other  people,  and  all  other  surrounding 
circumstances.  .  .  . 

Certain  essential  requirements,  however,  must  be  observed  in  order 
to  justify  the  reception  of  books  of  account  as  evidence. 

1.  It  must  appear  that  they  were  the  regular  method  of  keeping 
accounts  adopted  by  the  party,  containing  the  regular  entries  of  his 
transactions  in  the  regular  course  of  business,  and  made  so  near  the  time 
of  the  transactions  as  to  establish  the  presumption  that  they  were 
fairly  and  honestly  kept.  .  .  .  We  are  of  the  opinion  that  the  evidence 
sufficiently  discloses  in  this  case  that  the  books  of  account  of  Lewis  were 
kept  with  sufficient  regularity  in  the  general  course  of  the  transaction 
of  his  business,  and  with  all  persons  with  whom  he  did  business  alike,  to 
render  them  competent  evidence  in  this  case. 

2.  The  day  slips  having  been  admitted  in  evidence,  the  plaintiff  has 


No.  396  HEARSAY   RULE:     EXCEPTIONS  615 

no  complaint  as  to  their  admission.  But  it  is  contended  that  the  ledger 
slips  should  likewise  have  l)een  admitted.  As  above  stated,  the  ledger 
slips  contain  many  original  entries.  These  entries  were  sometimes 
made  at  the  direct  request  of  Lewis  or  from  scraps  of  paper  containing 
a  memorandum  of  the  item  or  items  to  be  charged.  It  is  clear  that  the 
ledger  slips,  if  competent  evidence,  could  only  be  so  in  so  far  as  they 
contain  accounts  of  original  entry,  or  are  explanatory  of  accounts  appear- 
ing on  the  day  slips.  It  appears  that  the  amounts  charged  upon  the  day 
slips  were  indicated  by  figures,  usually  without  decimal  marks,  or  other 
specific  indication  as  to  whether  the  figures  represented  dollars  or  cents, 
though  we  think  the  various  entries  on  the  day-slips,  taken  together  and 
in  connection  with  the  subject  of  the  charges,  fairly  show  the  meaning  of 
the  several  figures.  When  entered  upon  the  ledger  slips,  the  figures  are 
clearly  explained,  and  in  no  way  contradictory  of  the  day  slips  in  that 
respect.  Hence,  for  the  purpose  of  explaining  such  figures  in  case  of 
doubt,  the  ledger  slips  were  admissible.  McGoldrick  v.  Traphagen,  88 
N.  Y.  334.  We  are  therefore  of  the  opinion  that  the  ledger  slips  were 
admissible  for  these  purposes.  .  .  . 

3.  The  account  sued  upon  contains  numerous  items  of  cash  advanced 
from  time  to  time.  It  appears  from  the  evidence  that  England  was  in 
the  habit  of  borrowing  from  Lewis  small  amounts  of  money  at  various 
times.  These  cash  items  were  sometimes  entered  upon  the  day  slips, 
but  frequently  they  were  only  entered  upon  the  ledger  slips,  as  the 
evidence  discloses  that  the  money  was  often  procured  by  England  at  the 
house,  either  from  Lewis  or  from  Mrs.  Lewis,  who  testified  that  her  hus- 
band had  directed  her  to  give  England  money  when  he  requested  it. 
It  was  held  by  the  commissioner  that  these  cash  items  were  not  proper 
items  of  book  account,  and  therefore  the  books  could  not  be  considered 
as  competent  evidence  against  the  defendant  as  to  such  items.  There 
are  authorities  which  hold  that  there  is  not  and  never  was  a  necessity 
for  making  books  of  account  evidence  of  the  payment  or  the  lending  of 
money  (Inslee  v.  Prall,  23  N.  J.  Law,  463).  But  we  think  the  great 
weight  of  modern  authority  is  to  the  effect  that  where  cash  entries  appear 
in  the  general  course  of  accounts,  as  a  part  of  the  regular  course  of 
business  transacted,  that  such  entries  should  be  admitted  as  competent 
evidence.  As  stated  by  Kilpatrick,  C.  J.,  in  Wilson  v.  Wilson,  6  N.  J. 
Law,  99: 

"Upon  principle  I  can  see  no  reason  why  a  book  should  be  lawful  evidence  of 
one  item  and  not  of  another,  —  why  it  should  be  evidence  of  goods  sold  and 
delivered,  and  not  of  money  paid  or  advanced.  Why  should  there  be  witnesses 
called  or  receipts  taken  in  the  one  case  more  than  in  the  other?  If  necessity  be 
pleaded  for  the  one,  may  it  not  for  the  other  also?  For  they  are  both  transactions 
in  the  common  course  of  business,  equally  necessary,  and,  I  should  think,  equally 
frequent  or  nearly  so." 

See,  also,  Wigmore  on  Evidence,  §§  1548,  1549.  .  .  . 

The  judgment  of  the  District  Court  is  reversed,  and  the  cause  re- 


616  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  396 

manded  for  a  new  trial,  in  accordance  with  the  views  expressed  in  this 
opinion. 

Potter,  C.  J.,  and  Beard,  J.,  concur. 


Sub-topic  B.     Third  Person's  Entries 

397.  Price  v.  Earl  of  Torrington  (1703.  2  Ld.  Raym.  873).  In  indebitatus 
assumpsit  for  beer  sold  and  delivered  to  the  defendant,  upon  non  assumpsit 
pleaded,  at  the  trial  at  Guildhall  before  Holt,  Chief  Justice,  the  evidence  against 
the  defendant  was,  that  the  usual  way  of  the  plaintiff's  trading  was,  that  the 
drayman  came  every  night  to  the  plaintiff's  clerk,  and  gave  account  to  him  of  all 
the  beer  that  he  had  delivered  that  day;  and  an  entry  was  made  of  it  in  a  book, 
which  the  drayman  and  clerk  subscribed;    and  that  there  was  such  an  entry 

of barrels  of  beer  delivered  to  the  defendant,  &c.,  and  that  the  drayman 

was  dead,  and  the  subscription  was  proved  to  be  of  his  writing. 

And  Holt,  Chief  Justice,  held  this  good  evidence  to  charge  the  defendant. 
And  a  verdict  was  given  against  him,  &c. 


398.   KENNEDY  v.   DOYLE 

Supreme  Judicial  Court  of  Massachusetts.     1865 

10  All.  161 

This  action  was  brought  against  two  sisters  upon  an  agreement  of 
both  to  pay  money  borrowed  by  them  on  their  joint  account  from  the 
plaintiff.  One  of  them  suggested  her  insolvency  and  set  up  no  other 
defence.     The  other  pleaded  infancy  at  the  time  of  the  agreement.  .  .  . 

The  parties  being  at  issue  upon  the  point  whether  the  defendant  was 
of  age  when  she  made  the  agreement,  the  plaintiff,  to  prove  that  she  was, 
offered  a  book,  which  was  admitted  to  be  the  church  record  of  baptisms 
in  a  Roman  Catholic  church  in  Lowell,  regularly  kept  by  McDermott, 
the  priest  of  that  church  for  a  series  of  years,  produced  from  the  custody 
of  O'Brien,  the  present  priest,  into  whose  hands  it  came  upon  the  death  of 
McDermott,  and  containing  the  following  entry  in  McDermott's  hand- 
writing, and  signed  by  him:  "1837,  December  17th.  Baptized  Joanna, 
born  12th,  of  Michael  and  Mary  Doyle.  Sponsors,  Jeremiah  Kennedy 
and  Bridget  Doyle."  There  was  also  evidence  that  the  defendant  in  this 
action  was  the  Joanna  Doyle  named  in  this  record.  It  does  not  appear 
to  have  been  denied  at  the  trial,  and  it  was  assumed  at  the  argument, 
that  the  priest  performed  the  rite  of  baptism  and  made  the  entry  upon 
the  record  in  the  discharge  of  his  ecclesiastical  duty  according  to  the  rule 
and  custom  of  his  church.  But  there  was  no  evidence  that  he  was  a 
sworn  officer,  or  that  the  book  was  required  by  law  to  be  kept ;  and  upon 
this  ground  the  defendant  objected  to  its  admission.  The  presiding 
judge,  however,  admitted  it,  as  competent  evidence  of  the  date  of  the 
baptism  only. 


No.  398        HEARSAY  rule:  exceptions  617 

J.  p.  Converse,  for  the  defendant.     A.  R.  Brown,  for  the  plaintiff. 

Gray,  J.  [after  stating  the  case  as  above,  hekl  that  the  book  did  not 
satisfy  the  requirements  of  the  exception  for  Official  Registers ;  this  part 
of  the  opinion  being  quoted  jjost,  as  No.  416;  and  then  proceeded:] 

It  becomes  necessary,  therefore,  to  determine  whether  his  death  has 
made  his  register  competent  evidence  [as  a  book  of  regular  entries].  .  .  . 

The  leading  cases  upon  this  subject  are  those  in  which  Lord  Holt 
held  that  entries,  made  in  a  tradesman's  books  by  his  servant  or  dray- 
man in  the  usual  course  of  his  employment,  were  admissible  in  evidence 
after  the  death  of  the  latter,  upon  proof  of  his  handwriting.  Pitman  v. 
Maddox  (2  Salk.  690;  s.  c.  1  Ld..  Raym.  732;  Holt,  298) ;  Price  v.  Torrington 
(1  Salk.  285;  s.c.  2  Ld.  Raym.  873;  [ante,  No.  397]).  .  .  .  Lord  Chancellor 
Plunket  repeatedly  admitted  the  books  of  a  Roman  Catholic  chapel  in 
Dublin,  made  by  Roman  Catholic  priests  whose  deaths  and  handwriting 
were  proved,  as  evidence  of  marriages  and  baptisms,  and  on  the  last 
occasion,  after  argument,  gave  this  reason  for  their  admission:  "They 
are  the  entries  of  deceased  persons,  made  in  the  exercise  of  their  vocation 
contemporaneously  with  the  events  themselves,  and  without  any  interest 
or  intention  to  mislead."  O'Connor  v.  Malone  (6  CI.  &  F.  576,  577); 
Malone  v.  L'Estrange  (2  Irish  Eq.  R.  16).  .  .  .  In  the  United  States,  the 
law  is  well  settled  that  an  entry  made  by  a  person  in  the  ordinary  course 
of  his  business  or  vocation,  with  no  interest  to  misrepresent,  before  any 
controversy  or  question  has  arisen,  and  in  a  book  produced  from  the 
proper  custody,  is  competent  evidence,  after  his  death,  of  the  facts  thus 
recorded.  In  a  very  early  case  the  Supreme  Court  of  Connecticut 
admitted  the  record  of  a  baptism  by  a  minister  of  a  parish,  who  had  since 
died,  as  evidence  of  the  fact  of  baptism.  Huntly  v.  Comstock  (2  Root 
99).  It  has  been  repeatedly  held  in  this  Commonwealth  that  the  book 
of  a  bank  messenger  or  notary  public,  kept  in  the  usual  course  of  business, 
though  not  recjuired  by  law,  is  competent  evidence  after  his  death. 
Welsh  V.  Barrett  (15  Mass.  380);  Porter  v.  Judson  (1  Gray  175).  .  .  . 
In  the  case  before  us,  the  book  was  kept  by  the  deceased  priest  in  the 
usual  course  of  his  office,  and  was  produced  from  the  custody  of  his 
successor;  the  entry  is  in  his  own  handwriting,  and  appears  to  have 
been  made  contemporaneously  with  the  performance  of  the  rite,  long 
before  any  controversy  had  arisen,  with  no  inducement  to  misstate,  and 
no  interest  except  to  perform  his  official  duty.  The  addition  of  a  memo- 
randum that  he  had  been  paid  a  fee  for  the  ceremony  could  not  have 
added  anything  to  the  competency,  the  credibility,  or  the  weight,  of  the 
record  as  evidence  of  the  fact.  An  entry  made  in  the  performance  of  a 
religious  duty  is  certainly  of  no  less  value  than  one  made  by  a  clerk, 
messenger,  or  notary,  an  attorney  or  solicitor,  or  a  physician,  in  the 
course  of  his  secular  occupation.  Exceptions  overruled. 


618  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  399 

399.  DELANEY  v.   FRAMINGHAM  GAS,  FUEL  &  POWER  CO. 

Supreme  Judicial  Court  of  Massachusetts.     1909 

202  Mass.  359;  88  N.  E.  77Q 

Tort  for  personal  injuries  received  by  the  plaintiff  while  in  the 
'defendant's  employ,  as  stated  in  the  opinion.  The  declaration  contained 
two  counts,  the  first  being  at  common  law,  alleging  failure  on  the  part  to 
the  defendant  to  supply  the  plaintiff  with  a  reasohably  safe  place  in  which, 
or  materials  with  which  to  work,  or  to  warn  him  of  the  dangers  surround- 
ing his  work,  and  the  second  being  under  R.  L.  c.  lOG,  §  71,  cl.  2,  alleging 
negligence  of  the  defendant's  superintendent.  Writ  in  the  Superior 
Court  for  the  county  of  Middlesex,  dated  April  24,  1906. 

The  case  was  tried  before  Bell,  J.  .  ,  . 

The  jury  found  for  the  plaintiff;  and  the  defendant  alleged  exceptions. 

R.  Spring  (W.  Rand  with  him),  for  the  defendant.  C.  F.  Choate,  Jr., 
for  the  plaintiff. 

Hammond,  J.  .  .  .  The  records  of  the  Massachusetts  General 
Hospital  were  properly  excluded. 

1.  The  defendant  does  not  contend  that  they  were  admissible  under 
the  common  law,  but  insists  that  they  are  admissible  under  St.  1905,  c. 
330.  But  the  records  were  made  before  that  statute.  The  first  section 
of  the  statute  imposes  upon  certain  hospitals,  including,  as  we  under- 
stand, the  Massachusetts  General  Hospital,  the  duty  "to  keep  records 
of  the  cases  under  their  care  and  the  history  of  the  same  in  books  kept 
for  that  purpose."  The  words  "such  records"  in  the  second  section 
embrace  only  the  records  which  thereafter  shall  be  kept  under  the  first 
section.  The  question  is  not  whether  the  statute  is  retroactive,  as  a 
rule  of  evidence  or  of  procedure,  in  the  sense  in  which  those  words  are 
used  in  cases  like  Stocker  v.  Foster,  178  Mass.  501,  and  Wood  vine  v. 
Dean,  194  Mass.  40,  as  contended  by  the  defendant,  but  rather  what 
kind  of  records  shall  be  admitted.  If  the  records  are  those  described  in 
the  statute,  then  they  are  admissible  without  reference  to  the  time  of  the 
trial ;  but  if  they  are  not  of  the  kind  described  in  the  statute,  then  they 
are  not  admissible,  no  matter  what  may  be  the  time  of  the  trial.  The 
records  of  the  hospital  were  not  those  described  in  the  statute,  and  were 
therefore  inadmissible.  This  statute  has  since  been  amended  (St.  1908, 
c.  269),  but  the  case  was  tried  before  the  amending  statute  became  opera- 
tive. So  far  as  respects  the  admissibility  of  the  records  of  the  Carney 
Hospital  under  St.  1905,  c.  330,  the  same  rule  applies,  because  these 
records  also  were  made  before  it  was  passed. 

2.  The  defendant  insists,  however,  that  the  records  of  this  hospital 
are  admissible  under  the  common  law.  While  it  is  true  that  the  records 
were  not  made  in  accordance  with  a  requirement  of  law  and  therefore 
were  not  legal  records  within  the  meaning  of  the  rule  that  legal  records 


No.  399  HEARSAY   RULE:     EXCEPTIONS  619 

or  copies  thereof  are  generally  admissible,  still  it  appears  that  they  were 
made  in  the  usual  course  of  business  by  a  person  in  the  discharge  of  a 
duty,  who  appears  not  only  as  the  maker  of  them  but  as  their  custodian. 
If  she  had  died  and  her  handwriting  had  been  proved,  in  the  absence  of 
any  other  testimony  as  to  the  manner  in  which  they  were  made  up,  they 
would  have  been  admissible.  As  in  the  case  of  Townsend  v.  Pepperell, 
99  Mass.  40,  it  would  have  been  assumed  that  the  records  were  of  facts 
known  to  her. 

The  rule  applicable  to  such  records  ordinarily  is  that  the  entries 
must  be  made  by  a  person  having  personal  knowledge  of  the  truthfulness 
of  the  statements.  This  test  has  been  applied  by  this  Court  in  the  case 
of  shop  books  offered  to  prove  delivery  of  goods,  and  it  has  been  held 
that  where  the  clerk  who  made  the  entries  had  no  knowledge  of  the  facts 
the  entries  are  not  admissible,  although  the  clerk  testified  that  he  correctly 
put  down  the  information  he  received  from  the  person  by  whom  the 
delivery  was  said  to  be  made.  Kent  r.  Garvin,  1  Gray,  148.  Miller  v. 
Shay,  145  Mass.  162.  It  is  true  that  this  rule  has  not  been  applied  with 
the  same  strictness  to  other  memoranda.  But  in  substance  the  general 
principle  is  the  same.  .  .  .  And  the  rule  has  been  adhered  to  quite 
generally,  except  where  in  the  course  of  the  business  the  clerk  making 
the  entry  receives  his  information  either  orally  or  in  writing  from 
various  persons  whom  he  cannot  expect  to  remember  and  whom  it  will 
be  impracticable  to  call.  To  apply  the  rule  in  such  a  case  and  to  require 
the  evidence  of  every  person  in  the  long  line  of  persons  who  have  had 
anything  to  do  with  the  transaction  recorded,  would  be  practically 
impossible,  and  so  as  a  practical  necessity  the  record  is  admitted  upon 
the  oath  of  the  recorder,  if  alive,  or  upon  proof  of  handwriting  if  he 
be  dead.  It  is  probable  that  the  exception  has  been  carried  farther  else- 
where than  in  this  State.  For  a  general  discussion  of  the  subject  see 
Wigmore  on  Evidence,  §  1530,  and  cases  cited  in  the  notes.  In  our  own 
State  this  exception  seems  to  have  been  recognized  in  Briggs  v.  Rafferty, 
14  Gray  525;  Adams  v.  CouUiard,  102  Mass.  167. 

In  the  present  case  the  records  were  produced  by  the  witness  Gahagan. 
It  appeared  that  the  records  were  made  by  her,  and  that  she  was  the 
proper  custodian  of  them.  But  it  further  appeared  that  she  never  had 
any  personal  knowledge  of  the  facts  stated  therein;  that  she  received 
slips  of  paper  from  Dr.  Painter,  the  physician,  and  copied  them  into  the 
record;  and  that  was  all  she  knew  about  them.  The  record  was  oflFered 
as  evidence  to  show  that  the  statements  therein  made  were  true.  As 
handed  to  the  witness  by  the  physician  they  were  simply  statements 
of  the  physician  as  to  what  the  patient  had  said  to  him,  or  as  to  the 
diagnosis  made  by  the  physician.  The  records  were  comparatively 
recent.  It  was  not  shown  that  the  physician  was  not  living  and  within 
the  jurisdiction  of  the  court.  No  necessity  was  shown,  therefore,  for  the 
introduction  of  this  hearsay  testimony.  For  aught  that  appeared  there 
was  better  evidence.     Under  these  circumstances  the  reason  upon  which 


620  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  399 

the  general  rule  was  based,  namely,  that  the  record  should  be  a  record  of 
facts  of  which  the  writer  had  personal  knowledge,  should  be  applied. 
The  case  is  not  within  the  al)Ove  mentioned  exception  to  the  general  rule. 
.  .  .  These  records  were  properly  excluded.  .  .  . 

Exceptions  overruled. 


400.   LOUISVILLE   &  NASHVILLE  R.   CO.   v.   DANIEL 

Court  of  Appeals  of  Kentucky.     1906 

122  Kij.  256;  91  S.  W.  691 

Appeal  from  Circuit  Court,  Hopkins  County.  Action  by  Louis 
Daniel  against  the  Louisville  &  Nashville  Railroad  Company.  From 
a  judgment  in  favor  of  plaintiff,  defendant  appeals.     Reversed. 

Benjamin  D.  WarficJd  and  Clifton  J.  Waddill,  for  appellant.  Gordon, 
Gordon  &  Cox,  for  appellee. 

O'Rear,  J. —  Appellee  alleges  that  while  walking  across  appellant's 
railroad  tracks  in  its  yard  at  Madisonville,  at  a  point  between  Broadway 
and  Sugg  streets,  where  the  public  had  been  permitted  by  the  railroad 
company  to  so  use  its  tracks  as  a  passway  for  more  than  20  years,  he  was 
injured  by  being  run  against  by  a  car  detached  from  the  engine.  .  .  . 
It  is  conceded  that  appellee  was  stealing  a  ride  on  one  of  appellant's 
freight  trains  passing  through  Madisonville.  .  .  .  Appellee  does  not 
claim  that  he  was  injured  while  on  this  train,  or  was  injured  by  it.  His 
claim  is  that  it  stopped  at  IVIadisonville,  and  then  he  got  off  and  started 
to  cross  another  track;  that  he  saw  an  engine  coming  down  the  track,  and 
after  it  passed  he  undertook  to  cross  the  track  behind  it,  when  he  was 
hallooed  at  by  some  one  in  the  dark.  Looking  up,  he  saw  a  freight  car 
rapidly  approaching  him  on  the  same  track,  following  the  engine,  but 
without  a  light;  that  he  had  not  seen  or  heard  it  before,  and,  not  knowing 
of  it,  it  ran  against  him  before  he  could  get  out  of  the  way.  Appellant 
contends  that  his  story  is  a  fabrication  or  an  hallucination.  It  asserts 
that  there  was  no  other  engine  or  train  at  Madisonville  at  that  time,  nor 
for  some  hours  before  or  after.  ...  It  was,  therefore,  very  material  to 
show  whether  there  was  any  other  train  at  that  point  at  or  near  that  time. 
The  depot  agent  and  the  operator  and  assistant  testify  that  there  was 
not.  The  engineer,  conductor,  and  brakeman  also  testify  to  the  same 
fact.  They  all  testify,  also,  that  that  freight  train  did  not  stop  at 
Madisonville  on  that  occasion. 

Appellant  offered  to  prove  by  its  train  dispatcher  that  he  kept  an 
accurate  record  of  the  movements  of  all  trains  on  that  division  of  appel- 
lant's road ;  that  it  was  his  duty  to  do  so ;  that  this  record  was  made  up 
at  the  time  from  his  own  orders,  upon  which  all  trains  on  that  division 
moved,  and  from  telegraphic  reports  transmitted  to  him  from  the  stations 
along  the  line  as  each  train  arrived  and  departed,  from  which  he  at  the 


No.  400  HEARSAY   RULE:     EXCEPTIONS  621 

time  made  an  entry  on  his  record;  that  the  record  was  made  accurately 
at  the  time,  and  was  true.  He  produced  his  record,  called  a  "train 
sheet,"  or  telegraphic  register  of  trains.  This  sheet  purported  to  show 
the  time  of  the  arrival  and  dei)arture  of  every  train  passing  over  that 
road  on  that  day,  at  Madisonville,  as  well  as  all  other  telegraphic  stations 
on  that  division.  Appellant  offered  to  introduce  it  as  evidence  on  its 
behalf  on  this  trial,  but  upon  objection  of  appellee  it  was  rejected.  The 
witness  was  permitted  to  state  what  he  knew  personally  about  it,  based 
upon  his  personal  knowledge  and  recollection.  But  he  was  compelled  to 
state  and  did  state  that  he  had  little  or  no  personal  knowledge  on  the 
point,  as  he  was  stationed  at  Earlington,  the  end  of  the  division,  and  not 
at  Madisonville,  on  that  date,  and  could  not  recollect,  from  the  nature 
of  the  business,  many  days  afterwards,  where  so  many  trains  were  at  a 
given  day  and  moment;  that  he  had  to  rely  and  did  rely  exclusively  upon 
his  record,  made  at  the  time  as  stated.  The  question  for  decision  is, 
was  the  record  admissible  as  evidence  on  appellant's  behalf?  We  think  it 
was,  and  will  give  our  reasons  for  the  ruling. 

Books  of  original  entry,  called  shopkeepers  or  parties'  books,  have  for 
centuries  been  admitted  as  evidence  in  favor  of  the  party  keeping  them. 
Numerous  limitations  upon  the  rule  are  noted.  The  rule  itself  has  been 
subjected  to  not  a  few  changes  in  judicial  application,  and  to  many  more 
by  legislative  action.  While  very  narrow  originally,  the  tendency  has 
been  upon  the  whole  to  broaden  its  application,  though  it  is  believed 
that  the  first  principles  upon  which  it  was  founded  are  to  be  clearly 
recognized  in  every  change  that  it  has  undergone.  These  are,  in  fine, 
that,  as  the  Courts  require  the  production  of  the  best  evidence  the  nature 
of  the  case  admits  of,  necessity  and  circumstantial  guaranty  of  trust- 
worthiness of  such  entries  may  render  them,  not  only  the  best,  but  the 
only  reliable,  evidence  practicable  to  be  obtained  to  establish  the  disputed 
fact.  It  is  scarcely  within  the  scope  of  the  questions  here  involved, 
even  if  it  were  necessary  at  this  day,  to  trace  the  origin  of  the  rule  or  to 
follow  its  course  and  deviations.  Of  this  rule  of  the  common  law,  as 
interpreted  by  English  and  American  Courts,  it  can  be  truly  said,  as  of 
many  others,  proving  the  wisdom  and  elasticity  of  the  systems,  that  it 
adapts  itself  logically  to  conditions  undreamed  of  in  its  origin.  Com- 
merce has  grown  enormously  in  magnitude  and  variety  since  then. 
What  was  possible,  and  not  unreasonably  practicable,  a  century  ago, 
would  be  intolerable  in  the  conducting  of  business  in  this  age.  But  the 
necessity  of  rules  of  evidence  are  the  same,  and  the  reasons  for  them,  in 
the  main,  are  not  different.  If  a  fact  is  in  dispute,  to  be  determined  in  or 
out  of  court,  the  safe  course  is  a  resort  to  the  best  evidence  of  which  the 
nature  of  the  case  will  admit,  and  such  as  has  been  found  most  reliable 
in  the  practical  adjustment  of  such  matters  among  those  whose  constant 
business  it  is  to  adjust  them.  Mercantile  and  industrial  life,  producing, 
as  they  do,  nearly  all  the  transactions  of  men  that  come  before  the  courts 
of  law  and  equity,  are  essentially  practical.     That  which  is  the  final  basis 


622  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  400 

of  action,  of  calculation,  reliance,  investment,  and  general  confidence  in 
every  business  enterprise,  may  safely,  in  general,  be  resorted  to  to  prove 
the  main  fact.  The  Courts  need  not  discredit  what  the  common  experi- 
ence of  mankind  relies  upon. 

Such  is  the  use  of  books  or  records  of  original  entries  made  under 
circumstances  that  are  a  guaranty  of  their  trustworthiness.  In  the 
conduct  of  a  modern  railroad  system,  it  is  indispensable  that  in  the 
movement  of  trains  an  exact  knowledge  should  be  had,  at  a  central  point 
of  observation  and  direction,  of  the  location  of  each  train  in  operation 
over  a  given  line  or  between  given  terminals,  and  that  this  knowledge 
should  accompany  each  movement  of  each  train  until  it  has  arrived  at 
its  destination.  .  .  .  The  train  dispatcher,  who  directs  them  and  who 
keeps  tab  on  the  movement  of  each,  and  maintains  as  it  were  a  birdseye 
view  of  the  whole  system  under  his  control,  is  the  practical  solution  of  this 
difficulty  as  it  now  exists.  It  would  be  folly  for  him  to  endeavor  to  trust 
to  his  memory,  even  for  the  hour,  as  to  the  whereabouts  or  condition  of 
each  train.  He  must  have  a  record  before  him  upon  which  he  can  rely, 
to  which  he  can  resort  at  any  moment  to  acquaint  his  mind  with  those 
important  facts  as  verities.  As  the  district  within  his  charge  usually 
covers  a  considerable  distance,  say  100  miles  or  more,  he  can  know  only 
what  is  reported  to  him  from  the  numerous  intermediate  points  of  obser- 
vation by  those  in  charge.  This  is  done  by  the  use  of  the  telegraph. 
Thus  as  promptly  as  by  word  of  mouth  by  clerks  in  his  presence  he  gets 
the  information.  He  immediately  records  it  on  the  record,  which  he  is 
required  to  and  does  keep  for  that  purpose.  The  very  nature  of  the 
matter,  its  grave  importance  to  so  many  lives,  not  to  mention  fortunes, 
dependent  upon  his  record's  being  accurately  kept,  are  the  strongest 
possible  guaranties  to  the  general  accuracy  of  the  entries.  No  motive, 
not  criminal  in  the  highest  degree,  could  exist  for  fabrication  in  making 
such  original  entries.  He  has  nb  personal  interest  whatever  to  serve  by 
making  a  knowingly  false  entry.  On  the  contrary,  the  security  of  his 
position,  the  prospect  of  advancement,  the  fear  of  the  awful  consequences 
of  mistake,  the  impossibility  of  keeping  a  false  record  as  a  working  record 
in  the  matter  without  immediate  disaster  and  detection,  all  combine 
to  insure  against  any  motive  on  his  part  for  fabrication. 

To  the  objection  that  his  record  is  not  his  own  personal  knowledge, 
the  answer  is  that  the  intelligence  transmitted  to  him  by  his  subordinates 
is  all  of  the  same  kind  and  grade  as  that  recorded  in  his  entries.  Its 
trustworthiness  is  supported  by  the  same  considerations.  It  is  at  least 
as  reliable  as  salesmen's,  draymen's,  porters',  or  wharfingers'  information 
conveyed  to  a  bookkeeper,  who  makes  the  original  entries  thereof,  all  of 
which  is  now  nearly  everywhere  allowed  to  be  proven  by  the  introduction 
of  the  book  entries  so  made,  as  evidence  of  the  facts  shown  by  the  entries. 
Wigmore  on  Evidence,  §  1530.  The  entrant  discharges  a  duty  which  he 
has  assumed  only  in  the  keeping  of  an  accurate  record  of  his  entries. 
He  makes  them  contemporaneously  with  the  act  which  they  represent. 


No.  400  HEARSAY   RULE:     EXCEPTIOKTS  823 

They  are  made  in  the  regular  course  of  transactions,  which,  to  be  utiUzed 
in  the  business,  must  from  greatest  necessity  be  precise  and  true.  They 
are  made  in  the  habit  and  system  of  keeping  such  a  record  with  regularity. 
Every  consideration  by  which  it  is  possible  to  establish  the  existence  of  a 
past  event,  by  testing  the  accuracy  of  the  evidence  of  it,  is  satisfied  by 
such  a  record.  It  is  less  apt  to  be  mistaken  than  the  person  who  made 
it  would  be  if  testifying  to  it  from  memory  subsequently.  That  it  is 
made  up  of  details  furnished  by  different  persons  widely  apart,  and  all 
acting  under  a  high  incentive  for  accuracy,  and  who  report  that  which  is 
transpiring  at  the  moment  under  their  eyes,  is  better  evidence,  because 
more  apt  to  be  a  true  picture  of  the  real  situation,  than  if  it  were  possible 
for  one  person  to  have  the  whole  as  a  panorama  before  his  own  eyes,  and 
then  attempt  to  set  it  down  in  the  record,  much  less  to  have  to  depend  on 
his  memory  afterward  to  truthfully  recall  and  relate  it.  If  every  tele- 
graph operator  along  the  line  were  to  come  to  court,  and  all  testify  to  their 
recollections  of  the  position  of  trains  at  or  near  their  stations  at  a  given 
hour  and  day,  the  result  would  be  neither  more  certain,  nor  the  truth 
clearer,  than  by  the  use  of  the  original  record  made  at  the  time  the  events 
were  happening.  In  addition,  to  call  all  these  men  away  from  their  posts 
to  the  court,  to  bring  a  regiment  of  witnesses  to  prove  minute  details 
of  a  status  more  easily  and  truly  shown  by  a  contemporaneous  record, 
would  be  to  discard  the  better  for  the  worse,  and  to  trammel  the  adminis- 
tration of  justice.  .  .  .  Records  of  the  kind  offered  and  rejected  in  this 
case,  and  now  being  discussed,  were  admitted  in  Donovan  v.  B.  &  M.  R. 
Co.  (Mass.)  33  N.  E.  583,  Fireman's  Ins.  Co.  v.  Seaboard  Air  Line  Ry. 
(N.  C.)  50  S.  E.  452,  and  T.  &  P.  Ry.  Co.  v.  Birdwell  (Tex.  Civ.  App.). 
86  S.  W.  1067.  Where  the  witness  who  made  the  record  is  produced,  if  \ 
within  the  jurisdiction  of  the  court,  and  testifies  that  the  record  offered 
was  made  by  him  in  the  regular  course  of  the  business,  that  it  was  his 
duty  to  keep  such  a  record,  and  that  its  entries  were  correct  when  made, 
nothing  appearing  to  show  that  the  record  has  since  been  altered,  it  is 
receivable  as  evidence  of  the  fact  it  recites;  or  if  the  person  who  made 
the  record  be  dead,  or  beyond  the  jurisdiction  of  the  court,  if  the  record 
be  otherwise  proved  to  be  the  original  entry  so  kept,  it  is  receivable  on 
the  same  grounds  and  to  the  same  extent  as  any  other  book  or  record  of 
original  entry.  .  .  . 

The  Court  is  further  of  opinion  that  a  new  trial  should  have  been 
granted  in  this  case  because  the  verdict  was  palpably  against  the  weight 
of  the  evidence. 

Judgment  reversed,  and  cause  remanded,  with  directions  to  award  a 
new  trial  under  proceedings  not  inconsistent  herewith. 


624  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  401 

401.   COOLIDGE  v.  TAYLOR 

Supreme  Court  of  Vermont.     1911 

85  Vt.—,  80  Ail.  1039 

Exceptions  from  Windsor  County  Court;  E.  L.  Waterman, 
Judge. 

Action  by  John  C.  Coolidge  against  Warren  R.  Taylor,  defendant, 
and  another,  as  trustee.  Verdict  and  judgment  for  plaintiff,  and  defend- 
ant excepted.    Judgment  reversed  and  remanded. 

Argued  before  Rowell,  C.  J.,  and  Munson  and  Watson,  JJ. 

William  W.  Stickney,  John  G.  Sargent,  and  Homer  L.  Skeels,  for 
plaintiff.     Davis  &  Davis  and  Frank  A.  Waker,  for  defendant. 

Rowell,  C.  J.  This  is  a  statutory  "trustee  suit"  for  the  collection 
of  a  tax  assessed  against  the  defendant  on  his  grand  list  in  Plymouth  in 
1898.  .  .  . 

The  defendant  claimed,  and  his  evidence  tended  to  show,  that  his 
taxable  residence  was  in  Woodstock  the  1st  day  of  April,  1898,  whither 
he  moved  from  Sherburn  in  March  of  that  year.  It  appeared  that  he 
hired  a  box  in  the  W^oodstock  post  office,  and  held  it  during  that  year, 
and  received  hjs  and  his  wife's  mail  through  that  office.  .  .  .  The  defend- 
ant claimed,  and  his  evidence  tended  to  show,  that  he  moved  from  the 
Taylor  farm  in  Plymouth  to  Sherburn  in  the  spring  of  1888,  and  resided 
in  Sherburn  till  he  moved  to  Woodstock  in  March,  1898. 

It  was  error  to  admit  the  milk  book  of  the  cheese  factory  containing 
entries  purporting  to  show  the  delivery  of  milk  there  in  1897  in  the  name 
of  the  defendant,  and  to  admit  the  testimony  of  the  secretary  of  the  cheese 
company  based  thereon,  who  knew  nothing  about  the  correctness  of  the 
entries  except  that  he  transcribed  them  from  daily  memoranda  kept 
by  the  cheesemaker  as  the  milk  was  delivered,  and  who  was  not  called 
as  a  witness  nor  his  absence  accounted  for. 

It  is  not  that  the  entries  are  not  original  because  thus  transcribed, 
but  that  the  correctness  of  the  memoranda  was  not  shown  by  the  person 
who  made  them,  nor  in  any  other  way.  Without  this,  the  entries  in 
the  book,  and  the  testimony  of  the  witness  based  thereon,  were  mere 
hearsay.  In  Chaffee  v.  United  States,  18  Wall.  516,  541,  the  rule  that 
governs  the  admissibility  of  entries  made  by  private  persons  in  the  ordi- 
nary course  of  business  is  said  to  require,  with  some  exceptions  not 
included  in  that  case,  not  merely  that  they  shall  be  contemporaneous 
with  the  facts  to  which  they  relate,  but  that  they  shall  have  been  made 
by  persons  having  personal  knowledge  of  the  facts,  and  be  corroborated 
by  their  testimony,  if  living  and  accessible,  or  by  proof  of  their  hand- 
writing if  dead,  insane,  or  beyond  the  reach  of  the  process  or  commission 
of  the  Court.  And  this,  because  the  testimony  of  living  witnesses 
personallv  cognizant  of  the  facts  of  which  they  speak,  given  under  tb'^ 


No.  401  HEARSAY   RULE:     EXCEPTIONS  625 

sanction  of  an  oath  in  open  Court,  where  they  may  be  subjected  to  cross- 
examination,  affords  the  greatest  security  for  truth;  but  that  their 
declarations,  verbal  or  written,  must  sometimes  be  admitted  when  they 
themselves  cannot  be  called,  in  order  to  prevent  a  failure  of  justice,  in 
which  cases  the  admissibility  of  the  declarations  is  limited  by  the  neces- 
sity on  which  it  is  based.  Connecticut  Mutual  Life  Ins.  Co.  v.  Schwenk, 
94  U.  S.  593,  598,  is  to  the  same  effect. 

Mr.  Wigmore  says  that  there  can  be  no  doubt  that  the  general  prin- 
ciples of  testimonial  evidence  should  apply  here  as  elsewhere;  namely, 
that  the  person  whose  statement  is  received  as  testimony  should  speak 
from  personal  observation  or  knowledge,  and  that  this  principle  has  often 
been  invoked  in  excluding  entries  made  by  a  person  who  had  no  personal 
knowledge  of  the  supposed  facts  recorded.  But  he  suggests  that  this 
principle  does  not  necessarily  exclude  all  entries  made  by  persons  not 
having  personal  knowledge  of  the  facts  entered,  and  subriiits  that  where 
an  entry  is  made  by  one  person  in  the  regular  course  of  business,  record- 
ing an  oral  or  a  written  report  made  to  him  by  one  or  more  other  persons 
in  regular  course  of  business,  of  a  transaction  lying  in  the  personal 
knowledge  of  the  latter,  there  is  no  objection  to  receiving  that  entry, 
provided  the  practical  inconvenience  of  producing  on  the  stand  the 
numerous  persons  thus  concerned  would,  in  the  particular  case,  out- 
weigh the  probable  utility  of  doing  so.  2  Wigmore,  Evidence,  §  1530. 
But,  however  that  may  be,  this  case  does  not  come  within  that  suggestion, 
but  belongs  to  the  same  class  as  Chaffee  v.  United  States  and  Connecti- 
cut Mutual  Life  v.  Schwenk,  to  which  we  have  referred.  See,  also, 
17  Cyc.  392,  394;  Kent  v.  Garvin,  1  Gray  (Mass.)  148;  Stettauer  v. 
White,98Ill.  72,  stated  in  House  I'.  Beak,  141111.  290  Me,  No.  395].  .  .  . 

Both  judgments  reversed  and  cause  remanded. 

On  reargument.  ...  It  appears  from  the  amended  exceptions  that 
the  secretary  of  the  company  was  also  its  treasurer  and  financial  man, 
and  received  the  avails  of  cheese  sold,  and  distributed  them  to  the 
patrons  in  proportion  to  the  milk  delivered  by  them,  after  deducting 
the  cost  of  making.  .  .  .  The  plaintiff  claims  that  .  .  .  the  book  as 
made  by  the  treasurer  was  used  by  him  as  a  basis  for  computing  the 
dividends,  and  in  connection  with  his  testimony,  and  to  the  extent 
used,  was  properly  admitted,  (1)  because  the  witness  could  use  it  as  a 
memorandum  used  by  him  at  the  time  he  made  the  dividends,  to  refresh 
his  recollection,  and  (2)  because  it  was  not  directly  in  issue,  but  related 
to  a  collateral  matter,  and  so  not  within  the  best  evidence  rule. 

But  this  claim  still  erroneously  assumes  that  the  book  was  evidence 
that  milk  was  delivered  from  the  Taylor  farm.  And,  as  to  refreshing 
recollection,  it  could  refresh  no  further  than  to  the  fact  that  the  witness 
made  the  entries  in  the  book  from  memoranda  kept  by  the  cheesemaker, 
about  the  correctness  of  which  he  knew  nothing.  Such  a  refreshing  did 
not  make  the  book  admissible  for  what  the  plaintiff  says  it  was  used. 

Nor  does  the  fact,  if  it  is  a  fact,  that  the  book  relates  to  collateral 


626  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  401 

matter,  and  not  within  the  best  evidence  rule,  make  any  difference, 
for  this  is  not  a  question  of  degree,  but  of  admissibihty  regardless  of 
degree.  .  .  .  Reversed  and  remanded  as  before. 


Topic  5.     Statements  by  Deceased  Persons  in  General 

402.  SuGDEN  V.  St.  Leonards.  (1876.  L.  R.  1.  P.  D.  154).  Mellish,  L.  J. 
I  have  not  the  least  hesitation  in  saying  that  I  think  it  would  be  a  highly  desirable 
improvement  in  the  law  if  the  rule  was  that  all  statements,  made  by  persons  who 
are  dead,  respecting  matters  of  which  they  had  a  personal  knowledge,  and  made 
"ante  litem  motam,"  should  be  admitted.  There  is  no  doubt  that  by  rejecting 
such  evidence  we  do  reject  a  most  valuable  source  of  evidence.  .  .  .  [But]  it 
appears  to  me  that  it  would  be  better  to  leave  it  to  the  Legislature  to  make  the 
improvement,  which  in  my  opinion  ought  to  be  made,  in  our  present  rules  with 
regard  to  the  admissibility  of  evidence  of  that  description. 

403.  Statutes.  Massachusetts.  (St.  1898,  c.  535,  Rev.  L.  1902,  c.  175,  §  66). 
No  declaration  of  a  deceased  person  shall  be  excluded  as  evidence  on  the  ground 
of  its  being  hearsay,  if  it  appears  to  the  satisfaction  of  the  judge  to  have  been  made 
in  good  faith  before  the  beginning  of  the  suit  and  upon  the  personal  knowledge 
of  the  declarant. 


404.   NAGLE  v.   BOSTON  &  NORTHERN  STREET  R.   CO. 

Supreme  Judicial  Court  of  Massachusetts.     1905 

188  Ma^s.  38;  73  N.  E.  1019 

Two  actions  of  Tort  against  the  Boston  and  Northern  Street  Railway 
Company  for  the  suffering  and  death  of  one  motorman  and  for  injuries 
to  another  from  a  collision  of  two  cars  running  in  opposite  directions 
upon  the  same  single  track  of  the  defendant,  the  first  action  by  the  ad- 
ministratrix of  the  estate  of  James  E.  Nagle,  who  also  sued  under  R.  L. 
c.  106,  §  73,  as  his  widow,  and  the  second  by  Henry  P.  Hart.  Writs 
dated  February  27,  1902,  and  January  20,  1902. 

In  the  Superior  Court  the  cases  were  tried  together  before  Gaskill,  J. 
Against  the  objection  of  the  defendant,  the  judge  admitted  the  decla- 
rations of  James  E.  Nagle,  w-hich  are  stated  in  the  opinion,  and  refused 
to  order  a  verdict  for  the  defendant.  In  each  case  the  jury  returned  a 
verdict  for  the  plaintiff,  in  the  first  case  in  the  sum  of  $5,000,  of  which 
$3,000  was  for  conscious  suffering  of  the  plaintiff's  intestate,  and  S2,000 
for  causing  the  death  of  the  plaintiff's  husband,  and  in  the  second  case 
in  the  sum  of  $350.     The  defendant  alleged  exceptions. 

J.  P.  Sweeney,  for  the  defendant.  J.  G.  Walsh,  for  Nagle.  W.  J. 
Bradley,  for  Hart,  submitted  a  brief. 

Barker,  J.:  .  .  .  The  collision  occurred  because  the  car  of  which 
Nagle  was  motorman,  instead  of  stopping  at  the  point  where  under  the 


No.  407  HEARSAY   RULE:     EXCEPTIONS  627 

general  running  orders  in  force  it  should  stop,  unless  in  any  instance 
special  directions  otherwise  had  been  given,  until  the  car  of  which  Hart 
was  motornian  had  arrived  and  passed  upon  a  double  track,  failed  to 
stop,  and  ran  on  upon  a  single  track  leading  to  the  Willows.  Hart's 
car  was  running  in  accordance  with  the  general  order. 

As  Nagle's  car  went  on  to  the  single  track  instead  of  stopping,  his 
conductor  said  to  him,  "Jim,  did  you  have  orders  to  go  to  the  Willows?" 
Nagle  said,  "Yes,"  and  nodded.  After  the  collision,  as  the  conductor 
was  riding  in  the  ambulance  with  Nagle,  the  conductor  said  to  him, 
"Jim,  did  you  get  orders  to  go  to  the  Willows?"  and  he  said,  "Yes,  I 
did."     This  was  the  evidence  admitted  under  exception. 

It  is  urged  in  support  of  the  exception,  that  the  declarations  of  Nagle 
were  inadmissible  because  made  in  answer  to  leading  questions,  and  be- 
cause they  merely  embody  the  declarant's  inference  as  to  what  had  been 
done  or  said  by  others.  But  the  statute  applies  to  every  declaration  of 
a  deceased  person  found  to  be  made  in  good  faith  before  the  commence- 
ment of  the  action  and  upon  the  personal  knowledge  of  the  declarant. 
If  the  statute  was  not  intended  to  apply  to  declarations  made  in  answer 
to  leading  questions,  the  Legislature  would  have  so  said.  Its  words  are 
not  to  be  "narrowed  from  their  natural  meaning."  O'Driscoll  v.  Lynn 
&  Boston  Railroad,  180  Mass.  187,  189. 

W^e  think  the  questions  put  by  the  conductor  were  such  under  the 
circumstances  as  clearly  to  call  upon  Nagle  for  a  fact  within  his  own 
knowledge  rather  than  any  inference  of  his  own ;  and  that  it  was  for  the 
jury  to  say  whether  he  proceeded  without  stopping  to  wait  for  the  other 
car  in  consequence  of  an  express  order  to  that  effect  given  to  him.  See 
Huebener  v.  Childs,  180  Mass.  483,  485.  The  statute  has  been  construed 
liberally,  the  declarations  when  admitted  being  regarded  as  those  of  a 
witness  and  given  probative  effect.  .  .  .  We  think  the  evidence  was 
admitted  rightly.  .  .  .  Exceptions  overruled. 

Topic  6.    Reputation 

407.   BADGER  v.   BADGER 

Court  of  Appeals  of  New  York.     1882 

88  N.  Y.  546 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  entered  upon  an  order  made  Septem- 
ber 13,  1881,  which  affirmed  a  judgment  in  favor  of  defendants,  entered 
upon  a  decision  of  the  Court  on  trial  at  Special  Term.  This  action  was 
brought  for  admeasurement  of  dower.  The  plaintiff  claims  dower  in 
the  lands  of  Jacob  Badger,  deceased,  whom  she  alleges  to  have  been  her 
husband.  The  defendants  deny  the  marriage,  and  so  raise  an  issue  of 
fact  which  forms  the  vital  point  of  the  controversy.     No  formal  or  cere- 


628  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  407 

monial  marriage  is  proven,  nor  any  express  agreement  between  the 
parties  constituting  such  relation.  The  proof  offered  is  that  of  cohabi- 
tation continued  for  a  long  period  of  time,  and  characterized  by  general 
repute,  and  by  conduct  and  conversation  indicating,  as  is  claimed,  an 
intercourse  rather  matrimonial  than  meretricious.  .  .  . 

George  B.  Ely,  for  appellant.  The  proof  of  acknowledgment  of 
marriage,  matrimonial  cohabitation,  habit  and  repute  was  so  clear  and 
for  so  long  a  period  as  to  establish  the  marriage,  and  the  burden  of  dis- 
proving it  was  upon  the  defendants.  .  .  . 

S.  M.  Parsons,  for  respondents.  A  local  or  a  partial  divided  repute 
of  marriage  is  of  no  avail.  .  .  . 

Finch,  J.  (after  stating  the  facts  as  above).  The  decedent  appears 
to  have  lived  two  lives.  They  ran  parallel  with  each  other  for  more 
than  a  third  of  a  century,  and  without  approach  or  collision.  In  one 
locality,  and  among  his  own  relatives  and  friends,  he  seemed  to  be  a 
bachelor  possessing  considerable  wealth;  at  the  head  of  a  respectable 
business;  occupying  rooms  with  his  sister  and  with  others  during  much 
of  the  period;  and  if  not  always  at  home,  yet  not  so  frequently  absent 
as  to  arouse  suspicion  or  remark.  In  another  locality  in  the  same  city, 
but  perhaps  in  an  humbler  neighborhood,  he  appears  as  John  Baker; 
living  with  the  plaintiff  as  his  wife;  introducing  her  as  such;  called 
uncle  by  her  nephew,  and  deemed  father  by  her  daughter;  paying  her 
bills  and  expenses;  furnishing  her  with  the  food  and  shelter  which  he 
shared ;  nursing  her  through  severe  and  continued  illness ;  seldom  absent 
at  night;  attending  her  mother's  funeral  as  one  of  the  family  of  mourn- 
ers; the  intercourse  creating  no  scandal,  but  reputed  to  be  virtuous  and 
respectable,  and  that  of  husband  and  wife.  It  is  over  this  cohabitation, 
and  its  true  character  and  meaning,  that  the  controversy  arises.  .  .  . 

The  reputation  attending  this  cohabitation  in  the  neighborhood 
where  it  existed  and  was  known  among  those  brought  into  its  presence 
by  relationship,  business,  or  society,  was  that  which  ordinarily  attends 
the  dwelling  together  of  husband  and  wife.  It  has  been  well  described 
as  the  shadow  cast  by  their  daily  lives.  (1  Bishop  on  IVIarriage  and 
Divorce,  §  438.)  In  the  general  repute  surrounding  them,  the  slow 
growth  of  months  and  years,  the  resultant  picture  of  forgotten  incidents, 
passing  events,  habitual  and  daily  conduct,  presumably  honest  because 
disinterested,  and  safer  to  be  trusted  because  prone  to  suspect,  we  are 
enabled  to  see  the  character  of  the  cohabitation,  and  discern  its  dis- 
tinctive features.  It  is  for  that  reason  that  such  general  repute  is  per- 
mitted to  be  proven.  It  sums  up  a  multitude  of  trivial  details.  It 
compacts  into  the  brief  phrase  of  a  verdict  the  teaching  of  many  incidents 
and  the  conduct  of  years.  It  is  the  average  intelligence  drawing  its 
conclusions.  .  .  . 

The  defendants  were  permitted  to  prove,  under  repeated  objections 
and  exceptions,  that  Jacob  Badger  was  reputed  to  be  a  bachelor  and 
unmarried.     This  proof  was  given  by  persons  who  were  his  friends  and 


No.  407  HEARSAY   RULE:     EXCEPTIONS  629 

acquaintances,  but  who  knew  nothing  of  the  plaintiff,  were  unconscious 
of  her  existence,  and  in  total  ignorance  of  her  cohabitation  with  the 
decedent.  The  repute  thus  proven  was  not  the  product  of  the  cohabi- 
tation, and  did  not  tend  to,  explain  it,  or  solve  its  character.  It  could 
not  by  possibility  bear  upon  it.  It  was  not  its  shadow,  for  it  cast  none 
into  the  locality  where  these  witnesses  were.  .  .  .  The  life  of  John 
Baker  in  McDougal  street  was  ambiguous,  in  the  sense  that  it  might 
indicate  an  illicit  intercourse  or  a  matrimonial  connection.  To  ascer- 
tain which,  the  shadow  it  cast  upon  surrounding  society  could  be  ex- 
amined and  studied  usefully  for  the  solution  of  the  doubt.  The  life  of 
Jacob  Badger  in  Joralemon  street  was  not  ambiguous  at  all,  and  needed 
no  help  to  solve  its  character.  It  is,  indeed,  said  that  the  purpose  was 
to  show  a  divided  repute,  and  so  contradict  the  reputation  of  marriage, 
which  to  be  effective  must  be  general.  But  the  general  repute  proved, 
and  that  required  to  be  shown,  does  not  and  cannot  go  beyond  the  range 
of  knowledge  of  the  cohabitation.  If  within  that  range  there  is  division 
as  to  the  character  of  the  fact,  the  divided  repute  merely  continues  the 
ambiguity  and  determines  nothing. 

In  Clayton  v.  Wardell  (4  N.  Y.  230),  the  divided  repute  was  of  a 
marriage,  among  some  friends,  and  a  disreputable  connection,  among 
others ;  thus  negativing  a  general  repute  of  connubial  intercourse  among 
those  having  knowledge  of  the  cohabitation.  In  Commonwealth  v. 
Stump  (53  Penn.  St.  135),  the  reputation  shown  related  to  the  parties 
and  their  association,  and  was  that  they  were  not  married.  ...  In 
Lyle  T.  Ellwood  (L.  R.  19  Eq.  Cas.  98),  the  repute  was  di\aded,  and  that 
of  marriage  allowed  to  prevail,  but  it  was  among  those  cognizant  of  the 
cohabitation  and  having  reference  to  it  as  a  fact  to  be  explained.  We 
have  .been  able  to  find  no  case  where  such  evidence  as  was  here  given, 
upon  its  admissibility  being  challenged  by  objection,  has  been  held 
competent. 

The  evidence  of  reputation,  when  admitted,  is  an  exception  to  general 
rules.  ...  In  its  application  to  the  fact  of  marriage  it  is  more  than 
mere  hearsay.  It  involves  and  is  made  up  of  social  conduct  and  recog- 
nition, giving  character  to  an  admitted  and  unconcealed  cohabitation. 
But,  in  its  application  to  a  man  living  in  appearance  a  single  life,  it  adds 
nothing  to  that  fact,  it  creates  no  further  contradiction  to  an  intercourse 
carried  on  elsewhere  under  the  appearance  of  matrimony,  and  throws 
no  additional  light  upon  it.  It  amounts  to  bare  hearsay,  and  the  un- 
sworn declarations  of  persons  knowing  nothing  of  the  facts  in  contro- 
versy. In  the  present  case  twenty-three  different  witnesses  were  allowed 
to  testify  to  the  reputation  of  the  decedent  as  a  bachelor,  not  one  of 
whom  before  his  death  had  seen  or  heard  of  the  plaintiff,  or  known  of  her 
connection  with  him.  We  do  not  think  this  evidence  was  admissible. 
Its  very  volume  and  frequency  indicates  the  dangerous  effect  it  may  have 
produced  upon  the  mind  of  the  Court,  and  we  cannot  disregard  the 
error.  .  .  . 


630  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  407 

The  judgment  should  be  reversed,  and  new  trial  granted,  costs  to 
abide  the  event. 
All  concur. 
Andrews,  Ch.  J.,  Miller  and  Tracy,  JJ.,  concurring  in  result. 

Judgment  reversed. 


408.   BLAND  v.   BEASLEY 

Supreme  Court  of  North  Carolina.     1906 

140  N.  C.  628;  53  S.  E.  443 

Appeal  from  Superior  Court,  Pender  County;    Councill,  Judge. 

Action  by  J.  T.  Bland  and  others  against  L.  A.  Beasley  and  others. 
From  a  judgment  in  favor  of  plaintiffs,  defendants  appeal.     Reversed. 

Civil  action  to  recover  land.  The  plaintiffs  derive  title  by  mesne 
conveyances  under  a  grant  from  the  State  to  William  and  James  Hall 
dated  December  22,  1819.  The  question  at  issue  was  one  chiefly  of 
boundary,  and  depended  to  a  great  extent  on  the  correct  location  of  this 
grant.  The  description  was  said  to  begin  on  "a  pine,  Abram  Hall's 
corner."  As  an  aid  to  the  true  location  of  this  corner,  the  plaintiffs  put 
in  evidence  a  grant  to  Abram  Hall  dated  May,  1816,  which  was  said 
to  "begin  at  a  pine  on  Halsey's  line,"  and  as  a  further  circumstance 
tending  to  show  that  the  beginning  corner  of  his  grant  was  located  as 
claimed  by  the  plaintiffs,  it  became  material,  certainly  relevant,  to  show 
that  the  beginning  corner  of  this  Abram  Hall  grant  was  at  a  pine  in 
"Halsey's  line,"  and  in  this  way  the  existence  and  correct  placing  of 
this  "Halsey  line"  became  relevant.  For  that  purpose  the  surveyor 
(Colvin)  in  the  course  of  his  examination  by  the  plaintiffs  was  asked: 
"Q.  —  Do  you  know  where  the  Halsey  line  is?  A.  —  I  only  know  what 
people  say.  Q.  —  What  indicates  the  Halsey  line  on  the  map?  A.  — 
The  line  A,  D,  K,  43,  42,  and  from  42  back  to  A.  Q.  —  Did  you  ever 
run  that  patent  except  in  1884?  A.  — No.  Q.  — How  long  have  you 
known  that  line  by  general  reputation  as  the  Halsey  line?  A.  —  Since 
1884.  The  eastern  end  of  the  line  is  at  A.  The  western  end  is  at  K." 
To  all  and  each  of  these  questions  and  answers,  except  the  first,  the 
defendants  excepted.  On  cross-examination,  touching  this  Abram  Hall 
patent  and  Halsey  line,  the  same  witness  made  answer  to  questions  as 
follows :  "  Q.  —  WTio  first  told  you,  since  the  survey  began,  that  that 
was  the  Halsey  line  from  30  to  the  ditch  branch,  and  from  A  to  K?  A.  — 
All  I  know  is  from  the  survey.  Q.  —  You  say  Jim  Cowan  is  the  only 
man  you  ever  heard  say  that  was  the  Halsey  line?  A.  — Yes."  Jim 
Cowan  was  living,  and  a  witness  in  the  case.  The  defendants  then 
moved  to  strike  out  the  testimony  of  this  witness  as  to  reputation  of  the 
location  of  the  Halsey  line.  The  motion  was  denied  and  the  defendants 
excepted.     The  evidence  was  admitted  as  substantive  evidence  on  the 


No.  408  HEARSAY  RULE:     EXCEPTIONS  631 

location  of  the  Halsey  line.  Verdict  and  judgment  for  the  plaintiffs, 
and  the  defendants  excepted  and  appealed. 

Stevens,  Beasley  &  Weeks  and  Shepherd  &  Shepherd,  for  appellants. 
Jas.  0.  Carr,  J.  D.  Kerr,  and  E.  K.  Bryan,  for  appellees. 

Hoke,  J.  (after  stating  the  case).  The  correct  placing  of  the  Halsey 
line  was  a  fact  pertinent  to  the  issue,  but  if  the  plaintiffs  considered  this 
material  to  the  case  they  should  have  established  it  by  proper  testimony. 
It  is  contended  by  the  plaintiffs  that  common  reputation  is  admissible 
on  questions  of  boundary,  that  the  testimony  above  set  out  is  of  that 
character  and  the  rulings  of  the  Court  concerning  it  can  be  sustained 
on  that  ground.  It  is  true  that  evidence  of  both  hearsay  and  common 
reputation  is  received  with  us  in  cases  of  disputed  private  boundary. 
But  this  is  an  exception  to  the  general  rule,  which  requires  that  the 
rights  of  ligitants  must  be  determined  on  sworn  testimony.  Such  testi- 
mony, in  England,  is  not  admitted  in  questions  of  private  right,  and  the 
principle  was  only  adopted  here  from  necessity,  and  where,  from  lapse 
of  time  or  changing  conditions,  it  has  become  "difficult,  if  not  impossi- 
ble," that  better  evidence  should  be  had.  Speaking  of  such  testimony 
(hearsay)  in  Sasser  v.  Herring,  14  N.  C.  342,  Henderson,  J.,  says: 

"It  is  the  well  established  law  in  this  State.  And  if  the  propriety  of  the  rule 
was  now  res  integra,  perhaps  the  necessity  of  the  case,  arising  from  the  situation 
of  our  country,  and  the  want  of  self-evident  termini  of  our  lands  would  require  its 
adoption.  For  although  it  sometimes  leads  to  falsehood,  it  more  often  tends  to 
the  establishment  of  truth.  From  necessity,  we  have  in  this  instance  sacrificed 
the  principles  upon  which  the  rules  of  evidence  are  founded." 

While  such  testimony  is  thus  received  of  necessity,  it  should  be  confined 
to  the  reasonable  requirements  of  the  necessity  that  called  it  forth,  and 
the  rules  and  limitations  for  safeguarding  its  application  should  be  care- 
fully observed.  In  Hemphill  v.  Hemphill,  138  N.  C.  504,  the  Court  in 
speaking  of  this  character  of  evidence  said: 

"It  is  the  law  of  this  State  that,  under  certain  restrictions,  both  hearsay  evi- 
dence and  common  reputation  are  admissible  on  questions  of  private  boundary." 

Citing  Sasser  v.  Herring,  14  N.  C.  340,  Shaffer  v.  Gaynor,  117  N.  C.  15, 
23  S.  E.  154,  and  Yow  v.  Hamilton,  136  N.  C.  357,  48  S.  E.  782.  And  in 
the  same  opinion,  speaking  of  the  restrictions  placed  upon  evidence  of 
common  reputation,  the  Court  said: 

"This  reputation  whether  by  parol  or  otherwise  should  have  its  origin  at  a 
time  comparatively  remote  and  always  'ante  litem  motam.'  Second,  It  should 
attach  itself  to  some  monument  of  boundary  or  natural  object,  or  be  fortified  by 
evidence  of  occupation  and  acquiescence  tending  to  give  the  land  some  fixed 
and  definite  location." 

Citing  Tate  v.  Southard,  8  N.  C.  45,  Dobson  v.  Finley,  53  N.  C.  496, 
Mendenhall  v.  Cassells,  20  N.  C.  43,  Westfelt  v.  Adams,  131  N.  C.  379, 
and  Shaffer  v.  Gaynor,  117  N.  C.  15. 

Applying  the  principles  set  forth  in  these  cases,  we  are  of  the  opinion 


632  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  408 

that  the  testimony  of  the  witness  Colvin  on  the  matter  in  question  does 
not  comply  with  the  conditions  required  for  its  reception.  Here,  the 
true  location  of  the  Halsey  hne  had  become  a  relevant  circumstance, 
and,  granting  for  the  present  that  the  statement  of  this  witness  amounts 
to  evidence  of  common  reputation,  this  line  as  shown  by  the  plat  was  one 
boundary  line  of  a  large  tract  of  land  lying  adjacent  to  the  land  in  dispute. 
No  deed  covering  this  tract  of  land  is  introduced,  no  monument  or  nat- 
ural object  is  shown  as  marking  the  boundary  of  this  tract,  and  no 
occupation  or  possession  of  any  such  tract  by  Halsey,  or  any  of  his 
descendants  or  grantees,  is  established  tending  to  give  it  any  fixed  or 
definite  location.  As  said  by  Daniel,  J.,  in  Mendenhall  v.  Cassells, 
20  N.  C.  45: 

"In  a  country  recently  and  of  course  thinly  settled,  and  where  the  monuments 
of  boundaries  were  neither  so  extensively  known  nor  so  permanent  in  their  nature 
as  in  the  country  of  our  ancestors,  we  have  from  necessity  departed  somewhat 
from  the  English  rule  as  to  traditionary  evidence.  We  receive  it  in  regard  to 
private  boundaries,  but  we  require  that  it  should  either  have  something  definite 
to  which  it  can  adhere,  or  that  it  should  be  supported  by  proof  of  correspondent 
enjoyment  and  acquiescence.  A  tree,  line,  or  watercourse  may  be  shown  to  have 
been  pohited  out  by  persons  of  a  bygone  generation  as  the  true  line  or  watercourse 
called  for  in  an  old  deed  or  grant.  A  field,  house,  meadow,  or  wood  may  be  shown 
to  have  been  reputed  the  property  of  a  particular  man  or  family,  and  to  have 
been  claimed,  enjoyed,  and  occupied  as  such.  But  a  mere  report,  unfortified  by 
evidence  of  enjoyment  or  acquiescence,  that  a  man's  paper  title  covers  certain 
territory,  is  too  slight  and  unsatisfactory  to  warrant  a  rational  and  conscientious 
person  in  making  it  the  basis  of  a  decision  afi'ecting  important  rights  of  his  fellow 
men,  and  therefore,  as  far  as  we  are  advised,  has  never  been  received  as  com- 
petent testimony." 

And,  in  reference  to  the  time,  it  has  been  held  in  this  State  that  in 
order  to  admit  evidence  of  general  reputation,  unlike  hearsay  in  this 
particular,  it  is  not  necessary  to  show  that  such  reputation  had  its  origin 
in  the  declarations  of  persons  who  are  dead.  Dobson  v.  Finley,  supra. 
But  the  decisions  are  also  to  the  effect  that,  to  justify  the  reception  of 
such  evidence,  the  time  at  which  the  common  reputation  had  its  origin 
should  be  at  a  remote  period.  "Comparatively  remote"  is  the  term 
used  in  Hemphill's  Case,  snyra.  It  was  so  used  for  the  reason  that,  as 
the  principle  was  established  of  necessity,  when  from  changing  conditions 
and  the  absence  of  permanent  monuments,  better  evidence  of  boundary 
could  not  be  procured ;  so  the  time  may  vary  to  some  extent,  as  the  facts 
and  circumstances  may  show  that  the  necessity  does  or  does  not  exist. 
On  the  admission  of  such  testimony  as  to  the  time  required,  and  the  test 
to  be  applied,  it  is  held  in  Nieman  v.  Ward,  1  Watts  &  S.  (Pa.)  68,  that: 
"  Reputation  and  hearsay  is  such  evidence  as  is  entitled  to  respect  when 
the  lapse  of  time  is  so  great  as  to  render  it  difficult  to  prove  the  existence 
of  original  landmarks."  This  alleged  general  reputation  had  its  origin 
no  further  back  than  1884,  less  than  17  years  before  action  brought.    It 


No.  409  HEARSAY  RULE:  EXCEPTIONS  638 

grew  out  of  the  survey,  the  witness  said,  and  on  the  facts  and  circum- 
stances of  the  case  we  are  of  opinion  that  it  is  not  sufficiently  remote  to 
be  admitted  as  evidence. 

2.  While  we  have  discussed  the  question  on  the  idea  that  a  general 
reputation  has  been  testified  to,  because  it  was  very  earnestly  contended 
that  tlie  ruling  of  the  Court  should  be  sustained  on  that  principle,  as  a 
matter  of  fact  the  testimony  does  not  make  out  a  case  of  general  reputa- 
tion at  all,  and  we  could  well  hold  that  there  was  error  in  not  striking 
out  this  portion  of  the  evidence  in  accordance  with  the  defendant's 
motion.  The  witness  said  he  knew  the  line  was  the  Halsey  line  from 
"what  people  said."  Again,  he  said  his  knowledge  grew  out  of  the 
survey  in  1884;  and  the  only  person  he  ever  heard  say  so  was  Jim  Cowan, 
who  was  alive  and  a  witness  in  the  case.  This  is  no  testimony  of  a  gen- 
eral reputation,  but  simply  the  assertion  of  a  fact  by  an  individual  who 
is  still  living.  A  general  reputation  must  be  the  common  report  of  the 
community,  and  while  it  may  be  established  by  the  assertion  of  indi- 
viduals "such  assertion  must  be  in  effect  the  statement  of  the  reputa- 
tion." As  stated  in  the  books,  "an  individual  declaration  must  thus 
appear  to  be  the  result  of  a  received  reputation,  and  the  individual 
declarant  is  thus  merely  the  mouthpiece  of  the  reputation."  1  Green- 
leaf,  Evidence,  §139;  2  Wigmore,  Evidence,  §1584  —  both  authors 
citing  Wood,  Baron,  in  Moseley  v.  Davis,  11  Price  180. 

There  was  error  in  admitting  the  testimony,  and  a  new  trial  is 
awarded. 

New  trial. 


409.  BucKLiN  V.  State.  (1851.  Ohio.  20  Oh.  23).  Caldwell,  J.  The  term 
"character,"  when  more  strictly  applied,  refers  to  the  inherent  qualities  of  the 
person,  rather  than  to  any  opinion  that  may  be  formed  or  expressed  of  him  by 
others.  The  term  "reputation"  applies  to  the  opinion  which  others  may  have 
formed  and  ex]3ressed  of  his  character.  So  that,  as  has  been  remarked  in  some 
of  the  books,  when  treating  on  this  subject,  a  man's  "character"  may  really  be 
good  when  his  "reputation"  is  bad,  and,  on  the  other  hand,  his  "reputation" 
may  be  good  when  his  "character"  is  bad.  But,  as  we  have  before  intimated, 
the  terms  when  used  in  connection  with  this  subject  are  generally  used  in  contra- 
diction to  this  distinction,  —  the  term  "general  character"  being  used  in  legal 
signification,  as  it  is  frequently  used  in  common  parlance,  to  express  the  opinion 
that  has  generally  obtained  of  a  person's  character,  - —  the  estimate  the  community 
generally  has  formed  of  it.  When  you  ask  a  witness,  then,  in  this  sense  of  the 
term,  what  a  man's  "general  character"  is  for  truth  and  veracity,  he  is  called  on 
to  answer  as  to  what  opinion  is  generally  entertained  and  expressed  of  him  by 
those  acquainted  with  him. 


634  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  410 

410.   ATLANTIC   &  BIRMINGHAM  R.   CO. 
V.  REYNOLDS 

Supreme  Court  of  Georgia.     1903 

117  Ga.  47;  43  S.  E.  456 

Action  for  damages.  Before  Judge  Dart.  City  Court  of  Douglas. 
May  13,  1902. 

Reynolds  sued  the  Waycross  Air  Line  Railroad  Company  for  dam- 
ages alleged  to  have  been  sustained  by  him  in  consequence  of  injuries 
received  by  the  falling  of  a  telephone  pole,  forming  a  part  of  a  telephone 
line  owned  and  operated  by  the  defendant  company,  which  pole  he,  in 
the  course  of  his  employment  by  the  company  as  a  lineman,  had  ascended 
for  the  purpose  of  repairing  a  broken  telephone  wire.  One  of  the  grounds 
of  the  motion  for  a  new  trial  alleges  that  the  Court  erred  in  "  sustaining 
the  objections  of  plaintiff's  counsel  to  defendant's  witnesses  C.  J.  Hendry, 
John  Hayes,  J.  B.  Quarterman,  and  Dan  Hall,  testifying  that,  while 
they  did  not  know  plaintiff's  reputation  where  he  lived  in  Waycross,  yet 
they  were  well  acquainted  with  him  and  knew  his  general  reputation 
up  and  down  the  Waycross  Air  Line  Railroad,  where  he  worked,  which 
was  bad,  and  from  that  they  would  not  believe  him  on  oath."  Upon 
the  trial  there  was  a  verdict  and  judgment  in  favor  of  the  plaintiff.  The 
defendant  moved  for  a  new  trial,  which  motion  being  overruled,  it 
excepted. 

J.  L.  Sweat,  for  plaintiff  in  error. 

Leon  A.  Wilson  and  Quincey  &  McDonald,  contra. 

Fish,  J.  (after  stating  the  facts  as  above) :  We  think  that  the  ground 
for  the  motion  was  well  taken.  ...  As  the  general  reputation  of  a  man 
is  usually  formed  in  the  neighborhood  where  he  spends  most  of  his  time, 
and  most  frequently  comes  in  social  and  business  contact  with  his  fellow- 
men,  it  is  usual  to  limit  the  inquiry  as  to  a  witness'  general  character 
to  his  general  reputation  in  the  neighborhood  where  he  lives;  that  is, 
where  he  has  his  home.  We  do  not  think,  however,  there  is  any  hard 
and  fast  rule  which  requires  this  to  be  done  in  every  possible  case.  The 
very  reason  for  so  limiting  the  inquiry  generally  may  be  a  good  reason 
for  allowing  more  latitude  in  an  exceptional  case.  The  reason  for  so 
limiting  the  inquiry  generally,  as  already  indicated,  is  that  the  place 
in  which  to  ascertain  a  man's  true  reputation  is  the  place  where  people 
generally  have  had  the  best  opportimities  of  forming  a  correct  estimate 
of  his  character.  It  is  obvious  that  this  may  not,  in  every  instance,  be 
the  neighborhood  where  a  man's  home  is  situated.  .  .  .  We  apprehend 
that  there  may  be  cases  in  which  a  person  has  established  no  general 
reputation  in  the  immediate  neighborhood  of  his  home,  but  has  estab- 
lished such  a  reputation  elsewhere.  This  may  arise  from  the  fact  that 
his  home  is  located  in  one  place  and  his  daily  business  or  work  is  carried 


No.  410  HEARSAY  rule:  EXCEPTIONS  635 

on  in  another,  in  which  latter  place  he  spends  nearly  all  of  his  time,  and 
hence  is  well  known  to  people  generally,  while  he  rarely  comes  in  social 
or  business  contact  with  people,  outside  of  his  family  circle,  in  the  neigh- 
borhood of  his  home. 

That  the  general  reputation  with  which  a  witness  called  to  impeach 
another,  under  this  section  of  the  Civil  Code,  must  be  acquainted, 
before  he  is  qualified  to  testify  upon  the  subject,  is  not  necessarily  con- 
fined to  general  reputation  in  the  immediate  neighborhood  where  the 
witness  sought  to  be  impeached  resides,  is  shown  by  the  decision  of  this 
Court  in  Boswell  v.  Blackman,  12  Ga.  591.  In  that  case  the  defendants 
in  the  Court  belcfw  introduced  two  witnesses  for  the  purpose  of  im- 
peaching Burrel  Blackman,  a  witness  who  had  testified  for  the  plaintiff. 
These  two  witnesses  testified  that  they  had  known  the  witness  Blackman, 
for  the  last  eight  or  ten  years,  in  Russell  County,  Alabama;  that  he  was 
generally  known  and  had  a  general  reputation  in  that  county.  Defend- 
ants then  proposed  to  ask  these  witnesses  if  they  knew  the  general 
character  of  Blackman  for  truth  and  veracity  in  the  county  of  Russell; 
the  Court  ruled  out  the  question,  deciding  that  it  should  be  confined  to 
the  character  of  the  witness  in  the  neighborhood  where  he  lived;  this 
ruling  was  excepted  to,  and  this  Court  held  that  it  was  erroneous; 
NiSBET,  J.,  who  delivered  the  opinion,  said: 

"The  impeachment  must  be  by  persons  acquainted  with  the  witness.  And 
they  are  called  to  speak  of  his  general  character  for  truth  and  veracity  —  not 
the  world  over,  or  in  London,  or  Paris,  or  Columbus,  but  in  that  circle  where  his 
real  character  is  best  known,  to  wit,  in  the  neighborhood  where  he  lives.  Now, 
when  a  witness  is  generally  known,  and  has  a  general  reputation  in  a  county, 
that  county  may  be  fairly  considered  his  vicinage;  it  is  fair  to  infer,  imder  such 
circumstances,  that  his  true  character  for  truth  is  as  well  known  in  that'  county, 
as  men's  character  for  truth  ordinarily  is  known  in  their  neighborhood."  .  .  . 

Here,  again,  we  see  that  the  paramount  idea  is,  that  the  witness  called 
to  impeach  another  must  know  what  the  general  reputation  of  the  latter 
is  in  a  neighborhood  or  community  the  people  of  which  have  had  good 
opportunities  for  ascertaining  his  true  character,  and  that  if  the  im- 
peaching witness  does  know  this,  he  is  not  disqualified  to  testify  on 
the  subject  because  he  does  not  know  what  the  general  reputation  of 
the  other  witness  is  in  the  particular  neighborhood  where  he  happens 
to  live  at  the  time  that  the  attack  is  sought  to  be  made  upon  his 
testimony. 

In  the  present  case,  the  witness  sought  to  be  impeached  was  a  tele- 
phone lineman,  who  lived  in  Waycross,  but  was  employed  by  the  defend- 
ant railroad  compan}^  to  keep  the  wires  and  telephones  of  its  telephone 
line,  running  along  its  railroad  from  Waycross  to  Fitzgerald,  in  proper 
order  and  condition ;  and  we  think  that  witnesses  who  did  not  know  his 
general  reputation  in  the  city  of  Waycross,  but  "were  well  acquainted 
with  him  and  knew  his  general  reputation  up  and  down  the  Waycross 
Air  Line  Railroad  where  he  worked,"  were  competent  to  testify  as  to 


636  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  410 

his  general  character,  and  whether,  from  that  character,  they  would 
believe  him  upon  his  oath,  the  weight  of  such  testimony  being  a  matter 
for  the  jury.  .  .  . 

Judgment  reversed.     By  five  Justices. 

Topic  7.     Official  Statements 

412.  Introductory.  Official  statements  may  of  course  be  classified  from 
various  points  of  view.  The  material  one  here  is  the  implied  authority  of  officers, 
which  suggests  something  as  to  the  admissibility  of  a  given  document.  The  form 
and  the  custody  of  the  document  are  important.  As  to  jform,  the  statements 
may  be  regularly  made  in  a  series  and  collected  in  a  general  register  or  record,  or 
they  may  be  drawn  up  for  each  occasion  as  separate  documents.  As  to  custody, 
they  may  be  preserved  by  the  officer  in  official  custody,  or  they  may  be  given 
out  to  be  carried  away  by  the  person  wishing  to  use  them.  There  thus  arises 
three  classes,  in  general  sufficiently  distinct,  within  which  all  the  various  sorts 
of  documents  may  be  subsumed,  namely.  Registers  (or  Records),  Returns  (in- 
cluding Reports),  and  Certificates  (including  Certified  Copies). 

A  register  or  record  difi'ers  from  a  return  or  report  in  that  it  comprises  in  a 
single  volume  a  series  of  homogeneous  statements,  recorded  by  entries  made  more 
or  less  regularly;  it  differs  from  a  certificate  in  that  it  is  kept  in  the  official 
custody.  A  return  or  report  differs  from  a  register  in  that  it  is  a  single  document, 
made  separately  for  each  transaction  as  occasion  arises,  —  perhaps  filed  or  in- 
dexed with  others,  but  having  a  separate  existence  of  its  own;  usually  because  it 
deals  with  something  done  without  the  official  precincts  and  therefore  not  so 
fitted  for  entry  in  a  single  office  volume.  The  return  differs  from  the  certificatfe 
in  that  it  is  preserved  in  official  custody.  A  further  distinction,  within  this  class, 
between  a  return  proper  and  a  report  is  that  the  former  deals  with  something 
personally  done  or  observed  by  the  officer  himself,  while  the  latter  may  record 
the  results  of  his  investigations  as  to  something  that  has  occurred  out  of  his 
presence.  A  certificate  differs  from  a  return  in  that  it  is  not  preserved  by  the 
official,  but  is  given  out  by  him  to  an  applicant  for  the  latter's  use.  It  differs 
from  a  register  in  that  it  is  not  a  series  of  entries  in  a  single  volume. 

In  general,  the  practical  importance  of  this  distinction  of  terms  appears  in 
the  following  ways:  A  register  is  usually  authorized  by  implication  to  be  kept 
by  every  officer  to  record  his  doings,  and  is  therefore  generally  admissible  ^\-ithout 
express  authority  to  keep  it.  A  return  is  also  usually  by  implication  authorized 
for  any  officer  whose  duties  involve  the  doing  of  things  outside  of  the  premises 
of  his  office,  — for  example,  a  sheriff  or  a  siuveyor;  yet,  so  far  as  it  is  merely  a 
report  —  i.e.  not  based  on  personal  knowledge  —  few  officers,  if  any,  are  found 
vested  by  implication  \\\t\\  such  authority,  and  consequently  an  express  authority 
must  be  sought;  moreover,  the  number  of  officers  whose  duties  necessarily 
authorize  the  making  of  a  return  proper  is  small.  A  certificate  seems  at  common 
law  rarely,  if  ever,  to  have  been  regarded  as  authorized  by  implication,  and  there- 
fore an  express  authority  must  be  sought  in  each  instance.  Thus,  the  distinction 
between  the  three  classes  has  important  consequences  in  determining  the  admis- 
sibility of  the  various  sorts  of  official  statements. 

The  terms  above  taken  are  not,  it  is  true,  employed  in  common  usage  with 
such  precision  to  mark  these  specific  distinctions;  nevertheless,  they  are  suffi- 
ciently typical. 


No.  415  HEARSAY  RULE:  EXCEPTIONS  637 

413.  Rex  v.  Aickles.  (Nisi  Prius.  1785.  1  Leach  Cr.  L.  3d  ed.  436).  Indict- 
ment for  returning  from  transportation  beyond  seas  within  seven  years  after 
discharge  from  jail.  It  was  held  incumbent  on  the  prosecutor  to  prove  the  precise 
day  on  which  the  prisoner  was  discharged;  and  for  tliis  purpose  Mr.  Newman, 
clerk  of  the  papers  of  the  prison,  produced  a  daily  book,  which  he  kept,  contain- 
ing entries  of  the  names  of  all  the  del)tors  and  criminals  who  are  brought  into  the 
prison,  and  the  times  when  they  were  discharged.  But  it  appeared  that  those 
entries  were  not  made  from  Mr.  Newman's  own  knowledge  of  the  facts,  but  that 
he  generally  made  them  from  the  information  of  the  turnkeys,  and  frequently 
from  the  turnkey's  indorsements  on  the  back  of  warrants,  which  warrants  were 
afterwards  regularly  filed. 

It  was  contended  by  the  prisoner's  counsel,  INIr.  Garrow,  that  these  were  not 
original  entries  of  the  facts;  and  therefore  that  the  turnkey  himself  by  whom 
Aickles  was  discharged,  or  the  original  minute  from  which  the  entry  of  his  dis- 
charge had  been  made,  should  be  produced,  because  they  alone  were  the  best 
evidence  upon  this  subject,  and  it  was  in  the  prosecutor's  power  to  produce  them. 
It  was  compared  to  the  production  of  a  tradesman's  ledger  in  order  to  prove  the 
delivery  of  goods,  instead  of  producing  the  original  memorandum  or  day-book 
from  which  the  ledger  had  been  posted;  and  it  was  argued,  that  no  credit  could 
be  given  to  entries  made  entirely  from  hearsay  and  information,  and  therefore 
they  ought  not  to  be  received  as  evidence. 

Per  Curiam  (admitting  the  book).  The  law  reposes  such  confidence  in  public 
officers  that  it  presumes  they  will  discharge  their  several  trusts  with  accuracy 
and  fidelity;  and  therefore  whatever  acts  they  do  in  discharge  of  their  public 
duty  may  be  given  in  evidence  and  shall  be  taken  to  be  true,  under  such  a  degree 
of  caution  as  the  natiu-e  and  circumstances  of  each  case  may  appear  to  require. 
...  In  the  present  case  Mr.  N.  has  no  private  interest  whatsoever  in  this  book 
to  induce  him  to  make  factitious  entries  in  it.  He  is  a  public  officer  recording 
a  public  transaction. 

414.  Gaines  v.  Relf.  (1851.  Federal  Supreme  Court.  12  How.  472,  570). 
WA"iT<E,  J.  Such  WTitings  [those  which  the  law  requires  to  be  kept  for  the  public 
benefit]  are  admissible  in  evidence  on  account  of  their  public  nature,  though  their 
authenticity  be  not  confirmed  by  the  usual  tests  of  truth,  namely,  the  swearing 
and  the  cross-examination  of  the  persons  who  prepared  them.  They  are  entitled 
to  this  extraordinary  degree  of  confidence  partly  because  they  are  required  by  law 
to  be  kept,  partly  because  their  contents  are  of  public  interest  and  notoriety,  but 
principally  because  they  are  made  under  the  sanction  of  an  oath  of  office,  or  at 
least  under  that  of  official  duty,  by  accredited  agents  appointed  for  that  purpose. 
Moreover,  as  the  facts  stated  in  them  are  entries  of  a  public  natiu^e,  it  would  often 
be  difficult  to  prove  them  by  means  of  sworn  witnesses. 


Sub-topic  A.    Registers  and  Records 

415.   MERRICK  v.  WAKLEY 

King's  Bench.     1838 

8A.&E.  170 

Case  for  a  libel  imputing  mala  praxis  to  the  plaintiff  as  a  surgeon 
employed  to  attend  the  poor  of  a  parochial  union  under  stat.  4  &  .5  AY. 


638  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  415 

IV,  c.  76.  The  defendant  pleaded  the  general  issue  and  pleas  of  justi- 
fication, to  which  the  plaintiff  replied  de  injuria,  and  issues  were  joined 
thereupon. 

On  the  trial,  before  Alderson,  B.,  at  the  last  Herefordshire  assizes, 
it  appeared  that  the  plaintiff,  at  the  time  in  question,  was  employed  as 
a  medical  officer  of  the  Kington  union,  Herefordshire,  by  appointment 
of  the  guardians;  and  that  the  poor-law  commissioners,  acting  under 
Stat.  4  &  5  W.  IV,  c.  76,  s.  15,  had  duly  made  rules  and  regulations  for  the 
government  of  the  workhouse  of  the  above  union,  prescribing,  among 
other  things,  the  duties  of  the  medical  officer.  One  of  these  was  stated 
as  follows:  "To  make  a  weekly  return  to  the  board  of  guardians  in  a 
book  prepared  according  to  the  form  1."  (subjoined);  "in  which  book 
he  shall  insert  the  date  of  every  attendance  at  the  workhouse,  and  make 
any  reports  relative  to  the  sickness  prevalent  within  his  district  which 
the  board  of  guardians  or  the  poor-law  commissioners  may  require;  and 
shall  attend  the  board  of  guardians  when  summoned  by  them  for  that 
purpose."  The  plaintiff  kept  such  a  book,  which  was  laid  on  the  table 
of  the  guardians  at  their  weekly  meetings,  to  be  inspected  by  them. 
The  book  was  produced  and  identified  at  the  trial;  and  the  plaintiff's 
counsel  proposed  to  read  some  entries  in  it,  for  the  purpose  of  showing 
what  had  been  the  plaintiff's  attendance  upon,  and  treatment  of,  a  per- 
son whose  case  was  commented  upon  in  the  libel,  and  whom  the  plain- 
tiff was  therein  alleged  to  have  neglected.  The  learned  judge  held 
this  evidence  inadmissible  for  the  plaintiff.  A  verdict  was  given  for 
one  farthing  damages,  and  the  learned  judge  certified  to  deprive  of  costs, 
under  stat.  43  Eliz.  c.  6,  s.  2.     In  this  term, 

Ludlow,  Serjt.,  moved  for  a  new  trial,  stating,  as  one  ground,  the 
rejection  of  the  above  evidence.  .  .  .  The  book  made  up  and  left  for 
inspection  at  the  meetings  of  guardians,  in  pursuance  of  such  rules, 
was  admissible  in  evidence  as  a  public  book,  kept  under  the  direct 
authority  of  an  act  of  parliament.  It  may  indeed  be  considered  as 
embodied  in  the  rules,  and  sanctioned  by  the  act  in  the  same  degree  as 
they  are.  The  entries  were  made  before  any  dispute  on  the  matters 
involved  in  this  action. 

Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

A  point  of  evidence  which  arose  in  this  case  was,  whether  certain 
entries  could  be  read  from  a  book  kept  by  the  plaintiff  as  a  medical 
officer,  under  rules  of  the  poor-law  commissioners,  which  book  contained 
entries  of  professional  visits,  and  was  produced  at  the  weekly  meetings 
of  the  guardians.  The  endeavor  was  to  put  this  document  upon  the 
same  footing  with  the  register  of  the  Navy-office,  the  log-book  of  a  man 
of  war,  the  books  of  the  Master's  office,  and  other  public  books  which 
are  held  to  be  admissible  in  evidence.  But  in  these  cases  the  entries 
are  made  by  an  officer  in  discharge  of  a  public  duty;  they  are  accredited 
by  those  who  have  to  act  upon  the  statements;   and  they  are  made  for 


So.  416  HEARSAY   RULE:     EXCEPTIONS  639 

the  benefit  of  third  persons.  Here,  it  is  true,  the  book  is  kept  by  a  pub- 
lic officer;  but  no  credit  is  given  him  in  respect  of  the  entries;  they  are 
merely  a  check  upon  himself.  If  we  held  this  book  admissible,  we  should 
make  the  entries  of  any  public  accountant  evidence  on  a  similar  occasion. 
There  will  therefore  be  no  rule.  Rule  refused. 


416.   KENNEDY  v.   DOYLE 

Supreme  Judicial  Court  of  Massachusetts.     1865 

10  All.  161 

[The  facts  and  the  evidence  in  this  case  have  been  already  given  in 
No.  398,  ante.] 

Gray,  J.  ...  In  England,  a  church  record  of  baptisms,  kept  by 
a  clergyman  of  the  Established  Church,  is  admissible,  even  before  his 
death,  accompanied  by  evidence  of  the  identity  of  the  child,  to  prove 
the  date  of  its  baptism;  but  not  the  time  of  its  birth,  because  the 
clergyman  has  no  authority  to  make  inquiry  about  the  time  of  birth  or 
any  entry  concerning  it  in  the  register:  Draycott  v.  Talbott  (3  Bro. 
P.  C.  (2d  ed.)  564);  May  t).  May  (2  Stra.  1073);  Wihen  v.  Law  (3  Stark. 
R.  63),  and  other  cases  cited  in  Stark.  Ev.  (4th  Eng.  ed.)  299,  note  f. ; 
Doe  V.  Barnes  (1  M.  &  Rob.  389).  In  the  Church  of  England,  from 
the  time  of  the  Reformation,  registers  of  baptisms,  weddings,  and 
burials  were  kept  by  order  of  the  Crown  as  head  of  that  church;  and 
in  the  words  applied  by  Lord  Chief  Baron  Gilbert  to  the  original 
order  of  Henry  YIII.  on  this  subject,  "when  a  book  was  appointed 
by  public  authority  it  must  be  a  public  evidence."  Gilb.  Ev.  (3d  ed.) 
77.  .  .  .  The  English  judges,  adhering  to  the  principle  of  admitting 
in  evidence  as  public  documents  those  registers  only  which  the  law 
required  to  be  kept,  have  considered  all  others  as  mere  private  memo- 
randa, and  have  refused  to  admit  registers  regularly  kept  by  dissenters 
unless  supported  by  the  testimony  of  the  person  keeping  them  by 
other  witnesses:  Birt  v.  Barlow  (1  Doug.  171);  Newham  v.  Raithby  (1 
Phillim.  R.  315);  Ex  parte  Taylor  (1  Jac.  &  Walk.  483;  s.  c.  3  Man. 
&  Ry.  430  n.);  Doe  v.  Bray  (8  B.  &  C.  813;  s.  c.  3  Man.  &  Ry.  428); 
Whittuck  V.  Waters  (4  C.  &  P.  375).  Yice  Chancellor  Shadwell  refused 
even  to  admit  an  entry  in  the  register  of  the  Roman  Catholic  chapel 
of  the  Sardinian  ambassador  in  London  as  evidence  of  the  baptism  of 
the  ambassador's  son;  D'Aglie  v.  Fryer  (13  Law  Journal,  n.  s.  Ch.  398). 
"The  principle  on  which  entries  in  a  register  are  admitted,"  said  Mr. 
Justice  Erle  in  a  recent  case,  "depends  upon  the  public  duty  of  the 
person  who  keeps  the  register  to  make  such  entries  in  it,  after  satisfying 
himself  of  their  truth."     Doe  v.  Andrews  (15  Q.  B.  759). 

Almost  two  centuries  before  the  passage  of  the  statute  of  Will.  IV., 
the  founders  of  the  Massachusetts  Colony,  though  not  less  attached 


640  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  416 

than  other  Enghshmen  to  their  own  forms  of  rehgious  worship,  had 
the  wisdom  to  perceive  that  it  was  more  important  for  the  civil  govern- 
ment to  preserve  exact  records  of  the  dates  of  births  and  deaths,  than 
of  rehgious  ceremonies  from  which  they  might  be  imperfectly  inferred; 
and  that  the  importance  of  recording  those  facts  did  not  depend  on  the 
particular  creed  or  church  government  of  the  individual,  but  applied 
equally  to  the  whole  people.  They  accordingly  left  the  baptism  of  the 
living  and  the  burial  of  the  dead  to  the  churches ;  but  by  an  ordinance  of 
1639  enacted  "  that  there  be  records  kept  of  the  days  of  every  marriage, 
birth  and  death  of  every  person  within  this  jurisdiction;"  and  similar 
statutes  have  been  ever  since  in  force  in  Massachusetts.  The  record  of 
a  marriage  by  the  justice  of  the  peace  or  minister,  or  the  town  clerk's 
or  registrar's  record  of  births,  marriages,  and  deaths,  kept  as  required 
by  these  statutes,  or  a  duly  certified  copy  of  either,  is  held  competent 
evidence;  2  Dane  Ab.  296;  Milford  v.  Worcester  (7  Mass.  56);  Com- 
monwealth V.  Norcross  (9  Mass.  492).  .  .  .  Similar  decisions  have  been 
made  in  other  States,  generally  upon  the  ground  of  the  record  having 
been  kept  in  the  performance  of  a  duty  imposed  by  law;  and  those 
cases,  in  the  reports  of  which  no  statute  is  referred  to,  may  yet  have 
controlled  by  statute.  .  .  . 

It  is  perfectly  true  that  in  this  Commonwealth  the  law  makes  no  dis- 
tinction between  different  sects  of  Christians,  and  the  record  of  a  Roman 
Catholic  priest  is  of  no  less  weight  as  evidence  than  that  of  a  Congre- 
gational, or  Protestant  Episcopal,  or  any  other  minister.  But  our  law 
not  requiring  any  record  of  baptisms,  the  church  book  offered  in  evidence 
in  this  case,  not  having  been  kept  under  any  requirement  of  law,  was  not 
a  public  record,  and  would  not,  had  the  priest  who  made  the  entries 
been  still  alive,  have  been  admissible  in  evidence,  unsupported  by  his 
testimonv.^ 


417.   DELANEY  v.  FRAMINGHAM  GAS,  FUEL  &  POWER  CO. 
Supreme  Judicial  Court  of  Massachusetts.     1909 
.  203  Mass.  359;  88  A^.  E.  776 
[Printed  as  No.  399,  (inte;  Point  1  of  the  opinion.] 


418.  History.^  No  general  system  of  registration  of  deeds  was  ever  adopted 
in  England  down  to  the  end  of  the  1800s.  But  statutes  of  a  narrow  scope  had 
existed  for  several  centuries.     These  statutes,  seven  in  substance,  covered,  first. 


^  [The  remainder  of  the  opinion,  on  another  rule  of  law,  is  printed  ante,  No. 
398.] 

^  [Abridged  from  the  present  Compiler's  "Treatise  on  Evidence"  (1905), 
Vol.   Ill,  §   1650.] 


No.  418  HEARSAY   RULE:     EXCEPTIONS  641 

all  deeds  in  the  ancient  form  of  bargain  and  sale,  and,  next,  all  deeds  whatever 
in  the  counties  of  York  and  Middlesex  and  certain  Crown  lands.  In  some  of  them 
a  means  of  probate  by  witnesses  before  the  registrar  was  provided  for,  and  in 
some  of  these  the  grantor's  acknowledgment  was  also  sanctioned;  in  two  alone 
(the  North  Riding  of  York  and  Crown  lands)  was  it  expressly  declared  that  the 
registry-copy  should  be  admissible  to  prove  (apparently)  the  deed's  execution, 
and  this  only  where  the  original  was  accidentally  destroyed.  There  was  therefore 
ample  opportunity  for  the  judicial  development  of  a  principle  to  test  the  admis- 
sibility of  such  registers  as  evidence  of  the  recorded  deed's  execution.  But  the 
rulings  unfortunately  present  only  a  perplexing  conflict.  Up  to  the  middle  of 
the  1700s,  it  may  be  gathered  that  the  enrolment  or  registry  of  a  deed  belonging 
to  the  class  authorized  or  required  to  be  enrolled  was  regarded  as  admissible.  But 
it  was  otherwise  for  deeds  enrolled  (as  was  not  uncommon,  for  example,  for  safe 
custody  in  a  court)  without  statutory  authority  (although  even  for  these  last, 
the  enrolment  was  receivable  as  against  the  party  enrolling,  because  it  virtually 
contained  his  admission).  This  much  is  clearly  laid  down  in  accordance  with 
strict  and  straightforward  principle,  by  Chief  Baron  Gilbert,  writing  in  the  early 
1700s: 

Gilbert,  C.  B.  Evidence  {ante  1726),  p.  24,  97:  "Where  the  deed  needs  en- 
rolment, there  the  enrolment  is  the  sign  of  the  lawful  execution  of  such  deed, 
and  the  officer  appointed  to  authenticate  such  deeds  by  enrolment  is  also  em- 
powered to  take  care  of  the  fairness  and  legality  of  such  deeds.  .  .  .  But  where 
a  deed  needs  no  enrolment,  there,  though  it  be  enrolled,  the  inspexivius  of  such 
enrolment  is  no  evidence;  because  since  the  officer  hath  no  authority  to  enrol 
them,  such  enrolment  cannot  make  them  public  acts." 

Nevertheless,  by  the  beginnings  of  the  1800s  the  rulings  bear  increasingly 
against  that  proposition.  By  the  end  of  the  first  half  of  the  1800s  the  opinion 
seems  clearly  to  prevail  in  England  that  it  is  not  the  law;  as  the  following  passage 
indicates : 

Thomas  Starkie.  Evidence  (1824)  p.  412:  "It  would  be  manifestly  incon- 
sistent with  the  plainest  principles  of  justice  to  admit  such  enrolments  to  be 
evidence  against  those  who  have  not  acknowledged  them,  without  proof  of  the 
execution  of  the  deeds;  .  .  .  and  although  it  appears  that  an  opinion  once  pre- 
vailed to  this  effect,  yet  it  seems  to  be  so  destitute  of  principle  that  it  is  not  prob- 
able it  would  now  be  acted  upon." 

But  the  rule  of  Chief  Baron  Gilbert  was  to  our  early  judges  an  inherited 
common-law  principle,  and  is  constantly  thus  referred  to  in  their  opinions.  At 
an  early  date  there  had  grown  up  a  general  registry-system  in  the  colonies  and  the 
original  States.  In  every  jurisdiction  where  the  inquiry  came  before  the  Courts, 
the  conclusion  was  reached  that  the  register  was  admissible,  on  common-law 
principles,  as  evidence  of  the  execution  and  contents  of  the  recorded  deed.^     In 

^  WoMACK  V.  Hughes  (1821.  Kentucky.  Litt.  Sel.  C.  291,  294).  Mills,  J. 
The  Acts  directing  the  mode  of  recording  deeds  do  not  direct  that  they  shall 
thereafter  be  given  in  evidence  in  any  court  on  the  trial  of  an  issue  without  any 
other  proof  than  the  ex  parte  authentication  which  entitles  it  to  a  place  on  its 
own  record;  nor  is  there  any  statutory  provision  which  so  directs,  within  the 
recollection  of  the  Court.  But  the  common-law  principle  relative  to  enrolled 
deeds  has  been  uniformly  applied  by  this  Court  to  deeds  recorded  according  to 
our  statutes. 

It  is  not,  however,  every  placing  a  deed  upon  record  which  makes  it  a  recordi  d 


642  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  418 

only  a  few  of  the  earlier  States  was  this  result  expressly  provided  for  by  statute. 
But  as  time  went  on,  and  other  States  were  formed,  express  statutory  declara- 
tions became  common;  and  now  in  almost  every  jurisdiction  such  provisions 
exist.  For  judicial  rulings,  then,  the  field  is  now  restricted  chiefly  to  two  classes 
of  questions,  —  the  kind  of  document  thus  provable,  and  the  regularity  of  the 
recording  under  the  statutory  requirements. 

419.  Statutes.  California  (C.  C.  P.  1872,  §  1919).  A  public  record  of  a 
private  writing  may  be  proved  by  the  original  record,  or  by  a  copy  thereof, 
certified  by  the  legal  keeper  of  the  record. 

lb.  §1951  (as  amended  by  St.  1889,  no.  45).  Every  instrument  conveying  or 
affecting  real  property,  acknowledged  or  proved  and  certified  as  provided  in  the 
Civil  Code  [may  be  read]  without  further  proof;  .  .  .  also,  the  original 
record  of  such  conveyance  or  instrument  thus  acknowledged  or  proved,  may  be 
read  in  evidence,  with  the  like  effect  as  the  original  instrument,  without  further 
proof. 

Georgia  (Code  1895,  §  3628).  A  registered  deed  shall  be  admitted  in  evi- 
dence .  .  .  without  further  proof,  [unless  the  maker  or  heir  or  opponent  makes 
affidavit  that  it  is  a  forgery,  whereon  an  issue  of  genuineness  shall  be  tried]. 

Illinois  (Rev.  St.  1874,  c.  30,  §  20).  [For  deeds,  etc.,  without  the  State  and 
within  the  United  States  or  any  Territory  or  dependency  or  the  District  of  Colum- 
bia, an  acknowledgment  of  proof  may  be  made]  in  conformity  with  the  laws  of 
the  State,  Territory,  dependency,  or  District  where  it  is  made;  ...  if  any  clerk 
of  a  court  of  record  within  such  State,  Territory,  dependency,  or  District  shall 
under  his  hand  and  the  seal  of  such  court  certify  [to  the  conformity  of  the  acknowl- 
edgment, or  the  conformity  shall  appear  by  the  laws  thereof,]  such  instrument, 
or  a  duly  proved  and  certified  copy  of  the  record  of  such  deed,  mortgage,  or  other 
instrument  relating  to  real  estate,  heretofore  or  hereafter  made  and  recorded  in 
the  proper  county,  may  be  read  in  evidence  as  in  other  cases  of  such  certified 
copies. 

New  York  (C.  C.  P.  1877,  §935).  [A  duly  recorded  conveyance  is  provable 
by  the  record  or  by  a  certified  copy]  without  further  proof;  [unless  proof  was 
taken  on  the  oath  of]  an  interested  or  incompetent  witness. 


420.   EADY  V.   SHIVEY 

Supreme  Court  of  Georgia.     1870 

40  Ga.  684 

Ejectment.  Evidence.  Before  Judge  Harrell.  Clay  Superior 
Court.     April  Term,  1870. 

Doe,  on  the  demise  of  Eady,  Thomas  J.  Smith  and  Sarah  A.  Cook, 
executrix  of  W.  C.  Cook,  and  others,  brought  ejectment  against  Roe, 

deed.  The  statutes  usually  point  out  the  officer  or  Court  before  whom  the  deed 
is  to  be  acknowledged,  what  the  acknowledgment  shall  consist  of,  and  how  and 
to  whom  it  shall  be  certified,  and  they  are  equally  positive  as  to  the  time  in  which 
the  different  acts  shall  be  done.  Within  these  periods  the  recording  officers  have 
authority  to  record  the  instrument;    afterwards,  such  authority  ceases. 


No.  420  HEARSAY  RULE:     EXCEPTIONS  643 

casual  ejector,  and  C.  B.  Shivey,  tenant  in  possession,  for  lot  number 
366  in  said  county.  Plaintiff's  counsel  read  in  evidence  a  grant  of  said 
lot  from  the  State  to  Eady,  dated  January  15,  1821.  They  then  pro- 
duced an  affidavit  by  said  Smith,  "that  the  title  deeds  composing  the 
chain  of  title  from  the  owners  and  as  they  are  recorded  are  not  in  his 
possession,  power  or  custody,  that  he  has  made  diligent  search  and 
inquiry  and  has  been  unable  to  find  them;  hence  he  believes  they  are 
lost  or  destroyed;"  and  an  affidavit  from  said  Sarah  A.  Cook,  stating, 
"  that  the  deeds  that  appear  on  record  in  the  Clerk's  office  of  said  county, 
to  lot  of  land  number  366,  in  the  26th  district,  the  lot  for  which  the  said 
S.  A.  Cook,  executrix,  and  Thomas  J.  Smith,  are  suing  C.  B.  Shivey,  in 
an  action  of  ejectment,  are  not  in  her  possession,  and,  as  she  believes, 
are  lost  or  destroyed  and  she  makes  this  affidavit  that  copies  of  the  same 
from  the  records  may  be  used  in  said  case." 

Thereupon,  plaintiff's  attorneys  offered  in  evidence  copies  of  deeds 
to  said  lot,  duly  certified  from  the  records,  from  Eady  to  Thomas  Broddus, 
from  Broddus  to  David  Merriwether  and  others,  a  deed  from  them,  the 
heirs  of  Broddus,  to  said  Smith,  and  from  Smith  to  said  Cook.  Defend- 
ant's counsel  objected  to  these  copies;  and  they  were  rejected,  upon 
the  ground  (as  was  said  in  argument)  that  there  was  no  proof  that  such 
original  deeds  had  ever  existed. 

McCay,  J. —  We  think  the  Court  erred  in  rejecting  the  copy  deeds. 
The  affidavits  conformed  strictly  to  the  forty-second  rule  of  Court. 

It  is  true,  there  was  nothing  in  the  affidavits  affirming,  directly,  the 
existence  and  genuineness  of  the  originals.  We  are  of  the  opinion  that 
this  was  proven  prima  facie,  by  the  certified  copies  from  the  record.  .  .  . 
Why  should  not  the  existence  of  a  proper  record  be  evidence  of  the 
existence  and  contents  of  a  lost  original?  To  go  to  record,  a  deed  must 
be  probated,  either  executed  or  acknowledged  before  a  magistrate,  or 
proven  by  the  affidavit  of  one  of  the  witnesses.  The  very  object  of  the 
record  is  to  preserve  a  copy  of  the  deed  to  be  used  if  the  original  is  lost 
or  destroyed;  and  it  would  largely  lessen  the  uses  of  a  record  if  it  were 
necessary  before  it  could  be  used  to  prove  the  existence  of  the  original 
by  any  other  evidence.  .  .  .  Unless  there  be  forgery  or  false  swearing, 
nothing  but  a  genuine  existing  deed  can  go  upon  the  record  properly, 
and  the  copy  will  show  upon  its  face  if  the  requirements  of  the  statute 
have  been  complied  with.  We  recognize  fully  the  rule  that  the  genuine- 
ness and  existence  of  an  original  must  be  shown  before  the  contents  of 
it  can  be  shown  by  secondary  evidence.  But  in  our  judgment  this  is 
done  by  evidence  that  there  is  a  duly  executed  record  of  what  purported 
to  be  an  original  duly  probated  according  to  law. 

The  cases  referred  to,  13  Ga.  515,  14  Ga.  185,  16  Ga.  268,  and  30 
Ga.  391,  do  not  support  the  position  of  the  plaintiff  in  error.  In  Jones 
T.  Morgan,  16  Ga.  515,  the  deed  had  not  been  properly  recorded,  it  did 
not  purport  to  have  been  delivered,  and  this  court  put  its  decision 
rejecting  the  copy,  on  that  ground.     The  case  in  30  Ga.  391  turned  upon 


644  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  420 

the  same  principle;  the  copy  produced,  showed  a  deed  executed  by  two 
witnesses,  neither  of  them  a  magistrate  and  there  was  no  probate. 
This  want  of  a  proper  probate  was  the  ground  on  which  the  court  put 
both  those  cases,  and  so  far  from  being  against  the  position  we  take, 
they  are  authorities  in  favor  of  it,  —  since  both  cases  admit  that  if 
the  deed  had  been  properly  recorded,  the  copies  would  have  been 
admissible. 

The  other  cases  referred  to  were  not  copies  of  records,  and  only 
establish,  what  is  without  doubt  the  law,  that  the  existence  and  genuine- 
ness of  an  original  must  be  proven. 

More  especially  is  this  use  of  a  copy  of  the  record  proper  under  our 
law.  The  opposite  party  can  always  force  upon  the  producer  of  even 
an  original  deed  the  proof  of  its  execution,  by  making  the  affidavit  re- 
quired by  section  2670  of  the  Code.  He  can  thus  do  away  with  the  effect 
of  the  record.  He  can  force  the  actual  proof  of  existence  and  genuine- 
ness of  a  lost,  or  destroyed  original,  in  case  like  the  present,  in  the  same 
manner.  Until  that  affidavit  is  made,  we  hold  that  the  existence  and 
genuineness  of  the  original  deeds,  as  well  as  their  contents,  is  proven 
by  the  production  of  a  copy  from  the  record  of  duly  probated  and  recorded 
originals:   See  Code,  §  2671. 

Upon  the  other  point  we  express  no  opinion,  as  we  think  a  new 
trial  ought  to  be  had,  on  the  first  point. 


421.  WILCOX  V.  BERGMAN 

Supreme  Court  of  Minnesota.     1905 

96  Minn.  219;   104  A^  W.  955 

Appeal  from  District  Court,  Pine  County;   F.  M.  Crosby,  Judge, 

Action  by  C.  H.  Wilcox  against  Christina  C.  Bergman  and  August 
Bergman.  Judgment  for  defendant.  From  an  order  denying  a  new 
trial,  plaintiff  appeals.     Affirmed. 

C.  D.  Austin  and  Robert  C.  Saunders,  for  appellant.  Gjertsen  &  Lund, 
for  respondents. 

Brown,  J. —  This  action  was  brought  to  recover  damages  for  the 
alleged  fraud  of  defendants  in  conveying  certain  property  to  a  third 
person  after  having  previously  conveyed  it  by  warranty  deed  to  plaintiff. 
The  complaint  alleges,  among  other  things,  that  the  defendant  Christina 
Bergman  was  on  the  10th  day  of  August,  1900,  the  owTier  of  the  land 
mentioned,  and  that  she  and  her  husband,  defendant  August  Bergman, 
for  a  valuable  consideration,  conveyed  the  same  by  warranty  deed  to 
plaintiff;  that  by  inadvertence  plaintiff  neglected  to  record  the  deed  in 
the  office  of  the  register  of  deeds,  as  required  by  the  laws  of  the  state  of 
North  Dakota,  where  the  land  was  located ;  that  thereafter,  in  February, 
1902,  defendants  conveyed  the  same  land  by  warranty  deed  to  one  A.  L, 


No.  421  HEARSAY   RULE:     EXCEPTIONS  645 

Beggs,  an  innocent  purchaser  Jor  value  and  without  notice  of  the  prior 
deed;  and  that  Beggs  in  turn  conveyed  to  one  Rickords,  who  was  also 
an  innocent  purchaser  for  value  and  without  notice  of  the  deed  to  plain- 
tiff. Both  the  later  deeds  were,  the  complaint  alleges,  duly  recorded  in 
the  proper  office  of  the  register  of  deeds  of  North  Dakota.  Tiie  complaint 
also  alleges  that  provision  is  made  by  the  statutes  of  the  State  of  North 
Dakota  for  the  record  of  all  deeds  and  other  instruments  affecting  the 
title  to  real  property  located  in  that  State,  and  that  by  reason  of  the 
record  of  the  deeds  to  Beggs  and  Rickords  plaintiff  has  been  wholly 
deprived  of  the  property  conveyed  to  him  by  his  unrecorded  deed. 
The  answer  is  a  general  denial.  When  the  case  came  on  for  trial  plaintiff 
offered  in  evidence  the  deed  claimed  to  have  been  executed  and  delivered 
to  him  by  defendants,  which  was  received  over  defendants'  objection, 
and  then  offered  a  copy  of  the  deeds  to  Beggs  and  Rickords,  properly 
certified  by  the  register  of  deeds  of  Dickey  county,  N.D.,  wherein  they 
were  recorded.  These  documents  were  objected  to  on  the  ground  that 
"  there  is  no  statute  in  Minnesota  authorizing  the  introduction  in  evidence 
of  recorded  title  in  a  foreign  State  by  certified  evidence,"  and  on  the 
further  ground  that  the  evidence  was  incompetent,  irrelevant,  and 
immaterial,  and  not  the  best  evidence.  The  objection  was  sustained, 
whereupon  plaintiff  rested  his  case,  and  on  motion  of  defendants  it  was 
dismissed  for  failure  on  the  part  of  plaintiff  to  prove  the  allegations 
of  his  complaint.  Thereafter  plaintiff  moved  for  a  new  trial,  and  appealed 
from  an  order  denying  it. 

The  only  question  presented  for  consideration  upon  this  appeal  is 
whether  the  Court  below  erred  in  excluding  the  certified  copies  of  the 
North  Dakota  records.  .  .  . 

The  Constitution  of  the  United  States  (article  4,  §  1)  provides  that 
full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State,  and  that  Congress  may 
prescribe  the  manner  in  which  such  acts  and  proceedings  shall  be  proved, 
and  the  effect  thereof.  In  1790,  by  authority  of  this  provision  of  the 
Constitution,  Congress  prescribed  the  manner  in  which  judicial  acts  and 
proceedings  might  be  proven  in  the  Courts  of  the  several  States,  but  made 
no  provision  respecting  the  proof  of  other  records.  Section  906,  Rev. 
St.  U.  S.  [post,  No.  439],  covering  all  records  other  than  those  of  a  judicial 
character,  was  enacted  in  1804.  .  .  .  There  is  no  question  in  the  case 
at  bar  that  the  records  here  sought  to  be  introduced  in  evidence  were 
properly  authenticated  as  required  by  this  act  of  Congress;  but,  as 
already  stated,  there  was  no  offer  of  the  statutes  of  North  Dakota,  from 
which  the  records  came,  either  showing  that  such  records  were  there 
provided  for,  or  showing  the  effect  given  to  properly  authenticated  copies 
as  evidence  in  that  State.  We  have  no  statute  in  this  State  under  which 
certified  copies  of  documents,  not  of  a  judicial  nature,  coming  from  a 
sister  State,  may  be  used  as  evidence  in  our  Courts.  Judicial  records 
are  provided  for,  but  records  of  that  nature  only  (Gen.  St.  1894,  §  5706) ; 


646  BOOK   i:     RULES    OF   .ADMISSIBILITY  No.  421 

and  the  question  presented  is  whether  th^  act  of  Congress  is  vaUd  as  a 
rule  of  evidence  by  which  the  Courts  of  this  State  are  controlled. 

Whether  Congress  may  establish  a  rule  of  evidence  for  State  Courts, 
and  whether  the  act  of  Congress  just  referred  to  is  binding  upon  the 
Courts  of  the  several  States,  is  a  question  that  has  been  more  or  less  dis- 
cussed by  the  various  State  Courts.  By  the  later  authorities  the  rule 
is  laid  down  that  the  act  of  Congress  is  a  valid  exercise  of  the  powers 
given  by  the  Constitution,  and  binding  on  the  State  Courts.  The  better 
opinion  is  that  the  act  of  Congress  should  be  sustained,  not  only  because 
authorized  by  the  Constitution,  but  for  the  further  reason  that  it  estab- 
lishes a  uniform,  definite,  and  certain  rule  by  which  official  records  in 
the  several  States  may  be  shown.  If  the  record  of  instruments  be 
provided  for  by  the  laws  of  the  several  States,  and  certified  copies  thereof 
made  evidence  in  the  State  where  made,  either  by  statute  or  rule  of  court, 
no  reason  occurs  to  us  why  the  act  of  Congress  should  not  be  applied  and 
enforced  by  the  Courts  of  all  other  States.  Its  enactment  was  clearly 
.  within  the  terms  of  the  Constitution,  for  authority  is  there  conferred  to 
prescribe  rules  of  evidence,  not  only  with  reference  to  judicial  acts  and 
records,  but  all  other  official  records.  The  question  recently  came  before 
the  Supreme  Court  of  New  Jersey  (Chase  v.  Caryl,  57  N.  J.  Law,  545,  31 
Atl.  1024),  where  it  received  a  very  thorough  and  careful  consideration, 
and  the  act  of  Congress  was  held  controlling  in  that  State.  A  large 
number  of  authorities  are  collected  and  analyzed,  and  we  refer  to  it  as  a 
complete  answer  to  every  objection  that  may  be  raised  against  the 
operation  and  validity  of  the  act.  See,  also,  2  Elliott  on  Evidence, 
§  1349;  1  Jones  on  Evidence,  §  551;  3  Wigmore,  Evidence,  §  1648;  17 
Cyc.  323  et  seq.,  and  cases  cited. 

But  to  render  copies  of  such  records  competent  evidence  under  the 
act  of  Congress  in  the  Courts  of  other  States  it  must  appear  (1)  that  the 
statutes  of  the  States  in  which  the  record  was  made  provided  for  and 
authorized  it,  and  (2)  the  force  and  effect  given  to  such  evidence  in  the 
Courts  of  that  State.  In  the  absence  of  such  showing,  copies  are  incom- 
petent and  inadmissible.  While  the  decisions  of  the  Courts  and  text- 
writers  are  not,  perhaps,  in  entire  harmony  upon  this  subject,  it  occurs 
to  us  that  the  act  of  Congress  will  permit  of  no  other  view.  The  act 
declares  that  properly  authenticated  records  shall  have  such  force  and 
effect  given  them  in  every  Court  within  the  United  States  as  they  have 
by  the  law  of  the  State  from  which  they  are  taken.  In  cases  like  the  case 
at  bar,  when  by  the  pleadings  the  execution  of  the  instrument,  a  copy  of 
which  is  offered  in  evidence,  is  in  issue,  the  original  document  is  the  best 
evidence,  and  must  be  produced,  unless  by  some  statute  or  rule  of  court 
of  the  State  from  which  it  is  taken  a  certified  copy  of  the  record  thereof 
prima  facie  establishes  that  fact.  But  there  is  no  presumption  that 
such  effect  is  given  to  copies  of  records  in  another  State.  At  least,  this 
Court  has  held  that  no  judicial  notice  will  be  taken  of  the  statutory  law 
of  a  sister  jurisdiction.     Myers  v.  Ry.  Co.,  69  Minn.  476.     In  this  State 


No.  422  HEARSAY   RULE:     EXCEPTIONS  647 

a  certified  copy  is  received  in  evidence  with  like  force  and  effect  as  the 
original,  and  prima  facie  proves  the  execution  of  the  original.  Gen.  St. 
1894,  §5733;  Ellingboe  v.  Brakken,  36  Minn.  156.  But  we  cannot 
presume  that  such  rule  obtains  in  North  Dakota. 

The  question  has  come  before  several  of  the  leading  State  courts, 
where  the  subject  is  not  expressly  co\'ered  by  local  statutes,  and  the  rule 
here  indicated  had  been  laid  down  and  followed.  Florsheim  v.  Fry,  109 
Mo.  App.  487.  ...  In  Garrigues  v.  Harris,  17  Pa.  344,  it  was  held  that 
the  record  of  a  mortgage  of  land  in  New  Jersey,  though  but  an  abstract 
of  the  mortgage,  the  record  being  according  to  the  laws  of  New  Jersey, 
is  competent  evidence  in  Pennsylvania,  when  authenticated  according 
to  the  act  of  Congress.  "We  are  required  to  take  judicial  notice  that 
the  recording  of  an  'abstract'  of  a  mortgage  is  all  that  there  is  there 
enjoined,  and  that  a  certified  copy  of  that  record  is  competent  evidence  in 
that  State."  The  case  goes  further  than  the  authorities  generally  will 
warrant.  At  least  the  decisions  of  our  State,  as  already  suggested,  are 
to  the  effect  that  no  presumption  exists  that  the  statutes  of  foreign  States 
are  the  same  as  our  own.  The  common  law  is  presumed  to  be  the  same 
in  all  States,  but  not  the  statutes.  Crandall  v.  Great  Northern  Ry.  Co., 
83  Minn.  190.  ...  In  Lee  v.  Mathews,  10  Ala.  682,  it  was  held  that, 
to  authorize  the  certified  copy  of  the  deed  by  the  public  register  of 
Halifax  county,  N.  C,  to  be  read  in  evidence,  it  was  necessary  to  prove 
by  the  law  of  that  State  that  such  instruments  were  required  to  be 
recorded.     See,  also,  3  Wigmore  on  Evidence,  §  1652.   .  .  . 

Our  conclusion  is  that,  to  render  certified  copies  of  records  from  a 
sister  State  competent  evidence  in  the  Courts  of  this  State,  it  must  be 
shown  that  the  statutes  of  that  State  provided  for  and  authorized  the 
record  to  be  made,  and  also  the  particular  force  and  effect  given  to 
certified  copies  as  evidence  in  the  Courts  of  that  State.  And,  for  the 
reason  that  there  was  no  proof  of  the  statutes  of  North  Dakota  in  the  case 
at  bar,  the  objection  to  the  introduction  of  the  copies  was  properly 
sustained.  We  are  not  aware  of  any  rule  of  evidence  at  common  law 
under  which  certified  copies  of  foreign  records  of  the  character  of  these 
here  mentioned  are  admissible  in  evidence  in  the  absence  of  proof  of  the 
statutes  under  which  they  were  made.  .  .  .  Order  affirmed. 


422.   CHESAPEAKE   &  OHIO  R.   CO.   v.   DEEPWATER  R.   CO. 

Supreme  Court  of  Appeals  of  West  Virginia.     1905 

57  W.  Va.  643;  50  S.  E.  890 

[Printed  post,  as  No.  846] 


648  book  i:   rules  of  admissibility  no.  423 

Sub-topic  B.    Reports  and  Returns 
423.  ELLICOTT  v.  PEARL 
Supreme  Court  of  the  United  States.     1836 
10  Pd.  412 

In  error  to  the  Circuit  Court  of  the  United  States,  for  the  district 
of  Kentucky.  The  plaintiffs  in  error,  citizens  of  the  State  of  Maryland, 
oa  the  17th  day  of  January,  1831,  sued  out  of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Kentucky,  a  writ  of  right  against  William 
Pearl,  for  a  tenement  containing  one  thousand  acres  of  land,  in  the 
county  of  Laurel,  in  the  State  of  Kentucky.  ...  At  INIay  Term,  1834, 
the  case  was  tried  by  a  jury,  who  returned  into  court  the  following 
verdict :  "  We,  the  piry,  find  that  the  tenant  has  more  right  to  have  the 
tenement,  as  he  now  holds  it,  than  the  demandants  to  have  it;"  and  the 
Circuit  Court  gave  judgment  for  the  tenant  accordingly.  .  .  . 

On  the  trial  of  the  case,  the  following  bill  of  exceptions  was  filed :  .  .  . 
The  tenants,  in  order  to  prove  the  boundaries  of  the  demandants'  land, 
as  laid  down  in  the  plat,  and  claimed  by  them;  gave  in  evidence  the 
original  plats  and  certificates  of  survey  of  Kincaid's  two  thousand  and 
one  thousand  acre  tracts;  and  then  examined  M'Neal,  a  witness  of  the 
demandants,  who  was  first  introduced  to  prove  their  boundary:  who 
stated  that  the  water  courses,  as  found  on  the  ground,  did  not  correspond 
with  those  represented  on  the  said  plats:  and  after  being  examined  by 
the  demandants,  for  the  purpose  of  proving  that  the  marks  on  the  trees, 
claimed  by  them  as  the  corner  and  lines  of  their  surveys,  were  as  ancient 
as  the  said  surveys,  and  also  as  to  the  position  and  otherwise  of  the  lines 
and  corners  claimed  by  them,  and  represented  on  the  plat  made  and  used 
at  the  trial:  stated,  on  the  cross-examination  of  the  tenants'  counsel, 
that  some  of  the  lines,  marked  to  suit  the  calls  of  the  said  surveys,  ap- 
peared to  be  younger,  and  others,  from  their  appearance,  might  be  as 
old  as  the  date  of  the  said  plats.  The  demandants,  to  counteract  this 
evidence,  and  to  sustain  their  claim,  offered  in  evidence  a  survey,  made 
out  by  M'Neal,  in  an  action  of  ejectment  formerly  depending  between 
the  same  parties  for  the  same  land,  of  which  sur\ey  Pearl  had  due  notice. 
The  tenants  objected  to  the  reading  of  the  explanatory  report  accompany- 
ing this  survey,  and  the  Court  refused  to  allow  so  much  thereof  as  stated 
the  appearance  as  to  age  and  otherwise  of  the  lines  and  corners  to  go  in 
evidence  to  the  jury ;  and  accordingly  caused  to  be  erased  from  the  plat 
the  words  foUow^ing,  viz.  "ancients"  (chops);  —  "John  Forbes,  Jun., 
states  he  cut  the  same  letters  and  figures; "  —  "  on  the  east  side,  the  chops 
appear  to  have  been  marked  with  a  larger  axe,  than  the  chops  on  the 
beginning  tree;"  —  and  then  p)ermitted  the  residue  of  the  report  and 
plat  to  go  in  evidence.  This  constitutes  the  third  exception  of  the 
demandants.  .  .  . 


No.  424  HEARSAY   RULE:     EXCEPTIONS  649 

The  case  was  argued  by  Mr.  Underwood,  and  by  Mr.  Hardin,  for  the 
plaintiflFs  in  error.     No  counsel  appeared  for  the  defendant. 

Mr.  Justice  Story  dehvered  the  opinion  of  the  Court. 

We  are  of  opinion,  that  there  was  no  error  in  this  refusal  of  the  Court. 

The  evidence  was  inadmissible  upon  general  principles.  It  was  mere 
hearsa}'.  The  survey,  made  by  a  surveyor,  being  under  oath  [of  office] 
is  evidence  as  to  all  things  which  are  properly  within  the  line  of  his  duty. 
But  his  duty  is  confined  to  describing  and  marking  on  the  plat  the  lines, 
corners,  trees,  and  other  objects  on  the  ground,  and  to  subjoin  such 
remarks  as  may  explain  them.  But  in  all  other  respects,  and  as  to  all 
other  facts,  he  stands,  like  any  other  witness,  to  be  examined  on  oath  in 
the  presence  of  the  parties  and  subject  to  cross-examination.  ...  It 
has  never  been  supposed  that  if  in  such  a  survey  the  surveyor  should 
go  on  to  state  collateral  facts,  or  declarations  of  the  parties,  or  other 
matters  not  within  the  scope  of  his  proper  official  functions,  he  could 
thereby  make  them  evidence  as  between  third  persons.  .  .  . 


424.  UNITED   STATES  LIFE   INSURANCE  CO.  v.  VOCKE 

Supreme  Court  of  Illinois.     1889 
129  ///.  557;  22  N.  E.  463 

Appeal  from  the  Appellate  Court  for  the  First  District;  —  heard  in 
that  court  on  appeal  from  the  Superior  Court  of  Cook  County;  the  Hon. 
Kirk  Hawes,  Judge,  presiding. 

This  was  assumpsit,  originally  brought  by  Elizabeth  Kielgast,  admin- 
istratrix of  the  estate  of  Otto  Wilhelm  Kielgast,  deceased,  against  the 
appellant,  to  recover  upon  a  policy  of  life  insurance  on  the  life  of  the 
intestate.  The  policy  was  dated  July  22,  1884,  and  contained,  among 
other  things,  a  condition  that  if,  within  three  years  of  said  date,  the 
insured  should  die  by  any  act  of  self-destruction,  whether  voluntary  or 
involuntary,  whether  sane  or  insane,  the  contract  of  insurance  should 
become  null  and  void.  The  insured  died  January  17,  1885.  The 
material  facts  appear  in  the  opinion  of  the  court. 

Messrs.  Isham,  Lincoln  &  Beale,  for  the  appellant.  .  .  .  The  certified 
copy  of  the  verdict  of  the  coroner's  jury  was  admissible  in  evidence  as 
part  of  these  proofs.  .  .  .  Inquisitions  of  lunacy  are  admissible  in 
evidence.  .  .  .  Inquests  of  office  are  admissible  in  evidence,  and  a 
coroner's  inquest  was,  at  common  law,  simply  an  inquest  of  office.  .  .  . 

Mr.  George  F.  Westover,  for  the  appellee.  The  proceedings  before  the 
coroner  were  properly  excluded  from  the  jury,  because  they  were  no 
part  of  plaintiff's  proof  of  death  of  the  assured.  .  .  .  The  verdict  at  the 
coroner's  inquest  could  not  bind  plaintiff  in  this  case.  .  .  . 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court :  .  .  . 

It  appears  that  a  coroner's  inquest  was  held  over  the  body  of  the 


650  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  424 

deceased  by  the  coroner  of  Cook  county  and  a  jury,  and  in  making  proofs 
of  death  a  certified  copy  of  the  record  of  the  coroner's  inquest,  con- 
sisting of  the  inquisition  and  the  deposition  of  three  witnesses,  was 
returned  to  the  insurance  company  as  a  part  of  the  proofs  of  death. 
The  inquisition  shows  on  its  face  that  Kielgast  came  to  his  death  on  the 
17th  day  of  January,  1885;  that  the  death  was  caused  by  a  pistol  shot 
fired  by  the  hand  of  the  deceased  while  laboring  under  a  fit  of  temporary 
insanity.  On  the  trial  the  defendant  offered  in  evidence  the  certified 
copy  of  the  inquisition,  which  had  been  returned  to  defendant  as  a  part 
of  the  proofs  of  death.  The  Court  excluded  the  evidence.  The  defend- 
ant then  offered  in  evidence  the  original  papers  of  which  those  previously 
offered  were  copies,  offering  the  entire  set  of  papers  together,  including 
the  verdict  and  testimony.  This  evidence  was  also  excluded.  The 
defendant  excepted  to  the  decision  of  the  Court  in  excluding  the  evidence 
so  offered,  and  the  determination  of  the  ruling  of  the  Court  on  the  evi- 
dence is  the  principal  question  presented  by  the  record.  .■•.  . 

We  shall  not  stop  to  inquire  whether  the  Court  erred  in  excluding  the 
offered  evidence  as  a  part  of  the  proofs  of  death.  But  we  will  proceed 
at  once  to  determine  the  question  whether  the  inquisition  was  com- 
petent evidence  for  the  defendant,  under  its  special  plea,  tending  to  prove 
that  Kielgast  came  to  his  death  by  his  own  hand. 

The  office  of  coroner,  at  the  common  law,  is  an  ancient  one.  .  .  . 
Blackstone  says,  (1  Blackstone's  Com.  348):  "The  office  and  power  of  a 
coroner  are  also,  like  those  of  a  sheriff,  either  judicial  or  ministerial,  but 
principally  judicial.  This  is  in  great  measure  ascertained  by  statute  4 
Edw.  I,  'de  officio  coronatoris,'  and  consists,  first,  in  inquiring,  when  any 
person  is  slain,  or  dies  suddenly,  or  in  prison,  concerning  the  manner  of 
his  death.  And  this  must  be  'super  visum  corporis,'  for,  if  the  body 
be  not  found,  the  coroner  can  not  sit."  .  .  . 

The  earliest  English  statute  relating  to  coroners  was  passed  in  the 
fourth  year  of  Edward  I,  and  it  is  said  by  Jarvis  on  Coroners,  29,  that 
it  was  merely  directory,  and  in  affirmance  of  the  common  law.  The 
first  act  of  the  Legislature  of  this  State  regulating  the  duties  of  coroners 
was  passed  March  2,  1819.  The  next  statute  was  passed  January  20, 
1821.  (Laws  of  1821,  p.  22.)  This  act,  upon  an  examination,  will  be 
found  to  be  substantially  like  the  statute  of  4  Edw.  I.  Our  present 
statute  does  not  differ  materially  from  the  earlier  acts.  .  .  .  Section  21 
requires  the  coroner  to  reduce  to  writing  the  testimony  of  each  witness 
examined  at  the  inquest,  which  testimony  shall  be  filed  by  the  coroner  in 
his  office  and  preserved.  Section  22  provides  that  the  coroner  shall 
keep  a  record  of  each  inquest.  Section  26  provides  that  if  a  person 
implicated  by  the  inquest  is  not  in  custody,  the  coroner  shall  apprehend 
and  commit  such  person  to  the  jail  of  the  county,  there  to  remain  until 
discharged  by  due  course  of  Taw. 

The  foregoing  are  the  principal  sections  of  the  statute  which  relate 
to  the  inquest  of  the  coroner,  and,  from  the  nature  and  character  of  the 


No.  424  HEARSAY  RULE:  EXCEPTIONS  G51 

proceeding  as  it  has  been  recognized  by  Courts  and  law  writers,  we  must 
determine  whether  a  coroner's  inquest  should  be  used  as  evidence  in  a 
case  of  this  character.  It  will  be  observed  that  the  evidence  of  all 
witnesses  examined  before  the  coroner  is  required  to  remain  in  his  office, 
while  the  inquest  must  be  sealed  up  and  returned  to  the  clerk  of  the 
circuit  court  of  the  county,  where  it  shall  be  filed.  Thus  the  inquest 
becomes,  by  force  of  the  statute,  a  record  of  the  circuit  court,  —  a  public 
record  of  the  county  where  the  inquest  is  held.  It  is  a  record  containing 
the  results  of  a  public  inquiry,  made  by  a  public  officer  under  authority 
of  law,  relating  to  matters  in  which  the  public  have  an  interest.  Shall  it 
be  held  that  a  public  record  of  this  character  shall  not  be  evidence,  in  a 
judicial  proceeding,  tending  to  prove  the  facts  found  to  be  true  on  the 
face  of  such  record?  We  are  not  prepared  to  adopt  a  rule  of  that  kind; 
moreover,  we  believe  the  weight  of  authority  to  be  in  favor  of  the  admis- 
sion of  such  evidence. 

Starkie  (vol.  1,  p.  258,)  seems  to  lay  down  the  rule  that  an  inquisition 
is  admissible  in  evidence.  .  .  .  Greenleaf,  (vol.  1,  §  556,)  in  speaking  of 
inquisitions,  says: 

"These  are  the  result  of  inquiries,  made  under  competent  public  authority,  to 
ascertain  matters  of  pubhc  interest  and  concern.  They  are  said  to  be  analogous 
to  proceedings  in  rem,  — being  made  in  behalf  of  the  public,  —  and  that  there- 
fore no  one  can  strictly  be  said  to  be  a  stranger  to  them.  But  the  principle  of 
their  admissibility  in  evidence  between  private  persons  seems  to  be,  that  they 
are  matters  of  public  and  general  interest,  and  therefore  within  some  of  the 
exceptions  to  the  general  rule  in  regard  to  hearsay  evidence."  .  .  . 

In  the  People  v.  Devine,  44  Cal.  542,  the  question  arose  whether  the 
evidence  of  a  witness  taken  before  the  coroner  could  be  used  to  contradict 
the  evidence  of  the  same  witness  subsequently  given  on  a  trial  in  court. 
In  considering  the  question  it  is  said :  .  .  . 

"In  our  investigations  we  have  not  found  any  authority  in  text-books  or 
adjudicated  cases  which  distinguish  between  these  and  any  other  official  pro- 
ceedings taken  and  returned  in  the  discharge  of  official  duty,  as  to  their  admissi- 
bility in  evidence  upon  the  principle  referred  to." 

See,  also.  Fielder  v.  Silk,  3  Campb.  126,  and  Silas  v.  Brown,  38  E.  C.  L. 
601. 

The  citation  of  other  authorities  would  seem  to  be  unnecessary.  We 
are  satisfied,  both  upon  principle  and  authority,  that  the  coroner's 
inquisition  was  admissible  in  evidence.  The  inquisition  was  made  by  a 
public  officer,  acting  under  the  sanction  of  an  official  oath,  in  the  discharge 
of  a  public  duty  enjoined  upon  him  by  the  law,  and  when  it  is  returned 
into  court,  and  is  filed,  we  see  no  reason  why  it  should  not  be  competent 
evidence  tending  to  prove  any  matter  properly  before  the  coroner  which 
appears  upon  the  face  of  the  inquisition.  We  do  not  hold  that  such 
evidence  is  conclusive,  but  only  that  it  is  competent  evidence  to  be 
considered.  .  .  . 

We  are  of  opinion  that  the  Court  erred  in  excluding  the  inquisition, 


652  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  424 

and  for  that  reason  the  judgments  of  the  Appellate  and  Superior  courts 
will  be  reversed,  and  the  cause  remanded  to  the  Superior  Court  for 
another  trial.  Judgment  reversed. 

Mr.  Justice  Bailey,  having  heard  this  case  in  the  Appellate  Court, 
took  no  part  in  its  decision  here. 

Separate  opinion  by  Mr.  Justice  Baker  —  I  concur  in  the  view  of 
the  case  taken  in  the  opinion  of  Mr.  Justice  Craig.  ...  At  common 
law,  and  in  this  State  until  the  adoption  of  the  Constitution  of  1848,  a 
coroner  and  his  jury  holding  an  inquest  post  mortem  constituted  a  court 
with  judicial  powers.  .  .  . 

The  rule  which  now  obtains,  as  appears  from  the  text-books,  and  also, 
almost  without  exception,  from  the  decided  cases,  is  that  inquisitions 
post  mortem  are  admissible  in  evidence,  but  are  not  conclusive.  The 
general  doctrine,  as  stated  in  1  Greenleaf  on  Evidence  (§  556),  is,  that 
these  inquisitions  are  within  the  exceptions  to  the  rule  in  regard  to  hear- 
say evidence,  and  are  distinguished  from  other  hearsay  evidence  in 
having  peculiar  guarantees  for  their  accuracy,  and  are  the  results  of 
inquiries,  made  under  competent  public  authority,  to  ascertain  matters 
of  public  interest  and  concern,  and  that  no  one  can  be  considered  a 
stranger  to  them.  The  only  difficulty  in  respect  to  the  admissibility  in 
evidence  of  the  inquisition  itself,  is  found  in  the  fact  that  section  1  of 
Art.  6  of  the  Constitution  of  1870  provides  that  "the  judicial  powers, 
except  as  in  this  article  is  otherwise  provided,  shall  be  vested  in  one 
Supreme  Court,  circuit  courts,  county  courts,  justices  of  the  peace, 
police  magistrates,  and  in  such  courts  as  may  be  created  by  law  in  and 
for  cities  and  incorporated  towns."  Said  article  6  disposes  of  all  the 
judicial  power  of  the  State,  and  completely  exhausts  the  subject,  and  a 
coroner's  inquest  is  not  provided  for  therein.  So  it  is  certain  that  in 
this  State,  and  under  its  present  constitution,  the  coroner  and  his  jury 
do  not  constitute  a  court,  and  are  not  clothed  with  judicial  powers,  as 
was  the  case  at  common  law. 

The  inquisition  not  being  the  result  of  a  judicial  proceeding,  is  the 
old  common  law  rule  of  evidence,  that  it  is  competent  testimony,  thereby 
abrogated?  I  think  not,  and  am  of  opinion  that  common  law  principles 
and  the  analogies  of  the  law,  and  the  decisions  of  this  Court,  justify  such 
conclusion.  The  provision  found  in  section  1  of  article  5  of  the  Constitu- 
tion of  1848  was  substantially  that  contained  in  the  present  Constitution. 
An  act  of  March  3,  1845,  made  provision  for  an  inquiry  before  a  sheriff 
and  a  jury,  into  the  right  of  parties  claiming  property  on  which  the 
sheriff  had  levied  an  execution.  In  Rowe  v.  Bowen,  28  111.  116,  the 
point  was  made  that  this  inquest  or  trial  of  the  right  of  property,  created 
by  the  statute  for  the  purpose  of  enabling  the  sheriff  to  interpose  the 
verdict  of  a  jury  as  his  justification  for  selling  the  property  or  restoring 
it  to  the  claimant,  as  the  verdict  might  direct,  had  been  abolished  by  the 
constitution  of  1848.  The  Court  held  otherwise,  and  that  said  law  wa-; 
in  no  respect  in  derogation  of  the  Constitution.  .  .  . 


No.  425  HEARSAY  RULE:     EXCEPTIONS  653 

So,  also,  at  common  law,  inquisitions  of  lunacy  and  inquests  of  office 
are  admissible  in  evidence,  and  it  is  not  understood  that  the  provision 
of  our  State  Constitution  in  question  has  rendered  them  incompetent  as 
testimony.  Moreover,  under  our  statutes,  the  findings,  reports  or 
schedules  of  various  commissioners,  boards  and  officers  are  either  made 
competent  evidence  or  prima  facie  evidence  in  express  terms,  or  are  given 
the  legal  effect  of  CN'idence.  .  .  . 

My  conclusion  is,  that  while,  under  the  Constitution,  the  coroner  and 
coroner's  jury  no  longer  compose  a  court  with  judfcial  powers,  yet  the 
inquisition  or  verdict  made  by  them,  and  which  is  required  to  be  returned 
to  and  filed  in  the  office  of  the  clerk  of  the  Circuit  Court,  and  which 
thereby  becomes  a  record  of  that  court,  is  competent  testimony,  and  that 
the  ruling  of  the  trial  court  in  the  case  at  bar,  refusing  to  admit  in 
evidence  the  verdict  of  the  coroner's  jury  which  inquired  into  the  matter 
of  the  death  of  Otto  Wilhelm  Kielgast,  deceased,  was  erroneous,  and  I 
concur  in  the  conclusion  that  for  that  error  the  judgment  should  be 
reversed,  and  the  cause  remanded  to  the  Superior  Court  for  another  trial. 


425.  JONES  V.   GUANO  CO. 

Supreme  Court  of  Georgia.     1894 

94  Ga.  14;  20  S.  E.  265 

Complaint  on  note.  Before  Judge  Fish.  Lee  Superior  Court. 
March  Term,  1893.  The  Guano  Company  sued  Jones  and  Gill  upon  a 
promissory  note  for  Sl.OOO,  dated  March  9,  1891,  due  October  15,  1891, 
given  for  four  hundred  sacks  of  "Pride  of  Dooly"  guano.  The  noted 
stated  that  the  guaranteed  analysis  was  on  each  sack  as  required  b}'  law, 
and  that  the  guano  was  purchased  on  the  judgment  of  the  makers, 
waiving  all  guarantee  as  to  its  effects  on  crops.  Defendants  pleaded  the 
general  issue;  failure  of  consideration,  in  that  the  guano  was  worthless 
and  not  reasonably  suited  for  the  use  for  which  it  was  bought,  and  was 
of  no  benefit  to  the  crops  whereon  it  was  used.  .  .  . 

On  the  trial  plaintiff  introduced  the  note,  and  closed.  Gill  testified 
that  the  note  was  given  for  a  lot  of  guano  bought  of  plaintiff,  witness 
taking  part  and  Jones  the  remainder;  .  .  .  that  of  the  guano  which  the 
witness  got  he,  when  he  used  it  in  March  or  x\pril,  took  a  bottle  full  out 
of  one  of  the  sacks  and  kept  it  carefully  locked  up  in  his  bureau;  that 
no  representative  of  plaintiff  was  present  when  he  did  so;  that  in  July 
of  that  year  he  carried  the  bottle  of  guano  to  Atlanta  and  delivered  it 
for  analysis  to  the  State  commissioners  of  agriculture,  who  called  the 
State  chemist  and  ordered  him  to  have  it  analyzed,  and  he  took  it  off  to 
analyze  it.  .  .  . 

Defendants  offered  the  certificate  or  document  addressed  to  Gill, 
dated  July  16,  1892,  showing  the  analysis  of  said  sample  made  for  Gill 


654  BOOK  i:     RULES   OF  ADMISSIBILITY  No.  425 

by  Payne,  chemist  for  the  department  of  agriculture,  certified  to  be 
a  true  and  correct  copy  from  the  records,  and  signed  "  R.  T.  Nesbitt, 
commissioner  of  agriculture,  per  W.  H.  Joyner,  clerk."  Plaintfff  ob- 
jected on  the  grounds,  that  the  act  of  1890  had  not  been  complied 
with,  and  that  the  certificate  had  not  been  proved.  This  objection 
was  sustained.  .  .  . 

Verdict  and  judgment  for  the  amount  of  the  note  were  rendered  for 
plaintiff,  and  defendants  excepted. 

Fort  &  Watson  and  Wooten  &  Woolen,  for  plaintiffs  in  error.  Clarke 
&  Hooper,  contra. 

Lumpkin,  J. —  Section  1553b  of  the  Code  declares  that  "a  copy  of  the 
official  analysis  of  any  fertilizer  or  chemical,  under  seal  of  the  department 
of  agriculture,  shall  be  admissible  as  evidence  in  any  of  the  courts  of 
this  State,  on  the  trial  of  any  issue  involving  the  merits  of  said  fertilizer." 
As  it  requires  express  legislation  to  render  any  copy  of  an  analysis  of  a 
fertilizer  admissible  as  original  evidence,  necessarily  the  terms  of  the 
law  must  be  fully  and  exactly  complied  wdth,  in  order  to  obtain  the 
benefit  of  its  provisions.  Therefore,  the  analysis  must  be  an  official 
one,  or  a  copy  of  it  taken  from  the  records  of  the  department  of  agricul- 
ture cannot  be  introduced.  As  we  understand  our  system  for  the  inspec- 
tion and  analysis  of  commercial  fertilizers,  samples  are  taken  by  the 
inspectors,  and  submitted  for  analysis  to  the  State  chemist,  who  makes 
reports  to  the  commissioner  of  agriculture,  which  reports  are  recorded 
in  the  office  of  the  latter.  Analyses  thus  made  are  official.  We  know  of 
no  law  making  official  an  analysis  by  the  State  chemist  at  the  instance 
or  request  of  a  purchaser  of  fertilizers.  Indeed,  as  we  understand  it, 
the  State  chemist  is  under  no  obligation  to  make  an  analysis  for  any 
private  person  at  all.  If  he  does  so,  it  is  simply  a  matter  of  courtesy; 
and  although  he  may  report  an  analysis  thus  made  to  the  department  of 
agriculture  and  it  may  be  entered  upon  the  records  of  that  department, 
this  will  not  give  to  that  analysis  an  official  character  by  virtue  of  which 
a  copy  of  it  will  be  rendered  admissible  as  evidence  in  the  courts. 

Strictly  speaking,  the  commissioner  of  agriculture  should  not  have 
recorded  in  his  department  any  analysis  made  by  the  State  chemist, 
except  such  as  the  law  requires  the  latter  to  make  and  report  to  that 
department.  It  follows  that  any  analysis  which  is  of  record  in  the 
agricultural  department  is  prima  facie  official,  because,  presumably, 
any  analysis  of  fertilizers  made  by  the  State  chemist  and  reported  by 
him  to  the  commissioner  of  agriculture  is  of  a  sample,  or  samples,  fur- 
nished the  chemist  officially  by  an  inspector  of  fertilizers.  Therefore, 
unless  it  appears  that  an  analysis  of  fertilizers  made  by  the  State  chemist 
was  of  a  sample  received  from  some  other  source,  a  copy  of  an  analysis 
made  by  him  and  certified  under  the  seal  of  the  department  of  agriculture 
is  admissible  in  evidence  under  the  section  of  the  code  above  cited.    .  .  . 

Judgment  reversed. 


No.  428  HEARSAY   RULE:     EXCEPTIONS  655 


Sub-topic  C.     Certificates 

427.  Omichund  v.  Barkkh.  (1744.  Willes  538,  549).  Willes,  L.  C.  J. 
[Disapproving  the  latter  part  of  the  ruling  in  Alsop  v.  Bowtrell,  Cro.  Jac.  541, 
where  a  foreign  clergyman's  certificate  was  admitted  to  show  not  only  his  per- 
formance of  the  marriage  ceremony,  but  also  the  parties'  subsequent  cohabita- 
tion]. For  our  law  never  allows  a  certificate  of  a  mere  matter  of  fact,  not  coupled 
with  any  matter  of  law,  to  be  admitted  as  evidence.  Even  the  certificate  of  the 
King  under  his  sign  manual  of  a  matter  of  fact  (except  in  one  old  case  in  Chancery) 
has  been  always  refused.  .  .  .  Besides,  it  is  not  the  best  evidence  th^  the  nature 
of  the  thing  will  admit;  but  the  proper  and  usual  evidence  of  a  fact  arising  beyond 
sea  is  an  affidavit  or  deposition.  .  .  . 


428.  TOWNSLEY  v.  SUMRALL 

United  States  Supreme  Court.     1829 

2  Pet.  170 

The  original  action  was  brought  by  the  defendant  in  error  against 
the  plaintiff  in  error,  as  one  of  the  firm  of  Thomas  F.  Townsley  &  Co., 
to  recover  the  amount  of  a  bill  of  exchange,  drawn,  at  INIaysville  in 
Kentucky,  on  the  27th  of  November,  1827,  by  one  Richard  S.  Waters, 
on  Messrs.  Townsley  &  Co.,  at  New  Orleans,  at  120  days  after  date  for 
$2000,  payable  to  Sumrall  or  order,  which  had  been  dishonored  by  the 
drawees.  ... 

The  bill  was  drav/n  and  remitted  to  New  Orleans,  and  not  being  paid, 
was  returned  under  protest  to  Kentucky,  and  this  suit  was  brought.  .  .  . 
The  bill  of  exceptions  stated,  that  the  plaintiff  offered  in  evidence  the  bill 
of  exchange  and  the  protest  of  the  notary  public  at  New  Orleans,  to  which 
evidence  the  defendant  objected,  but  the  Court  admitted  the  testimony. 

Mr.  Coxe,  for  the  plaintiff  in  error,  contended :  .  .  . 

Upon  the  question,  whether,  if  a  bill  be  drawn  in  Kentucky,  on  a 
person  in  New  Orleans,  the  protest  is,  in  itself,  evidence  of  demand  and 
refusal:  in  Nichols  v.  Webb,  8  Wheaton,  326,  it  was  held,  that  the  protest 
of  a  foreign  bill  is  sufficient;  but  a  distinction  is  taken  between  foreign 
bills,  and  those  instruments  in  which  a  protest  is  not  necessary,  and 
therefore  not  the  official  act  of  the  officers.  In  cases  of  inland  bills 
the  protest  cannot  be  read.  Chesmer  v.  Noyes,  4  Camp.  129.  2  Barn, 
&  Aid.  696.  .  .  . 

Mr.  Nicholas,  for  the  defendant  in  error.  .  .  . 

The  law  of  Kentucky  requires  that  a  bill  drawn  on  a  person  out  of  the 
State  shall  be  protested.  2  Littell's  Laws,  103,  105.  It  not  only  author- 
izes a  protest,  but  upon  its  being  made,  creates  an  additional  liability 
for  damages.  Thus,  therefore,  the  protest  is  by  a  statute,  by  provision, 
made  necessary,  and  it  becomes  of  course  prima  facie  evidence  of  demand 
and  refusal  to  pay.  .  .  . 


656  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  428 

Mr.  Justice  Story  delivered  the  opinion  of  the  Court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  district  of  Kentucky. 

.  .  .  The  first  question  that  arises  is  upon  the  admissibihty  of  the  pro- 
test of  the  notary  pubhc  at  New  Orleans,  as  proof  of  the  dishonor  of  the 
bill.  The  protest  is  for  non-payment  for  want  of  funds;  and  it  does  not 
appear  that  there  had  been  any  prior  protest  for  non-acceptance.  Bills 
of  exchange  payable  at  a  given  day  after  date,  need  not  be  presented 
for  acceptance  at  all;  and  payment  may  at  once  be  demanded  at  their 
maturity.  The  objection  now  made  does  not  turn  upon  this  point,  but 
upon  the  fioint,  that  the  present  is  not  a  foreign,  but  an  inland  bill  of 
exchange;  being  drawn  in  Kentucky,  and  payable  at  New  Orleans  in 
Louisiana;  and  that  a  notarial  protest  is  not  in  such  cases  evidence  of  a 
demand  and  refusal  of  payment.  We  do  not  think  it  necessary  in  this 
case  to  decide,  whether  a  bill  drawn  in  one  State  upon  persons  resident  in 
another  State,  within  the  union,  is  to  be  deemed  a  foreign,  or  an  inland 
bill  of  exchange.  ...  It  is  admitted,  that  in  respect  to  foreign  bills  of 
exchange  the  notarial  certificate  of  protest  is  of  itself  sufficient  proof  of 
the  dishonour  of  a  bill  without  any  auxiliary  evidence.  It  has  long  been 
adopted  into  the  jurisprudence  of  the  common  law,  upon  the  ground 
that  such  protests  are  required  by  the  custom  of  merchants;  and  being 
founded  in  public  convenience,  they  ought,  everywhere,  to  be  allowed 
as  evidence  of  the  facts  which  they  purport  to  state.  The  negotiability 
of  such  bills,  and  the  facility  as  well  as  certainty  of  the  proof  of  dishonor, 
would  be  materially  affected  by  a  different  course;  a  foreign  merchant 
might  otherwise  be  compelled  to  rely  on  mere  parol  proof  of  presentment 
and  dishonor,  and  be  subjected  to  many  chances  of  delay,  and  some- 
times to  absolute  loss,  from  the  want  of  sufficient  means  to  obtain  the 
necessary  and  satisfactory  proofs.  The  rule,  therefore,  being  founded  in 
public  convenience,  has  been  ratified  by  courts  of  law  as  a  binding  usage. 
But  w^here  parties  reside  in  the  same  kingdom  or  country,  there  is  not 
the  same  necessity  for  giving  entire  verity  and  credit  to  the  notarial 
protest.  The  parties  may  produce  the  witnesses  upon  the  stand,  or 
compel  them  to  give  their  depositions.  And  accordingly,  even  in  cases 
of  foreign  bills,  drawn  upon,  and  protested  in  another  country,  if  the 
protest  has  been  made  in  the  country  where  the  suit  is  brought;  Courts 
of  justice  sitting  under  the  common  law,  require  that  the  notary  himself 
should  be  produced  if  within  the  reach  of  process,  and  his  certificate  is 
not  per  se  evidence.  This  was  so  held  by  Lord  Ellenborough,  in 
Chesmer  vs.  Noyes,  2  Campbell's  R.  129. 

It  is  not  disputed,  that  by  the  general  custom  of  merchants  in  the 
United  States,  bills  of  exchange  drawn  in  one  State  on  another  State,  are, 
if  dishonoured,  protested  by  a  notary;  and  the  production  of  such 
protest  is  the  customary  document  of  the  dishonor.  It  is  a  practice 
founded  in  general  convenience,  and  has  been  adopted  for  the  same 
reasons  which  apply  to  foreign  bills  in  the  strictest  sense.  The  distance 
between  some  of  these  States,  and  the  difficulty  of  obtaining  other  ev^- 


No.  430  HEARSAY  RULE:  EXCEPTIONS  657 

dence,  is  far  greater  than  between  England  and  France,  or  between  the 
continental  nations  of  Europe,  where  the  general  rule  pre\'ails.  We 
think  upon  this  ground  alone,  the  reason  for  admitting  foreign  protests 
would  apply  to  cases  like  the  present,  and  furnish  a  just  analogy  to 
govern  it.  .  .  .  Wherever  a  protest  is  required  to  fix  the  title  of  the 
parties ;  or  by  the  custom  of  merchants  is  used  to  establish  a  presentment 
or  dishonour  of  a  bill;  it  is  competent  evidence  between  the  parties,  who^ 
contract  with  reference  to  the  presentment  and  dishonor  of  such  bill/ 

Judgment  affirmed.    ! 

429.  Statutes.  Illinois.  Revised  Stahdes  (1874,  c.  99,  §§  10-13).  Protests  — 
Notices.  §  10.  It  shall  be  the  duty  of  each  and  every  notary  piil)lic  in  this  State, 
whenever  any  bill  of  exchange,  promissory  note  or  other  written  instrument, 
shall  be  by  him  protested  for  non-acceptance  or  non-payment,  to  give  notice  in 
WTiting  thereof  to  the  maker,  and  to  each  and  every  indorser  of  any  bill  of  ex- 
change, and  to  the  maker  or  makers  of,  and  each  and  every  security  or  indorser 
of  any  promissory  note  or  other  written  instrument,  on  the  same  day  the  said 
protest  is  made,  or  within  forty-eight  hours  from  the  time  of  such  protest.  (R.  S. 
1845,  p.  392,  §  4. 

Notice  of  Protest.  §  11.  It  shall  be  the  duty  of  each  and  every  notary  public 
personally  to  serve  the  notice  upon  the  person  or  persons  protested  against, 
provided  he  or  they  reside  in  the  town,  precinct,  city  or  \dllage  where  such  protest 
was  made,  or  within  one  mile  thereof;  but  if  such  person  or  persons  reside  more 
than  one  mile  from  such  town,  precinct,  city  or  village,  then  the  said  notice  may 
be  forwarded  by  mail  or  other  safe  conveyance.  If  the  city  where  the  protest 
is  made  contains  ten  thousand  or  more  inhabitants,  the  notice  may  be  forwarded 
by  mail.     (R.  S.  1845,  p.  392,  §  6. 

Record.  §  12.  Each  notary  public  shall  keep  a  correct  record  of  all  such 
notices,  and  of  the  time  and  manner  in  which  the  same  are  served,  the  names  of 
all  the  parties  to  whom  the  same  are  directed,  and  the  description  and  amount 
of  the  instnmient  protested.     (R.  S.  1845,  p.  392,  §  5. 

Emlenc  .  §  13.  Said  record,  or  copy  thereof,  duly  certified,  under  the  hand 
and  seal  of  the  notary  public  or  county  clerk  having  the  custody  of  the  original 
record,  shall  be  competent  evidence  to  prove  the  facts  therein  stated,  but  the 
same  may  be  contradicted  by  other  competent  evidence.  (R.  S.  1845,  p.  392, 
§5.  

430.  KIDD'S  ADMINISTRATOR  v.   ALEXANDER'S 
ADMINISTRATOR 

Court  of  Appeals  of  Virginia.     1823 

1  Ra7id.  456 

The  administrators  of  Isaac  Kidd,  filed  their  bill  to  enjoin  a  judg- 
ment obtained  against  them  by  Benjamin  Alexander,  on  a  bond  executed 
by  their  intestate,  as  security  to  one  John  Segar.  They  allege  that 
considerable  payments  had  been  made  towards  the  discharge  of  the  said 
bond;   one  in  particular,  in  William  Hill's  bond  for  106£.  paid  to  John 


658  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  430 

Scott,  to  whom  at  that  time  the  bond  aforesaid  of  John  Segar  had  been 
transferred,  though  not  legally  assigned.  .  .  .  They  therefore  pray  an 
injunction,  and  other  relief.     The  injunction  was  awarded. 

The  deposition  of  one  John  Scott,  a  transferee,  was  objected  to  on  the 
ground  of  his  interest.  Before  his  deposition  was  taken,  Israel  and 
John  Pleasants  executed  a  release  to  Scott  under  their  seal,  relinquishing 
all  claim  on  the  said  Scott,  on  account  of  the  transfer  of  the  bond  to 
them.  The  execution  of  this  release  was  certified  by  John  Gill,  notary 
public  of  the  State  of  Maryland,  in  the  form  in  which  notarial  acts  are 
usually  executed.  .  .  . 

The  chancellor  referred  the  accounts  between  the  parties  to  a  com- 
missioner, who  reported  a  balance  of  $399.48,  to  be  due  from  Segar  and 
Kidd,  to  Israel  and  John  P.  Pleasants.  Exceptions  were  filed,  and  the 
chancellor  decreed,  that  the  injunction  should  be  dissolved  as  to  the 
sum  of  $177.15,  with  interest,  &c.  (that  being  the  balance  due,  after 
applying  to  the  plaintiff's  credit  due  proportion  of  Hill's  bond,  in  the 
proceedings  mentioned,)  and  that  the  injunction  be  perpetuated  as  to  the 
residue  of  the  said  judgment.     From  this  decree,  the  plaintiffs  appealed. 

Brooke,  J.  —  The  Court,  not  deciding  whether,  if  proved,  the  release 
in  the  record  would  be  effectual  to  bind  the  late  house  of  Israel  and 
John  P.  Pleasants,  is  of  opinion,  that  the  certificate  of  the  notary  pub- 
lic, John  Gill,  that  John  P.  Pleasants,  partner  in  the  late  house  of  Israel 
and  John  P.  Pleasants,  acknowledged  it  to  be  his  act  and  deed,  was  inad- 
missible evidence  to  prove  the  execution  of  the  said  release.  To  effect 
that  object,  the  deposition  of  the  notary  public,  or  some  equivalent  testi- 
mony ought  to  be  before  the  Court.  In  the  absence  of  such  proof,  the 
Court  is  of  opinion,  that  John  Scott,  the  assignee  of  the  bond  in  question, 
was  an  incompetent  witness,  and  his  deposition  and  affidavit,  also  inad- 
missible testimony.  Decree  reversed. 

431.  Statutes.  California  (C.  C.  P.  1872,  §  1948).  Every  private  writing, 
except  last  wills  and  testaments,  may  be  acknowledged  or  proved  and  certified 
[like  conveyances  of  realty,  and  the  certificate  is  evidence  of  execution]. 

Illinois  (Rev.  St.  1874,  c.  30,  §  35).  [An  instrument  affecting  land,  duly  ac- 
knowledged or  proved,]  whether  the  same  be  recorded  or  not,  may  be  read  in 
evidence  without  any  further  proof  of  the  execution  thereof. 

Iowa  (Code  1897,  §  4621).  Every  private  -wTiting,  except  a  last  will  and 
testament,  after  being  acknowledged  or  proved  and  certified  in  the  manner 
prescribed  for  the  proof  or  acknowledgment  of  conveyances  of  real  property, 
may  be  read  in  evidence  without  further  proof. 

432.  John  H.  Wigmore.  A  Treatise  on  Evidence  (1905.  Vol.  Ill,  §  1676). 
Not  only  did  the  common  law  not  recognize  any  officer  having  power  to  certify 
to  the  execution  of  an  vnrecorded  deed  or  other  instriivient  of  grant  or  contract;  but 
its  peoples  seem  also  to  have  felt  a  repugnance  to  any  system  of  authenticating 
deeds  in  that  manner;  so  that  a  long  time  elapsed,  even  after  the  institution  of 
the  registry  system,  before  such  an  innovation  was  attempted.  The  notary, 
that  prominent  figure  in  the  legal  profession  on  the  Continent,  who  draws  up  the 


No.  433  HEARSAY  RULE:  EXCEPTIONS  659 

"act"  for  the  parties  and  proves  its  execution  by  his  certificate,  is  wanting  in 
our  legal  history.  First  appearing,  with  the  introduction  of  written  documents, 
in  the  countries  of  southern  Europe,  he  seems  never  to  have  found  favor  among 
Germanic  peoples,  except  as  a  character  imported  with  the  Roman  and  Italian 
law.  / 

In  this  country  an  occasional  early  statute  made  provision  for  recognizing 
the  certificates  of  foreign  notaries  or  magistrates.  The  habits  of  the  civil  law  of 
Europe  had  been  adopted  from  the  beginning  into  Louisiana  practice,  and  had 
also  become  familiar  to  the  profession  in  Missouri,  Texas,  and  California,  where 
the  French  and  Spanish  archives  of  the  original  governments  were  a  part  of  the 
legal  sources.  Moreover,  in  Pennsylvania,  the  practice  was  already  sanctioned 
before  the  ISOOs  by  a  venturesome  piece  of  judicial  legislation.  But  these  in- 
stances seem  to  have  remained  purely  local.  The  doctrine  of  the  common  law, 
refusing  to  recognize  such  certificates,  prevailed  in  the  general  understanding 
and  practice.  The  codification  reforms  in  New  York,  between  1830  and  1840, 
under  the  leadership  of  Mr.  David  Dudley  Field,  made  apparently  the  first  im- 
portant attempt  to  introduce  the  broad  functions  of  the  Continental  notary 
into  our  jurisprudence.  The  draft  of  those  laws  served  as  a  model  for  the  early 
Codes  of  Dakota,  California,  and  Iowa.  The  lack  of  appurtenant  traditions, 
and  of  a  true  notarial  profession,  and  the  loose  and  informal  methods  thus  likely 
to  prevail,  were  unfavorable  to  a  wide  recognition  of  the  notary's  functions  and 
a  thorough  trust  in  his  services.  Yet  the  new  system  was  carried  by  these  Codes 
into  a  number  of  other  jurisdictions,  and  finally  found  a  legal  recognition  even  in 
the  home  of  the  great  Code  champion  himself.  Still,  however,  the  marks  of 
racial  tradition  and  cautious  hesitation  are  easily  to  be  traced;  for  the  method 
is  in  several  States  adopted  to  a  limited  extent  only,  and  is  expressly  refused 
sanction  for  commercial  paper  and  testaments.  There  is  no  reason  why  the 
system  should  not  with  us  be  as  extensive  in  scope  and  practice  as  on  the  Conti- 
nent and  in  the  rest  of  the  world,  provided  only  the  administrative  machinery 
is  duly  furnished  and  safeguarded. 


433.  Chief  Baron  Gilbert.  Evidence,  11  (ante  1726).  The  next  thing  is  the 
copies  of  all  other  records  [than  statutes]  and  they  are  twofold :  under  seal,  and 
not  under  seal. 

First,  under  seal ;  and  these  are  called  by  a  particular  name,  Exemplifications, 
and  are  of  better  credence  than  any  sworn  copy;  for  the  Courts  of  justice  that 
put  their  seals  to  the  copy  are  supposed  more  capable  to  examine  and  more 
critical  and  exact  in  their  examinations  than  any  other  person  is  or  can  be;  and 
besides  there  is  more  credit  to  be  given  to  their  seal  than  to  the  testimony  of  any 
private  person.  .  .  . 

Exemplifications  are  twofold :  under  the  Broad  [Great]  Seal,  or  under  the  seal 
of  the  Court.  .  .  .  When  a  record  is  exemplified  under  the  Great  Seal,  it  must 
either  be  a  record  of  the  Court  of  Chancery,  or  be  sent  for  by  a  certiorari  into  the 
Chancery  (which  is  the  centre  of  all  Courts),  and  from  thence  the  subjects  receive 
a  copy  under  the  attestation  of  the  Great  Seal ;  for  in  the  first  distribution  of  the 
Courts,  the  Chancery  held  the  Broad  Seal,  from  whence  the  authority  issued  to 
all  proceedings,  and  those  proceedings  cannot  be  copied  under  the  Great  Seal 
unless  they  come  into  the  Court  where  that  seal  is  lodged.  .  .  . 

The  second  sort  of  copies  under  seal  are  the  exemplifications  under  the  seal 
of  the  Court,  and  these  are  of  higher  credit  than  a  sworn  copy.  .  .  .  Seals  of 


660  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  433 

public  credit  are  the  seals  of  the  King  and  of  the  public  Courts  of  justice,  time 
out  of  mind.  .  .  .  Bvit  the  seals  of  private  Courts  or  of  private  persons  are  not 
full  evidence  by  themselves  without  an  oath  concurring  to  their  credibility.  .  .  . 
The  second  sort  of  copies  are  those  that  are  not  under  seal,  and  these  are  of 
two  sorts,  sworn  copies,  and  office-copies.  ...  A  copy  given  out  by  the  officer 
of  the  Court  that  is  not  trusted  to  the  purpose  ...  is  not  evidence  without 
proving  it  actually  examined. 

434.  Justice  Duller.  Trials  at  Nisi  Pritis,  229  (ante  1767).  Here  a  differ- 
ence is  taken  between  a  copy  authenticated  by  a  person  trusted  for  that  purpose, 
for  there  that  copy  is  evidence  without  proof;  and  a  copy  given  out  by  an  officer 
of  the  court,  who  is  not  trusted  for  that  purpose,  which  is  not  evidence  without 
proving  it  actually  examined.  The  reason  of  the  difference  is,  that  where  the  law 
has  appointed  any  person  for  any  purpose,  the  law  must  trust  him  as  far  as  he 
acts  under  its  authority;  therefore  the  chirograph  of  a  fine  is  evidence  of  such 
fine,  because  the  chirographer  is  appointed  to  give  out  copies  of  the  agreements 
between  the  parties  that  are  lodged  of  record.  .  .  .  Therefore  it  is  not  enough  to 
give  in  evidence  a  copy  of  a  judgment,  though  it  be  examined  by  the  clerk  of  the 
Treasury,  because  it  is  no  part  of  the  necessary  office  of  clerk,  for  he  is  only 
intrusted  to  keep  the  records  for  the  benefit  of  all  men's  perusal,  and  not  to  make 
out  copies  of  them. 

435.  Appleton  v.  Braybrook.  (1816.  6  M.  &  S.  37).  HoLRO-iT),  J.  The 
distinction  is  plain  between  that  which  proceeds  from  the  officer  in  the  course  of 
his  duty  in  the  office,  and  that  which  he  is  not  specially  authorized  by  his  office 
to  do.  .  .  .  An  exemplification  is  under  the  seal  of  the  Court,  which  shows  it  to 
be  the  act  of  the  Court,  and  it  is  equivalent  when  the  act  is  done  by  an  officer 
who  has  a  duty  cast  on  him  for  the  express  purpose. 


436.   CHURCH  v.  HUBBART 

Supreme  Court  of  the  United  States.     1804 

2  Cr.  187,  198,  239 

Action  on  policies  of  marine  insurance;  defence,  that  the  vessels 
were  seized  by  the  Portuguese  and  condemned  for  illicit  trade,  within 
the  exceptions  of  hability  in  the  policy.  To  prove  this  defence,  certain 
laws  and  proceedings  were  offered,  with  the  following  certificates  of 
copy:  "I,  William  Jarvis,  consul  of  the  United  States  of  America,  in 
this  city  of  Lisbon,  &c.,  do  hereby  certify  to  all  whom  it  may  or  doth 
concern,  that  the  law  in  the  Portuguese  language,  hereunto  annexed, 
dated  from  18th  March,  1605,  is  a  true  and  literal  copy  from  the  original 
law  of  this  realm  of  that  date,  prohibiting  the  entry  of  foreign  vessels  into 
the  colonies  of  this  kingdom,  and  as  such,  full  faith  and  credit  ought  to 
be  given  it  in  courts  of  judicature  or  elsewhere.  I  further  certify,  that 
the  foregoing  is  a  just  and  true  translation  of  the  aforesaid  law. 

"  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal  of  office,  at  Lisbon,  this  12th  day  of  April,  1803. 

(Signed)  "William  Jarvis." 


No.  436  HEARSAY    RULE:     EXCEPTIONS  661 

"Para,  27th  June,  1801.  D.  Jono  de  Almeida  de  Mello  de  Castro, 
of  the  Council  of  State  of  the  Prince  Regent  our  Lord  and  his  Minister 
and  Secretary  of  State  of  the  foreign  affairs  and  war  departments,  &c.,  do 
hereby  certify  that  the  present  is  a  faithful  copy  taken  from  the  original 
deeds  relative  to  the  brig  Aurora.  Jn  witness  whereof  I  order  this  attesta- 
tion to  be  passed  and  goes  by  me  signed  and  sealed  with  the  seal  of  my 
arms.     Lisbon  the  27th  January,  1803. 

(Signed)  "D.  Jono  de  Almeida  de  Mello  de  Castro." 

"I,  William  Jarvis,  Consul  of  the  United  States  of  America  in  this 
city  of  Lisbon,  &c.  do  hereby  certify  unto  all  whom  it  may  concern  that 
the  foregoing  is  a  true  and  just  translation  of  a  copy  from  the  proceed- 
ings against  the  brig  Aurora,  Nathaniel  Shaler,  master,  at  Para  in  the 
Brazils  which  is  hereto  annexed  and  attested  by  his  Excellency  Don  Jono 
de  Almeida  de  Mello  de  Castro,  whose  attestation  is  dated  the  27th 
January,  1803. 

"  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal  of  office,  in  Lisbon,  this  16th  day  of  April,  one  thousand  eight  hundred 
and  three.  .  "  William  Jarvis." 

Over  objection,  these  documents  were  admitted. 

Stockton,  for  plaintiff  in  error,  contended  that,  .  .  .  the  Circuit  Court 
erred  in  admitting  the  evidence  which  was  objected  to.  It  did  not 
appear  to  be  the  sentence  of  a  Court  having  competent  jurisdiction.  .  .  . 

But  the  laws  themselves  are  not  sufficiently  authenticated.  They 
are  only  certified  by  a  Secretary  of  State  with  his  sign  manual  and  private 
seal.  They  ought  at  least  to  be  certified  under  the  great  seal.  A  private 
act  of  this  country  must  be  proved  by  a  sworn  copy  compared  with  the 
roll.  So  of  foreign  laws.  They  must  be  proved  as  facts,  by  testimony 
in  court.  .  .  . 

The  sentence  is  not  duly  authenticated.  Is  a  secretary  of  State  a 
proper  certifying  officer  of  a  judgment  of  a  Court  in  the  colonies?  To 
ascertain  what  is  a  sufficient  mode  of  authentication,  the  principles  of 
the  common  law  must  be  our  guide.  By  that  law  there  are  only  three 
modes:  1.  Exemplification  under  the  great  seal.  2.  A  sworn  copy 
proved  by  a  person  who  has  compared  the  copy  with  the  original.  3. 
The  certificate  of  an  officer  specially  authorized  ad  hoc. 

It  has  not  even  the  seal  of  the  Court.  If  the  Court  had  no  seal,  that 
fa^t  ought  to  have  been  proved.  Why  was  it  not  certified  under  the 
great  seal?  One  nation  will  take  notice  of  the  national  seal  of  another. 
Why  was  not  the  American  consul  sworn?  Of  what  validity  is  the 
certificate,  or  the  seal  of  a  consul?  W^hy  have  they  not  produced  a 
sworn  copy  of  the  proceedings?  An  American  consul  is  not  a  certifying 
officer.  The  Court  can  take  no  more  notice  of  his  certificate,  than  that 
of  a  private  person.  There  is  no  case  to  be  found  in  a  court  of  common 
law  where  it  has  ever  been  received  as  evidence.    Buller,  N.  P.  226.  .  .  . 


662  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  436 

Adams,  for  defendant.  .  .  .  The  objection  against  the  evidence 
divides  itself  into  two  branches:  1.  Against  the  two  Portuguese  laws. 
2.  Against  the  sentence  of  condemnation  by  the  governor  at  Para.  .  .  . 

1.  It  is  said  that  foreign  laws  must  be  put  on  the  footing  of  private 
laws,  and  must  be  authenticated,  1st,  by  an  exemplification  under  the 
great  seal;   or,  2d,  by  a  sworn  copy  from  the  rolls. 

To  this  we  answer,  First,  That  the  rules  for  the  proof  of  foreign 
laws,  ought  not  to  be  put  upon  the  footing  of  private  laws.  ...  It  is  not 
the  practice  of  all  foreign  governments  to  issue  exemplifications  under 
the  great  seal ;  or  to  keep  their  laws  in  rolls  of  parchment.  It  is  not  the 
practice,  for  instance,  in  Portugal,  as  is  apparent  from  these  laws  them- 
selves. ...  A  copy  from  the  rolls,  therefore,  where  there  are  no  rolls 
to  copy;  an  exemplification  under  the  great  seal  of  Portugal,  of  records 
in  the  chancery  of  Spain,  are  impossible  things;  a  party  can  never  be 
required  to  produce  them.  .  .  . 

But  with  all  submission  to  the  opinion  of  the  Court,  I  contend,  that 
under  the  circumstances  of  this  case,  the  certificate  of  the  consul  was 
the  best  evidence,  which  in  the  nature  of  the  thing  could  be  produced, 
of  these  laws.  To  whom  else  could  the  parties  have  applied?  Even  in 
England,  a  copy  of  public  acts  of  parliameivf,  from  the  rolls,  would  not 
be  furnished  to  individual  applicants.  In  Portugal  there  is  every  reason 
to  presume  no  such  copy  could  be  obtained.  .  .  .  And  after  all,  when 
obtained,  would  the  great  seal  of  Portugal,  or  the  signature  of  the  chan- 
cellor of  Portugal,  have  been  so  well  known  to  this  Court  as  the  seal 
and  signature  of  an  officer  of  our  own  government  residing  there? 

We  are  asked  for  an  office  copy,  certified  by  an  officer  entrusted  ad 
hoc.  But  why  is  credit  given  to  office  copies?  Because  the  officer  is 
publicly  known;  because  his  business  to  keep  the  records  is  equally 
notorious,  and  courts  of  justice  will  take  notice  of  it.  Surely  this  can 
give  no  credit  to  the  office  copy  of  a  Portuguese  clerk  or  secretary.  Surely 
neither  the  name,  nor  office,  nor  trust,  nor  duty  of  a  scribe  in  the  chancery 
at  Lisbon,  can  be  so  well  known  to  this  Court,  as  the  consul,  commis- 
sioned by  the  executive  government  of  our  own  country. 

We  are  called  upon  for  a  sworn  copy;  but  by  whom  should  the  affi- 
davit be  made?  By  the  consul,  said  the  gentleman.  And  before  whom? 
This  he  did  not  say,  but  it  could  be  only  before  a  Portuguese  magistrate. 
And  who  is  to  authenticate  the  magistrate's  certificate  of  the  oath? 
The  consul.  So  that  in  the  end  the  authenticity  of  the  whole  transac- 
tion must  depend  upon  the  consul's  certificate.  ...  , 

2.  The  same  reasons  apply  still  more  forcibly  to  the  sentence  of  the 
Governor  of  Para.  How  is  it  possible  to  require  that  a  suitor  should  pro- 
duce an  exemplification,  a  sivorn  copy  or  an  office  copy,  of  a  document,  when 
he  is  forbidden,  on  pain  of  death  and  confiscation,  to  set  his  foot  in  the 
country  where  alone  those  modes  of  authentication  could  be  obtained? 
The  practice  of  the  Portuguese  government  appears  upon  the  face  of 
these  papers.    The  Governor  transmits  to  the.  Secretary  of  State  at  Lisbon 


No.  436  HEARSAY    RULE:     EXCEPTIONS  663 

the  original  sentence  of  condemnation,  with  the  proceedings  upon  which 
it  was  founded.  And  the  Secretary  of  State,  who  remains  in  possession 
of  these  original  papers,  furnishes,  under  his  hand  and  seal,  a  copy  of 
them  to  the  public  agent  of  the  nation  to  which  the  condemned  vessel 
and  cargo  belonged.  ... 

The  laws,  therefore,  and  the  sentence  of  the  Governor,  are  authenti- 
cated by  the  best  evidence  which,  in  the  nature  of  things,  was  attainable 
by  the  party. 

Marshall,  C.  J.  —  To  prove  that  the  Aurora  and  her  cargo  were 
sequestered  at  Para,  in  conformity  with  the  laws  of  Portugal,  two  edicts 
and  the  judgment  of  sequestration  have  been  produced  by  the  defend- 
ants in  the  Circuit  Court.  These  documents  were  objected  to  on  the 
principle  that  they  were  not  properly  authenticated,  but  the  objection 
was  overruled,  and  the  judges  permitted  them  to  go  to  the  jury. 

The  edicts  of  the  crown  are  certified  by  the  American  consul  at  Lis- 
bon to  be  copies  from  the  original  law  of  the  realm,  and  this  certificate 
is  granted  under  his  official  seal.  ...  In  this  case  the  edicts  produced 
are  not  verified  by  an  oath.  The  consul  has  not  sworn;  he  has  only 
certified  that  they  are  truly  copied  from  the  original.  To  give  to  this 
certificate  the  force  of  testimony  it  will  be  necessary  to  show  that  this  is 
one  of  those  consular  functions  to  which,  to  use  its  own  language,  the 
laws  of  this  country  attach  full  faith  and  credit.  Consuls,  it  is  said,  are 
officers  known  to  the  law  of  nations,  and  are  entrusted  with  high  powers. 
This  is  very  true,  but  they  do  not  appear  to  be  entrusted  with  the  power 
of  authenticating  the  laws  of  foreign  nations.  They  are  not  the  keepers 
of  those  laws.  They  can  grant  no  official  copies  of  them.  There  appears 
no  reason  for  assigning  to  their  certificates  respecting  a  foreign  law  any 
higher  or  different  degree  of  credit,  than  would  be  assigned  to  their 
certificates  of  any  other  fact.  .  .  .  The  paper  ofl"ered  to  the  Court  is 
certified  to  be  a  copy  compared  with  the  original.  It  is  impossible  to 
suppose  that  this  copy  might  not  have  been  authenticated  by  the  oath 
of  the  consul  as  well  as  by  his  certificate.  It  is  asked  in  what  manner 
this  oath  should  itself  have  been  authenticated,  and  it  is  supposed  that 
the  consular  seal  must  ultimately  have  been  resorted  to  for  this  purpose. 
But  no  such  necessity  exists.  Commissions  are  always  granted  for  taking 
testimony  abroad,  and  the  commissioners  have  authority  to  administer 
oaths  and  to  certify  the  depositions  by  them  taken.  The  edicts  of  Por- 
tugal, then,  not  having  been  proved,  ought  not  to  have  been  laid  before 
the  jury. 

2.  The  paper  offered  as  a  true  copy  from  the  original  proceedings 
against  the  Aurora,  is  certified  under  the  seal  of  his  arms  by  D.  Jono 
de  Almeida  de  Mello  de  Castro,  who  states  himself  to  be  the  Secretary 
of  State  for  foreign  affairs,  and  the  consul  certifies  the  English  copy 
which  accompanies  it  to  be  a  true  translation  of  the  Portuguese  original. 
Foreign  judgments  are  authenticated  [either],  1,  by  an  exemplification 
under  the  Great  Seal,  [or]  2,  by  a  copy  proved  to  be  a  true  copy,  [or]  3, 


664  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  436 

by  the  certificate  of  an  officer  authorized  by  law,  which  certificate  must 
itself  be  properly  authenticated.  These  are  the  usual,  and  appear  to  be 
the  most  proper,  if  not  the  only,  modes  of  verifying  foreign  judgments. 
...  If  it  be  true  that  the  decrees  of  the  colonies  are  transmitted  to 
the  seat  of  government  and  registered  in  the  department  of  State,  a 
certificate  of  that  fact  under  the  Great  Seal,  with  a  copy  of  the  decree 
authenticated  in  the  same  manner,  would  be  sufficient  evidence  of  the 
verity  of  what  was  so  certified,  but  the  certificate  offered  to  the  Court  is 
under  the  private  seal  of  the  person  giving  it,  which  cannot  be  known 
to  this  Court,  and  of  consequence  can  authenticate  nothing.  The  paper, 
therefore,  purporting  to  be  a  sequestration  of  the  Aurora  and  her  cargo 
in  Para  ought  not  to  have  been  laid  before  the  jury.  .  .  . 

The  judgment  must  be  reversed  with  costs  and  the  cause  remanded 
to  be  again  tried  in  the  Circuit  Court,  with  instructions  not  to  permit 
the  copies  of  the  edicts  of  Portugal  and  the  sentence  in  the  proceedings 
mentioned,  to  go  to  the  jury,  unless  they  be  authenticated  according  to 
law. 

437.   UNITED  STATES  v.   PERCHEMAN 

Supreme  Court  of  the  United  States.    1833 

7  Pet.  51,  85 

Appeal  from  the  Superior  Court  for  the  eastern  district  of  Florida. 

On  the  17th  of  September,  1830,  Juan  Percheman  filed  in  the  clerk's 
office  of  the  Superior  Court  for  the  eastern  district  of  Florida,  a  petition, 
setting  forth  his  claim  to  a  tract  of  land  containing  two  thousand  acres, 
within  the  district  of  East  Florida,  situated  at  a  place  called  the  Ockli- 
waha,  along  the  margin  of  the  river  St.  John.  The  petitioner  stated 
that  he  derived  his  title  to  the  said  tract  of  land  under  a  grant  made  to 
him  on  the  12th  day  of  December,  1815,  by  Governor  Estrada,  then 
Spanish  governor  of  East  Florida,  and  whilst  East  Florida  belonged  to 
Spain.  The  documents  exhibiting  the  alleged  title  annexed  to  the 
petition  were  the  following:  .  .  . 

"St.  Augustine,  of  Florida,  12th  December,  1815.  Whereas  this 
officer,  the  party  interested,  by  the  two  certificates  inclosed,  and  which 
will  be  returned  to  him  for  the  purposes  which  may  be  convenient  to 
him,  has  proved  the  services  which  he  rendered  in  the  defense  of  this 
province,  and  in  consideration  also  of  what  is  provided  in  the  royal  order 
of  the  29th  March  last  past,  which  he  cites,  I  do  grant  him  the  two  thou- 
sand acres  of  land  which  he  solicits,  in  absolute  property,  in  the  indicated 
place;  to  which  effect  let  a  certified  copy  of  this  petition  and  decree  be 
issued  to  him  from  the  secretary's  office,  in  order  that  it  may  be  to  him 
in  all  events  an  equivalent  of  a  title  in  form.  Estrada." 

"I,  Don  Thomas  de  Aguilar,  under-lieutenant  of  the  army,  and 
secretary  for  his  majesty  of  the  government  of  this  place,  and  of  the 


No.  437  HEARSAY    RULE:     EXCEPTIONS  665 

province  thereof,  do  certify  that  the  preceding  copy  is  faithfully  drawn 
from  the  original,  which  exists  in  the  secretary's  office,  under  my  charge : 
and  in  obedience  to  what  is  ordered,  I  give  the  present  in  St.  Augustine, 
of  Florida,  on  the  12th  of  December,  1815.  Tomas  de  Aguilar." 

On  the  hearing  of  the  case  before  the  Supreme  Court  for  the  district 
of  East  Florida,  the  claimant,  by  his  counsel,  offered  in  evidence  a 
copy  from  the  office  of  the  keeper  of  public  archives  of  the  original  grant 
on  which  this  claim  is  founded;  to  the  receiving  of  which  in  evidence 
the  said  attorney  for  the  United  States  objected,  alleging  that  the  orig- 
inal grant  itself  should  be  produced,  and  its  execution  proved,  before 
it  could  be  admitted  in  evidence,  and  that  the  original  only  could  be 
received  in  evidence;  which  objection,  after  argument  from  the  counsel, 
was  overruled  by  the  Court,  and  the  copy  from  the  office  of  the  keeper  of 
the  public  archives,  certified  according  to  law,  was  ordered  to  be  received 
in  evidence.  .  .  .  The  Court  proceeded  to  a  decree  in  the  case,  and 
adjudged  that  the  claim  of  the  petitioner  as  presented  was  within  its 
jurisdiction  —  "  that  the  grant  is  valid,  that  it  ought  to  be,  and  by 
virtue  of  the  statute  of  the  26th  of  May,  1830,  and  of  the  late  treaty 
between  the  United  States  and  Spain,  it  is  confirmed." 

The  United  States  appealed  to  this  Court. 

The  case  was  argued  by  Mr.  Taney,  Attorney-General,  for  the  United 
States;   and  by  Mr.  White,  for  the  appellee. 

For  the  United  States  it  was  contended:  1.  That  the  copy  of  the  grant 
and  other  proceedings  produced  by  the  petitioner,  were  not  admissible 
in  evidence,  but  the  original  papers  ought  to  have  been  produced.  .  .  . 

Mr.  White,  for  the  appellee.  .  .  .  How  is  it  attempted  by  the  govern- 
ment agents  to  defeat  so  just  and  equitable  a  claim?  The  first  ground 
taken  is,  that  "the  copy  of  the  grant  is  not  admissible  evidence;  but  the 
original  ought  to  have  been  produced  and  proved."  This  involves  the 
question,  what  is  a  copy,  and  what  an  original,  under  the  Spanish  govern- 
ment; as  defined  by  the  Spanish  laws.  This  is  a  paper  certified  by  the 
escribano  of  government  to  be  a  full  copy  of  the  petition  and  decree 
of  the  governor  of  East  Florida.  It  is,  in  fact,  the  original  grant.  The 
petition  and  decree  of  the  governor  are  preserved  in  the  office  of  the 
escribano,  are  placed  there  in  paper  books  as  composing  the  diligencias 
of  his  office.  These  papers  never  go  out,  any  more  than  the  notes  of 
the  surveyors,  upon  which  a  grant  issues  in  the  United  States.  In  this 
country  the  original  patent,  signed  by  the  governor  or  president,  is 
delivered  to  the  patentee,  and  the  copy  is  retained  in  the  office.  Now, 
if. we  are  asked  why  this  is  so,  the  answer  is,  "ita  lex  scripta  est."  It  is 
the  law  and  the  custom  of  Spain  and  her  provinces;  and  it  would  be  as 
reasonable  to  ask,  why  has  she  not  adopted  the  common  law  of  England? 
The  decree  of  the  governor  has  been  certified  under  his  seal  of  office,  and 
the  seal  and  signature  prov^ed.  .  .  . 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  Court. 


666  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  437 

This  is  an  appeal  from  a  decree  pronounced  by  the  judge  of  the 
Superior  Court  for  the  district  of  East  Florida,  confirming  the  title  of 
the  appellee  to  two  thousand  acres  of  land  lying  in  that  territory,  which 
he  claimed  by  virtue  of  a  grant  from  the  Spanish  governor,  made  in 
December,  1815.  .  .  . 

It  appears,  from  the  words  of  the  grant,  that  the  original  was  not 
in  possession  of  the  grantee.  The  decree  which  constitutes  the  title, 
appears  to  be  addressed  to  the  officer  of  the  government  whose  duty  it 
was  to  keep  the  originals  and  to  issue  a  copy.  Its  language,  after  grant- 
ing in  absolute  property,  is,  "  for  the  attainment  of  which  let  a  certified 
copy  of  this  petition  and  decree  be  issued  to  him  from  the  secretary's 
office,  in  order  that  it  may  be  to  him  in  all  events  equivalent  to  a  title 
in  form."  This  copy  is,  in  contemplation  of  law,  an  original.  .  .  . 
The  act  of  the  26th  of  May,  1824,  "enabling  the  claimants  of  lands 
within  the  limits  of  the  State  of  Missouri  and  territory  of  Arkansas  to 
institute  proceedings  to  try  the  validity  of  their  claims,"  in  its  fourth 
section,  makes  it  the  duty  of  "the  keeper  of  any  public  records  who 
may  have  possession  of  the  records  and  evidence  of  the  different  tri- 
bunals which  have  been  constituted  by  law  for  the  adjustment  of  land 
titles  in  Missouri,  as  held  by  France,  upon  the  application  of  any  person 
or  persons  whose  claims  to  land  have  been  rejected  by  such  tribunals 
or  either  of  them,  or  on  the  application  of  any,  person  interested,  or  by 
the  Attorney  of  the  United  States  for  the  district  of  Missouri,  to  furnish 
copies  of  such  evidence,  certified  under  his  official  signature,  with  the 
seal  of  office  thereto  annexed,  if  there  be  a  seal  of  office."  .  .  .  Whether 
these  acts  be  or  be  not  construed  to  authorize  the  admission  of  the  copies 
offered  in  this  cause,  we  think,  that,  on  general  principles  of  law,  a  copy 
given  by  a  public  officer  whose  duty  it  is  to  keep  the  original,  ought  to 
be  received  in  evidence. 

We  are  all  satisfied  that  the  opinion  was  perfectly  correct,  and  that 
the  copies  ought  to  have  been  admitted. 

438.  Ferguson  v.  Clifford.  (1858.  New  Hampshire,  37  N.  H.  86,  95). 
Fowler,  J.  Books,  or  records  of  this  character,  being  themselves  evidence,  and 
being  usually  restricted  to  a  particular  custody,  their  contents  may  be  proved  by 
an  immediate  copy.  .  .  .  Wliether  a  copy,  certified  by  the  officer  making  the 
record,  or  having  the  legal  custody  of  the  book  or  document  —  he  not  being 
specially  appointed  by  law  to  furnish  copies  —  is  admissible,  has  been  doubted 
in  many  cases;  but  the  weight  of  authority  seems  to  have  established  the  rule, 
that  a  copy,  given  by  a  public  officer  whose  duty  is  to  keep  the  original  record, 
ought  to  be  received  in  evidence.  .  .  .  United  States  v.  Percheman,  7  Peters  85. 

439.  Statutes.  Engr/ant?  (1851.  St.  14  &  15  Vict.  c.  99,  Lord  Brougham's 
Act,  §  14).  Whenever  any  book  or  other  document  is  of  such  a  public  nature  as 
to  be  admissible  in  evidence  on  its  mere  production  from  the  proper  custody, 
and  no  statute  exists  which  renders  its  contents  provable  by  means  of  a  copy, 
any  copy  thereof  or  extract  therefrom  shall  be  admissible  in  evidence  in  any  Court 


No.  439  HEARSAY    RULE:     EXCEPTIONS  667 

of  justice  .  .  .  ,  provided  it  be  proved  to  be  an  examined  copy  or  extract,  or 
provided  it  purport  to  be  signed  or  certified  as  a  true  copy  or  extract  by  the 
officer  to  whose  custody  the  original  is  intrusted.  "^ 

California  (C.  C.  P.  1872,  §  1893).  [A  certified  copy  by]  every  public  officer 
having  custody  of  a  public  writing  which  a  citizen  has  a  right  to  inspect,  [is 
admissible]  with  like  effect  as  the  original  writing. 

lb.,  §  1901 :  [A  certified  copy  of  a]  written  law  or  other  public  wTiting  of  any 
State  or  county  [by]  the  officer  having  charge  of  the  original,  under  the  public 
seal  of  the  State  or  country,  is  receivable. 

lb.,  §  1918.  Other  official  documents  may  be  proved  as  follows:  1,  Acts  of 
the  Executive  of  the  State,  by  the  records  of  the  State  department  of  the  State; 
and  of  the  United  States,  by  the  records  of  the  State  department  of  the  United 
States,  certified  by  the  heads  of  those  departments  respectively.  ...  2,  The 
proceedings  of  the  Legislature  of  this  State,  or  of  Congress,  by  the  journals  of 
those  bodies  respectively,  or  either  house  thereof,  or  by  published  statutes  or 
resolutions,  or  by  copies  certified  by  the  clerk.  ...  3,  The  acts  of  the  Executive, 
or  the  proceedings  of  the  Legislature  of  a  sister  State,  in  the  same  manner;  4, 
The  acts  of  the  Executive,  or  the  proceedings  of  the  Legislature  of  a  foreign  coun- 
try, ...  by  a  copy  certified  under  the  seal  of  the  country  or  sovereign,  or  by  a 
recognition  thereof  in  some  public  act  of  the  Executive  of  the  United  States; 
5,  Acts  of  a  municipal  corporation  of  this  State,  or  of  a  board  or  department 
thereof,  by  a  copy,  certifiet?  by  the  legal  keeper  thereof.  ...  6,  Documents  of 
any  other  class  in  this  State,  by  the  original,  or  by  a  copy,  certified  by  the  legal 
keeper  thereof;  7,  Documents  of  any  other  class  in  a  sister  State,  by  the  original, 
or  by  a  copy  certified  by  the  legal  keeper  thereof,  together  with  a  certificate  of 
the  Secretary  of  State,  judge  of  the  supreme,  superior,  or  county  court,  or  mayor 
of  a  city  of  such  State,  that  the  copy  is  duly  certified  by  the  officer  having  the 
legal  custody  of  the  original;  8,  Documents  of  any  other  class  in  a  foreign  country, 
by  the  original,  or  by  a  copy  certified  by  the  legal  keeper  thereof,  with  a  certificate, 
under  seal  of  the  country  or  sovereign,  that  the  document  is  a  valid  and  subsisting 
document  of  such  country,  and  that  the  copy  is  duly  certified  by  the  officer  having 
the  legal  custody;  9,  Documents  in  the  departments  of  the  United  States  govern- 
ment, by  the  certificates  of  the  legal  custodian  thereof. 

lb.,  §1905.  A  judicial  record  of  this  State  or  of  the  United  States,  may  be 
proved  by  the  production  of  the  original,  or  by  a  copy  thereof,  certified  by  the 
clerk  or  other  person  having  the  legal  custody  thereof.  That  of  a  sister  State 
may  be  approved  by  the  attestation  of  the  clerk  and  the  seal  of  the  court  annexed, 
if  there  be  a  clerk  and  seal,  together  with  a  certificate  of  the  chief  judge  or  presid- 
ing magistrate  that  the  attestation  is  in  due  form. 

lb.,  §  1906.  A  judicial  record  of  a  foreign  country  may  be  proved  by  the 
attestation  of  the  clerk,  with  the  seal  of  the  court  annexed,  if  there  be  a  clerk  and 
a  seal,  or  of  the  legal  keeper  of  the  record,  with  the  seal  of  his  office  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of  the  chief  judge  or  presiding  magis- 
trate that  the  person  making  the  attestation  is  the  clerk  of  the  court  or  the  legal 
keeper  of  the  record,  and  in  either  case,  that  the  signature  of  such  person  is  gen- 
uine, and  that  the  attestation  is  in  due  form.  The  signature  of  the  chief  judge  or 
presiding  magistrate  must  be  authenticated  by  the  certificate  of  the  minister  or 
ambassador,  or  a  consul,  vice-consul,  or  consular  agent  of  the  United  States  in 
such  foreign  country. 

Illinois  (Rev.  St.  1874,  c.  51,  §  13).  The  papers,  entries,  and  records  of 
courts  may  be  proved  by  a  copy  thereof  certified  under  the  hand  of  the  clerk  of 


668  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  439 

the  court  having  the  custody  thereof,  and  the  seal  of  the  court,  or  by  the  judge 
of  the  court  if  there  be  no  clerk. 

Iowa  (Code  1897,  §  4635).  Duly  certified  copies  of  all  records  and  entries 
or  papers  belonging  to  any  public  office  or  by  authority  of  law  required  to  be  filed 
therein  [are  admissible]. 

United  States  (Constitution  1789,  Art.  IV,  §  1).  Full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may  by  general  laws  prescribe  the  manner  in 
which  such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

lb.  (Rev.  St.  1878,  §  905,  St.  1790,  May  26).  The  acts  of  the  Legislature  of 
any  State  or  Territory,  or  of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  shall  be  authenticated  by  having  the  seals  of  such  State,  Territory,  or 
country  affixed  thereto.  .  .  . 

The  records  and  judicial  proceedings  of  the  Courts  of  any  State  or  Territory, 
or  of  any  such  country  [subject  to  the  jurisdiction  of  the  U.  S.],  shall  be 
proved  or  admitted  in  any  other  Court  within  the  United  States,  by  the  attesta- 
tion of  the  clerk,  and  the  seal  of  the  Court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate,  that  the  said 
attestation  is  in  due  form. 

lb.,  §  906  (St.  1804,  March  27).  All  records  and  exemplifications  of  books 
which  may  be  kept  in  any  public  office  of  any  State  or  Territory  or  of  any  country 
subject  to  the  jurisdiction  of  the  United  States,  not  appertaining  to  a  court,  shall 
be  proved  or  admitted  in  any  court  or  office  in  any  other  State  or  Territory  or 
in  any  such  country,  by  the  attestation  of  the  keeper  of  the  said  records  or  books, 
and  the  seal  of  his  office  annexed,  if  there  be  a  seal,  together  with  a  certificate  of 
the  presiding  justice  of  the  court  of  the  county,  parish,  or  district  in  which  such 
office  may  be  kept,  or  of  the  governor,  secretary  of  state,  the  chancellor  or  keeper 
of  the  great  seal,  of  the  State  or  Territory  or  country,  that  the  said  attestation  is 
in  due  form  and  by  the  proper  officers.  If  the  said  certificate  is  given  by  the 
presiding  justice  of  a  court,  it  shall  be  further  authenticated  by  the  clerk 
or  prothonotary  of  the  said  court,  who  shall  certify,  under  his  hand  and  the 
seal  of  his  office,  that  the  said  presiding  justice  is  duly  commissioned  and  qualified; 
or,  if  given  by  such  governor,  secretary,  chancellor,  or  keeper  of  the  great  seal, 
it  shall  be  under  the  great  seal  of  the  State,  Territory,  or  country  aforesaid  in 
which  it  is  made. 

440.  Chief  Baron  Gilbert.  Evidence,  11  (ante  1726).  My  Lord  Chief 
Justice  Parker  allowed  the  printed  statute  to  be  evidence,  in  the  case  of  the  Col- 
lege of  Physicians  and  Dr.  West,  of  the  truth  of  a  private  act  of  Parliament 
touching  the  institution  of  the  College  of  Physicians;  because  the  printed  statute- 
book  is  printed  by  the  Queen's  authority,  and  therefore,  though  it  be  not  so  good 
evidence  as  an  exemplification  under  seal,  yet  it  must  be  supposed  as  good  an 
evidence  of  the  truth  of  a  copy  as  a  copy  compared  with  the  rolls  and  sworn  to  by 
the  testimony  of  any  witness,  which  is  allowed  daily  as  a  good  proof  of  the  copy 
of  a  record;  for  a  copy  printed  by  the  public  authority  derives  more  credit  from 
that  authority  than  it  would  from  the  testimony  of  any  living  witness  that  had 
compared  it. 

441.  Statutes.  California  (C.  C.  P.  1872,  §1900).  Books  printed  under 
the  authority  of  a  sister  State  or  foreign  country,  and  purporting  to  contain  the 
statutes,  code,  or  other  WTitten  law  of  such  State  or  country,  or  proved  to  be 


No.   446  HEARSAY    RULE:     EXCEPTIONS  669 

commonly  admitted  in  the  tribunals  of  such  State  or  country  as  evidence  of  the 
written   law   tliereof,    [are  receivable.] 

lb.,  §  1963.  [There  is  a  presumption]  that  a  printed  and  published  book 
purporting  to  be  printed  or  pul^lished  by  public  authority  was  so  printed  or 
published. 

Nebra.ska  (Comp.  St.  1899,  §  5970).  Printed  copies  in  volumes  of  statutes, 
code,  or  other  written  law,  enacted  by  any  other  Territory,  or  State,  or  foreign 
government,  i)urporting  or  proved  to  have  been  published  by  the  authority 
thereof,  or  proved  to  be  commonly  admitted  as  evidence  of  the  existing  law 
[in  the  courts  thereof,  are  admissible]. 


442.   WILLOCK  r.   WILSON 
Supreme  Judicial  Court  of  Massachusetts.     1901 
178  Mass.  68;  59  A".  E.  757 
[Printed  post,  as  No.  562] 

Topic  8.     Statements  of  a  Physical  or  Mental  Condition 

445.  AvESON  p.  KiNNAiRD.  (1805.  6  East  195).  [Evidence  was  offered  of  decla- 
rations on  a  sickbed  by  the  plaintiff's  wife  that  she  was  not  well  on  the  previous 
Tuesday,  when  she  went  to  be  insured.]  Ellenborough,  L.  C.  J.  A  witness 
has  been  received  to  relate  that  which  has  always  been  received  from  patients  to 
explain  —  her  own  account  of  the  cause  of  her  being  in  bed  at  an  unseasonable 
hour  with  the  appearance  of  being  ill.  .  .  .  What  were  the  complaints,  what  the 
symptoms,  what  the  conduct  of  the  parties  themselves  at  the  time,  are  always 
received  upon  such  inquiries,  and  must  be  resorted  to  from  the  very  nature  of  the 
thing.  .  .  .  The  declaration  was  upon  the  subject  of  her  own  health  at  the  time 
w^hich  is  a  fact  of  which  her  own  declaration  is  evidence;  and  that  too  made 
vmawares  before  sheVould  contrive  any  answer  for  her  own  advantage  and  that 
of  her  husband,  and  therefore  falling  within  the  principle  of  the  case  in  Skinner 
which  I  have  alluded  to. 

446.   BACON  v.   CHARLTON 

Supreme  Judicial  Court  of  Massachusetts.     1851 

7  Cush.  581 

Action  on  the  case  to  recover  damages  for  an  injury  sustained  by 
the  plaintiff,  in  being  thrown  from  his  carriage,  while  traveling  through 
the  town  of  Charlton,  in  consequence  of  an  obstruction  in  the  highway. 
.  .  .  The  presiding  judge  ruled  that  groans  or  exclamations  of  pain, 
made  by  the  plaintiff,  at  any  time,  w'ere  admissible  in  evidence,  although 
they  referred  either  by  word  or  gesture  to  the  locality  of  the  pain;  as  if 
a  man  should  put  his  hand  upon  his  side  and  groan,  or  should  say,  "  Oh, 
my  head!"  or  utter  similar  complaints,  being  an  expression  of  present 


670  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  446 

pain  or  agony;  but  that  any  statement  of  his  condition  or  feelings,  made 
in  answer  to  a  question,  or  as  a  narrative,  or  with  a  view  to  communi- 
cate information,  was  not  admissible.  And  a  witness  was  accordingly 
allowed,  against  the  defendant's  objection,  to  testify  that  the  plaintiff 
made  exclamations  of  pain  all  the  way  home  from  the  place  of  the  acci- 
dent; that  he  made  complaints  of  pain  for  three  or  four  days  after  the 
accident,  and  stated  the  locality  of  the  pains;  and  that  he  sometimes 
put  his  hand  upon  his  hip  and  sometimes  upon  his  left  side. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  S561,  and 
the  defendant's  alleged  exceptions. 

E.  Washburn,  for  the  defendants.  The  plaintiff's  own  declarations  as 
to  the  extent  and  degree  of  the  injury,  made  subsequent  to  the  time  of 
the  injury,  and  especially  those  made  after  the  lapse  of  one  or  two  days, 
were  not  admissible  in  evidence. 

B.  F.  Thomas  and  G.  F.  Hoar,  for  the  plaintiff. 

BiGELOW,  J.  —  The  next  objection  raised  by  the  exceptions  relates 
to  the  admission  in  evidence  of  expressions  and  complaints  of  pain  by 
the  plaintiff,  after  the  accident.  The  rule  of  law  is  now  well  settled,  and 
it  forms  an  exception  to  the  general  rules  of  evidence,  that,  \Yhere  the 
bodily  or  mental  feeling  of  a  party  are  to  be  proved,  the  usual  and  natural 
expressions  of  such  feelings,  made  at  the  time,  are  considered  competent 
and  original  evidence  in  his  favor.  And  the  rule  is  founded  upon  the 
consideration  that  such  expressions  are  the  natural  and  necessary  lan- 
guage of  emotion,  of  the  existence  of  which,  from  the  very  nature  of  the 
case,  there  can  be  no  other  evidence.  .  .  . 

Such  evidence,  however,  is  not  to  be  extended  beyond  the  necessity  on 
which  the  rule  is  founded.  Anything  in  the  nature  of  narration  or  state- 
ment is  to  be  carefully  excluded,  and  the  testimony  is  to  be  confined  strictly 
to  such  complaints,  exclamations,  and  expressions  as  usually  and  naturally 
accompany  and  furnish  evidence  of  a  present  existing  ^ain  or  malady.  .  .  . 

These  remarks  as  to  the  limitation  of  the  rule  are  not  intended  to 
apply  to  the  statements  made  by  a  patient  to  a  medical  man,  to  which 
a  different  rule  may  be  applicable. 

The  ruling  of  the  Court  below  on  this  point  was  strictly  in  conformity 
with  the  rules  of  law,  and  was  properly  guarded  and  limited. 

Exceptions  overruled. 

447.   ROOSA  V.   LOAN   CO. 

Supreme  Judicl\l  Court  of  Massachusetts.     1882 

132  Mass.  439 

Tort  for  assault  and  battery.  At  the  trial  in  the  Superior  Court, 
before  Brigham,  C.  J.,  the  jury  returned  a  verdict  for  the  plaintiff;  and 
the  defendant  alleged  exceptions,  which  appear  in  the  opinion. 

N.  B.  Bryant,  for  the  defendant. 


No.  448  HEARSAY    RULE:     EXCEPTIONS  07 1 

G.  W.  Morse,  for  tlje  plaintiff. 

Endicott,  J.  —  When  the  bodily  or  mental  feelings  of  a  party  are  to 
be  proved,  his  exclamations  or  expressions  indicating  present  pain  or 
malady  are  competent  evidence;  and  in  Bacon  v.  Charlton,  7  Cush.  581, 
586,  where  this  rule  is  stated,  it  was  said  by  the  Court:  "Such  evidence, 
however,  is  not  to  be  extended  beyond  the  necessity  on  which  the  rule 
is  founded.  xVnything  in  the  nature  of  narration  or  statement  is  to  be 
carefully  excluded,  and  the  testimony  is  to  be  confined  strictly  to  such 
complaints,  exclamations,  and  expressions  as  usually  and  naturally 
accompany,  and  furnish  evidence  of,  a  present  existing  pain  or  malady." 
The  opinion  closes  with  this  precaution:  "These  remarks  as  to  the  limi- 
tation of  the  rule  are  not  intended  to  apply  to  the  statements  made  by 
a  patient  to  a  medical  man,  to  which  a  different  rule  may  be  applicable." 
In  Chapin  v.  Marlborough,  9  Gray  244,  it  was  held,  on  the  authority  of 
Bacon  v.  Charlton,  that  a  physician  could  not  testify  to  a  statement, 
made  by  the  plaintifi",  that  his  leg  had  been  struck  by  a  horse. 

The  facts  in  that  case,  as  in  Chapin  v.  Marlborough,  are  similar  to 
those  recited  in  this  bill  of  exceptions.  The  plaintiff  here  testified  that 
she  was  struck  in  the  stomach  by  the  defendant's  servant.  The  phy- 
sician, in  answer  to  the  question,  "  What  did  the  plaintiff  tell  you  about 
her  condition?"  replied,  "She  stated  that  she  had  received  a  blow  in  the 
stomach."  It  would  clearly  have  been  competent  for  a  physician,  after 
having  testified  to  the  condition  of  the  plaintiff,  and  to  the  complaints 
and  symptoms  of  pain  and  suffering  stated  by  her,  to  have  given  his 
opinion  that  they  were  such  as  might  have  been  expected  to  follow 
the  infliction  of  a  severe  blow.  Such  evidence  was  admitted  without 
objection.  But  it  was  not  competent  for  the  physician  to  testify  to  her 
statement  that  she  had  received  a  blow  in  the  stomach. 

While  a  witness,  not  an  expert,  can  testify  only  to  such  exclamations 
and  complaints  as  indicate  present  existing  pain  and  suffering,  a  phy- 
sician may  testify  to  a  statement  or  narrative  given  by  his  patient  in 
relation  to  his  condition,  symptoms,  sensations,  and  feelings,  both  past 
and  present.  In  both  cases  these  declarations  are  admitted  from  neces- 
sity, because  in  this  way  only  can  the  bodily  condition  of  the  party,  who 
is  the  subject  of  the  injury,  and  who  seeks  to  obtain  damages,  be 
ascertained.  But  the  necessity  does  not  extend  to  declarations  by 
the  party  as  to  the  cause  of  the  injury,  which  is  the  principal  subject- 
matter  of  inquiry,  and  which  may  be  proved  by  other  evidence. 

Exceptions  sustained,  ^--r-;^ 

448.   ROCHE   v.   RAILROAD   CO. 

Court  of  Appeals  of  New  York.     1887 

105  N.  Y.  294;   11  N.  E.  630 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  entered  upon  an  order  made  Septem- 


672  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  448 

ber  9,  1884,  which  affirmed  a  judgment  in  favor  oi  plaintiff  entered  upon 
a  verdict  and  affirmed  an  order  denying  a  motion  for  a  new  trial. 

This  action  was  brought  to  recover  damages  for  personal  injuries 
received  by  plaintiff  while  a  passenger  on  one  of  defendant's  cars,  and 
alleged  to  have  been  caused  by  defendant's  negligence. 

The  facts,  so  far  as  material  to  the  questions  discussed,  are  stated 
in  the  opinion. 

Samuel  D.  Morris,  for  appellant.  The  Court  erred  in  allowing  the 
witness  McElroy,  who  was  not  an  expert,  to  testify  as  to  the  condition 
of  plaintiff's  arm  and  as  to  what  she  said  about  it. 

George  If.  Roderick,  for  respondent.  .  .  . 

Peckham,  J.  —  The  only  question  in  this  case  arises  upon  the  admis- 
sion of  the  testimony  of  a  third  party  that  the  plaintiff,  some  days  after 
the  happening  of  the  accident  which  caused  her  injury,  complained  that 
she  was  suffering  pain  in  her  injured  arm.  The  witness  did  not  testify 
that  on  these  occasions  the  plaintiff  screamed  or  groaned,  or  gave  other 
manifestations  of  a  seemingh'  involuntary  nature  and  indicative  of 
bodily  suffering,  but  he  proved  simple  statements  or  declarations  made 
by  plaintiff,  that  she  was  at  the  time  of  making  them  suffering  with 
pain  in  her  arm.  The  plaintiff  was  herself  sworn  and  proved  the  injury 
and  the  pain.  The  condition  of  the  arm  the  night  of  the  accident  was  also 
proved;  that  it  was  very  much  swollen  and  black  all  around  it,  and  sub- 
sequently red  and  inflamed,  and  continued  swollen  and  inflamed  more 
or  less  for  a  long  time.  The  defendant  challenges  the  e^'idence  of  com- 
plaints of  pain  thus  made,  on  the  ground  that  it  was  incompetent,  and 
the  argument  made  was  that  the  evidence  as  to  the  injury  and  its  extent 
could  not  be  thus  corroborated  by  mere  hearsay. 

Prior  to  the  time  when  parties  were  allowed  to  be  witnesses,  the  rule 
in  this  class  of  cases  permitted  evidence  of  this  nature.  Caldwell  v. 
Murphy,  11  N.  Y.  416;  Werely  v.  Persons,  28  N.  Y.  344.  These  cases 
show  that  the  evidence  was  not  confined  to  the  time  of  the  injury,  or 
to  mere  exclamations  of  pain.  The  admissibility  of  the  evidence  was 
put,  in  the  opinion  of  Judge  Denio,  in  11  N.  Y.,  supra,  upon  the  neces- 
sity of  the  case,  as  being  the  only  means  by  which  the  condition  of 
the  sufferer  as  to  enduring  pain  could,  in  many  instances,  be  proved.  .  .  . 
After  the  adoption  of  the  amendment  to  the  Code,  permitting  parties 
to  be  witnesses,  the  ciuestion  under  discussion  was  somewhat  mooted 
in  Reed  v.  Railroad,  45  N.  Y.  574,  by  Allen,  J.,  in  the  course  of  his 
opinion,  although  the  precise  point  was  not  before  the  court.  .  .  .  The 
case  of  Hagenlocher  v.  Brooklyn  R.  R.,  99  N.  Y.  136,  decides  that,  even 
since  the  Code,  evidence  of  exclamations  indicative  of  pain  made  by  the 
party  injured  is  admissible.  The  case  does  not  confine  proof  of  these 
exclamations  to  the  time  of  the  injury.  The  question  was  asked  of  the 
plaintiff's  mother:  "How  long  after  injury  was  your  daughter  confined 
in  the  bed?"  Answer:  "She  was  for  about  four  weeks."  Question: 
"What  expressions  did  she  make,  or  what  manifestations,  showing  that 


No.  448  HEARSAY    RULE:     EXCEPTIONS  673 

she  suffered  pain?"  This  shows  there  was  no  confinement  of  the  evi- 
dence to  the  time  of  the  injury.  The  evidence  given,  however,  was  of 
screams  when  the  plaintiff's  foot  was  touched,  and  of  her  exclamations 
of  pain  when  even  the  sheet  was  permitted  to  touch  the  foot.  The 
evidence  was  permitted  on  the  ground  that  it  was  of  a  nature  which 
substantially  corroborated  the  plaintiff  as  to  her  condition. 

Having  thus  admitted  evidence  of  this  kind  since  the  adoption  of 
the  Code  amendment  permitting  parties  to  be  witnesses,  the  question 
is  whether  there  is  such  a  clear  distinction  between  it  and  evidence  of 
simple  declarations  of  a  party  that  he  was  then  suffering  pain,  but 
giving  no  other  indications  thereof,  as  to  call  for  the  adoption  of  a  differ- 
ent rule.  It  seems  to  us  that  there  is.  Evidence  of  exclamations, 
groans,  and  screams  is  now  permitted,  more  upon  the  ground  that  it 
is  a  better  and  clearer  and  more  vigorous  description  of  the  then  existing 
physical  condition  of  the  party  by  an  eye-witness  than  could  be  given 
in  any  other  way.  It  characterizes  and  explains  such  condition.  Thus, 
in  the  very  last  case  cited,  it  was  shown  that  the  foot  was  very  much 
swollen,  and  so  sore  that  the  sheet  could  not  touch  it.  How  was  the 
condition  of  soreness  to  be  shown  better  than  by  the  statement  that, 
when  so  light  an  article  as  a  sheet  touched  the  foot,  the  patient  screamed 
with  pain?  It  was  an  involuntary  and  natural  exhibition  and  proof 
of  the  existence  of  intense  soreness  and  pain  therefrom.  True,  it  might 
be  simulated,  but  this  possibility  is  not  strong  enough  to  outweigh  the 
propriety  of  permitting  such  evidence  as  fair,  natural,  and  original 
corroborative  evidence  of  the  plaintiff  as  to  his  then  physical  condition. 
Its  weight  and  propriety  are  not,  therefore,  now  sustained  upon  the  old 
idea  of  the  necessity  of  the  case. 

But  evidence  of  simple  declarations  of  a  party,  made  some  time 
after  the  injury,  and  not  to  a  physician  for  the  purpose  of  being  attended 
to  professionally,  and  simply  making  the  statement  that  he  or  she  is 
then  suffering  pain,  is  evidence  of  a  totally  different  nature,  is  easily 
stated,  liable  to  gross  exaggeration,  and  of  a  most  dangerous  tendency, 
while  the  former  necessity  for  its  admission  has  wholly  ceased.  As  is 
said  by  Judge  Allen,  in  Reed  v.  Railroad,  supra,  the  necessity  for  giving 
such  declarations  in  evidence,  where  the  party  is  living  and  can  be 
sworn,  no  longer  existing,  and  that  being  the  reason  for  its  admission, 
the  reason  of  the  rule  ceasing,  the  rule  itself,  adopted  with  reluctance 
and  followed  cautiously,  should  also  cease.  .  .  .  For  these  reasons,  the 
evidence  of  Mr.  McElroy,  as  to  the  plaintiff's  declarations  of  existing 
pain,  when  they  were  walking  in  the  street  together,  long  after  the  acci- 
dent, should  not  have  been  recei^^ed. 

The  judgment  of  the  General  Term  and  Circuit  should  be  reversed 
and  new  trial  granted,  costs  to  abide  event. 

All  concur,  except  Dan  forth,  J.,  dissenting. 

Judgment  reversed. 


674  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  449 

449.  Williams  v.  Great  Northern  R.  Co.  (1897.  68  Minn.  55,  70  N.  W. 
860).  Mitchell,  J.  —  It  is  necessary  to  note  the  distinction,  often  overlooked, 
between  mere  descriptive  statements  of  pain,  or  other  subjective  symptoms  of  a 
malady  which  furnish  no  intrinsic  evidence  of  their  existence,  and  those  exclama- 
tions or  complaints  which  are  the  spontaneous  manifestations  of  distress,  and 
which  naturally  and  instinctively  accompany  and  furnish  evidence  of  existing 
suffering.  .  .  . 

It  may  not  always  be  easy  to  draw  the  line  between  such  complaints  or 
expressions  and  mere  descriptive  statements,  but  the  authorities  all  recognize 
and  make  the  distinction,  which  is  one  that  accords  with  the  experience  and 
observation  of  every  one.  Hagenlocher  v.  Coney  Island,  99  N.  Y.  137;  Roche 
v.  Brooklyn,  105  N.  Y.  294,  [ante,  No.  448].  .  .  . 

According  to  the  great  weight  of  modern  authorities,  the  mere  descriptive 
statements  of  a  sick  or  injured  person  as  to  the  symptoms  and  effects  of  his 
malady  are  only  admissible  under  the  following  circumstances:  First, — They  must 
have  been  made  to  a  medical  attendant  for  the  purposes  of  medical  treatment. 
Second,  —  They  must  relate  to  existing  pain  or  other  symptoms  from  which  the 
patient  is  suffering  at  the  time,  and  must  not  relate  to  past  transactions  or  symp- 
toms, however  closely  related  to  the  present  sickness.  This  was  probably  always 
the  rule,  but  the  Courts  are  now  disposed  to  apply  it  more  strictly  than  formerly. 
Third,  —  Such  statements  are  only  admissible  when  the  medical  attendant  is 
called  upon  to  give  an  expert  opinion  based  in  part  upon  them.  .  .  . 

Canty,  J.  —  I  concur  in  the  result  arrived  at  in  this  case,  but  not  in  the  dis- 
tinctions made  in  the  foregoing  opinion  between  statements  that  are  admissible 
when  made  to  a  layman.  Wliere  the  statements  of  the  person  are  representations 
or  complaints  as  to  his  then  existing  pain  or  suffering,  the  law  should  hold  such 
statements  to  be  a  part  of  the  res  gestae,  and  competent  evidence,  whether  made 
to  a  physician  or  a  layman.  To  be  strictly  logical,  perhaps,  nothing  should  be 
regarded  as  a  part  of  the  res  gestae  except  those  gestures,  exclamations,  and  ex- 
pressions of  suffering  which  are  forced  from  the  person  when  the  pain  or  affliction 
itself  speaks.  But  so  narrow  and  strict  a  rule  is  not  practicable.  The  expression 
of  suffering  may  be  one-half  groans  and  exclamations  and  one-half  words,  or 
nine-tenths  of  the  former  and  one-tenth  or  the  latter,  or  vice  versa.  How  can 
the  law  say  how  much  of  the  utterance  shall  consist  of  words,  and  how  much  of 
groans,  sighs,  and  exclamations;  or  that  it  may  not  all  consist  of  words?  Again, 
how  can  the  law  say  with  what  degree  of  anguish  the  words  shall  be  uttered? 
One  person  complains  cheerfully,  and  even  laughs  and  jokes,  when  he  is  suffering 
intense  agony,  while  another  complains  most  dolefully  about  the  slightest  afflic- 
tion. For  these  reasons  I  cannot  agree  with  the  majority,  or  with  the  New  York 
cases,  which  attempt  to  make  a  distinction  between  words  describing  present 
existing  suffering  and  other  exclamations  indicating  such  suffering,  but  such 
words  as  well  as  such  exclamations  should  be  held  to  be  a  part  of  the  res 
gestae. 

But,  as  to  statements  made  by  the  patient  to  his  physician,  the  great  weight 
of  authority  goes  much  further  than  this,  and  holds  that  evidence  of  such  state- 
ments, describing  past  suffering  or  past  symptoms,  is  admissible  as  original 
evidence  to  prove  that  such  suffering  or  such  symptoms  existed  as  stated.  In 
my  opinion,  such  a  statement,  even  though  made  to  a  physician,  is  neither  inde- 
pendent, original  evidence,  nor  corroborative  evidence.  It  is  admissible  merely 
for  the  purpose  of  showing  that  at  the  time  the  physician  was  correctly  informed, 
made  his  investigations  in  the  light  of  all  the  known  facts,  and  was  therefore 


No.  450  HEARSAY    RULE:     EXCEPTIONS  675 

likely  to  have  reached  a  correct  conclusion  as  to  the  nature,  extent,  and  cause  of 
the  malady.  .  .  . 

I  concede  that  the  weight  of  authority  is  against  my  position  here,  as  well  as 
against  the  position  taken  in  the  majority  opinion.  But  if  that  authority  is  clearly 
and  unquestionably  wrong,  the  Courts  ought  not  to  follow  it.  The  Courts  have 
simply  been  running  in  a  rut  of  error,  and  the  longer  they  so  run,  the  deeper  the 
rut  will  become. 


450.   DOE  DEM.   SHALLCROSS  v.  PALMER 

Queen's  Bench.     1851 

16  Q.  B.  747 

Ejectment.  The  plaintiff's  lessor  claimed  as  devisee  of  Francis 
Brookes,  who  was  heir-at-law  of  his  brother  William  Brookes.  The 
defendant  claimed  in  right  of  his  wife  Appollina,  as  devisee  of  William 
Brookes.  The  will  appeared  to  have  been  drawn  originally  so  as  to 
give  the  property  in  fee  to  Francis,  and  to  have  been  changed  in  William's 
handwriting  so  as  to  give  it  to  Francis  for  life  with  remainder  to  Appollina. 
The  question  was  whether  the  alterations  had  been  made  before  or  after 
the  execution  of  the  will. 

The  defendant's  counsel  proposed  to  call  witnesses  to  prove  declara- 
tions of  the  testator,  before  the  will  was  executed,  that  he  intended  to 
make  provision  by  his  will  for  Appollina  Biddulph.  This  evidence  was 
objected  to ;  but  the  Lord  Chief  Justice  received  it,  subject  to  the  opinion 
of  the  Court  upon  its  admissibility. 

Dr.  Knight,  a  physician  at  Stafford,  was  then  called,  and  stated,  in 
his  examination  in  chief,  that  he  knew  the  testator  well,  and  attended 
him  professionally ;  that  he  was  one  of  his  executors ;  that  he  had  heard 
him  talk  of  a  testamentary  disposition;  and  that  he  had  frequently 
heard  testator  say  that  he  should  make  provision  for  Appollina  Biddulph, 
of  whom  he  appeared  to  be  very  fond.  .  .  .  Ann  Lockesly  was  recalled, 
and  stated  that,  many  a  time  before  the  will  was  executed  in  July,  she 
had  heard  the  testator  say  that,  die  when  he  might,  he  would  leave 
Appollina  two  or  three  houses.  .  .  . 

The  Lord  Chief  Justice  permitted  the  jury  to  look  at  the  will,  and 
left  it  to  them  to  say  whether,  from  the  evidence,  they  were  satisfied 
that  the  alteration  was  made  before  the  will  was  executed.  The  jury 
said  they  were  so  satisfied.  The  Lord  Chief  Justice  then  directed  a 
verdict  for  the  defendants,  with  leave  to  move  to  enter  a  verdict  for  the 
lessor  of  the  plaintiff  if  the  Court  should  be  of  opinion  that  there  was 
no  admissible  evidence  to  show  that  the  alteration  was  made  before  the 
will  was  executed. 

Whatclcy,  in  the  ensuing  term,  obtained  a  rule  nisi  accordingly. 
In  Hilary  Term  and  Vacation,  1851,  Keating  and  Whitmore  showed 
cause,  and  Whatcley  and  Phipson  supported  the  rule.  .  .  . 


676  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  450 

The  counsel  for  the  defendants  contended  that  .  .  .  the  fact  that 
the  testator,  at  the  time  the  will  was  executed,  intended  to  execute  a 
will  providing  for  Appollina  Biddulph,  raised  a  presumption  that  the 
alterations  which  provided  for  her  were  made  at  that  time;  and  that 
the  testator's  intention  at  that  time  was  properly  proved  by  declarations 
either  previous  to  or  shortly  after  the  execution  of  the  will.  .  .  . 

For  the  plaintiff  it  was  argued  that  declarations  by  a  testator,  though 
admissible  for  many  purposes,  were  not  admissible  to  show  the  time  of 
alteration. 

Campbell,  L.  C.  J.  —  The  evidence  relied  upon  consisted  of  declara- 
tions by  the  testator,  frequently  made,  before  and  nearly  down  to  the 
time  when  the  will  was  executed,  that  he  intended  to  make  provision 
by  his  will  for  Appollina  Biddulph  (the  now  defendant,  Mrs.  Palmer), 
coupled  with  the  fact  that  without  this  alteration  the  will,  which  disposes 
of  the  whole  of  his  property,  real  and  personal,  makes  no  provision 
for  her.  ...  I  allow  we  cannot  be  guided  alone  by  the  consideration 
that  both  parties  claim  under  the  testator;  for  declarations  of  the  tes- 
tator after  the  time  when  a  controverted  will  is  supposed  to  have  been 
executed  would  not  be  admissible  to  prove  that  it  had  been  duly  signed 
and  attested  as  the  law  requires;  and,  for  the  same  reason,  a  declaration 
by  the  testator  after  the  will  was  executed,  that  the  alteration  had  been 
made  previously,  would  be  inadmissible.  But  the  j^^evious  declarations 
of  the  testator  as  to  his  testamentary  intentions  do  not  seem  to  be  liable 
to  the  same  objections.  They  demonstrate  that  the  alteration  is  not  an 
after-thought.  .  .  . 

Although  no  decision  can  be  quoted  in  which  such  evidence  for 
rebutting  this  specific  presumption  has  been  admitted,  no  case  has 
occurred  in  which  it  has  been  rejected;  and  in  cases  closely  analogous 
similar  evidence  has  often  been  received.  .  .  . 

We  therefore  think  that  the  jury  were  fully  justified  in  coming  to 
the  conclusion  that  the  alteration  was  made  before  the  will  was  executed. 
...  It  being  quite  certain  that  the  testator  intended  that  Appollina 
Biddulph  should  take  the  premises  after  the  death  of  Francis,  and  the 
intention  appearing  to  us  to  be  testified  according  to  the  rules  of  law,  we 
think  that  she  ought  to  be  allowed  to  remain  in  the  possession  of  them; 
and  that  this  rule  to  enter  the  verdict  for  the  lessor  of  the  plaintiff  ought 
to  be  discharged.  Rule  discharged. 

451.   COMMONWEALTH  v.  TREFETHEN 

Supreme  Judicial  Court  of  Massachusetts.     1892 

157  Mass.  180;  31  N.  E.  961 

Exceptions  from  Superior  Court,  Middlesex  County. 
Indictment  against  James  Albert  Trefethen  and  William  H.  Smith 
for  the  murder  of  Deltena  H.  Davis  by  drowning.     There  was  a  ver- 


No.  451  HEARSAY  RULE:  EXCEPTIONS  677 

diet  of  guilty  as  to  Trefethen  and  not  guilty  as  to  Smith.  Defendant 
Trefethen  excepted,  and  asked  that  the  case  be  reported  to  this  Court 
for  determination.     Verdict  against  Trefethen  set  aside. 

A.  E.  PiUshury,  Atty.-Gen.,  for  the  Commonwealth.  John  D.  Long 
and  Wm.  Scliofield,  for  defendants. 

Field,  C.  J.  —  The  principal  exception  is  to  the  refusal  of  the  Court 
to  admit  the  testimony  of  Sarah  L.  Hubert.  The  exceptions  recite  that: 
"  Sarah  L.  Hubert,  a  witness  called  in  behalf  of  the  defendant,  testified 
that  her  business,  which  she  advertised  in  the  newspapers,  was  that 
of  a  trance  medium;  that  on  December  22,  1891,  in  the  forenoon,  after 
10  o'clock,  a  young  woman  called  at  her  place  of  business  in  Boston 
for  consultation.  There  was  sufficient  evidence  to  go  to  the  jury  of  her 
identification  as  Deltena  J.  Davis.  Upon  objection  being  made  to  the 
testimony  of  this  witness,  counsel  for  the  defendants  stated  to  the  Court, 
aside  from  the  jury,  that  they  offered  to  prove  by  this  witness  that  at 
the  interview  on  December  22d,  the  young  woman  aforesaid  stated  to 
the  witness  that  she  was  five  months  pregnant  with  child,  and  had  come 
to  consult  as  to  what  to  do,  and  added  later  in  the  interview  that  she  was 
going  to  drown  herself.  The  Court  refused  to  admit  the  testimony,  and 
the  defendants  duly  excepted.  .  .  .  On  the  10th  day  of  January,  1892, 
her  dead  body  was  found  in  the  Mystic  river,  a  short  distance  below 
the  Wellington  bridge,  about  three  miles  from  her  home.  .  .  .  There 
was  evidence  in  the  case  tending  to  negative  the  circumstances  relied 
upon  by  the  Commonwealth,  and  to  support  the  theory  of  suicide."  .  .  . 
When  evidence  of  declarations  of  any  person  is  offered  for  the  purpose 
of  showing  the  state  of  mind  or  intention  of  that  person  at  the  time  the 
declarations  were  made,  the  declarations  undoubtedly  may  be  so  remote 
in  point  of  time,  or  so  altered  in  import  by  subsequent  change  in  the 
circumstances  of  the  maker,  as  to  be  wholly  immaterial,  and  wisely  to 
be  rejected  by  the  judge.  .  .  . 

In  the  case  at  bar  the  evidence  offered  was  that  the  declaration  of  the 
deceased  was  made  the  day  before  her  death,  and  was  made  in  a  conversa- 
tion concerning  her  pregnancy,  which  continued  until  her  death.  The 
declaration,  therefore,  was  not  made  at  a  time  remote  from  the  time  of  her 
death,  and  there  had  been  no  change  of  circumstances  which  made  it 
inapplicable  to  the  condition  of  the  deceased  at  the  time  of  her  death. 
It  was  clearly  competent  for  the  jury  to  find  from  the  evidence  recited  in 
the  exceptions  that,  if  Deltena  J.  Davis  had  an  intention  to  commit 
suicide  on  December  22d,  she  continued  to  have  the  same  intention  on 
December  23d.  .  .  . 

The  main  argument  of  the  attorney  general  is:  First,  that  it  is  im- 
material whether  the  deceased,  at  or  before  the  time  of  her  death,  had 
or  had  not  an  intention  to  commit  suicide;  and,  secondly,  that,  if  she  had 
such  an  intention,  it  could  not  be  proved  by  evidence  of  her  declarations 
that  she  was  going  to  drown  herself.  ...  If  it  could  be  shown  that  she 
actually  had  an  intention  to  commit  suicide,  it  would  be  more  probable 


678  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  451 

that  she  did  in  fact  commit  it  than  if  she  had  had  no  such  intention.  .  .  . 
It  is  a  question  of  more  difficulty  whether  evidence  of  the  declarations  of 
the  deceased  can  be  admitted  to  show  such  an  intention.  The  argument, 
in  short,  is  that  such  evidence  is  hearsay.  It  is  argued  that  such  declara- 
tions are  not  made  under  the  sanction  of  an  oath,  and  that  there  is  no 
opportunity  to  examine  and  cross-examine  the  person  making  them,  so 
as  to  test  his  sincerity  and  truthfulness,  or  the  accuracy  and  completeness 
with  which  the  declarations  describe  his  intention  or  state  of  mind;  and 
that,  even  if  such  declarations  would  have  some  moral  weight  in  the 
determination  of  the  issue  before  the  court,  they  are  not  within  any 
of  the  exceptions,  to  the  exclusion  of  hearsay,  which  the  common  law 
recognizes. 

The  counsel  for  the  defendant  concede  that  the  declaration  in  this 
case  is  not,  under  our  decisions,  admissible  as  a  part  of  what  has  been 
called  the  "res  gestae,"  although  they  contend  that  some  courts  have 
admitted  similar  declarations  on  that  ground.  They  concede  that  to 
make  a  declaration  admissible  on  that  ground  it  must  accompany  an 
act  which,  directly  or  indirectly,  is  relevant  to  the  issue  to  be  tried,  and 
must  in  some  way  qualify,  explain,  or  characterize  that  act,  and  be,  in 
a  legal  sense,  a  part  of  it.  .  .  .  They  contend  that  the  declaration  is  some 
evidence  of  the  state  of  mind  or  intention  of  the  deceased  at  the  time  she 
made  it,  and  that  the  intention  which  it  tends  to  prove  is  a  material  fact, 
which,  in  connection  with  other  facts  proved,  tends  to  support  the  theory 
of  suicide.  They  contend  that  the  state  of  mind  or  intention  in  the  mind 
of  a  person,  when  material,  can  be  proved  by  evidence  of  his  declarations 
as  well  as  of  his  acts,  particularly  when  that  person  has  deceased,  and 
cannot  be  called  as  witness,  and  the  declarations  were  made  before  the 
controversy  arose  which  is  the  subject  of  the  trial.  .  .  . 

The  fundamental  proposition  is  that  an  intention  in  the  mind 
of  a  person  can  only  be  shown  by  some  external  manifestation, 
which  must  be  some  look  or  appearance  of  the  face  or  body,  or 
some  act  or  speech;  and  that  proof  of  either  or  all  of  these,  for  the 
sole  purpose  of  showing  the  existing  state  of  mind  or  intention, 
may  be  inferred.  For  example,  the  exceptions  recite  that  on  the 
day  when  the  deceased  disappeared  Trefethen  called  at  the  house 
of  her  mother  "about  10  in  the  forenoon,  and  was  there  some  time 
with  Tena,  and  that  Tena  that  day  appeared  bright  and  cheerful,  and 
'full  of  smiles,'  but  at  times  during  the  month  prior  thereto  had  been 
depressed  in  spirits."  The  only  apparent  ol)ject  of  this  testimony  was 
to  show  that  on  the  day  she  disappeared  she  was  happy,  and,  therefore, 
could  not  have  contemplated  suicide.  Her  bright  and  cheerful  appear- 
ance might  have  been  real  or  feigned,  but  this  was  for  the  jury.  If  the 
deceased  at  the  same  interview  had  said,  "  I  was  never  so  happy  in  my 
life  as  I  am  to-day,"  it  is  contended  that  this  declaration  might  be  as 
significant  of  her  state  of  mind  as  her  cheerful  appearance,  and  that 
speaking,  as  an  indication  of  what  is  in  the  mind  of  the  speaker,  is  as 


No.  451  HEARSAY    RULE:     EXCEPTIONS  679 

much  an  act  as  smiling  or  conduct  generally.  The  only  obvious  distinc- 
tion between  speech  and  conduct  is  that  speech  is  often  not  only  an 
indication  of  the  existing  state  of  mind  of  the  speaker,  but  a  statement 
of  a  fact  external  to  the  mind,  and  as  evidence  of  that  it  is  clearly  hearsay. 
There  is,  of  course,  danger  that  a  jury  may  not  always  observe  this 
distinction,  but  that  has  not  availed  to  exclude  testimony  which  is 
admissible  for  one  purpose  and  not  admissible  for  another,  to  which  there 
is  danger  the  jury  may  apply  it.  .  .  .  If,  the  day  before  her  death,  she 
had  written  a  note,  addressed  to  her  motlier,  stating  her  condition,  and 
declaring  her  intention  to  drown  herself,  and  had  left  it  in  her  desk  when 
she  went  from  home  the  following  day,  the  admissibility  of  such  a  letter 
in  evidence,  after  proof  that  she  had  written  it,  depends  upon  the  same 
considerations  as  the  admissibility  of  evidence  of  similar  oral  declarations. 
.  .  .  Certainly,  to  confine  the  evidence  to  acts,  appearance,  or  speech 
which  is  wholly  involuntary,  would  be  impracticable  and  unreasonable, 
for  almost  every  expression  of  thought  or  feeling  can  be  simulated ;  and, 
although  evidence  of  the  conscious  declarations  of  a  person  as  indications 
of  his  state  of  mind  has  in  it  some  of  the  elements  of  hearsay,  yet  it  closely 
resembles  evidence  of  the  natural  expressions  of  feeling,  which  has 
always  been  regarded  in  the  law  not  as  hearsay,  but  as  original  evidence, 
—  1  Greenleaf,  Evidence  §  102,  (5th  Ed.;)  and  when  the  person  making 
the  declarations  is  dead,  such  evidence  is  often  not  only  the  best,  but  the 
only,  evidence  of  what  was  in  his  mind  at  the  time.  On  principle,  there- 
fore, we  think  it  clear  that  when  evidence  of  the  declarations  of  a  person 
is  introduced  solely  for  the  purpose  of  showing  what  the  state  of  mind  or 
intention  of  that  person  was  at  the  time  the  declarations  were  made,  the 
declarations  are  to  be  regarded  as  acts  from  which  the  state  of  mind  or 
intention  may  be  inferred  in  the  same  manner  as  from  the  appearance  of 
the  person,  or  his  behavior,  or  his  actions  generally.  In  the  present  case 
the  declaration,  evidence  of  which  was  offered,  contained  nothing  in  the 
nature  of  narrative,  and  was  significant  only  as  showing  the  state  of  mind 
or  intention  of  the  deceased. 

But  it  is  argued  that  this  is  not  the  law,  and  that  it  is  not  competent 
for  this  Court  to  change  the  established  rules  of  evidence.  We  have 
been  shown  no  case  exactly  like  the  present,  but  there  are  decisions 
closely  analogous,  and,  while  they  are  not  uniform,  yet  we  think  the 
weight  of  modern  authority  is  in  favor  of  admitting  evidence  like  that 
offered  in  the  present  case  fo'r  the  purpose  stated.  The  latest  decision 
on  the  subject  is  Hillmon  v.  Insurance  Co.,  145  U.  S.  285,  12  Sup.  Ct. 
Rep.  909,  and  many  of  the  cases  are  cited  in  the  opinion.  See,  also, 
Puryear  v.  Com.,  1  S.  E.  Rep.  512;  Blackburn  v.  State,  23  Ohio  St.  146; 
Boyd  V.  State,  14  Lea,  162;  Goersen  v.  Com.,  99  Pa.  St.  388;  Jumpertz 
V.  People,  21  111.  375.  .  .  .  This  Court  admits  exclamations  and  declara- 
tions as  evidence  of  existing  pain  in  case  of  injuries.  In  the  case  of 
wills,  upon  the  issue  of  sanity  or  undue  influence,  this  Court  has  always 
admitted  evidence  of  declarations  which  tend  to  show  the  condition  of 


680  BOOK   i:     RULES   OF  .AJDMISSIBILITY  No.  451 

the  mind  of  the  testator,  and  his  intention  with  regard  to  the  disposition 
of  his  property,  or  his  fear  of  the  person  alleged  to  have  exercised  undue 
influence.  ...  In  actions  by  the  husband  for  seducing  his  wife  and 
alienating  her  affections  from  him  the  declarations  and  statements  of  the 
wife,  made  before  the  alleged  seduction,  indicating  the  state  of  her  affec- 
tions towards  her  husband,  have  uniformly  been  admitted  upon  the 
question  of  damages.  Palmer  v.  Crook,  7  Gray,  418.  .  .  .  Evidence  of 
threats  of  the  deceased  against  the  defendant  have  been  admitted  when 
the  question  was  whether  the  'defendant  or  the  deceased  made  the  first 
assault,  and  whether  the  defendant  acted  in  self-defense.  Wiggins  v. 
People,  93  U.  S.  465.  ...  It  is  not  necessary,  in  the  present  case,  to 
determine  what  limitations,  if  any,  in  practice  must  be  put  upon  the  ad- 
mission of  this  kind  of  evidence,  because  all  the  limitations  exist  which 
have  ever  been  suggested  as  necessary.  The  person  making  the  declara- 
tion, if  one  was  made,  is  dead.  She  had  an  opportunity  to  commit 
suicide,  and  it  was  competent  for  the  jury  to  find  that  she  had  a  motive 
to  commit  it;  and  the  declaration,  if  made,  was  made  under  circumstances 
which  exclude  any  suspicion  of  an  intention  to  make  evidence  to  be  used 
at  the  trial.  .  .  .  We  are  of  opinion  that  the  presiding  judges  erred  in 
refusing  to  receive  this  evidence,  and  that,  for  this  reason,  the  verdict 
against  Trefethen  must  be  set  aside.  .  .  . 


452.   WATERMAN  v.   WHITNEY 

Court  of  Appeals  of  New  York.     1854 

11  N.  Y.  157 

Joshua  Whitney  died  in  April,  1845,  and  in  July,  1846,  the  surrogate 
of  Broome  county  made  an  order  refusing  to  admit  his  will  to  probate; 
from  this  order,  Waterman  and  others  appealed  to  the  circuit  judge,  who 
reversed  the  order,  and  directed  feigned  issues  to  be  made:  1.  As  to 
whether  the  alleged  will  was  duly  made  and  executed  by  the  testator; 
2.  As  to  whether  the  testator,  at  the  time  of  the  execution,  was  of  sound 
and  disposing  mind;  3.  As  to  whether  the  alleged  will  was  procured  by 
undue  influence,  fraud  or  deception. 

On  the  trial  of  the  issues,  before  Mason,  J.,  after  evidence  had  been 
given  tending  to  prove  want  of  mental  capacity  in  the  testator,  the 
defendants  called  one  Emory,  as  a  witness,  and  offered  to  prove  by  him, 
that  after  the  execution  of  the  will,  the  testator  stated  to  him,  how  he  had 
disposed  of  his  property,  which  entirely  differed  from  that  made  by  the 
will  in  question.  This  was  overruled,  and  an  exception  taken.  The 
defendants  further  offered  to  prove,  that  the  deceased  "made  similar 
declarations  to  others,  from  the  time  of  the  execution  of  the  will,  up  to  the 
time  of  his  death."     This  was  also  excluded,  and  an  exception  taken. 

The  jury  found  for  the  plaintiff's.  Waterman  and  others,  upon  all 


Xo.  452  HEARSAY  rule:    exceptions  681 

the  issues,  thereby  estabUshing  the  will;  and  the  Supreme  Court  having 
denied  a  motion  for  a  new  trial,  upon  a  bill  of  exceptions,  the  parties 
contesting  the  probate  took  this  appeal. 

Dickenson,  for  the  appellants.     Noxon,  for  the  respondents. 

Selden,  J.  —  The  principal  question  presented  by  the  bill  of  excep- 
tions in  this  case  is,  as  to  the  admissibility  of  the  declarations  of  the 
testator,  made  after  the  execution  of  the  will. 

The  subject  to  which  this  question  belongs  is  of  very  considerable 
interest,  and  one  upon  which  the  decisions  are  to  some  extent  in  conflict. 
Much  of  the  difficulty,  however,  has  arisen  from  the  omission  to  distin- 
guish with  sufficient  clearness,  between  the  diiferent  objects  for  which 
the  declarations  of  testators  may  be  offered  in  evidence,  in  cases  involving 
the  validity  of  their  wills.  It  will  tend  to  elucidate  the  subject,  to  con- 
sider it  under  the  following  classification  of  the  purposes  for  which  the 
evidence  may  be  offered,  viz. :  1.  To  show  a  revocation  of  a  will,  admitted 
to  have  been  once  valid.  2.  To  impeach  the  validity  of  a  will,  for  duress, 
or  on  account  of  some  fraud  or  imposition  practised  upon  the  testator, 
or  for  some  other  cause  not  involving  his  mental  condition.  3.  To  show 
the  mental  iyicapaciiy  of  the  testator,  or  that  the  will  was  procured  by 
undue  influence.  The  rules  by  which  the  admissibility  of  the  evidence 
is  governed,  naturally  arrange  themselves  in  accordance  with  this  classifi- 
cation. ... 

1 .  Under  these  statutes,  therefore,  the  only  possible  purpose  f o^i-  which 
evidence  of  the  declarations  of  the  testator  can  be  given,  upon  a  question 
of  revocation,  is  to  establish  the  "animus  revocandi";  in  other  words, 
to  show  the  intent  with  which  the  act  relied  upon  as  a  revocation  was 
done.  The  cases  on  this  subject  are  in  the  main  in  harmony  with  each 
other.  .  .  . 

I  consider  these  cases  as  establishing  the  doctrine  that,  upon  a  question 
of  revocation,  no  declarations  of  the  testator  are  admissible,  except  such 
as  accompany  the  act  by  which  the  will  is  revoked;  such  declarations 
being  received  as  part  of  the  res  gestae,  and  for  the  purpose  of  showing 
the  intent  of  the  act.  .  .  . 

2.  In  regard  to  the  second  class  of  cases,  viz.,  where  the  validity  of  a 
will  is  disputed  on  the  ground  of  fraud,  duress,  mistake  or  some  similar 
cause,  aside  from  the  mental  weakness  of  the  testator,  I  think  it  equally 
clear,  that  no  declarations  of  the  testator  himself  can  be  received  in 
evidence,  except  such  as  were  made  at  the  time  of  the  execution  of  the 
will,  and  are  strictly  a  part  of  the  res  gestae.  .  .  . 

3.  I  have  referred  thus  particularly  to  these  numerous  cases,  in 
which  the  declarations  of  testators  have  been  held  inadmissible,  upon 
contests  respecting  the  validity  of  their  wills,  for  the  purpose  of  show- 
ing that  they  all  apply  to  one  or  the  other  of  the  first  two  of  the  three 
classes  into  which  I  have  divided  the  cases,  on  the  subject.  None  of 
them  have  any  application  to  cases  in  which  the  will  is  assailed  on 
account  of  the  insanity  or  mental  incapacity  of  the  testator,  at  the 


682  BOOK   i:     RULES  OF  ADMISSIBILITY  No.  452 

time  the  will  was  executed,  or  on  the  ground  that  the  will  was  obtained 
by  undue  influence. 

The  difference  is  certainly  very  obvious,  between  receiving  the  declara- 
tions of  a  testator,  to  prove  a  distinct  external  fact,  such  as  duress  or 
fraud,  for  instance,  and  as  evidence  merely  of  the  mental  condition  of 
the  testator.  In  the  former  case,  it  is  mere  hearsay,  and  liable  to  all  the 
objections,  to  which  the  mere  declarations  of  third  persons  are  subject; 
while  in  the  latter,  it  is  the  most  direct  and  appropriate  species  of  evi- 
dence. ...  It  is  abundantly  settled  that,  upon  either  of  these  questions, 
the  declarations  of  the  testator,  made  at  or  before  the  time  of  the  execution 
of  the  will,  are  competent  evidence.  The  only  doubt,  which  exists  on 
the  subject  is,  whether  declarations  made  subsequent  thereto  may  also 
be  received. 

Clear  and  accurate  writers  have  been  led  into  confusion  on  this  subject, 
by  not  attending  to  the  distinctions  growing  out  of  the  different  purposes 
for  which  the  evidence  may  be  offered.  .  .  .  The  case  of  Reel  v.  Reel, 
1  Hawks  247,  is  a  leading  case  on  this  subject.  .  .  .  The  offer  in  Reel  v. 
Reel  was,  to  prove  repeated  declarations  of  the  testator,  made  after  the 
execution  of  the  will,  in  which  he  stated  its  contents  to  be  materially 
and  utterly  different  from  what  they  were.  These  declarations  were 
offered  in  connection  with  conflicting  testimony  upon  the  point  of  testa- 
mentary capacity.  .  .  .  The  decision  of  the  Court,  in  holding  the  evi- 
dence admissible,  is  not  in  conflict,  so  far  as  I  have  been  able  to  discover, 
with  any  adjudged  case,  either  in  this  country  or  in  England,  and  on  the 
other  hand,  is  in  entire  harmony  with  what  seems  to  be  the  established 
doctrine,  that  the  insanity  or  imbecility  of  the  testator,  subsequent  to 
making  the  will,  may  be  proved,  in  connection  with  other  evidence,  with 
a  view  to  its  reflex  influence  upon  the  question  of  his  condition  at  the 
time  of  executing  tjhe  will.  Indeed,  if  the  latter  doctrine  be  sound,  it 
necessarily  follows  that  the  decision  is  right. 

The  conclusion  is,  of  course,  decisive  of  the  present  case,  which  is 
identical  in  principle  with  that  of  Reel  v.  Reel.  .  .  . 

It  does  not  follow  from  this,  that  evidence  of  this  nature  is  necessarily 
to  be  received,  however  remote  it  may  be  in  point  of  time,  from  the 
execution  of  the  will.  The  object  of  the  evidence  is,  to  show  the  mental 
state  of  the  testator,  at  the  time  when  the  will  was  executed.  Of  course, 
therefore,  it  is  admissible  only  where  it  has  a  legitimate  bearing  upon  that 
question;  and  of  this,  the  Court  must  judge,  as  in  every  other  case,  where 
the  relevancy  of  testimony  is  denied.  .  .  . 

There  is  no  conflict  between  the  doctrine  here  advanced,  in  regard  to 
the  admissibility  of  the  species  of  evidence  in  question,  and  the  rule 
before  adverted  to,  which  excludes  it,  when  the  issue  is  as  to  the  revoca- 
tion of  a  will.  The  difference  between  the  two  cases  consists  in  the 
different  nature  of  the  inquiries  involved ;  one  relates  to  a  voluntary  and 
conscious  act  of  the  mind;  the  other,  to  its  involuntary  state  or  condition. 
To  receive  evidence  of  subsequent  declarations,  in  the  former  case,  would 


No.  453.  HEARSAY    RULE:    EXCEPTIONS  683 

be  attended  witli  all  the  dangers  which  could  grow  out  of  changes  of 
purpose,  or  of  external  motives  operating  upon  an  intelligent  mind;  no 
such  dangers  would  attend  the  evidence,  upon  inquiries  in  relation  to 
the  sanity  or  capacity  of  the  testator.  .  .  . 

Judgment  reversed,  and  new  trial  ordered. 

Gardinek,  C.  J.,  dissented. 


453.   SUGDEN  v.   ST.   LEONARDS 

Probate  Division.     1876 

L.  R.  1  P.  D.  154 

The  plaintiffs,  the  Hon.  and  Rev.  Frank  Sugden,  the  Hon.  Charlotte 
Sugden,  and  John  Reilly,  propounded,  as  executors,  the  contents  of  a 
lost  will  dated  on  or  about  the  13th  of  January,  1870,  of  the  Right  Hon. 
Edward  Burtenshaw  [Sugden,]  Baron  St.  Leonards,  late  of  Boyle  Farm, 
in  the  county  of  Surrey,  deceased,  who  died  at  Boyle  Farm  on  the  29th 
of  January,  1875,  at  the  age  of  ninety-tlu-ee.  They  also  propounded 
eight  codicils  to  the  said  will,  such  codicils  being  produced  and  filed  in  the 
registry. 

The  declarations,  after  alleging,  1st,  the  due  execution  of  the  will  and 
codicils,  went  on  to  allege :  — 

2.  That  the  said  will  never  was  revoked  or  destroyed  by  the  testator, 
nor  by  any  other  person  in  his  presence  or  by  his  direction,  with  the 
intention  of  revoking  the  same,  and  that  the  same  was,  at  the  time  of  his 
death,  a  valid  and  subsisting  will,  but  that  the  same  cannot  be  found. 

3.  That  the  contents  of  the  said  will  were,  in  substance  or  to  the  effect, 
as  follows:  .  .  . 

The  defendant,  the  Right  Hon.  Edward  Burtenshaw  Lord  St. 
Leonards,  the  grandson  and  heir-at-law  of  the  deceased,  and  his  brothers 
and  sisters,  who  were  minors,  and  appeared  by  their  mother  as  their 
guardian,  pleaded.  .  .  . 

2.  That  the  said  alleged  will  was  duly  revoked  by  the  said  deceased 
by  destroying  the  same  with  the  intention  of  revoking  it. 

3.  That  the  contents  of  the  said  alleged  will  were  not  as  set  out  in 
the  declaration.  .  .  . 

On  the  17th  of  November,  1875,  the  cause  came  on  for  hearing  before 
Sir  J.  Hannen  (President)  without  a  jury.  .  .  . 

The  principal  witness  as  to  the  preparation  and  the  execution  of  the 
will,  and  the  only  witness  who  was  able  to  give  evidence  as  to  its  contents, 
was  the  Hon.  Charlotte  Sugden,  one  of  the  plaintiffs.  She  was  the 
only  unmarried  daughter  of  the  deceased,  and  had  lived  with  him  for 
many  years  prior  to  and  up  to  the  time  of  his  death.  .  .  .  The  will  and 
all  the  codicils  were  holograph,  that  they  were  all  kept  in  a  small  black 
box,  something  like  a  dispatch  box,  of  which  the  deceased  had  the  key; 
that  the  box  was  usually  placed  in  the  saloon  used  by  the  deceased  as  his 


684  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  453 

sitting-room  at  Boyle  Farm ;  that  the  will  was  last  seen  by  Miss  Sugden 
on  the  20th  of  August,  1873,  when  the  last  codicil  was  executed,  and  it 
was  then  replaced  in  the  box;  that  during  an  illness  of  the  deceased  from 
September,  1873,  until  December,  1873,  and  again  from  March,  1874, 
when  the  deceased  was  attacked  with  his  last  illness,  until  his  death,  the 
box  was  in  the  custody  of  Miss  Charlotte  Sugden,  and  that  after  his 
death,  although  the  codicils  and  some  other  testamentary  papers  were 
found  in  the  box,  the  will  was  not  there.  Every  possible  search  had 
been  made  for  it,  but  it  could  not  be  found.  There  was  evidence  that 
the  box  was  usually  kept  locked,  and  that  the  key  was  on  a  bunch  kept 
by  the  deceased;  that  there  was  a  duplicate  key  kept  in  an  escritoire; 
and  that  there  were  five  keys  in  the  house  by  which  the  escritoire  could 
be  opened,  one  of  these  keys  belonging  to  a  wine  cupboard  in  charge  of 
the  butler.  Immediately  after  the  will  was  found  to  be  missing  from 
the  box,  IMiss  Charlotte  Sugden  said  that  she  recollected  its  contents, 
and  then,  at  the  suggestion  of  her  solicitor,  Mr.  TroUope,  she  wrote  out 
from  memory,  without  reference  to  the  codicils  and  other  testamentary 
papers  which  were  in  the  box,  the  following  statement.  .  .  . 

At  the  close  of  the  evidence,  .  .  . 

Nov.  25,  Sir  J.  Hannen  (President).  —  I  have  on  this  occasion  to 
discharge  the  functions  of  a  jury,  and  to  give  my  verdict  upon  certain 
questions  of  fact.  .  .  .  Believing,  as  I  do,  the  testator  made  these  state- 
ments [alluding  to  the  existence  of  the  will]  showing  a  belief  in  his  mind 
that  the  will  was  in  existence  at  a  time  subsequently  to  that  at  which  he 
could  have  revoked  it,  I  am  led  to  the  conclusion  that  he  had  not  in  fact 
revoked  it  at  any  time  when  he  had  the  opportunity  of  getting  access  to 
it.  .  .  .  1  come  to  the  conclusion  that  his  declarations  down  to  the  latest 
period  of  his  life  show  that  he  died  under  the  belief  that  that  will  was  still 
in  existence,  and  rebut  the  presumption  that  he  had  revoked  it.  ...  I 
find,  as  a  fact,  that  the  will  of  1870  was  duly  executed  and  attested; 
that  the  several  codicils  were  also  duly  executed  and  attested;  and  I 
further  find  that  the  contents  of  the  will  were  as  set  out  in  the  declara- 
tion, w'ith  the  exception  I  have  mentioned.  .  .  . 

An  appeal  was  also  brought  by  Mr.  and  Mrs.  Henderson.  The 
appeals  came  on  to  be  heard  on  the  7th  of  March,  1876.  On  the  opening 
of  the  appeals, 

Hawkins,  Q.  C,  Inderwiclc,  Q.  C,  and  Dr.  Tristram,  for  the  plain- 
tiffs. .  .  . 

Sir  H.  Giffard,  S.  G.  (Dr.  Dcanc,  Q.  C,  and  Bayford  with  him),  for 
Lord  St.  Leonards,  and  some  of  his  brothers  and  sisters.  .  .  . 

Thesiger,  Q.  C,  and  Bayford,  for  brothers  and  sisters  of  Lord  St. 
Leonards. 

Darry,  Q.  C.  (with  whom  was  G.  Browne,  and  Keogh),  for  Mr.  and 
Mrs.  Henderson. 

CocKBURN,  L.  C.  J.  —  This  is  an  appeal  against  a  decree  of  the  Presi- 
dent of  the  Probate  Division,  granting  probate  of  a  paper  purporting 


No.  453  HEARSAY   RULE:     EXCEPTIONS  685 

to  be  the  substance  of  the  will  of  the  late  Lord  St.  Leonards.  The  will 
was  last  seen  on  the  20th  of  August,  1873;  the  death  of  the  testator  took 
place  on  the  29th  of  January,  1875.  The  will  was  kept  in  a  small  box 
placed  on  the  floor  of  a  room  called  the  saloon,  on  the  ground  floor  of  the 
testator's  house.  Upon  his  death  it  was  looked  for  in  that  box  by  the 
solicitor  employed  by  the  executors,  and  it  could  not  be  found.  Several 
questions  arise  from  this  state  of  facts.  In  the  first  place,  was  the  will 
destroyed  by  the  testator  animo  revocandi  or  not ;  secondly,  can  secondary 
evidence  be  given  of  its  contents;  thirdly,  if  so,  have  we  satisfactory 
evidence  of  the  contents;  and  lastly,  if  the  evidence  is  satisfactory,  so 
far  as  it  goes,  but  not  altogether  complete,  ought  probate  to  be  granted, 
so  far  as  the  evidence  which  we  have  before  us  shows  what  were  the 
contents?  .  .  .  The  last  time  the  will  was  seen  was  by  Miss  Sugden,  on 
the  20th  of  August,  1873.  Lord  St.  Leonards  was  taken  ill  in  September, 
1873,  and  was  confined  to  his  room  from  that  time  to  Christmas,  1873,  and 
during  the  whole  of  that  time  the  box  was  kept  by  Miss  Sugden,  as  she 
tells  us,  in  her  own  room;  when  he  again  rejoined  the  family  down 
stairs,  she  replaced  the  box  in  the  saloon,  that  he  might  not  miss  it,  and 
it  remained  there  until  his  last  illness  commenced,  in  March,  1874. 
It  was  then  again  taken  possession  of  by  Miss  Sugden,  and  kept  by  her 
until  Lord  St.  Leonards'  death;  therefore  it  could  only  have  been  got 
at  by  him  between  Christmas,  1873,  and  March,  1874.  Long  after 
March,  when  he  was  stricken  with  his  last  illness,  and  from  which  time 
he  was  confined  to  his  own  bed-room,  he  again  and  again  referred  to  the 
various  provisions  he  had  made  by  the  will,  in  other  words,  referred  to 
the  will  itself  as  still  subsisting,  and  this  again  adds  to  the  vast  improb- 
ability of  his  having  destroyed  the  will.  .  .  . 

Declarations  of  deceased  persons  are  in  several  instances  admitted  as 
exceptions  to  the  general  rule;  where  such  persons  have  had  peculiar 
means  of  knowledge  and  may  be  supposed  to  have  been  without  motive 
to  speak  otherwise  than  according  to  the  truth.  It  is  obvious  that  a  man 
who  has  made  his  will  stands  pre-eminently  in  that  position.  He  must 
be  taken  to  know  the  contents  of  the  instrument  he  has  executed.  If 
he  speaks  of  its  provisions,  he  can  have  no  motive  for  misrepresenting 
them,  except  in  the  rare  instances  in  which  a  testator  may  have  the 
intention  of  misleading  by  his  statements  respecting  his  will.  Generally 
speaking,  statements  of  this  kind  are  honestly  made,  and  this  class  of 
evidence  may  be  put  on  the  same  footing  with  the  declarations  of  members 
of  a  family  in  matters  of  pedigree.  ...  I  am  at  a  loss  to  see  why,  when 
sucfi  evidence  is  held  to  be  admissible  for  the  two  purposes  just  referred 
to,  it  should  not  be  equally  receivable  as  proving  the  contents  of  the  will. 
If  the  exception  to  the  general  rule  of  law  which  excludes  hearsay  evidence 
is  admitted,  on  account  of  the  exceptional  position  of  a  testator,  for  one 
purpose,  why  should  it  not  be  for  another,  where  there  is  an  equal  degree 
of  knowledge,  and  an  equal  absence  of  motive  to  speak  untruly? 

Jessel,  M.  R.  —  [The  reasons  for  the  exceptions  to  the  Hearsay  rule] 


686  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  453 

all  exist  in  the  case  of  a  testator  declaring  the  contents  of  his  will.  .  .  . 
Having  regard  to  the  reasons  and  principles  which  have  induced  the 
Courts  of  this  country  to  admit  exceptions  in  the  other  cases  to  which  I 
have  referred,  we  should  be  equally  justified  and  equally  bound  to  admit 
it  in  this  case.  .  .  .  We  have  a  witness  peculiarly  likely  to  know  what 
the  contents  of  the  will  were.  Besides  that,  we  have  a  witness  of  unim- 
peached  and  unimpeachable  integrity.  We  have  the  gratification  of 
knowing,  in  deciding  this  case,  that  there  has  been  no  question  raised  as 
to  the  credibility  of  Miss  Sugden,  and  this  appears  to  be  an  answer  to 
that  assumed  danger  which  might  apply  to  other  cases  in  allowing  such 
proof  as  this  to  establish  wills.  .  .  .  The  case  is  singular  in  that  respect, 
and  I  should  think  it  is  very  likely  to  remain  singular,  as  regards  subse- 
quent cases;  therefore  there  is  no  danger  in  admitting  this  evidence  in 
this  particular  case,  and  I  see  no  reason  why  we  should  refuse  to  do 
justice  now  because  other  persons,  not  credible  witnesses,  may  be  induced 
in  other  cases  to  attempt  to  substantiate  fictitious  wills. 

James,  L.  J.  ...  In  this  case  it  is  conceded  that  every  one  of  those 
declarations  was  admissible  and  was  properly  admitted  for  some  purpose 
in  the  cause,  and  thereby  those  declarations  of  the  testator  have  become 
legitimately  known  to  me.  I  believe  them  to  have  been  made  by  him, 
and  I  believe  them  to  be  true,  and,  having  those  declarations  before  me 
and  so  believing  them,  it  would  be  a  judicial  lie  if  I  were  to  pretend  that 
I  did  not  act  upon  them  in  coming  to  the  conclusion  that  the  evidence 
of  the  witness  as  to  the  actual  contents  of  the  will  is  true. 

Mellish,  L.  J.  .  .  .  The  difficulty  I  feel  is  this,  that  I  cannot  satisfac- 
toril}^  to  my  own  mind  find  any  distinction  between  the  statement  of  a 
testator  as  to  the  contents  of  his  will,  and  any  other  statement  of  a 
deceased  person  as  to  any  fact  peculiarly  within  his  knowledge,  which, 
beyond  all  question,  as  the  law  now  stands,  we  are  not  as  a  general  rule 
entitled  to  receive.  ...  A  declaration  after  he  has  made  his  will,  of 
what  the  contents  of  the  will  are,  is  not  a  statement  of  anything  which 
is  passing  in  his  mind  at  the  time;  it  is  simply  a  statement  of  a  fact  within 
his  knowledge,  and  therefore  you  cannot  admit  it  unless  you  can  bring 
it  within  some  of  the  exceptions  to  the  general  rule  that  hearsay  evidence 
is  not  admissible  to  prove  a  fact  which  is  stated  in  the  declaration.  It 
does  not  come  within  any  of  the  rules  which  have  been  hitherto  estab- 
lished, and  I  doubt  whether  it  is  an  advisable  thing  to  establish  new 
exceptions  in  a  case  which  has  never  happened  before,  and  may  never 
happen  again,  for  you  then  establish  an  exception  which  more  or  less 
throws  a  doubt  on  the  law. 

The  Master  of  the  Rolls  has  referred  to  the  several  exceptions  which 
have  been  made  to  the  rule,  but  none  of  them  appear  to  me  to  be  applica- 
ble to  this  case.  I  think  there  is  a  most  material  distinction,  as  was 
pointed  out  by  Lord  Campbell  in  Doe  v.  Palmer,  16  Q.  B.  747  [ante,  No. 
450],  between  declarations  made  before  a  will  is  executed,  and  declara- 
tions  made   subsequently.     The   declarations   which   are   made   before 


No.  454  HEARSAY    RULE:     EXCEPTIONS  687 

the  will  are  not,  I  apprehend,  to  be  taken  as  [direct]  evidence  of  the 
contents  of  the  will  which  is  subsequently  made  —  they  obviously  do 
not  prove  it;  and  [but?]  wherever  it  is  material  to  prove  the  state  of  a 
person's  mind,  or  what  was  passing  in  it,  and  what  were  his  intentions, 
there  you  may  prove  what  he  said,  because  that  is  the  only  means  by 
which  you  can  find  out  what  his  intentions  were. 

It  appears  to  me  that  it  would  be  better  to  leave  it  to  the  Legislature 
to  make  the  improvement,  which,  in  my  opinion,  ought  to  be  made,  in 
our  present  rules  with  regard  to  the  admissibility  of  evidence  of  that 
description.  In  all  other  respects  I  entirely  agree  with  the  judgments 
which  have  been  given. 

Baggallay,  J.  a.  ...  I  particularly  desire  to  express  my  con- 
currence in  that  portion  of  the  judgment  which  has  reference  to  the 
admissibility,  as  evidence,  of  the  declarations  made  by  the  testator  in 
this  case.  .  .  . 

CocKBURN,  C.  J.     The  appeals  will  be  dismissed  with  costs. 

Appeals  dismissed.^ 

454.   MOONEY  v.   OLSEN 

Supreme  Court  of  Kansas.     1879 

22  Kan.  62 

Error  from  Leavenworth  district  court. 

Action  brought  by  Olsen  against  Mooney  and  another  to  set  aside 
the  will  of  Lydia  Foster,  who  died  July  8,  1876.  Trial  by  a  jury,  at  the 
March  term,  1877,  of  the  district  court,  and  verdict  against  the  will. 
The  defentlants  below  filed  their  motion  for  a  new  trial,  which  was  over- 
ruled, and  judgment  rendered  in  favor  of  the  plaintiff,  Olsen,  upon  the 
verdict  of  the  jury.     Defendants  bring  the  case  here. 

Taylor  &  Gillpatrick ,  for  plaintiffs  in  error.  .  .  . 

The  only  issues  involved  in  this  case  were,  was  Lydia  Foster  of  sound 
mind  and  memory  at  the  time  she  executed  her  will?  and,  if  so,  did  she 
execute  the  same  by  reason  of  undue  influence?  These  being  the  issues, 
the  court  permitted  the  plaintiff  below,  time  and  again,  over  the  objec- 
tions of  the  defendants  below,  to  introduce  incompetent,  irrelevant, 
immaterial,  and  hearsay  testimony,  which  tended  to  and  did  prejudice 
the  substantial  rights  of  the  defendants  below.  The  declarations  of  a 
party  to  a  deed  or  will,  whether  previous  or  subsequent  to  its  execution, 
are  nothing  more  than  hearsay  evidence,  and  nothing  can  be  more 
dangerous  than  the  admission  of  it  to  destroy  the  construction  of  the 

^  [Lord  Blackburn,  in  Woodward  v.  Goulstone,  L.  R.  11  App.  Cas.  469 
(1886) :  I  wish  to  guard  myself,  as  the  Lord  Chancellor  did,  against  being  sup- 
posed, except  so  far  as  it  is  necessary  for  the  present  case,  to  be  either  affirming 
or  disaffirming  the  decision  which  was  come  to  in  Sugden  v.  Lord  St.  Leonards, 
or  the  propositions  of  law  there  laid  down.  I  wish  to  leave  them  just  in  the  same 
way  as  before,  as  far  as  1  am  concerned.] 


688  BOOK  l:     RULES   OF  ADMISSIBILITY  No.  454 

instrument,  or  to  support  or  destroy  its  validity.  Jackson  v.  Kniffen, 
2  Johns.  31.  .  .  . 

H.  T.  Green,  for  defendant  in  error.  .  .  .  The  plaintiffs  in  error  insist 
that  the  declarations  of  Lydia  Foster  before  and  after  the  signing  of  the 
will  were  not  coinpetent  evidence.  Why?  Those  made  before  the  will 
were  competent  to  show  that  she  did  not  like  Dennis  Mooney;  he  was 
no  friend  of  hers;  she  feared  him;  and  the  other  statement,  on  page  9 
of  plaintiffs'  brief,  shows  every  reason  why  she  would  not,  if  not  under 
duress,  have  given  him  anything,  she  believing  that  he  tried  to  kill  her 
husband,  and,  while  she  was  helpless,  his  intrusion  into  her  house  was 
enough  to  arouse  her  fears  and  overpower  her  free  will. 

These  declarations,  taken  in  connection  with  the  five  hours  spent  in 
forcing  her  to  make  the  will,  throw  light  on  the  subject,  and  were  com- 
petent evidence.     Redfield,  Wills,  510,  511,  note  2. 

Brewer,  J.  —  Action  to  set  aside  a  will.  Trial  by  a  jury,  and  verdict 
against  the  will.  The  first  matter  which  we  shall  notice  is  the  alleged 
error  in  the  admission  of  testimony.  The  will  was  challenged  on  the 
ground  of  undue  influence,  as  well  as  on  the  ground  that  the  decedent, 
at  the  time  of  its  execution,  was  not  of  sound  mind  and  memory.  It 
appeared  that  the  decedent  was  taken  sick  July  3d,  and  died  on  the  8th ; 
that  Dennis  Mooney  and  Mrs.  Mary  McCarthy,  the  principal  devisees 
and  legatees  under  the  will,  were  in  attendance  upon  her  during  most  of 
this  time,  and  that  the  will  was  written  the  day  before  her  death.  Over 
objection,  the  court  permitted  testimony  of  the  conduct  of  these  devisees, 
not  merely  at  the  time  of  making  the  will,  but  also  while  present  at  the 
home  of  the  decedent  during  the  sickness,  and  immediately  after  her 
death;  also  of  the  statements  of  the  decedent  made  prior  to  her  sickness, 
(some  a  long  time  prior,)  showing  estrangement  from  and  ill  feeling  to- 
wards Dennis  Mooney;  also  of  letters  from  him  to  her  tending  to  show 
the  same  state  of  facts;  also  of  an  engagement  of  marriage,  expected  to 
be  consummated  on  the  tenth  of  July,  to  one  who  was  present  during 
most  of  the  sickness,  and  was  not  mentioned  in  the  will.  .  .  . 

The  question  of  undue  influence  is  one  of  peculiar  character.  It 
does  not  arise  until  after  the  death  of  the  one  who  alone  fully  knows  the 
influences  which  have  produced  the  instrument.  It  does  not  touch  the 
outward  act,  the  form  of  the  instrument,  the  signature,  the  acknowledg- 
ment; it  enters  the  shadowy  land  of  the  mind  in  search  of  its  condition 
and  processes.  W^as  the  mind  strong,  or  weak?  clear  of  comprehension, 
or  only  feebly  grasping  the  facts  suggested?  Was  the  will  resolute  and 
firm,  or  enfeebled  by  disease  and  bodily  weakness?  What  prompted  the 
making  of  the  will  ?  W^as  it  the  thought  of  the  testatrix,  or  the  suggestion 
of  interested  parties?  What  influences  were  brought  to  bear  to  secure 
its  execution,  or  the  disposition  of  any  specific  property?  These  are 
inquiries  always  difficult  of  solution,  often  made  more  so  by  the  fact  that 
the  parties  most  competent  to  give  information  are  the  ones  most  inter- 
ested to  withhold  it.     To  fully  inform  the  jury,  they  should  know  the 


No.  454  HEARSAY    RULE:     EXCEPTIONS  689 

condition  of  the  testatrix's  mind  at  the  time  of  the  execution,  the  circum- 
stances attending  the  execution,  the  relations  and  affections  of  the  tes- 
tatrix, and  such  other  matters  as  tend  to  show  what  disposition  if  in 
heahh  and  strength,  and  uninfluenced,  she  would  probably  have  made  of 
her  property.  This  opens  a  broad  field  of  inquiry,  and  gives  to  such  a 
contest  over  a  will  a  wider  scope  of  investigation  than  exists  in  ordinary 
litigation.  "Put  Yourself  in  His  Place,"  is  the  title  of  a  recent  popular 
novel,  and  is  appropriate  to  indicate  the  scope  of  such  an  inquiry.  .  .  . 

It  is  sometimes  broadly  stated  that  the  declarations  of  a  testator, 
whether  prior  or  subsequent  to  the  execution  of  the  will,  are  inadmissible 
for  the  purpose  of  impeaching  it.  In  a  certain  sense  this  is  doubtless 
true.  As  a  mere  matter  of  impeaching  the  will,  they  are  hearsay  and 
inadmissible.  They  are  not  like  statements  of  an  ancestor  in  derogation 
of  title  or  elimination  of  estate,  which,  being  declarations  against  interest, 
are  admissible  against  the  heir,  for  there  is  no  adverse  interest  in  a  devisor 
against  the  will  or  the  devisee.  They  are  more  like  declarations  of  a 
grantor,  after  grant,  in  limitation  of  his  grant,  and  are  strictly  hearsay. 
Thus,  if  a  testator,  after  executing  a  will,  should  say  that  the  will 
was  forced  from  him,  or  that  it  was  executed  against  his  will,  and 
through  undue  influence,  such  statement,  of  itself,  would  be  hearsay 
and  inadmissible.  ... 

But  while  declarations  are  not  admissible  as  mere  impeachment  of 
the  validity  of  a  will,  they  are  admissible  as  evidence  of  the  testator's 
state  of  mind.  A  man's  words  show  his  mental  condition.  It  is  common 
to  prove  insanity  by  the  party's  sayings  as  well  as  by  his  acts.  One's 
likes  and  dislikes,  fears  and  friendships,  hopes  and  intentions,  are  shown 
by  his  utterances;  so  that  it  is  generally  true  that,  whenever  a  party's 
state  of  mind  is  a  subject  of  inquiry,  his  declarations  are  admissible  as 
evidence  thereof.  In  other  words  a  declaration  which  is  sought  as  mere 
evidence  of  an  external  fact,  and  whose  force  depends  upon  its  credit  for 
truth,  is  always  mere  hearsay  if  not  made  upon  oath;  but  a  declaration 
which  is  sought  as  evidence  of  what  the  declarant  thought  or  felt,  or  of 
his  mental  capacity,  is  of  the  best  kind  of  evidence.  .  .  .  Therefore  where, 
as  in  a  case  like  this,  the  circumstances  attending  the  execution  raise  a 
doubt  as  to  the  mental  strength  of  the  testatrix,  evidence  that  the 
disposition  of  the  property  runs  along  the  line  of  her  established  friend- 
ships and  previously-expressed  intentions  tends  strongly  against  the  idea 
of  any  undue  influence;  while  evidence  that  it  is  contrary  to  such  friend- 
ships and  intentions  makes  in  favor  of  improper  influences.  The  testi- 
mony of  her  declarations  shows  a  state  of  mind  unfriendly  to  one  of  the 
principal  devisees,  and  his  letters  to  her  indicate  a  mutual  understanding 
of  this  estrangement  and  ill-will.  Such  an  estrangement  is  out  of  har- 
mony with  the  recognition  in  the  will. 

We  see  nothing  in  the  record  to  justify  a  reversal  of  the  judgment, 
and  it  will  be  affirmed. 

Valentine,  J.,  concurring.     Horton,  C.  J.,  dissenting. 


690  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  455 

455.   HOBSON  v.   MOORMAN 

Supreme  Court  of  Tennessee.     1905 

115  Tcn7i.  73;  90S.  W.  152 

Appeal  from  Circuit  Court,  Fayette  County;  R.  E.  Maidun,  Judge. 

Petition  by  H.  C.  Moorman,  as  executor  of  the  will  of  Jane  B.  George, 
deceased,  to  establish  the  same,  to  which  Dan  Hobson  and  others  filed 
objections.  From  a  decree  sustaining  the  will  contestants  appeal. 
Affirmed. 

Bullock  &  Timberlake  and  Chas.  A.  Stainback,  for  appellants.  T.  K. 
Riddick,  T.  J.  Flippin,  Wm.  M.  Mayo,  and  C.  W.  Crawford,  for  appellee. 

McAlister,  J.  This  is  an  issue  of  devisavit  vel  non  from  the  circuit 
court  of  Fayette  county.  The  will  in  controversy  was  executed  by  Mrs. 
Jane  B.  George,  on  the  23d  day  of  October,  1899,  and  is  attacked  upon 
the  ground  of  undue  influence  and  want  of  testamentary  capacity.  The 
contestants  are  Lizzie  Hobson,  John  D.  Boyd,  and  Harry  Boyd,  family 
servants  of  the  testatrix,  and  legatees  under  a  prior  will  executed  on  the 
29th  day  of  June,  1898.  The  proponent  of  the  present  will  is  H.  C. 
Moorman,  who  was  appointed  administrator  cum  testamento  annexo. 
.  .  .  The  last  trial,  in  November  term,  1904,  resulted  in  a  verdict  sustain- 
ing said  paper  writing  as  the  last  will  and  testament  of  Mrs.  Jane  B. 
George.  .  .  .  Under  the  first  will  the  testatrix  made  no  bequest  whatever 
to  Mrs.  Mattie  Goosman,  while  under  the  last  wall  she  is  given  an  un- 
divided one-sixth  interest  in  the  estate,  after  deducting  the  legacy  given 
to  her  son  George.  ...  It  is  said  in  the  brief  of  counsel  for  the  proponent, 
that  .  .  .  shortly  after  the  execution  of  the  codicils  to  the  first  will,  in 
April  and  September,  1899,  Mrs.  George  sustained  a  very  serious  fall, 
which  confined  her  to  her  bed,  and  that  while  so  prostrated  she  fell  under 
the  influence  of  Mrs.  Goosman,  Mrs.  Riley,  and  others,  who  induced  her 
to  make  the  second  will,  which  did  not  represent  her  testamentary 
wushes,  but  in  reality  was  the  testament  of  those  exerting  this  undue 
influence.  .  .  . 

On  the  other  hand,  the  theory  of  the  proponent  is  thus  stated  in  the 
language  of  his  counsel,  which  we  quote  from  his  brief  as  follows : 

"Up  to  June,  1898,  Mrs.  George  had  intended  to  bequeath  her 
property  to  Mrs.  Goosman,  her  son,  George  Goosman,  and  to  the  nieces 
and  nephews  of  Mrs.  George  herself.  Mrs.  Goosman  was  the  second 
cousin  and  adopted  daughter  of  Mrs.  George.  Their  relations  were  as 
intimate  and  friendly  as  they  could  have  been,  until  June,  1898,  when 
Mrs.  George  was  led  to  believe  that  Mr.  and  Mrs.  Goosman  tried  to 
poison  her  in  order  to  get  her  property.  Under  the  influence  of  this 
belief,  she  made  a  will,  on  June  29,  1898,  disposing  of  her  property  in  an 
entirely  different  way  from  what  she  had  previously  contemplated. 
There  is  no  pretense  that  this  belief  was  well  founded,  but  Mrs.  George 


No.  455  HEARSAY    RULE:     EXCEPTIONS  691 

persisted  in  it  for  several  months.  Proponent's  theory  is  that  she  was 
encouraged  in  this  behef  by  Mrs.  Hazelwood,  Lizzie  Hobson,  and  John 
Harvey  McElwee,  but  tliey  deny  it.  Early  in  the  year  1899,  however, 
she  became  convinced  that  she  had  been  poisoned,  and  immediately 
began  to  change  her  will.  She  added  one  codicil  in  April,  1899,  and  one 
in  September,  1899.  These  codicils  changed  the  will  so  much  that,  to 
use  her  own  expression,  she  'hardly  knew  what  was  in  it.'  So  she 
finally  resolved  to  make  a  new  will  altogether,  which  she  did  on  October 
23,  1899.  This  contained  practically  the  same  disposition  of  her  property 
which  she  intended  to  make  prior  to  the  poisoning  episode,  and  is  the 
will   now   under  contest."  .  .  . 

The  first  assignment  of  error  made  by  contestants  is  based  upon  the 
action  of  the  trial  judge  in  excluding  evidence  of  the  declarations  of  the 
testatrix,  made  prior  to  the  execution  of  the  will  in  issue,  for  the  purpose 
of  establishing  undue  influence.  .  .  . 

As  illustrating  the  effect  of  the  charge  of  the  Court  in  excluding  evi- 
dence of  previous  declarations  on  the  part  of  the  testatrix,  counsel  for 
contestants  have  formulated  the  following  propositions,  viz. : 

"  (1)  The  hostile  feelings  of  testatrix  for  Mrs.  Goosman  and  her 
intention  to  exclude  her  from  any  testamentary  disposition,  evidenced 
by  her  declarations  to  third  parties,  her  letters,  and  the  first  will,  were 
competent  and  material  facts  to  be  considered  as  directly  bearing  upon 
the  issiie  of  undue  influence;  that  is  to  say,  whether  the  change  in  the 
will  in  issue  from  the  previously  expressed  feelings  and  intentions  of 
testatrix  was  attributable  to  the  volition  of  the  testatrix  or  to  the  exer- 
cise of  an  undue  influence.  .  .  . 

"  (7)  That  the  declarations  of  Mrs.  George,  to  the  effect  that  Mrs. 
Goosman  was  intimidating  her  and  endeavoring  to  get  her  to  make 
another  will,  were  competent  and  material  evidence  to  be  considered  as 
bearing  directly  upon  the  question  of  undue  influence."  .  .  . 

An  examination  of  the  record  will  show  that  a  very  wide  scope  was 
given  to  the. introduction  of  the  declarations  of  the  testatrix  as  evidence, 
and  that  they  were  held  competent  by  the  circuit  judge  in  his  instruc- 
tions to  the  jury  for  every  purpose,  except  to  establish  the  fact  of  undue 
influence. 

The  cardinal  inquiry  presented  upon  the  first  assignment  of  error  is 
whether  as  a  matter  of  law  such  declarations  were  competent  as  sub- 
stantive evidence  of  undue  influence.  It  is  conceded  on  the  brief  of 
counsel  for  contestants  that  subsequent  declarations  are  not  competent 
evidence  to  establish  undue  influence.  The  law  on  this  subject  is  well 
settled  in  this  State.  Peery  v.  Peery,  94  Tenn.  328,  29  S.  W.  1 ;  Earp 
V.  Edgington,  107  Tenn.  31,  64  S.  W.  40.  But  the  contention  now  made 
is  that  there  is  a  difference  in  principle  between  declarations  of  the  testa- 
trix, made  prior  to  the  execution  of  the  will,  and  those  subsequently 
made.  Hence  it  is  earnestly  insisted  that,  while  the  evidence  of  subse- 
quent declarations  has  been  uniformly  rejected,  proof  of  prior  declara- 


692  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  455 

tions,  tending  to  establish  the  fact  of  undue  influence,  has  been  received 
in  this  State.  It  will  be  useful  at  this  point  to  review  our  decisions  on 
this  subject,  at  least  so  far  as  they  are  claimed  by  contestants  to  support 
the  propositions  now  propounded.  .  .  . 

Mr.  Wigmore,  in  his  exhaustive  treatise  on  the  Law  of  Evidence 
(volume  3,  §  .1734),  divides  the  declarations  of  a  testator  into  seven 
different  classifications,  and  states  that  in  using  any  of  these  it  is  essen- 
tial to  keep  in  mind  (1)  what  is  the  fact  which  the  utterance  is  offered  to 
evidence;  (2)  whether  this  fact  is  relevant,  and  in  what  way;  (3)  sup- 
posing it  to  be  relevant,  whether  the  utterance  is  admissible  to  evidence 
it.  Under  the  fifth  classification  the  author  considers  declarations  that 
a  particular  will  was  procured  by  fraud  or  undue  influence.  At  §  1738 
the  author  treats  this  subject  as  follows: 

"  Utterances  of  the  fifth  and  sixth  classes,  already  enumerated,  may 
be  regarded  in  several  aspects.  The  chief  distinction  is  between  their 
use  as  direct  assertions  of  the  fact  of  fraud  or  undue  influence,  for  here 
they  are  met  immediately  by  the  hearsay  rule,  and  their  use  as  indicating 
directly  or  indirectly  a  condition  of  mind  relevant  to  the  issue,  for  here 
they  are  admissible  either  as  circumstantial  evidence  or  as  statements 
of  a  mental  condition  under  the  present  exception. 

"The  testator's  assertion  that  a  person,  named  or  unnamed,  has 
procured  him,  by  fraud  or  by  pressure,  to  execute  a  will,  or  to  insert  a 
provision,  is  plainly  obnoxious  to  the  hearsay  rule,  if  offered  as  evidence 
that  the  fact  asserted  did  occur: 

"  1868,  Colt,  J.,  in  Shailkr  r.  Bumstead,  99  Mass.  122 :  When  used  for  such 
purpose,  they  are  mere  hearsay,  which,  by  reason  of  the  death  of  the  party  whose 
statements  are  so  offered,  can  never  be  explained  or  contradicted  by  him.  Ob- 
tained, it  may  be,  by  deception  or  persuasion,  and  always  liable  to  the  infirmities 
of  human  recollection,  their  admission  for  such  purposes  would  go  far  to  destroy 
the  security  which  it  is  essential  to  preserve.  They  are  thus  inadmissible,  so  far 
as  they  form  'a  declaration  or  narrative  to  show  the  fact  of  fraud  or  undue 
influence  at  a  previous  period.'  .  .  . 

"  But  these  utterances  may  be  nevertheless  availed  of  as  evidence  of 
the  testator's  mental  condition,  if  the  latter  fact  is  relevant.  Though 
the  issue  is  as  to  his  mental  condition,  with  regard  to  deception  or  duress 
at  the  time  of  execution,  yet  his  mental  state,  both  before  and  afterwards, 
is  admissible  as  evidence  of  his  state  at  that  time  (on  the  principles  of 
sections  230,  242,  394,  395,  ante).  Thus  the  question  is  reduced  to  a 
simple  one,  namely,  what  particular  mental  conditions  of  the  testator, 
thus  e\'idenced,  are  material  as  being  involved  in  the  broader  issue  of 
deception  or  undue  influence?  There  are  here  recognized  by  the  Courts 
two  distinct  sorts  of  mental  condition. 

"  (1)  The  existence  of  undue  influence  or  deception  involves  incident- 
ally a  consideration  of  the  testator's  incapacity  to  resist  pressure  and  his 
susceptibility  to  deceit,  whether  in  general  or  by  a  particular  person. 
This   requires   a   consideration   of   many  circumstances,   including   his 


No.  455  HEARSAY  rule:    exceptions  693 

state  of  aflPections  or  dislike  for  particular  persons  benefited  or  not 
benefited  by  the  will,  of  his  inclinations  to  obey  or  to  resist  these  persons, 
and,  in  general,  of  his  mental  and  emotional  condition,  with  reference  to 
its  being  affected  by  any  of  the  persons  concerned.  All  utterances  and 
conduct,  therefore,  affording  any  indication  of  this  sort  of  mental  condi- 
tion, are  admissible,  in  order  that  from  these  the  condition  at  various 
times  not  too  remote  may  be  used  as  the  basis  for  inferring  his  condition 
at  the  time  in  issue.  This  use  of  such  data  is  universally  conceded  to  be 
proper : 

"1883,  Dixox,  J.,  in  Rusling  v.  Rusling,  36  N.  J.  Eq.  603,  607:  'When 
undue  influence  is  set  up  in  impeachment  of  a  will,  the  ground  of  invalidity  to  be 
established  is  that  the  conduct  of  others  has  so  operated  upon  the  testator's  mind 
as  to  constrain  him  to  execute  an  instrument  to  which  of  his  free  will  he  would 
not  have  assented.  This  involves  two  things:  First,  the  conduct  of  those  by 
whom  the  influence  is  said  to  have  been  exerted;  second,  the  mental  state  of  the 
testator,  as  produced  by  such  conduct,  which  may  require  a  disclosure  of  the 
strength  of  mind  of  the  decedent  and  his  testamentary  purposes,  both  imme- 
diately before  the  conduct  complained  of  and  while  subjected  to  its  influence.  In 
order  to  show  the  testator's  mental  state  at  any  given  time,  his  declarations  at 
that  time  are  competent,  because  the  conditions  of  the  mind  are  revealed  to  us 
only  by  its  external  manifestations,  of  which  speech  is  one.  Likewise  the  state 
of  mind  at  one  time  is  competent  evidence  of  its  state  at  other  times  not  too 
remote,  because  mental  conditions  have  some  degree  of  permanency.  Hence, 
in  an  inquiry  respecting  the  testator's  state  of  mind,  before  or  pending  the  exertion 
of  the  alleged  influence,  his  words,  as  well  as  his  other  behavior,  may  be  shown  for 
the  purpose  of  bringing  into  view  the  mental  condition  which  produced  them, 
and,  through  that,  the  antecedent  and  subsequent  conditions.  To  this  extent  his 
declarations  have  legal  value.  But,  for  the  purpose  of  proving  matters  not 
related  to  his  existing  mental  state,  the  assertions  of  the  testator  are  mere  hear- 
say. They  cannot  be  regarded  as  evidence  of  previous  occurrences,  unless 
they  come  within  one  of  the  recognized  exceptions  to  the  rule  excluding  hearsay 
testimony.'  "... 

Now,  recurring  to  the  charge  of  the  Court  in  the  present  case,  we  have 
already  seen  that  his  honor  distinctly  instructed  the  jury  that  they  might 
look  to  the  previous  and  subsequent  declarations  of  Mrs.  George,  along 
with  all  the  other  proof  in  the  case,  for  the  purpose  of  determining  what 
the  condition  of  her  mind  was,  at  the  time  she  performed  the  alleged 
testamentary  act.  The  authorities  already  cited  announce  this  rule  so 
distinctly  charged  by  the  trial  judge. 

It  is  insisted,  however,  that  he  erred  in  his  instruction  that  they 
could  not  look  to  these  declarations  as  substantive  evidence  of  undue 
influence,  or,  as  he  expressed  it  in  another  place,  "such  declarations 
could  not  be  regarded  as  evidence  of  or  as  proving  the  fact  of  undue 
influence."  .  .  .  This  question  has  been  much  mooted  in  the  Courts  of 
very  many  of  the  States,  but  has  never  been  distinctly  decided  in  this 
State,  so  far  as  we  are  apprised  by  any  reported  opinion. 

In  our  opinion,  the  great  weight  of  authority  confirms  the  rule,  an- 


694  BOOK   i:     RULES   OF   -AJDMISSIBILITY  No.  455 

nounced  by  the  circuit  judge  in  his  instructions  to  the  jury,  that  such 
previous  declarations  are  always  admissible  for  the  purpose  of  illustrat- 
ing the  mental  capacity  of  the  testator  and  his  susceptibility  to  extra- 
neous influence,  and  also  to  show  his  feelings,  intentions,  and  relations 
to  his  kindred  and  friends,  but  such  declarations  are  not  admissible  as 
substantive  evidence  of  undue  influence.  .  .  . 

For  the  reasons  herein  stated  the  judgment  of  the  Circuit  Court  is 
affirmed. 

Topic  9.     Spontaneous  Exclamations 

457.  Thompson  v.  Trevanion.  (1693.  King's  Bench,  vSkinner,  402).  Ruled 
upon  evidence,  that  a  mayhem  may  be  given  in  evidence,  in  an  action  of  trespass 
of  assault,  battery,  and  wounding,  as  an  evidence  of  wounding,  per  Holt,  Chief 
Justice;  and  in  this  case  he  also  allowed,  that  what  the  wife  said  immediate  upon 
the  hurt  received,  and  before  that  she  had  time  to  devise  or  contrive  any  thing 
for  her  own  advantage,  might  })e  given  in  evidence;  quod  nota;  this  was  at  Nisi 
Prius  in  Middlesex  for  wounding  of  the  wife  of  the  plaintiff. 

458.  United  States  v.  King.  (1888.  34  Fed.  314).  Lacombe,  J.,  (charging 
the  jury).  There  is  a  principle  in  the  law  of  evidence  which  is  known  as  "res 
gestae,"  that  is,  the  declarations  of  an  individual  made  at  the  moment  of  a  par- 
ticular occurrence,  when  the  circumstances  are  such  that  we  may  assume  that  his 
mind  is  controlled  by  the  event,  may  be  received  in  evidence,  because  they  are 
supposed  to  be  expressions  involuntarily  forced  out  of  him  by  the  particular 
event,  and  thus  have  an  element  of  truthfulness  they  might  otherwise  not  have. 
.  .  .  But  you  are  not  to  give  any  more  weight  to  a  declaration  thus  made,  or 
any  weight  at  all,  unless  you  are  satisfied  that  it  was  made  at  a  time  when  it  was 
forced  out  as  the  utterance  of  a  truth,  forced  out  against  his  will  or  without  his 
will,  and  at  a  period  of  time  so  closely  connected  with  the  transaction  that 
there  has  been  no  opportunity  for  subsequent  reflection  or  determination  as  to 
what  it  might  or  might  not  be  wise  for  him  to  say. 

459.   TRAVELERS'  INSURANCE  CO.  v.  SHEPPARD 
^  Supreme  Court  of  Georgia.     1890 

85  Ga.  751,  768;   12  S.  E.  18 

[Action  on  a  policy  of  life  insurance.  Sheppard,  the  insured,  was 
said  to  have  been  drowned,  while  on  a  hunting  trip.  The  defence  main- 
tained that  Sheppard  had  planned  to  defraud  the  insurers  by  pretending 
death;  that  he  had  in  fact  got  out  of  his  boat  and  swam  ashore,  and  was 
now  in  hiding.     See  the  further  facts  given  ante,  in  No.  149.] 

Boykin  and  Turner  were  the  persons  engaged  with  Sheppard  in  the 
hunt  for  deer  which  terminated  in  Sheppard's  disappearance.  .  .  . 
Turner  was  examined  by  interrogatories,  and  a  portion  of  his  testimony, 
some  of  it  in  answer  to  direct  and  some  to  cross-interrogatories,  was, 


No.  459  HEARSAY   RULE:     EXCEPTIONS  695 

in  substance,  as  follows :  "  Boykin  and  myself  were  to  go  down  the  river 
by  land,  and  Sheppard  was  to  run  down  in  a  boat,  about  three  quarters 
of  a  mile,  to  a  certain  shanty,  there  to  get  out  and  make  a  stand.  We 
were  to  rejoin  him  at  that  point.  I  went  out  100  or  150  yards  from  the 
river,  and  Boykin  was  between  the  river  and  me,  but  how  far  from  the 
river  I  do  not  know.     As  we  were  driving  along  down  the  river  for  deer, 

I  heard  a  gun  fire  in  the  direction  of  the  river,  and  afterwards  some 
noise,  but  for  some  time  I  did  not  stop  to  listen.  When  I  did  stop,  I 
heard  some  one  calling  me  excitedly,  and  I  went  in  that  direction,  and  in 
a  very  short  time  met  Boykin  coming  towards  me  in  a  run,  and  calling 
as  he  came.  He  was  very  much  excited  and  looked  very  wild.  When 
he  came  up  he  said,  Tom  Sheppard  had  killed  himself,  or  had  shot  himself; 
which  of  these  expressions  he  used  I  do  not  remember.  W^e  hurried 
back  to  the  place.  On  the  way  back  he  said  he  heard  the  gun  fire  and 
heard  a  splash  in  the  water,  and  thought  he  glimpsed  Sheppard  as  he  fell 
from  the  boat.  He  said  he  ivae  right  out  there,  indicating  with  his  hand  a 
spot  about  15  or  20  yards  from  where  Sheppard  was,  and  there  was  a 
thick  strip  of  canebreak  between  him  and  Sheppard.  .  .  .  The  boat  was 
found  about  200  yards  below  where  Boykin  and  I  got  out,  and  about  100 
or  150  yards  from  where  I  was  when  the  gun  fired,  at  which  time  I  had 
gone  about  300  or  400  yards.  I  saw  Boykin  in  a  few  minutes  after  I 
heard  the  gun."  Bleckley,  C.  J.  .  .  .  Were  the  declarations  made 
by  Boykin  to  Turner  admissible  evidence  as  part  of  the  res  gestae? 

The  fact  in  issue  was  the  accidental  death  of  Sheppard.  No  witness 
saw  him  die  or  knew  certainly  that  he  was  dead.  ..."  Declarations 
accompanying  an  act,  or  so  nearly  connected  therewith  in  time  as  to  be 
free  from  all  suspicion  of  device  or  afterthought,  are  admissible  in  evi- 
dence as  part  of  res  gestae."  Code,  §  3733.  What  the  law  altogether 
distrusts  is  not  after-speech  but  after-thought.  The  Code  introduces 
no  new  rule,  but  frankly  recognizes  in  its  letter  the  full  breadth  of  the 
temporal  element  in  the  rule  which  it  found  existing,  as  expounded  in 
the  luminous  and  able  opinion  of  Judge  Nisbet  in  Mitchum  v.  State, 

II  Ga.  615,  an  opinion  delivered  in  1852.  .  .  . 

The  rule  contemplates  that  all  the  res  gestae,  including  declarations 
forming  part  thereof,  must  transpire  within  the  present  time  of  the 
transaction.  But  that  time,  while  it  cannot  be  less,  may  be  more  ex- 
tended than  the  present  of  the  principal  fact,  in  some  instances  a  little, 
in  others  much,  and  in  others  very  much  more.  Usually  if  they  can  all 
be  ascertained,  some  of  the  res  gestae  will  be  found  simultaneous  with, 
and  some  anterior  and  others  posterior  to  the  principal  fact.  Thus, 
suppose  an  electric  discharge  during  a  summer  shower  to  be  the  principal 
fact,  the  formation  of  the  cloud,  the  falling  of  the  rain,  the  thunder  and 
its  reverberation  would  all,  for  some  purposes,  be  within  the  res  gestae 
of  the  event,  though  the  principal  fact  was  but  a  flash  of  lightning. 

This  example  may  serve  as  a  figure  to  characterize  the  instances  in 
which  declarations  subsequent  to  the  fact  are  receivable  in  evidence. 


696  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  459 

Let  thunder  represent  mental  impressions  produced  by  the  event.  Then 
reverberation  will  represent  admissible  declarations  reporting  these 
impressions.  It  will  represent  them  by  a  close  analogy  in  two  respects, 
first  in  being  speedy,  second  in  being  spontaneous.  That  they  shall  be 
or  appear  to  be  spontaneous  is  indispensable,  and  it  is  for  this  reason 
alone  that  they  are  required  to  be  speedy.  There  must  be  no  fair  oppor- 
tunity for  the  will  of  the  speaker  to  mould  or  modify  them.  His  will 
must  have  become  and  remained  dormant,  so  far  as  any  deliberation  in 
concocting  matter  for  speech  or  selecting  words  is  concerned.  Moreover, 
his  speech,  besides  being  in  the  present  time  of  the  transaction,  must  be 
in  the  presence  of  it  in  respect  to  space.  He  must  be  on  or  near  the 
scene  of  action  or  of  some  material  part  of  the  action.  His  declarations 
must  be  the  utterance  of  human  nature,  of  the  genus  homo,  rather  than 
of  the  individual.  Only  an  oath  can  guarantee  individual  veracity. 
But  spontaneous  impulse  may  be  a  sufficient  sanction  for  the  speech  of 
man  as  such,  man  as  distinguished  from  this  or  that  particular  man. 
True,  the  verbal  deliverance  in  each  instance  is  that  of  an  individual 
person.  But  if  the  state  of  his  mind  be  such  that  his  individuality  is  for 
the  time  being  suppressed  and  silenced,  so  that  he  utters  the  voice  of 
humanity  rather  than  of  himself,  what  he  says  is  regarded  by  the  law 
as  in  some  degree  trustworthy.  Boykin's  connection  with  Sheppard, 
his  interest  in  what  befel  him,  and  his  relation  to  Turner  rendered  it 
proper  for  him  to  make  the  communication  which  he  did  to  Turner,  and 
he  made  it  upon  the  first  opportunity,  which  opportunity  was  gained 
by  running  in  quest  of  him,  and  in  such  a  short  time  as  reasonably  to 
exclude  any  suspicion  of  device  or  afterthought.  .  .  . 

While  we  think  it  is  not  necessary  to  invoke  the  rule  of  discretion, 
yet  under  the  operation  of  that  rule  it  is  safe  to  hold  that  there  was  no 
error  in  admitting  the  evidence. 

460.  Pittsburgh,  Cincinnati,  CmcAGO  &  S.  Louis  R.  Co.  v.  Haislup. 
(1907.  39  Ind.  App.  394,  79  N.  E.  1035).  Roby,  P.  J. —A  standard  author 
states:  "The  typical  case  presented  is  a  statement  or  exclamation  by  an  injured 
person  immediately  after  the  injury,  declaring  the  circumstances  of  the  injiu-y, 
or  by  a  person  present  at  an  affray,  a  railroad  colHsion,  or  other  exciting  occasion, 
asserting  the  circumstances  of  it  as  observed  by  him."  3  Wigmore  on  Evidence, 
§  1746,  p.  2248.  The  general  rule  relative  to  the  admission  of  evidence  of  this 
character  has  been  frequently  stated  by  the  Courts  of  this  State.  ...  In  the 
application  of  this  general  rule  there  is  the  greatest  difficulty.  "There  is  a 
lamentable  waste  of  time  by  Supreme  Courts  in  here  attempting  either  to  create 
or  to  respect  precedents.  Instead  of  struggling  weakly  for  the  impossible,  they 
should  decisively  insist  that  every  case  be  treated  upon  its  own  circumstances. 
They  should,  if  they  are  able,  lift  themselves  sensibly  to  the  even  greater  height 
of  leaving  the  application  of  the  principle  absolutely  to  the  determination  of  the 
trial  court.  Until  such  a  beneficial  result  is  reached,  their  lucubrations  over  the 
details  of  each  case  will  continue  to  multiply  the  tedious  reading  of  the  profes- 
sion."    3  Wigmore  on  Evidence,  §  1750,  p.  2257. 


No.  464         HEARSAY  RULE:  NOT  APPLICABLE  697 


SUB-TITLE  III.  HEARSAY  RULE  NOT  APPLICABLE 
(RES  GESTAE) 

462.  Introductory.  The  prohibition  of  the  Hearsay  rule,  then,  does  not 
apply  to  all  words  or  utterances  merely  as  such.  If  this  fundamental  i)rinciple  is 
clearly  realized,  its  application  is  a  comparatively  simple  matter.  The  Hearsay 
rule  excludes  extrajudicial  utterances  only  when  offered  for  a  special  purpose, 
namely,  as  assertions  to  evidence  the  truth  of  the  matter  asserted. 

What  here  remains,  then,  is  to  distinguish  and  mark  off  the  various  classes 
of  utterances  which  legally  pass  the  gauntlet  of  the  Hearsay  rule  because  it  does 
not  apply  to  them.  The  classes  of  utterances  thus  exempt  may  be  grouped  under 
three  heads: 

1.  Utterances  material  to  the  case  as  a  jjart  of  the  issue; 

2.  Utterances  accompanying  an  ambiguous  or  equivocal  act,  itself  material, 
and  serving  to  complete  the  act  and  give  it  definite  legal  significance;  i.e.  verbal 
parts  of  an  act; 

3.  Utterances  used  circ7imstantiallij,  as  giving  rise  to  indirect  inferences, 
but  not  as  assertions  to  prove  the  matter  asserted. 

463.  Professor  James  Bradley  Thayer.  (XV  American  Law  Review  5,  81; 
1881).  If  it  be  true,  as  it  seems  to  be,  that  the  phrase  [res  gestae]  first  came  into 
use  in  evidence  near  the  end  of  the  last  century,  one  would  like  to  know  what 
started  the  use  of  it  just  then.  That  is  matter  for  conjecture  rather  than  opinion. 
It  would  seem  probable  that  it  was  called  into  use  mainly  on  account  of  its  "con- 
venient obscurity."  .  .  .  The  law  of  hearsay  at  that  time  was  quite  unsettled; 
lawyers  and  judges  seem  to  have  caught  at  the  term  "res  gesta,"-^.  .  .  which  was 
a  foreign  term,  a  little  vague  in  its  application,  and  yet  in  some  applications  of  it 
precise,  —  they  seem  to  have  caught  at  this  expression  as  one  that  gave  them 
relief  at  a  pinch.  They  could  not,  in  the  stress  of  business,  stop  to  analyze 
minutely;  this  valuable  phrase  did  for  them  what  the  limbo  of  the  theologians 
did  for  them,  what  a  "catch-all"  does  for  a  busy  housekeeper  or  an  untidy  one 
—  some  things  belonged  there,  other  things  might  for  purposes  of  present  con- 
venience be  put  there.  We  have  seen  that  the  singular  form  of  phrase  soon  began 
to  give  place  to  the  plural;  this  made  it  considerably  more  convenient;  what- 
ever multiplied  its  ambiguity,  multiplied  its  capacity;  it  was  a  larger  "catch-all." 
To  be  sure,  this  was  a  dangerous  way  of  finding  relief,  and  judges,  text-writers, 
and  students  have  found  themselves  sadly  embarrassed  by  the  growing  and 
intolerable  vagueness  of  the  expression. 

464.  Cherry  v.  Slade.  (1823.  North  Carolina.  2  Hawks  400).  Mr.  Gaston 
(afterwards  Judge),  (arguing  pro  querent e  against  declarations  of  residence):  It 
is  sometimes  said  that  there  is  an  exception  when  words  are  the  "res  gestae"  or 
part  of  the  "res  gestae."  But  this  seems  not  to  be  accurate.  The  words  are 
then  received,  not  as  evidence  of  the  truth  of  what  was  declared,  but  because  the 
speaking  of  the  words  is  the  fact,  or  part  of  the  fact,  to  be  investigated.  There 
may  be  a  controversy  whether  A.  B.  at  a  certain  time  spoke  certain  words,  and 
those  who  heard  him  are  of  course  received  to  prove  the  fact.  The  words  spoken 
concurrently  with  an  act  done  are  often  a  part  of  the  act,  and  give  it  a  precise 


698  BOOK  i:     RULES   OF  .ADMISSIBILITY  No.  464 

and  peculiar  character,  and  therefore  must  be  testified,  —  not  to  show  that  the 
words  spoken  are  true,  but  to  show  that  tliey  were  in  fact  spoken.  For  example: 
Did  A  commit  an  assault  on  B?  What  he  said  when  he  laid  his  hands  on  B  will 
show  whether  it  was  an  angry  or  friendly  act.  Did  the  agent  of  defendant  make 
a  certain  representation  in  the  course  of  a  bargain?  If  so,  that  representation 
was  an  ingredient  in  the  bargain. 

465.  FABRIGAS  v.   MOSTYN 

King's  Bench.     1773 

20  Hoiv.  St.  Tr.  137 

[Action  for  false  imprisonment  of  the  plaintiff  by  the  Governor  of 
Minorca;  defence,  that  the  plaintiff  excited  sedition  and  riot.  The 
reasonableness  of  the  governor's  apprehension  of  riot  came  into  issue. 
The  aide-de-camp  to  the  governor  testified  that  a  native  magistrate 
came  to  him  to  report  that  "Fabrigas  said  he  would  come  with  a  mob 
.  .  .  and  they  would  see  better  days  tomorrow."] 

Mr.  Pcckham  (for  the  defence). — You  need  not  mention  what  the 
mustastaph  told  you;  that  is  not  regular. 

Mr.  J.  Gould.  —  I  should  be  glad  to  know  how  the  Governor  can  be 
apprized  of  any  danger  unless  it  is  by  one  or  other  of  his  officers  inform- 
ing him  there  is  likely  to  be  such  and  such  a  thing  happen? 

Mr.  Peckham.  —  Hearsay  is  no  evidence.  .  .  . 

Mr.  J.  Gould.  —  We  do  not  take  it  for  granted  that  it  is  really  so ; 
only  that  this  gentleman,  hearing  of  this,  tells  the  Governor. 

Mr.  Lee  (for  the  defence).  —  It  is  no  evidence  of  the /ad;  if  you 
mean  it  only  as  a  report,  we  do  not  object. 

466.   TILTON  v.   BEECHER 

City  Court  of  Brooklyn,  N.  Y.     1875 

Abbott's  Rep.  I,  800 

[Action  for  criminal  conversation.  With  reference  to  the  plaintiff's 
having  made  inconsistent  statements  or  admissions  of  the  falsity  of  his 
claim,  by  stifling  the  matter  when  first  publicly  investigated,  it  was 
desired  on  his  behalf  to  show  the  true  significance  of  his  conduct  in 
handing  to  his  agent,  Mr.  IVIoulton,  a  statement  to  be  given  by  the  agent 
to  the  investigating  committee,  appointed  by  the  church  to  which  the 
parties  belonged.] 

Mr.  FnUerton  (for  the  plaintiff,  to  the  witness,  Mr.  Moulton).  —  What 
did  he  [the  plaintiff]  say  in  regard  to  it  at  the  time  he  gave  it  to  you? 
[Objected  to.]  ...  If  I  hand  your  Honor  a  certain  paper,  with  a  request 
to  do  a  certain  thing  with  it,  for  a  certain  purpose,  is  not  that  direction 
evidence? 


No.   467  HEARSAY    RULE:     NOT    APPLICABLE  699 

Mr.  Beach  (for  the  plaintiff).  —  Let  me  put  an  illustration  to  your 
Honor.  .  .  .  Suppose  Mr.  Evarts  comes  to  me  and  delivers  a  blow  in 
my  face,  and  at  the  instant  of  delivering  that  blow  he  accuses  me  of 
having  injured  him  in  some  form;  he  gives  the  motives  and  the  purpose 
with  which  he  deli\ers  that  act;  can  that  act  be  proved  against  Mr. 
Evarts,  without  permitting  him  to  give  the  declaration  accompanying 
the  act? 

Mr.  Evarts  (for  the  defendant).  —  That  is  a  spoken  act.  That  is  not 
hearsay.  It  is  a  part  of  the  blow;  it  is  a  spoken  act.  Some  confusion, 
no  doubt  arises  in  lawyers'  discussions  about  hearsay  evidence  that 
comes  by  word  of  mouth  in  connection  with  that  act;  but  your  Honor 
is  familiar  with  the  distinction  that  our  learned  friend  has  given.  .  .  . 
Now  if  he  [Mr.  Tilton]  gave  instructions  to  take  that  paper  and  lay  it 
before  the  council,  or  carry  it  to  ]\Ir.  Beecher,  that  is  a  part  of  the  act 
of  delivering  it  to  him.  But  this  question  is  large  enough  to  draw  out, 
and  so  I  suppose  is  intended  to  draw  out,  a  larger  line  of  hearsay  evidence, 
to  wit,  conversations  between  Mr.  Moulton  and  Mr.  Tilton,  with  which 
IVIr.  Beecher  cannot  be  affected. 

Judge  Neilson.  —  That  distinction  must  be  observed. 


467.   PARNELL  COMMISSION'S  PROCEEDINGS 

Special  Court.     1888 
11th,  13th,  17th,  18th  days.  Times'  Rep.  p.  103,  179 

[The  Irish  Land  League  and  its  leaders  being  charged  by  "  The  Times  " 
with  a  conspiracy  to  encourage  outrage  and  agrarian  violence,  and  the 
general  state  of  the  country  as  to  disquiet  and  apprehension  being  a 
part  of  the  issue,  it  was  conceded  that  the  fact  of  repeated  complaints 
being  made  to  the  police  and  to  employers  by  tenants  and  others  was 
provable.  In  this  process,  testimony  was  offered,  by  "The  Times," 
from  employers,  as  to  reports  made  to  them  by  herdsmen  and  others  of 
injuries  to  cattle,  etc.;  the  reports  being  offered  in  verbal  detail.  To 
this  Sir  Charles  Russell  objected,  for  Mr.  Parnell,  as  hearsay.] 

The  Attorney-General  (in  reply).  —  I  would  respectfully  submit  that 
my  learned  friend  has  forgotten  the  rule  that  the  "res  gestae"  may  be 
proved;  and  if  in  the  course  of  the  proof  of  the  facts  it  is  shown  that 
servants  have  made  inquiries  with  regard  to  them  and  reported  the 
result,  those  reports  form  part  of  the  "res  gestae"  for  the  purpose  of 
ascertaining  under  what  circumstances  the  occurrences  took  place. 

Sir  C.  Russell.  —  As  regards  the  "res  gestae,"  what  is  the  "res"?  That 
certain  cattle  were  injured.  How  can  it  be  part  of  the  "res  gestae"  that 
a  man  who  was  present,  and  saw  the  injury,  afterwards  made  a  statement 
to  a  third  person  of  what  he  had  seen?  To  say  that  this  is  part  of  the 
"res  gestae"  is  an  entire  misapprehension  of  the  rule.  .  .  . 


700  BOOK    i:     RULES   OF   .ADMISSIBILITY  No.  467 

President  Hansen. — The  fact  that  a  particular  report  had  been 
made  by  a  person  in  discharge  of  his  duty  was  admissible  in  evidence, 
not  that  the  contents  of  that  report  should  be  taken  as  evidence  of  the 
facts  to  which  it  related.  If  the  matter  rested  there,  without  there 
being  any  other  evidence  of  the  facts  except  that  contained  in  the  report, 
that  could  not  be  regarded  as  evidence  of  the  facts  by  the  Court.  ... 
There  is  a  broad  distinction  between  a  thing  being  merely  admissible 
in  evidence  and  its  being  taken  as  proof  of  the  facts  alleged. 


468.   WEBB   V.   RICHARDSON 

Supreme  Court  of  Vermont.     1869 

42  Vt.  462 

Trespass,  q.  c.  f.  Plea,  the  general  issue.  Trial  by  jury,  September 
term,  1868,  Steele,  J.,  presiding.  Special  verdict  for  the  defendant. 
Exceptions  by  the  plaintiff.  This  suit  was  commenced  January  18, 
1866.  The  land  in  question  is  lot  64,  2d  div.,  Brunswick,  except  the 
north  twenty  acres.  .  .  .  The  plaintiff  did  not  claim  to  hold  the  land  by 
any  title  derived  by  deed  or  chain  of  deeds  from  the  original  proprietor, 
but  before  resting  offered  evidence  tending  to  prove  that  his  possession 
was  earlier  than  the  defendant's,  and  also  to  prove  that  he  had  acquired 
the  land  by  fifteen  years'  adverse  possession.  .  .  .  The  defendant  claimed 
that  the  plaintiff  could  avail  himself  of  no  possession  prior  to  1822, 
because  he  had  no  color  of  title,  but  the  Court  ruled  that  inasmuch  as 
there  was  a  good  line  of  marked  trees  around  the  lot,  though  not  marked 
by  Hawkins,  that  if  Hawkins  occupied  a  part  of  the  lot  and  claimed  the 
whole  of  it  prior  to  1822,  that  time  should  be  reckoned  in  determining 
whether  the  plaintiff's  grantors  acquired  the  lot  by  possession.  .  .  . 
This  lot  (64)  has  never  been  enclosed,  and  the  larger  part  of  it  has  never 
been  improved,  but  the  plaintiff's  evidence  tended  to  show  that  the 
plaintiff's  grantors,  in  his  said  line  of  deeds  from  Reuben  Hawkins,  had 
used  different  parts  of  it  at  different  times  and  seasons  for  wood,  timber, 
pasture,  and  crops,  continuously  since  1814,  and  had  during  the  same 
period  occupied  the  other  lands  covered  by  the  said  deed.  The  defend- 
ant's evidence  tended  to  prove  the  contrary.  In  March  and  April, 
1800,  Reuben  Hawkins  purchased  the  rights  of  Stephen  Noble  and 
Zadoc  Clark,  one  from  Joseph  Wait,  the  other  from  Hazen  French,  and 
these  made  what  in  some  of  the  deeds  in  the  plaintiff's  chain  of  colorable 
title  is  called  the  "Hawkins  Farm";  adjacent  to  this  farm,  and  within 
sight  of  the  buildings,  w^as  this  lot  64.  The  plaintiff  was  permitted, 
against  the  defendant's  objection,  to  prove  that,  prior  to  1822,  Reuben 
Hawkins,  while  working  on  lot  64,  called  it  his  "possession  lot,"  and 
explained  that  he  was  claiming  and  getting  it  by  possession,  to  which  the 
defendant  excepted.     The  plaintiff  offered  also  to  show  that,   at  other 


No.  468         HEARSAY  RULE:  NOT  APPLICABLE  701 

times  prior  to  1822,  the  said  Hawkins  said  the  same  things,  when  not 
on  lot  64,  but  at  his  house  and  in  sight  of  it,  and  pointing  it  out; 
which  testimony  the  Court  excluded,  to  which  the  plaintiff  excepted.  .  .  . 

The  jury  found  against  the  plaintiff  in  each  respect. 

//.  (£'  G.  A.  Bingham,  for  the  plaintiff".  Ray  &  Ladd  and  Henry 
Heywood,  for  the  defendant. 

The  opinion  of  the  Court  was  delivered  by 

Peck,  J.  —  The  Court  properly  admitted  proof  of  the  declarations  of 
Reuben  Hawkins,  made  while  working  on  lot  sixty-four  to  the  effect 
that  he  called  it  his  "possession  lot,"  and  that  he  was  claiming  and 
getting  it  by  possession. 

But  the  Court  was  in  error  in  excluding  "evidence  to  show  that  at 
other  times,  prior  to  1822,  the  said  Hawkins  said  the  same  things  when 
not  on  lot  sixty-four,  but  at  his  house  and  in  sight  of  it,  and  pointing  it 
out."  To  constitute  a  continuous  possession  it  is  not  necessary  that 
the  occupant  should  be  actually  upon  the  premises  continually.  The 
mere  fact  that  time  intervenes  between  successive  acts  of  occupancy 
does  not  necessarily  destroy  the  continuity  of  the  possession.  The 
kind  and  frequency  of  the  acts  of  occupancy,  necessary  to  constitute  a 
continuous  possession,  depend  somewhat  on  the  condition  of  the  property, 
and  the  uses  to  which  it  is  adapted  in  reference  to  the  circumstances  and 
situation  of  the  possessor,  and  partly  on  his  intention.  If,  in  the  inter- 
mediate time  between  the  diff'erent  acts  of  occupancy,  there  is  no  existing 
intention  to  continue  the  possession,  or  to  return  to  the  enjoyment  of  the 
premises,  the  possession,  if  it  has  not  ripened  into  a  title,  terminates, 
and  cannot  afterward  be  connected  with  a  subsequent  occupation  so  as 
to  be  made  available  toward  gaining  title;  while  such  continual  inten- 
tion might,  and  generally  would,  preserve  the  possession  unbroken.  This 
principle  is  tersely  stated  in  the  civil  law,  thus:  a  man  may  retain  pos- 
session by  intention  alone,  yet  this  is  not  sufficient  for  the  acquisition  of 
possession.  ...  If  the  admissibility  of  such  declarations  is  put  on  the 
ground  of  declarations  constituting  part  of  the  res  gestae,  they  are  admis- 
sible, as  the  res  gestfe  is  not  confined  to  a  particular  act  of  occupancy 
done  upon  the  premises,  but  is  the  continual  possession,  which  includes 
the  successive  acts  of  occupancy.  Since  a  party  who  has  once  com- 
menced a  possession  of  land,  by  actual  entry  and  acts  of  occupancty 
upon  it,  may  continue  to  possess  it  during  intervals  when  not  upon  it, 
he  may  claim  it  during  such  intervals  as  well  as  when  actually  upon  the 
land  doing  acts  of  possession;  and  the  fact  of  his  making  such  claim  is 
provable  by  evidence  of  his  declarations  made  at  the  time,  in  the  same 
manner  and  to  the  same  effect  as  if  made  while  on  the  land,  doing  an 
act  of  possession.  Such  declarations  to  show  the  adverse  character  of 
the  possession  are  quite  as  much  in  the  nature  of  facts  as  in  the  nature  of 
a  medium  of  proof. 

The  judgment  of  the  County  Court  is  reversed,  and  a  new  trial 
granted. 


702  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  469 

469.   STATE  v.   FOX 

Supreme  Court  of  New  Jersey.     1856 

25  A'.  J.  L.  566,  602 

[Murder.  A  witness  for  the  prosecution  testified  to  meeting  the 
accused  on  the  day  of  the  murder,  and  proceeded  to  fix  the  time  and 
place.]  "It  was  between  twenty  and  twenty-five  minutes  past  ten 
o'clock  when  I  reached  home;  I  cannot  fix  the  time  by  any  other  way 
than  what  my  sister  said;  my  sister  remarked  that  I  had  been  very 
quick,  and  that  made  me  look  at  the  clock."  The  counsel  for  the  de- 
fendant here  objected  to  the  reception  of  the  conversation  of  the  said 
witness  with  her  said  sister  as  evidence  in  this  cause,  and  moved  the 
Court  to  overrule  the  same.  The  counsel  for  the  State  objected,  and 
the  Court  thereupon  admitted  the  said  conversation  in  evidence,  and 
refused  to  overrule  the  same. 

To  the  question,  "  When  was  your  attention  first  called  to  the  fact  of 
meeting  the  man  referred  to  by  you,"  the  witness  answered:  "My  at- 
tention was  first  called  to  the  matter  by  being  sent  for  to  Brunswick  by 
Mr.  Jenkins.  I  first  saw  it  in  the  papers;  I  think  it  was  the  'New  York 
Daily  Times;'  I  think  this  was  the  following  Tuesday.  I  heard  of  it 
from  a  neighbor  before  I  left  Brunswick,  but  I  did  not  know  that  I  knew 
about  the  affair.  .  .  .  What  I  saw  in  the  'Times'  called  my  attention 
to  the  fact  of  having  been  to  Brunswick  that  day,  and  meeting  that  man, 
and  I  mentioned  it."  Q.  —  "What  particular  feature  in  the  affair  did 
the  neighbor  call  your  attention  to  before  you  left  New  Brunswick?" 
A.  —  "She  said,  perhaps  the  man  I  met  on  Thursday  morning  might 
have  had  something  to  do  with  it."  The  counsel  for  the  defendant 
here  objected  to  the  reception,  as  evidence  in  this  cause,  of  the  said  con- 
versation of  the  said  witness  with  the  said  neighbor,  and  the  remark  of 
the  said  neighbor  to  the  said  witness,  and  moved  to  overrule  the  same. 
To  which  the  counsel  for  the  State  objected.  The  Court  thereupon 
admitted  the  said  conversation  and  remark  in  evidence.  .  .  . 

The  fifth  and  sixth  errors  assigned  are,  that  the  Court  admitted  in 
evidence  the  conversations  of  third  persons  with  the  witness. 

Green,  C.  J.  —  The  evidence  was  not  offered  or  admitted  to  prove 
the  truth  of  the  facts  stated  to  the  witness,  but  merely  to  show  what  it 
was  that  called  the  attention  of  the  witness  to  a  fact  stated  by  her  or  that 
fixed  the  fact  in  her  recollection.  Whether  the  statement  of  the  third 
person  was  true  or  false  was  perfectly  immaterial.  The  fact  that  the 
communication  was  made,  and  not  its  truth  or  falsity,  was  the  only 
material  point.  The  conversations  were  not  hearsay,  within  the  proper 
meaning  of  the  term. 

There  is  no  error  apparent  in  the  record.  The  judgment  must  be 
affirmed. 


No.  470        HEARSAY  RULE:  NOT  APPLICABLE  703 

470.  STATE  BANK  v.  HUTCHINSON 

SmPREME  Court  of  Kansas.     1900 

62  Kan.  9;   61  Pac.  443 

Error  from  Reno  District  Court;  Matthew  P.  Simpson,  Judge. 
Opinion  filed  June  9,  1900.     Affirmed. 

This  was  an  action  brought  by  the  State  Bank  of  Chatham,  New 
York,  against  W.  E.  Hutchinson,  and  Annie  P.  Hutchinson,  his  wife, 
on  two  promissory  notes  and  separate  mortgages  securing  them.  One 
of  the  notes  was  for  .S4000,  and  the  mortgage  securing  it  was  given  on 
property  in  the  city  of  Hutchinson,  part  of  which  constituted  the  home- 
stead of  the  Hutchinsons.  The  other  note  was  for  S6000,  and  the 
mortgage  securing  it  was  gi\'en  on  a  section  of  farming  land.  The 
Valley  State  Bank  and  the  Bank  of  Hutchinson,  being  claimants  to 
a  mortgage  lien  on  the  section  of  land,  were  made  defendants  to  the 
action. 

W.  E.  Hutchinson  was  the  president  of  the  Valley  State  Bank,  of 
Hutchinson.  He  was  indebted  to  the  State  Bank  of  Chatham  on  a 
personal  obligation  in  the  sum  of  $10,000.  As  collateral  security  to  his 
indebtedness,  he  had  transferred  certain  notes  and  chattel  mortgages 
on  cattle.  One  George  L.  IMorris,  tjje  president  of  the  plaintiff  bank, 
came  to  Kansas  to  investigate  the  chattel-mortgage  collaterals  and 
adjust  the  Hutchinson  indebtedness.  He  could  not  find  the  cattle 
described  in  the  mortgages  nor  the  makers  of  those  instruments.  He 
accused  Hutchinson  of  fraud,  and  threatened  to  prosecute  him  crimi- 
nally and  cause  him  to  be  sent  to  the  penitentiary  unless  the  indebted- 
ness due  to  his  bank  was  at  once  paid  or  secured.  These  threats  were 
not  made  to  Hutchinson  personally,  but  were  made  to  one  C.  B.  Wilfley 
and  one  John  J.  Welch,  officers  of  the  bank  of  which  Hutchinson  was 
president.  They  communicated  the  threats  to  Hutchinson,  who,  in 
turn,  communicated  them  to  his  wife.  In  order  to  satisfy  Morris,  as 
agent  of  the  plaintiff  bank,  and  induce  him  to  forego  a  criminal  prosecu- 
tion against  Hutchinson,  the  latter,  together  with  Wilfley  and  Welch, 
the  other  officers  of  the  Valley  State  Bank,  agreed  with  Morris  to  convey 
to  Mrs.  Hutchinson  a  section  of  farming  land,  owned  by  the  bank,  in 
order  that  the  Hutchinsons  might  give  a  mortgage  on  it,  along  with  their 
homestead  and  other  city  property,  as  security  for  the  debt  which 
Hutchinson  owed  to  the  State  Bank  of  Chatham.  This  conveyance 
was  made.  .  .  . 

The  jury  found  that  the  note  and  mortgage  of  $4000  on  the  home- 
stead were  executed  by  Mrs.  Hutchinson  under  the  duress  of  her  fears 
excited  by  Morris's  threat  to  arrest  and  criminally  prosecute  her  hus- 
band. As  before  stated,  this  threat  was  not  made  to  her,  nor  was  it 
made  to  her  husband,  but  it  was  made  to  her  husband's  business  asso- 


704  BOOK    l:     RULES   OF   ADMISSIBILITY  No.  470 

ciates  and  by  them  communicated  to  him  and  by  liim  to  her.  A 
daughter  of  the  Hutchinsons  testified  that  she  overheard  the  conversa- 
tion between  her  father  and  mother,  in  which  the  former  disclosed  to 
the  latter  the  threats  which  Morris  had  made.  This  was  objected  to, 
and  its  admission  was  assigned  as  error. 

McKinstry  &  FairchUd,  for  plaintiff  in  error.  The  daughter's  testi- 
mony to  what  the  father  said  was  hearsay. 

Martin  (£•  Roberts,  and  //.  Whiteside,  for  defendants  in  error. 

The  opinion  of  the  Court  was  delivered  by 

DosTER,  C.  J.  (after  stating  the  facts  as  above).  .  .  .  Counsel  for 
plaintiff  in  error  contend  against  the  admissibility  of  this  testimony, 
upon  the  ground  that  it  was  hearsay  in  character.  .  .  .  Neither  of  these 
contentions  is  sound. 

There  were  three  substantive  litigated  questions  in  the  case  — 
First,  were  threats  made?  And,  if  so,  secondly,  were  they  communi- 
cated to  Mrs.  Hutchinson?  And,  if  so,  thirdly,  did  they  produce  the 
claimed  effect?  As  to  the  second  of  these  as  well  as  the  first,  the  meri- 
torious question  was,  had  a  verbal  act  been  done?  That  is,  had  a 
communication  been  made?  That  act,  if  done,  was  not  incidental  or 
collateral  in  nature.  It  was  one  of  the  three  principal  litigated  matters 
in  the  case,  and,  being  such,  the  performance  of  the  act  was  provable  by 
the  testimony  of  any  one  who,  if  competent,  was  a  witness  to  it.  The 
question  was  not  whether  Hutchifison's  communication  to  his  wife  was 
truthful,  but  it  was  whether  the  communication  had  been  in  fact  made. 
The  rule  is  general  that,  where  a  substantive  litigated  fact  is  the  speech 
.of  a  person,  one  who  heard  the  utterance  is  admitted  to  testify  to  it,  and 
the  testimony  so  received  is  not  hearsay.  ...  It  is  a  general  rule  in  the 
law  of  evidence  that,  when  the  inducing  cause  of  the  action  of  a  person 
is  the  subject  of  inquiry,  the  information  upon  which  he  acted  may  be 
stated,  although  it  consists  of  the  speech  of  third  persons.  A  familiar 
illustration  of  this  rule  is  afforded  in  cases  of  defense  against  assaults. 
It  is  always  admissible  in  such  case  to  show  the  making  of  threats  by 
those  who  overheard  them,  and  their  communication  to  the  defendant, 
upon  the  strength  of  which  he  armed  himself,  and  resisted  the  assault 
of  his  antagonist.  Judgment  affirmed. 


471.   PIEDIMONT  SAVINGS  BANK  v.  LEA^ 

Supreme  Court  of  North  Carolina.     1905 

138  N.  C.  274;  50  S.  E.  657 

Appeal  from  Superior  Court,  Surry  County;    O.  H.  Allen,  Judge. 

Action  by  the  Piedmont  Savings  Bank,  as  trustee,  against  L.  Levy. 

From  a  judgment  in  favor  of  defendant,  plaintiff  appeals.     Reversed. 

This  is  an  action  by  the  plaintiff,  as  trustee  in  bankruptcy  of  N.  D. 


No.  471  HEARSAY  rule:    not  applicable  705 

Young  &  Co.,  against  the  defendant,  for  the  recovery  of  possession  of  a 
stock  of  goods  which  the  defendant  had  acquired  from  the  bankrupt  a 
short  time  prior  to  the  bankruptcy.  Upon  the  trial  below  the  Court 
submitted  the  following  issues:  (1)  Was  the  conveyance  of  the  stock  of 
goods  from  Young  &  Co.  to  Levy  made  with  the  intent  and  purpose  on 
their  part,  or  either  of  them,  to  hinder,  delay,  or  defraud  their  creditors, 
or  any  of  them?  Ans.  Yes:  (2)  Did  the  defendant  purchase  in  good 
faith,  and  without  knowledge  or  notice  of  such  fraudulent  intent  on  the 
part  of  Young  &  Co.,  or  either  of  them?  Ans.  Yes.  (3)  Is  the  plaintiff 
trustee  the  owner  and  entitled  to  the  immediate  possession  of  the  prop- 
erty described  in  the  complaint?     Ans.  .  .  . 

Louis  M.  Swink,  Lindsay  Paterson,  and  Watson,  Buxton  &  Watson, 
for  appellant.     Manly  &  Hcndrcd,  for  appellee. 

Brown,  J.  —  Upon  the  trial  of  this  action  the  plaintiff,  for  the  purpose 
of  proving  fraud  on  the  part  of  the  transferrors,  N.  D.  Young  &  Co.,  as 
well  as  the  transferee,  the  defendant,  offered  in  evidence  certain  declara- 
tions of  John  A.  Stone,  which  were  admitted  by  the  Court  upon  the  first 
issue,  but  excluded  as  evidence  against  the  defendant  on  the  second 
issue.  As  this  was  erroneous,  and  necessitates  a  new  trial,  we  will  notice 
no  other  exception. 

The  entire  evidence  tended  to  prove  that  John  A.  Stone  was  the 
owner  of  the  business,  goods,  and  merchandise  of  Young  &  Co.,  at  Pilot 
Mountain;  that  Young  "loaned  Stone  the  use  of  his  name,"  and  acted 
as  clerk.  It  is  contended  by  defendant  that  this  stock  of  goods,  which 
is  the  subject  of  the  controversy^,  was  purchased  by  the  defendant  from 
Stone  on  April  6,  1903.  There  is  no  evidence  that  Young  knew  anything 
of  such  alleged  purchase  until  April  21,  1903.  There  is  no  evidence  that 
the' goods  were  taken  possession  of  by  the  defendant  until  after  April 
21st.  The  defendant  himself  testifies  that  he  did  not  take  possession 
until  April  21st,  when  a  deputy  sheriff  levied  on  the  goods  under  an 
execution  against  N.  D.  Young  &  Co.,  but  claims  that  Stone  was  to 
hold  the  goods  for  the  defendant  as  his  bailee.  Defendant  never  notified 
Young  that  he  claimed  the  goods  or  had  any  interest  in  them  until 
April  21st.  All  the  evidence  shows  that  the  goods  were  in  the  actual 
possession  of  John  A.  Stone  and  his  clerk.  Young,  up  to  April  21st,  and 
that  the  receipts  from  sales  were  paid  over  to  Stone  every  day  by  Young, 
and  the  business  conducted  just  as  it  had  been  since  its  establishment 
in  December,  1902. 

The  declarations  of  Stone,  claiming  the  goods,  and  inconsistent  with 
an  absolute  sale,  made  to  several  persons  at  different  times  between  April 
6th  and  April  21st,  are  contended  by  plaintiff  to  be  competent  evidence 
upon  the  question  of  fraud  as  against  the  defendant  upon  two  grounds: 
(1)  Because  there  is  evidence  tending  to  prove  a  conspiracy  between 
Stone  and  Levy  to  defraud  Stone's  creditors;  (2)  because  Stone  remained 
in  actual  possession  and  control  of  the  goods  until  April  21st,  and  there 
was  no  change  in  the  conduct  of  the  business  until  then. 


706  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  471 

As  we  think  the  evidence  is  clearly  competent  against  the  defendant 
upon  the  second  ground,  we  will  not  consider  the  first 

(2)  The  possession  and  control  of  the  goods  having  been  retained  by 
the  debtor,  Stone,  up  to  April  21st,  and  after  his  alleged  sale  to  the  defend- 
ant on  April  Oth,  was  sufficient  of  itself  to  impress  upon  the  transaction  a 
fraudulent  character.  It  was  incumbent  upon  the  defendant  to  explain 
the  character  of  that  possession.  The  defendant  offered  his  own  evi- 
dence, tending  to  remove  the  legal  presumption  of  fraud,  and  to  prove 
that,  without  any  knowledge  upon  the  part  of  Young,  or  any  one  else, 
the  defendant  left  Stone  in  possession  as  defendant's  agent  and  bailee. 
Was  such  possession  of  Stone  in  fact  arid  truth  the  possession  of  a  bailee 
of  the  purchaser,  or  was  it  merely  colorable,  and  a  part  of  the  machinery 
of  fraud?  The  character  of  Stone's  possession  thus  became  a  most 
material  inquiry  upon  the  second  issue.  This  rule  of  evidence  is  the 
same  in  respect  to  real  and  personal  property.  Wigmore  on  Evidence, 
§  1083. 

The  general  doctrine,  as  laid  down  by  all  the  text-writers  and  innu- 
merable adjudications,  is  that  the  declarations  of  the  vendor  made  after 
the  sale  may  be  given  in  evidence  if  the  vendor  continues  to  hold  pos- 
session of  the  goods.  The  rule  is  often  stated  that  the  declarations  of  a 
party  in  possession  either  of  real  or  personal  property  explanatory  of 
and  characterizing  his  possession  constitute  a  part  of  the  res  gestae,  and 
may  properly  be  allowed  in  evidence.  .  .  .  The  underlying  basic  prin- 
ciple of  the  rule  is  that,  the  debtor  transferror's  intent  being  a  necessary 
part  of  the  issue  of  fraud,  all  his  conduct  and  declarations  while  in 
possession  of  the  property,  real  or  personal,  and  dealings  with  it,  which 
indicate  his  intent,  are  receivable  in  evidence  against  him  and  his  trans- 
feree, inasmuch  as  the  conduct  and  utterances  of  a  person  are  indicative 
of  his  knowledge,  beliefs,  purposes,  or  intent  when  they  are  facts  in 
issue.  ...  In  Askew  v.  Reynolds,^  which  is  a  case  on  all  fours  with  this, 
Judge  Gaston,  after  stating  that  the  possession  of  the  slaves  having  been 
retained  by  the  debtor  after  the  execution  of  his  bill  of  sale  was  sufficient 
to  impress  upon  the  transaction  the  character  of  a  fraudulent  transfer, 
unless  from  other  facts  and  circumstances  another  character  could  clearly 
be  assigned  to  it,  decides  that  the  declarations  of  the  grantor,  as  evidence 
against  the  grantee  upon  the  question  of  fraud,  were  competent,  and 
should  have  been  received  in  evidence.  This  learned  and  accomplished 
jurist  says: 

"Generally  the  acts  or  declarations  of  a  grantor  after  the  conveyance  made 
are  not  to  be  received  to  impeach  his  grant.  The  rights  of  the  grantee  ought 
not  to  be  prejudiced  by  the  conduct  of  one  who  at  the  time  is  a  stranger  to  him 
and  to  the  subject-matter  of  those  rights.  But  the  acts  and  declarations  rejected 
in  this  case  were  those  of  the  possessor  of  the  property,  were  connected  ^ith  that 
possession,  and  formed  a  part  of  its  attendant  circumstances.     They  were  collat- 

^  18  N.  C.  368. 


No.  471  HEARSAY  rule:    not  applicable  707 

eral  indications  of  the  nature,  extent,  and  purposes  of  that  possession.  They 
were  to  be  admitted,  not  because  of  any  credit  due  to  him  by  whom  they  were 
done  or  uttered,  but  because  they  qualified  and  characterized,  or  tended  to  qualify 
and  characterize,  the  very  fact  to  be  investigated." 

Prof.  Wigniore,  in  his  elaborate  treatise  on  Evidence,  §  1086,  p.  1300, 
quotes  the  larger  part  of  Judge  Gaston's  opinion,  and  says:  " This  theory 
can  hardly  be  impugned  in  its  logic.  Reduced  to  a  rule,  it  admits  the 
declarations  when  made  during  possession,  whether  or  not  the  debtor 
is  a  party  to  the  cause."  We  have  not  only  the  high  authority  of  Judge 
Gaston  in  support  of  our  view,  but  we  have  the  equally  high  authority 
of  Chief  Justice  Ruffin,  who  says  in  Foster  v.  Woodfin,  33  N.  C.  339, 
after  fully  endorsing  the  opinion  of  Judge  Gaston: 

"Where  a  man  has  conveyed  a  personal  chattel,  but  still  retains  the  possession, 
his  acts  and  declarations,  even  subsequent  to  such  conveyances,  while  he  remains 
in  possession,  are  evidence  against  the  vendee  or  grantee  on  a  question  of 
fraud."  .  .  . 

There  are  a  number  of  other  cases  in  our  own  Reports,  which  with 
striking  uniformity  sustain  the  view  we  have  here  presented.  It  would 
be  a  work  of  supererogation  to  add  anything  more  to  the  weight  of 
authority  which  we  have  invoked. 

As  there  was  much  debate  as  to  the  competency  and  scope  of  the 
evidence  offered,  we  have  gone  into  the  question  more  fully  than  we 
otherwise  would.  .  .  . 

New  trial. 


708  BOOK   i:     RULES  OF  ADMISSIBILITY  No.  472 


TITLE  IV.    PMOPIIY LACTIC  MULES 

472.  Introductory.  These  Prophylactic  Rules  operate  in  one  or  both  of 
two  slightly  different  ways.  The  expedient  which  they  apply  serves  either  to 
eliminate  the  supposed  testimonial  danger  by  counteracting  its  influence  in  ad- 
vance, or  to  furnish  a  means  by  which  it  can  be  discovered  and  other  measures 
can  be  taken  to  counteract  it  at  the  trial.  The  Oath  operates  in  the  first  way 
only,  by  setting  against  the  witness'  motives  to  falsify  his  fear  of  divine  punish- 
ment and  thus  nullifying  in  advance  the  influence  of  the  former.  The  Perjury- 
Penalty  operates  in  the  same  way,  merely  substituting  the  fear  of  temporal 
punishment  for  the  fear  of  divine  punishment.  The  Publicity  rule  operates  in 
both  of  the  above  ways,  first,  by  subjecting  the  witness  to  the  fear  of  the  later 
consequences  of  public  opinion  and  of  a  present  exposure  by  interested  bystand- 
ers, and,  next,  by  providing  the  means  of  counteracting  his  possible  falsities 
through  the  presence  of  those  who  can  contradict  him.  The  Sequestration  of 
Witnesses  operates  partly  in  the  first  way,  by  preventing  collusion,  but  chiefly 
in  the  second  way,  by  furnishing  a  means  of  exposing  that  collusion  if  it  has  already 
taken  place.  The  Notice  of  Evidence  to  the  Opponent  operates  only  in  the 
second  way,  by  furnishing  the  opponent,  in  advance  of  the  trial,  with  knowledge 
of  the  proposed  evidence,  and  by  thus  enabling  him  to  prepare  to  expose  false 
evidence;  though  perhaps  there  is  also  involved  an  effect  of  the  first  sort,  in 
subjectively  deterring  the  opponent  from  offering  that  which  he  knows  can  be 
shown  false. 

SUB-TITLE   I.     OATH 

473.  History.  The  employment  of  oaths  takes  our  history  back  to  the  origins 
of  Germanic  law  and  custom,  where,  as  in  all  primitive  civilizations,  the  appeal 
to  the  supernatural  plays  an  important  part  in  the  administration  of  justice. 
But  the  use  of  oaths  for  witnesses  appears  as  only  a  single  and  subordinate  phase 
of  the  general  resort  to  oaths.  The  early  Germanic  modes  of  trial  consisted 
largely  in  a  reference,  in  one  form  or  another,  to  the  judicium  Dei.  By  oaths 
formally  taken  one  might  even  establish  his  claim  or  his  plea  beyond  attack.  It 
was  not  a  matter  of  weighing  the  credibility  of  a  sworn  statement;  the  thought 
was  rather  that  such  an  appeal  could  not  be  falsely  made  with  impunity.  To 
such  an  invocation  a  judicial  and  determinative  effect  was  attributed  by  the 
religious  notions  of  the  times. 

The  progress  from  this  notion  of  the  oath  at  large  (which  left  its  traces  as  late 
as  the  1800s  in  some  of  the  common  modes  of  procedure)  to  the  second  stage  of 
a  test  or  security  for  credibility  was  slow  and  gradual. 

In  the  1700s  came  the  beginning  of  a  third  stage  of  development,  in  which 
legislation  sanctioned  what  the  community  had  come  finally  to  believe,  namely, 
that  the  inexorable  requirement  of  an  oath  worked  injustice  and  that  theological 
belief  should  not  obstruct  the  admission  of  competent  witnesses.  In  this  stage 
the  tendency  has  been  either  to  make  the  application  of  the  oath  optional  with 
the  witness,  or  to  abandon  its  essential  feature  by  rendering  theological  belief 
unnecessary. 

It  is  with  the  second  stage  that  the  common  law  has  to  deal;  the  ideas  of  the 
first  stage  having  practically  disappeared  entirely  from  the  common  law  of  the 


No.  476  OATH  709 

last  three  centuries.  The  changes  constituting  the  third  stage  of  abandonment 
or  election  have  everywhere  been  made  by  legislation.  The  common-law  ques- 
tions are:  (1)  What  was  the  nature  and  what  the  form  of  a  testimonial  oath? 
(2)  What  was  the  capacity  necessary  in  order  to  be  able  to  take  the  oath?  (3) 
What  testimony  is  required  to  be  .subjected  to  it? 

474.  Joseph  Chitty.  The  Practice  of  the  Law.  4th  Amer.  ed.,  (1841)  I,  616. 
The  form  at  the  assizes  or  sessions  is,  for  the  clerk  of  arraigns  or  of  the  peace 
to  desire  the  witness  to  take  the  book  in  one  hand,  and,  when  that  is  done,  to 
say  to  him,  "  The  evidence  you  shall  give  between  our  sovereign  lord  the  king 
and  the  prisoner  at  the  bar  shall  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  So  help  you  God!  "   upon  which  the  witness  kisses  the  book.^ 

475.  Clinton  r.  State  (1877.  Ohio.  3.3  Oh.  St.  33).  Ashburn,  J.  The 
purpose  of  the  oath  is  not  to  call  the  attention  of  God  to  the  witness,  but  the 
attention  of  the  witness  to  God;  not  to  call  upon  Him  to  punish  the  false-swearer, 
but  on  the  witness  to  remember  that  he  will  surely  do  so.  By  thus  lajnng  hold 
of  the  conscience  of  the  witness  and  appealing  to  his  sense  of  accountability, 
law  best  insures  the  utterance  of  truth. 

476.  Lady  Lisle's  Trial.  (1685.  W'inchester.  11  How.  St.  Tr.  325).  [The 
duke  of  Monmouth  had  raised  a  rebellion  in  the  West,  to  dethrone  James  H  and 
oust  the  Roman  Catholic  influence.  The  duke's  army  was  made  up  of  Puritans 
and  other  sections  of  Protestants.  It  was  defeated  and  fled.  To  try  the  captured 
rebels.  Chief  Justice  Jeffreys  started  on  the  "Bloody  Assizes"  in  August.  At 
Winchester,  Lady  Lisle,  sainted  and  honoured  in  the  community,  was  charged 
with  harboring  some  of  the  fleeing  rebels,  was  found  guilty,  and  executed.  The 
following  testimony  was  exacted  from  one  of  the  rebels  who  had  received  the 
shelter.] 

Mr.  Pollexfen.  —  Next,  my  lord,  we  come  to  prove  the  message  and  corre- 
spondence between  this  same  Hicks,  and  the  prisoner  Mrs.  Lisle. 

Mr.  Jennings.  —  Swear  Mr.  James  Dunne.     (Which  was  done.) 

Mr.  Pollexfen.  —  If  your  lordship  please  to  observe,  ...  I  must  acquaint 
your  lordship,  that  this  fellow,  Dunne,  is  a  very  unwilling  witness;  and  therefore, 
with  submission  to  your  lordship,  we  do  humbly  desire  your  lordship  would  please 
to  examine  him  a  little  more  strictly. 

L.C.J. — You  say  well.  Now  mark  what  I  say  to  you,  friend.  .  .  .  Thou  hast 
a  precious  immortal  soul,  and  there  is  nothing  in  the  world  equal  to  it  in  value. 
.  .  .  Consider  that  the  Great  God  of  Heaven  and  Earth,  before  whose  tribunal 
thou  and  we  and  all  persons  are  to  stand  at  the  last  day,  will  call  thee  to  an 
account  for  the  rescinding  his  truth,  and  take  vengeance  of  thee  for  every  false- 
hood thou  tellest.  I  charge  thee,  therefore,  as  thou  will  answer  it  to  the  Great 
God,  the  judge  of  all  the  earth,  that  thou  do  not  dare  to  waver  one  tittle  from  the 
truth,  upon  any  account  or  pretense  whatsoever;  .  .  .  for  that  God  of  Heaven 
may  justly  strike  thee  into  eternal  flames  and  make  thee  drop  into  the  bottomless 


^  The  usual  form  of  words  in  civil  cases  differed  slightly: 

"The  evidence  that  you  shall  give  to  the  Court  and  jury,  touching  the  matters 

in  question,  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth;   So 

help  you  God!" 


710  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  476 

lake  of  fire  and  brimstone,  if  thou  offer  to  deviate  the  least  from  the  truth  and 
nothing  but  the  truth.  .  .  . 

According  to  the  command  of  that  oath  that  thou  hast  taken,  tell  us  who 
employed  you,  when  you  were  employed,  and  where?  Who  caused  you  to  go 
on  this  message,  and  what  the  message  was?  .  .  . 

L.  C.  J.  —  Who  shewed  thee  the  way  to  thy  lodgings?     Dunne.  —  The  girl. 

L.  C.  J .  —  Who  else  didst  thou  see  in  the  house?  Dunne.  —  I  saw  no  body  at 
all. 

L.  C.  J.  —  Then  who  shewed  thee  thy  way  to  the  stable,  and  helped  thee  with 
horse-meat?     Dunne.  —  Nobody  helped  me  to  horse-meat. 

L.  C.  J.  —  Why,  thy  horse  did  not  feed  on  thy  cake  and  cheese,  did  he? 
Dunne.  —  There  was  hay  in  the  rack,  my  lord. 

L.  C.  J.  —  Was  the  stable  door  locked  or  open?  Dtmne.  —  The  stable  door 
was  latched,  and  I  plucked  up  the  latch.  .  .  . 

L.  C.  J.  —  .  .  .  .  Didst  thou  see  that  man  Carpenter  the  bailiff  that  thou 
spokest  of?     Dunne.  —  Mr.  Carpenter  gave  my  horse  hay.  .  .  . 

L.  C.  J.  —  Did  you  see  anybody  else  but  that  girl  you  speak  of?  Dunne. — 
My  lord,  I  did  see  the  girl  there.  .  .  . 

L.  C.  J Sirrah,  tell  me  plainly  did  you  see  nobody  else?     Dunne.  — 

No,  my  lord. 

L,  C  .  J .  —  Not  anybody?     Dunne.  —  No,  my  lord,  not  any  one.  .  .  . 

L.  C.  J.  —  Recollect  yourself,  and  consider  well  of  it.  Dunne.  —  Truly,  my 
lord,  I  do  not  know  of  anybody  else. 

L.  C.  J.  —  Now  upon  your  oath  tell  me  truly,  who  it  was  that  opened 
the  stable  door,  was  it  Carpenter  or  you?  Dunne.  —  It  was  Carpenter,  my 
lord. 

L.  C.  J.  —  Why  thou  vile  \^Tetch,  didst  not  thou  tell  me  just  now,  that  thou 
pluckedst  up  the  latch?  Dost  thou  take  the  God  of  heaven  not  to  be  a  God  of 
truth,  and  that  he  is  not  a  witness  of  all  thou  say  est?  Dost  thou  think  because 
thou  prevaricatest  with  the  court  here,  thou  canst  do  so  with  God  above,  who 
knows  thy  thoughts?  And  it  is  infinite  mercy,  that,  for  those  falsehoods  of 
thine,  he  does  not  immediately  strike  thee  into  hell !  Jesus  God !  there  is  no  sort 
of  conversation  nor  human  society  to  be  kept  with  such  people  as  these  are,  who 
have  no  other  religion  but  only  in  pretence,  and  no  way  to  uphold  themselves  but 
by  countenancing  lying  and  villainy!  Did  not  you  tell  me  that  you  opened  the 
latch  yourself,  and  that  you  saw  nobody  else  but  a  girl?  How  durst  you  offer 
to  tell  such  horrid  lies  in  the  presence  of  God  and  of  a  court  of  justice?  .  .  . 
Thou  art  a  strange  prevaricating,  shuffling,  sniveling,  lying  rascal. 

Mr.  Pollexfen.  —  We  will  set  him  by  for  the  present,  and  call  Barter,  that  is 
the  other  fellow.  .  .  . 

L.  C.  J.  —  Then  let  my  honest  man,  Mr.  Dunne,  stand  forward  a  little. 
Come,  friend,  you  have  had  some  time  to  recollect  yourself;  let  us  see  whether 
we  can  have  the  truth  out  of  you  now.  ...  I  charge  thee,  therefore,  as  thou  wilt 
answer  it  to  that  God  of  truth,  and  that  thou  mayest  be  called  to  do,  for  aught 
I  know,  the  very  next  minute,  and  there  thou  wilt  not  be  able  to  palliate  the  truth ; 
what  was  that  business  you  and  my  lady  spoke  of?  (Then  Dunne  paused  for 
half  a  quarter  of  an  hour,  and  at  last  said): 

Dunne.  —  I  cannot  give  an  account  of  it,  my  lord. 

L.  C.  J.  —  Oh  blessed  God!  Was  there  ever  such  a  villain  upon  the  face  of 
the  earth;  to  what  times  are  we  reversed!  Dost  thou  believe  that  there  is  a 
God?     Dunne. — Yes,  my  lord,  I  do. 


No.  477  OATH  711 

L.  C.  J.  —  Dost  thou  believe,  that  that  (Jod  can  endure  a  lie?  Dunne.  — 
No,  my  lord,  I  know  he  cannot. 

L.  C.  J.  —  And  dost  thou  believe  then  that  He  is  a  God  of  truth?  Dnnne.  — 
Yes,  my  lord,  I  do. 

L.  C.  J.  —  Dost  thou  think,  that  that  God  of  truth  may  immediately  sink 
thee  into  hell-fire  if  thou  tellest  a  lie?     Dvnnc.  —  I  do,  my  lord. 

L.  C.J.  —  I  therefore  once  more  adjure  thee,  as  thou  wilt  answer  it  to  that 
God,  that  is  the  Searcher  of  the  hearts  and  trier  of  the  reins,  to  whom  all  hearts 
are  open,  and  from  whom  no  secrets  are  hid,  that  thou  make  me  a  plain  answer 
to  my  question;  and  as  thou  hast  called  God  to  bear  witness  to  the  truth  of  the 
evidence  thou  givest  here  in  this  court,  so  I  charge  thee,  in  His  name,  to  declare 
the  truth,  and  nothing  but  the  truth.  Now  tell  us  what  was  the  business  you 
spoke  of?     (But  he  made  no  answer.)  .  .  . 

Mr.  Rinnsey.  —  Now,  my  lord,  Dunne  says  he  will  tell  all,  whether  it  make 
for  or  against  him. 

L.  C.  J.  —  Let  him  but  tell  the  truth,  and  I  am  satisfied.  Dunne.  —  Sure, 
my  lord,  .  .  .  when  we  came  to  my  Lady  Lisle's  on  the  Tuesday  night,  somebody 
took  the  two  horses,  I  cannot  tell  who,  if  I  were  to  die;  the  two  went  in;  and  after 
I  had  set  up  my  horse,  I  went  in  along  with  Carpenter  up  into  the  chamber  to 
my  lady,, and  to  this  Hicks  and  Nelthorp;  and  when  I  came  there,  I  heard  my 
lady  bid  them  welcome  to  her  house;  and  Mr.  Carpenter,  or  the  maid,  I  cannot 
tell  which,  brought  in  the  supper,  and  set  it  on  the  table.  .  .  . 

L.  C.  J.  — And  why  didst  thou  tell  so  many  lies  then?  Jesus  God!  that  we 
should  live  to  see  any  such  creatures  among  mankind.  ...  I  pity  thee  with  all 
my  soul  and  pray  for  thee,  but  it  cannot  but  make  all  mankind  to  tremble  and  be 
filled  with  horror,  that  such  a  wretched  creature  should  live  upon  the  earth. 


477.   OMICHUND  v.   BARKER 

Chancery.     1744 
Willes  538;   1  Atl-.  45;   1  WUs.  84 

Several  persons  resident  in  the  East  Indies  and  professing  the  Gen- 
too  religion,  having  been  examined  on  oath  administered  according  to 
the  ceremonies  of  their  religion  under  a  commission  sent  there  from  the 
Court  of  Chancery,  it  became  a  question  whether  those  depositions 
could  be  read  in  evidence  here;  and  the  Lord  Chancellor,  conceiving  it 
to  be  a  question  of  considerable  importance,  desired  the  assistance  of 
Lee,  Lord  Chief  Justice,  B.  R.,  Willes,  Lord  Chief  Justice,  C.  B.,  and 
the  Lord  Chief  Baron  Parker,  who  after  hearing  the  case  argued '  were 
unanimously  of  the  opinion  that  the  depositions  ought  to  be  read.  .  .   . 

Willes,  C.J.  —  As  to  the  general  question.  Lord  Coke  has  resolved  it 


1  A  case  of  which  Burke  said  in  1794  (Works,  Little,  Brown  &  Go's,  ed., 
XI,  77) :  "  one  of  the  cases  the  most  solemnly  argued  that  has  been  in  man's 
memory,  with  the  aid  of  the  greatest  learning  at  the  bar,  and  with  the  aid  of 
all  the  learning  on  the  bench,  both  bench  and  bar  being  then  supplied  with 
men  of  the  first  form." 


712  BOOK    i:     RULES    OF    ADMISSIBILITY  No.  477 

in  the  negative,  Co.  Lit.  G  b,  —  that  an  infidel  cannot  be  a  witness;  and 
it  is  phiin  by  this  word  "infidel"  he  meant  Jews  as  well  as  heathens, 
that  is,  all  who  did  not  believe  the  Christian  religion.  .  .  .  Having  now, 
I  think,  i'.ufHciently  shown  that  Lord  Coke's  rule  is  without  foundation 
either  in  Scripture,  reason,  or  law,  that  I  may  not  be  understood  in  too 
general  a  sense,  I  shall  repeat  it  over  again,  that  I  only  give  my  opinion 
that  such  infidels  who  believe  a  God  and  that  he  will  punish  them  if 
they  swear  falsely,  in  some  cases  and  under  some  circumstances,  may  and 
ought  to  be  admitted  as  witnesses  in  this  though  a  Christian  country. 
And  on  the  other  hand,  I  am  clearly  of  opinion  that  such  infidels  (if  any 
such  there  be)  who  either  do  not  believe  a  God,  or  if  they  do,  do  not 
think  that  he  will  either  reward  or  punish  them  in  this  world  or  in  the 
next,  cannot  be  witnesses  in  any  case  nor  under  any  circumstances,  for 
this  plain  reason,  because  an  oath  cannot  possibly  be  any  tie  or  obligation 
upon  them.^  .  .  . 

In  order  to  obtain  justice  the  plaintiff  in  this  cause  laid  his  case 
properly  before  the  Court  of  Chancery,  and  prayed  a  commission  to 
Calcutta;  and  the  Court  of  Chancery,  I  think  very  rightly  and  with  great 
justice,  ordered  a  commission  to  go,  and  that  the  words  "on  tlie  Holy 
Evangelists"  should  be  omitted,  and  the  word  "solemnly"  inserted  in 
their  room;  and  likewise  very  prudently  directed  that  the  commissioners 
should  certify  upon  the  return  of  the  commission  in  what  manner  the 
oath  was  administered  to  the  witnesses  examined  on  the  commission; 
and  what  religion  they  were  of.  The  commissioners  accordingly  returned 
that  the  oath  was  administered  to  the  witnesses  in  the  same  words  as 
here  in  England,  which  fully  answers  the  objection  (if  there  was  anything 
in  it)  that  the  form  of  the  oath  cannot  be  altered ;  and  they  certified  that 
after  the  oath  was  read  and  interpreted  to  them,  they  touched  the 
Bramin's  hand  or  foot,  the  same  being  the  usual  and  most  solemn  manner 
in  which  oaths  are  administered  to  witnesses  who  profess  the  Gentoo 
religion,  and  in  the  same  manner  in  which  oaths  are  usually  administered 
to  persons  who  profess  the  Gentoo  religion  on  their  examination  as  wit- 
nesses in  the  Courts  of  justice  erected  by  virtue  of  his  Majesty's  letters- 
patent  at  Calcutta;  and  they  further  certified  that  the  witnesses  so 
examined  were  all  of  the  Gentoo  religion.  This  certificate,  I  think,  fully 
answers  the  objection  that  it  does  not  appear  that  the  witnesses  believe 
a  God,  or  that  he  will  punish  them  if  they  swear  falsely;  which,  as  I  have 
already  said,  I  admit  to  be  requisites  absolutely  necessary  to  qualify 
a  person  to  take  an  oath.  .  .  .  Lord  Stairs,  in  his  Institutes  of  the  Laws 
of  Scotland,  p.  692,  confirms  this,  where  he  says,  "It  is  the  duty  of 
Judges  in  taking  the  oaths  of  witnesses  to  do  it  in  those  forms  that  will 

^  [In  another  of  the  reports,  his  words  are:  "Though  I  am  of  opinion  that 
infidels  who  believe  a  (iod  and  future  rewards  and  punishments  in  the  other  world 
may  be  witnesses,  yet  I  am  as  clearly  of  opinion  that  if  they  do  not  believe  a  God 
or  future  rewards  and  punishments,  they  ought  not  to  be  admitted  as  witnesses." 
Ed.I 


No.  480  OATH  713 

most  touch  the  conscience  of  the  swearers  according  to  their  persuasion 
and  custom;  and  tiiough  Quakers  and  fanatics  deviating  from  the  com- 
mon sentiments  of  mankind  refuse  to  give  a  formal  oath,  yet  if  they  do 
that  which  is  materially  the  same,  it  is  materially  an  oath."  .  .  .  The 
form  of  oaths  varies  in  countries  according  to  different  laws  and  constitu- 
tions, but  the  substance  is  the  same  in  all.  ...  It  would  be  absurd  for 
him  to  swear  according  to  the  Christian  oath,  which  he  does  not  believe; 
and  therefore,  out  of  necessity,  he  must  be  allowed  to  swear  according 
to  his  own  notion  of  an  oath. 

Hardwicke,  L.  C.  .  .  .  (approving  a  passage  from  Bishop  Sander- 
son): " Juramentum,"  saith  he,  "est  affirmatio  religiosa."  All  that  is 
necessary  to  an  oath  is  an  appeal  to  the  Supreme  Being,  as  thinking  him 
the  rewarder  of  truth  and  the  avenger  of  falsehood.  ... 

The  next  thing  ...  is  the  form  of  the  oath.  It  is  laid  down  by  all 
writers  that  the  outward  act  is  not  essential  to  the  oath.  ...  It  has  been 
the  wisdom  of  all  nations  to  administer  such  oaths  as  are  agreeable  to 
the  notion  of  the  person  taking. 

478.  Miller  v.  Salomons.  (1852.  Exchequer.  7  Exch.  535,  558,  615).  Alder- 
son,  B.  Omichuiui  v.  Barker  has  settled  that  it  ought  to  be  taken  in  that  form 
and  upon  that  sanction  which  most  effectually  binds  the  conscience  of  the  party 
swearing.  Thus,  a  Jew  is  to  be  sworn  on  the  Book  of  the  Law  and  with  his  head 
covered,  a  Brahmin  by  the  mode  prescribed  by  his  peculiar  faith,  a  Chinese  by 
his  special  ceremonies,  and  the  like. 

Pollock,  C.  B.  ...  It  appears  to  me  to  have  decided  merely  this,  —  that 
the  common  law  of  England  agrees  with  the  law  of  nations,  that  the  form  of 
an  oath  is  to  be  accommodated  to  the  religious  persuasion  which  the  swearer 
entertains. 

Martin,  B.  .  .  .  The  doctrine  laid  down  [in  Omichund  v.  Barker]  was  that 
the  essence  of  another  oath  was  an  appeal  to  the  Supreme  Being  in  whose  exist- 
ence the  person  taking  the  oath  believed,  and  whom  he  also  believed  to  be  a  re- 
warder  of  truth  and  an  avenger  of  falsehood. 

479.  People  v.  Matteson.  (1824.  New  York.  2  Cow.  433).  Walworth,  J. 
I  apprehend  the  true  test  of  the  competency  of  a  witness  to  be  this:  Has  the 
obligation  of  an  oath  any  binding  tie  upon  his  conscience?  Or  in  other  words, 
does  the  witness  believe  in  the  existence  of  a  God  who  will  punish  his  perjury? 
If  he  swears  falsely,  does  he  believe  he  will  be  punished  by  an  overruling  Provi- 
dence, either  in  this  world  or  in  the  world  to  come? 


480.    BRADDON'S  TRIAL 

(1684.     9  How.  St.  Tr.  1127,  1148) 

Attorney  General.     What  age  are  you  of?     Witness.     I  am  thirteen, 
my  lord. 

A.  G.     Do  you  know  what  an  oath  is?     W.     No. 


714  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  480 

L.  C.  J.  Jefferies.  Suppose  you  should  tell  a  lie;  do  you  know  who 
is  the  father  of  liars?     W.     Yes. 

L.  C.  J.     ^Yho  is  it?     W.     The  devil. 

L.  C.  J.  And  if  you  should  tell  a  lie,  do  you  know  what  will  become 
of  you?     W.     Yes. 

L.  C.  J.  If  you  should  call  God  to  witness  to  a  lie,  what  would 
become  of  you  then?  W.  I  should  go  to  hell-fire.  L.  C.  J.  That  is  a 
terrible  thing.     [And  the  child  was  admitted]. 

481.  Charles  Dickens.  Bleak  Ilonse  (1852).  Chap.  XI.  [Little  Joe,  the 
crossing-sweeper,  is  called  to  the  coroner's  inquest,  to  say  what  he  knows  of  the 
dead  lodger,  and  these  are  his  answers] :  "  Name,  Jo.  Nothing  else  that  he  knows 
on.  .  .  .  No  father,  no  mother,  no  friends.  Never  been  to  school.  What's 
home?  Knows  a  broom's  a  broom,  and  knows  it's  \vicked  to  tell  a  lie.  Don't 
recollect  who  told  him  about  the  broom,  or  about  the  lie,  but  knows  both.  Can't 
exactly  say  what'll  be  done  to  him  after  he's  dead  if  he  tells  a  lie  to  the  gentle- 
men here,  but  believes  it'll  be  something  wery  bad  to  punish  him,  and  serve  him 
right,  and  so  he'll  tell  the  truth."  "This  won't  do,  gentlemen ! "  says  the  coroner, 
with  a  melancholy  shake  of  the  head.  "Don't  you  think  you  can  receive  his 
evidence,  sir?"  asks  an  attentive  jurjTuan.  "Out  of  the  question,"  says  the 
coroner.  "You  have  heard  the  boy.  'Can't  exactly  say, '  won't  do,  you  know. 
We  can't  take  that,  in  a  court  of  justice,  gentlemen!  It's  terrible  depravity. 
Put  the  boy  aside."  Boy  put  aside;  to  the  great  edification  of  the  audience; 
especially  of  Little  Swills,  the  comic  vocalist. 


482.   HUGHES  v.   DETROIT,   GRAND  HAVEN  & 
MILWAUKEE   R.   CO. 

Supreme  Court  of  Michigan.     1887 

65  Mich.  10;  31  N.  W.    605 

Error  to  Superior  Court  of  Detroit.  (Chipman,  J.)  Argued  October 
21  and  22,  1886.  Decided  February  10,  1887.  Case.  Defendant  brings 
error.     Reversed. 

PlaintiflF,  a  little  colored  boy,  who  is  now  between  six  and  seven  years 
old,  and  was,  when  injured,  five  years  old  or  under,  recovered  judgment 
in  the  superior  court  of  Detroit  for  personal  injuries  causing  the  loss  of  a 
leg  and  some  other  damage.  In  July,  1884,  towards  the  close  of  the  day, 
but  during  daylight,  according  to  the  claim  of  his  declaration,  he  was  on 
the  front  of  a  switching  locomotive  which  was  making  up  and  distributing 
freight  trains,  and  standing  upon  a  plank  step  used  for  switchmen  and 
brakemen  to  stand  upon  in  their  yard-work,  and,  as  he  asserts,  w^as 
thrown  off  by  a  sudden  start  or  a  sudden  stop,  and  run  over.  The 
negligence  alleged  was  the  failure  of  the  train-men  to  put  him  off  before 
moving,  and  the  rapid  action  in  starting  and  stopping.  .  .  . 

George  Jerome  (E.  W.  Meddaugh,  of  counsel),  for  appellant.  S.  E. 
Engle,  for  plaintiff. 


No.  482  OATH  715 

Campbell,  C.  J.  (after  stating  the  facts  as  above).  .  .  .  Under  the 
charge,  as  already  given,  the  jury  were  directed  not  to  find  for  plaintiff 
unless  the  engineer  actually  saw  the  plaintiff  on  the  foot-board.  ...  It 
was  not  disputed,  but  admitted  on  the  argument  in  this  court,  that,  if 
the  engineer  actually  saw  the  boy  on  the  foot-board  before  moving,  he 
would  be  bound  to  use  efficient  care  to  prevent  injury  to  him;  but  he 
is  denied  that  he  was  on  the  foot-board,  or,  if  so,  was  seen  by  the  engineer, 
or  any  one  else,  in  that  position.  The  fact  that  the  boy  himself  is  the 
only  witness  who  says  the  engineer  saw  him  renders  another  question 
important,  which  is  how  far  this  testimony  was  admissible.  .  .  . 

There  was  conflicting  testimony  as  to  the  likelihood  or  possibility  of 
seeing  him  on  the  board.  He  himself  says  he  ran  back  and  forth  over  it 
while  the  engine  was  not  moving,  and  finally  got  on  it  just  before  starting, 
and  then  stayed  on  till  he  fell  off.  He  also  says  he  faced  the  engine,  while 
the  other  testimony  would  not  so  indicate.  All  of  this  shows  the  great 
importance  of  this  particular  fact,  and  the  danger  of  assuming  it  when  the 
testimony  conflicted.  So  it  was  equally  important  to  know  whether,  if 
seen  at  all,  he  was  seen  before  starting.  .  .  .  The  boy's  own  testimony 
as  to  how  he  fell  oft"  is  not  quite  the  same  in  the  direct  as  on  the  cross- 
examination.  On  the  direct,  the  impression  he  gives  is  that  he  was 
thrown  off  by  a  sudden  starting  and  jerk.  On  the  cross-examination  he 
says  he  was  carried  forward,  and  in  no  other  direction,  with  the  engine, 
until  near  the  switch,  and  then  fell  off  close  by  the  switch.  Rosa  Bushy, 
one  of  his  witnesses,  on  the  other  hand,  says  the  engine  went  back  with 
him  towards  Hastings  street  before  taking  him  east  to  the  switch.  .  .  . 

The  charge  seemed  to  go  upon  the  idea  that  the  plaintiff's  account  was 
the  one  to  be  chiefly  acted  on  by  the  jury.  .  .  .  Passing  by  minor  points, 
this  makes  it  necessary  to  determine  concerning  the  admissibility  of  this 
proof.  It  has  been  held  by  this  Court,  as  well  as  Courts  generally,  that 
the  fact  that  a  child  is  under  seven  years  does  not  create  an  absolute 
disability  to  testify.  This  was  held  in  McGuire  v.  People,  44  Mich.  286, 
and  is  the  doctrine  of  the  text-books.  But  the  authorities  all  agree  that 
a  child  cannot  testify  unless  capable  of  appreciating  the  obligation  of 
oath,  if  he  takes  an  oath,  or  of  his  affirmation  if  that  is  substituted. 
And  this  is  upon  the  ground  that  a  witness  must  be  under  some  pressure, 
arising  out  of  the  solemnity  of  the  occasion,  beyond  the  ordinary  obliga- 
tion of  truth-telling.  1  Greenleaf,  Evidence,  §  367;  1  Phillipps,  c.  2, 
(C.  &  H.)  and  notes.  One  or  the  other  of  these  methods  of  attestation  is 
required  of  all  witnesses,  children  or  adults,  and  persons  unsworn  cannot 
testify  unless  they  prefer  the  other  form,  which  in  this  State  is  under  the 
pains  and  penalties  of  perjury. 

The  fact  that  the  child  was  to  be  put  under  oath  or  affirmation  was 
not  brought  to  his  attention  at  all,  so  as  to  show  whether  he  di.d  or  did 
not  understand  the  bearing  or  effect  of  it.  He  merely  said  he  must  tell 
the  truth,  or  he  would  go  to  hell;  but,  when  asked  about  any  other  con- 
sequences, he  showed  entire  ignorance,  and  only  said  that  his  mother 


716  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  482 

told  him  the  day  before  that  he  would  go  to  hell  if  he  did  not  speak  the 
truth.  This  is  all  that  he  said  bearing  on  his  veracity.  He  was  examined 
by  counsel,  and  not  particularly  tested  by  the  Court,  and  the  Court, 
without  making  any  personal  examination,  certifying  or  in  any  way 
giving  an  opinion  that  the  boy  understood  the  nature  or  obligation  of  an 
oath  or  affirmation,  left  it  all  to  the  jury,  to  be  tested  by  the  ordinary 
questioning  and  cross-questioning  by  counsel.  This  is  what  might,  no 
doubt,  be  safe  with  many  other  persons  besides  children  who  usually 
tell  the  truth,  and  may  ha\'e  their  truth  substantially  tested,  whether 
sworn  or  not.  But  the  law  entitled  parties  to  insist  that  all  witnesses 
shall  be  put  under  some  solemn  obligation  before  testifying,  and  excludes 
witnesses  who  are  incapable  of  understanding  its  sanction.  ...  It  is 
necessary  to  be  left  very  much  to  the  discretion  of  the  trial  judge  if  he 
undertakes  to  exercise  that  discretion,  and  acts  upon  such  an  examination 
as  satisfies  his  own  mind.  He  should  conduct  this  examination  as  in  his 
judgment  will  be  effectual.  It  cannot  safely  be  left  to  counsel  to  make 
the  examination.  In  McGuire's  Case,  before  referred  to,  the  judge  gave 
a  careful  personal  examination  to  the  child,  and  formed  a  distinct  opinion 
of  his  own,  founded  on  that  examination.  As  the  preliminary  inquiry 
cannot  be  and  is  not  under  oath,  there  is  the  strongest  reason  for  very 
careful  action  by  the  judge  himself  on  his  official  responsibility.  The 
cases  and  text-books  recognize  this  distinctly.  See  1  Greenleaf,  Evidence, 
§§  367,  368,  and  notes;  1  Edw.  Phillipps,  Evidence,  11,  and  notes.  In 
England  it  has  been  held  that  recent  teaching  for  the  occasion  is  not 
in  itself  sufficient,  because  the  knowledge  thus  received  may  not  be  com- 
prehended. 1  Edw.  Phillipps,  Evidence,  11;  Rex  v.  Williams,  7  Car.  & 
P.  320. 

.  .  .  We  are  compelled  to  apply  the  law  as  we  find  it,  until  changed 
by  legislation.^  But  we  are  greatly  impressed  with  the  practical  imper- 
fection of  the  present  rules.  In  France,  and  probably  elsewhere,  the 
courts  refuse  to  administer  an  oath  to  children  of  tender  years,  and  allow 
them  to  be  examined  without  anything  more  than  suitable  cautions, 
leaving  their  statement  on  direct  and  cross  examination  to  be  taken  for 
what  they  are  worth.  This  seems  to  be  a  sensible  proceeding,  and  is 
probably  quite  as  efficacious  as  our  owti  system,  and  less  likely  to  abuse. 
There  is  a  proper  desire  in  courts  to  receive  such  testimony  as  will  throw 
light  on  the  case,  and  there  is  no  doubt  that  in  practice  children  are  often 
allowed  to  testify  whose  legal  capacity  to  do  so  is  very  liberally  construed. 

^  Act  No.  82,  Laws  of  1887,  provides: 

"That  whenever  a  child  under  the  age  of  ten  years  is  produced  as  a  witness, 
the  Court  shall,  by  an  examination  made  by  itself  publicly  or  separately  and 
apart,  ascertain  to  its  own  satisfaction  whether  such  child  has  sufficient  intelli- 
gence and  sense  of  obligation  to  tell  the  truth  to  be  safely  admitted  to  testify, 
and  in  such  case  such  testimony  may  be  given  on  a  -promise  to  tell  the  truth, 
instead  of  upon  oath  or  statutory  affirmation,  and  shall  be  given  such  credit  as 
to  the  court  or  jury,  if  there  be  a  jury,  it  may  appear  to  deserve." 


No.  482  OATH  717 

It  would  be  better,  we  think,  to  put  their  testimony  on  the  more  rational 
ground  that  it  is  calculated  to  be  of  some  value,  and  capable,  under  a 
proper  examination,  of  being  reasonably  well  weighed  for  what  it  is  worth. 

For  the  reasons  given,  the  judgment  should  be  reversed,  and  a  new 
trial  granted. 

Champlin  and  Sherwood,  JJ.,  concurred. 

Morse,  J.  ^-In  this  case  there  is  ample  testimony,  outside  of  the 
evidence  of  Hughes,  that  the  boy  was  standing  on  the  foot-board  of  the 
engine  in  such  a  position  as  to  be  easily  discernible  by  the  engineer  and 
fireman. 

In  order  to  prevent  a  recovery  in  this  case  it  is  necessary  to  get  rid  of 
the  boy's  testimony;  and  an  earnest  argument  was  directed  to  this  court 
to  establish  the  proposition  that  the  age  of  the  child,  and  his  ignorance  of 
the  nature  of  an  oath,  as  developed  by  his  preliminary  examination  in  the 
court  below,  should  have  led  in  that  court  to  the  rejection  of  his  testimony. 
I,  for  one,  take  no  stock  in  this  proposition,  and  have  but  little  patience 
to  examine  such  an  argument.  I  cannot  consent  for  a  moment  to  any 
rule  of  law,  however  fortified  by  remote  or  later  decisions  of  the  courts, 
that  will  practically  exclude  the  testimony  of  children  under  seven  years 
of  age,  and  leave  them,  in  many  cases,  without  redress  for  wTongs  com- 
mitted upon  them.  Our  criminal  annals  are  full  of  cases  where  little 
girls  under  seven  years  of  age  are  outraged  and  maltreated  by  fiends  in 
human  form.  They  are  entitled,  above  all  others,  to  the  thorough  and 
complete  protection  of  the  law ;  and  I  shall  place  no  obstacles  in  the  way 
of  the  punishment  of  the  miserable  and  depraved  beings  who  are  capable 
of  such  crimes  against  nature  and  the  law.  If  an  extraordinary  intelli- 
gence is  required  in  the  child,  if  she  must  understand  the  nature  of  an 
oath  or  affirmation,  and  that  without  any  recent  teaching,  as  one  English 
case  seems  to  hold,  (Rex  v.  Williams,  7  Car.  &  P.  320,)  before  she  can 
testify,  then  there  is  necessarily  an  absolute  prohibition  against  her 
testimony;  and  any  injury  to  her,  unless  some  one  is  present  to  witness 
the  act  except  the  perpetrator,  must  go  unpunished  and  unredressed. 
The  most  ignorant  and  depraved  adult,  under  all  the  authorities,  can 
testify  under  oath  or  by  affirmation,  and  no  preliminary  examination  to 
test  his  intelligence  is  required  or  provided  for.  There  can  be  found  but 
few,  if  any,  children  of  the  age  of  this  colored  boy  that  have  any  idea, 
without  teaching,  of  the  nature  of  an  oath.  Though  we  may  take  pains 
to  instruct  our  children  from  the  moment  they  can  prattle  that  they 
must  tell  the  truth,  it  is  seldom,  if  ever,  that  we  take  the  trouble  to 
instruct  our  infants  in  the  practice  of  the  courts,  or  the  nature  or  the 
obligations  of  oaths  there  taken.  But  if  an  injury  should  happen  to 
one  of  them,  which  ought  to  find  redress  in  the  courts,  we  would  be  apt, 
and  I  think  we  would  have  the  right,  to  then  instruct  the  child,  not  only 
to  tell  the  truth,  but  of  the  nature  and  obligation  of  the  oath  which  it 
would  be  required  to  take.  The  object  of  all  judicial  inquiry  is  to  ascer- 
tain and  determine  the  truth,  and  an  oath  is  but  a  means  to  that  end. 


718  BOOK   I :     RULES   OF   ADMISSIBILITY  *  No  482 

It  is  not  necessary  now  that  an  adult  should  believe  in  hell,  or  any  other 
punishment  after  death,  in  order  to  be  a  competent  witness;  and  the 
catechism  of  a  child  upon  that  subject,  as  was  done  in  this  case,  is  not 
only  ridiculous,  but  absurd.  Childi-en  should  have  at  least  equal  rights 
with  adults  in  this  respect.  There  can  be  but  little,  if  any,  trouble,  in 
these  cases,  of  determining  the  truth  or  falsity  of  the  testimony  of  a  child. 
The  danger  of  perjury  comes  from  the  examination  of  older  and  more 
experienced  persons,  who  take  the  oath  at  once,  without  fear  and  without 
question.  The  proper  way,  in  my  judgment,  is  to  examine  the  child 
upon  the  subject  of  its  intelligence,  and,  if  found  capable  by  the  trial 
judge  of  understanding  the  nature  and  force  of  the  oath  or  obligation  to 
be  taken,  after  proper  instruction  by  the  Court  as  to  the  duty  of  telling 
the  truth,  and  the  consequences  attending  falsehood,  the  oath  should  be 
administered,  and  the  testimony  received  by  the  court,  to  be  tested  and 
w^eighed  by  the  jury  according  to  the  usual  standard. 

In  the  present  case,  the  boy  evidently  understood  that  he  must  tell 
the  truth,  and  that  he  would  be  punished  here  for  a  falsehood,  though 
he  did  not  know  what  the  punishment  would  be,  and  thought  that  God 
would  inflict  it.  Who  will  say  that  he  was  not  right  even  in  this,  or  deny 
that  Deity  does  not  in  this  world  find  means  to  punish  the  evil-doer  with 
the  pangs  of  conscience,  if  not  otherwise?  .  .  . 

I  think  the  Court  did  not  err  in  this  action,  and  that  his  remarks  were 
sound,  in  common  sense  and  in  law.  The  boy  was  clearly  and  keenly 
cross-examined  by  competent  and  shrewd  counsel,  and  displayed  an 
intelligence  upon  such  examination  not  surpassed  by  any  witness,  and 
not  equaled  by  some.  And  his  evidence  impresses  me  with  its  truth. 
His  story  of  the  transaction  is  candid  and  straightforward  throughout, 
and  unusually  intelligent  in  its  detail.  The  jury  believed  it,  and  there 
is,  in  my  opinion,  absolutely  no  reason  for  shutting  it  out  of  the  case. 
If  we  are  to  discard  the  simple,  unaffected  narration  of  this  child  because 
he  is  not  of  an  age  to  be  punished  criminally  for  telling  a  lie,  and  yet  to 
receive  in  all  cases,  as  we  do,  the  evidence  of  suspected  and  condemned 
felons,  subject  only  to  the  credence  that  a  jury  may  give  them,  then  the 
law  is  not,  as  I  understand  it,  a  safeguard  and  a  protection  to  the  inno- 
cent, and  a  terror  to  the  evil-doer. 

I  find  no  error  in  the  proceedings,  and  believe  that  the  judgment  is 
right  as  it  now  stands. 


483.  Statutes.  California  (Const.  1879,  Art.  I,  §  4).  No  person  shall  be 
rendered  incompetent  to  be  a  witness  or  juror  on  account  of  his  opinion  on  matters 
of  religious  belief. 

Illinois  (Const.  1870,  Art.  II,  §  3).  No  person  shall  be  denied  any  civil  or 
political  right,  privilege,  or  capacity,  on  account  of  his  religious  opinions;  but 
the  liberty  of  conscience  hereby  secured  shall  not  be  construed  to  dispense  with 
oaths  or  affirmations. 

lb.  (Rev.  St.  1874,  c.  101,  §3).     [An  oath  may  lawfully  be  administered]  in 


No.  484  OATH  719 

the  following  form,  to-wit:  The  person  swearing  shall,  with  his  hand  uplifted, 
swear  by  the  everliving  God,  and  shall  not  be  compelled  to  lay  the  hand  on  or 
kiss  the  gospels. 

lb.,  §  4.  [When]  such  person  shall  have  conscientious  scruples  against  taking 
an  oath,  he  shall  be  admitted,  instead  of  taking  an  oath,  to  make  his  solemn 
affirmation  or  declaration  in  the  following  form,  to-wit:  You  do  solemnly,  sin- 
cerely, and  truly  declare  and  affirm. 

Massachusetts  (Rev.  L.  1902,  c.  175,  §  18).  Every  person  who  declares  that 
he  has  conscientious  scruples  against  taking  any  oath  shall,  when  called  upon 
for  that  purpose,  be  permitted  to  affirm  in  the  manner  prescribed  for  Quakers, 
if  the  Court  or  magistrate  on  inquiry  is  satisfied  of  the  truth  of  such  declaration. 

lb.,  §  19.  Every  person  believing  in  any  other  than  the  Christian  religion 
may  be  sworn  according  to  the  peculiar  ceremonies  of  his  religion,  if  there  are 
any  such.  Every  person  not  a  believer  in  any  religion  shall  be  recjuired  to  testify 
truly  under  the  pains  and  penalties  of  perjury;  and  the  evidence  of  such  person's 
disbelief  in  the  existence  of  God  may  be  received  to  affect  his  credibility  as  a 
witness. 

484.   HRONEK  v.  PEOPLE 

Supreme  Court  of  Illinois.     1890 

134  ///.  139;  24  N.  E.  861 

Writ  of  Error  to  the  Criminal  Court  of  Cook  county;  the  Hon. 
LoRiN  C.  Collins,  Judge,  presiding. 

The  plaintiff  in  error,  John  Hronek,  was  indicted,  with  Frank  Chapek, 
Frank  Chleboun  and  Rudolph  Sevic,  for  violation  of  an  act  of  the  Legisla- 
ture of  this  State,  entitled  "  An  act  to  regulate  the  manufacture,  trans- 
portation, use  and  sale  of  explosives,  and  to  punish  an  improper  use  of 
the  same,"  approved  June  16,  1887,  and  in  force  July  1,  1887.  .  .  .  The 
defendant  Hronek  was  alone  put  upon  trial,  and  that  trial  resulted  in  a 
verdict  of  guilty,  and  fixing  his  punishment  at  twelve  years'  imprison- 
ment in  the  penitentiary.  .  .  . 

Objection  was  made  to  the  competency  of  Frank  Chleboun,  a  witness 
for  the  People,  who  was  permitted  to  testify,  over  the  objection  of  the 
defendant.  He  was  examined  upon  his  voir  dire,  and  avowed  his  belief 
in  the  existence  of  God,  and  "a  hereafter;"  that  he  believed  if  he  swore 
falsely  he  would  be  punished  under  the  criminal  laws  of  the  State;  that 
he  had  never  thought  seriously  of  whether  God  would  punish  him,  either 
in  this  world  or  the  next,  and  had  never  considered  the  question  whether 
he  would  be  punished  for  false  swearing  in  any  other  way  than  by  that 
inflicted  by  the  law.  He  had,  it  seems,  no  religious  belief  or  conviction 
of  his  accountabihty  to  the  Supreme  Being,  either  in  this  world  or  in  any 
after  life. 

Mr.  Julius  Goldzier,  for  the  plaintiff  in  error.  .  .  .  Chleboun,  not 
believing  in  a  future  state  of  existence  and  future  rewards  and  punish- 
ment, was  not  a  competent  witness.  .  .  . 

Mr.  George  Hunt,  Attorney-General,  for  the  People.  .  .  . 


720  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  484 

Mr.  Justice  Baker  (after  stating  the  case  as  above)  delivered  the 
opinion  of  the  Court: 

1.  The  test  of  the  competency  of  a  witness  in  respect  to  rehgious 
behef,  as  generally  held,  is,  does  the  witness  believe  in  God,  and  that  He 
will  punish  him  if  he  swears  falsely.  ...  In  Central  Military  Tract 
Railroad  Co.  v.  Rockafellow,  17  111.  541,  where,  after  a  consideration  of 
the  authorities,  it  was  held  that  all  persons  are  competent  to  be  sworn 
as  witnesses  who  believe  there  is  a  God,  and  that  He  will  punish  them, 
either  in  this  world  or  in  the  next,  if  they  swear  falsely;  and  that  a  want 
of  such  belief  rendered  them  incompetent  to  take  an  oath  as  witnesses. 
This  case,  seemingly,  overruled  the  doctrine  of  the  earlier  case  of  Noble  v. 
The  People,  Beecher's  Breese,  54. 

Without  pausing  here  to  determine  whether  the  Court  erred  in  sub- 
jecting the  witness  to  an  examination  touching  his  religious  belief, 
(Rapalje  on  Witnesses,  §  12,  and  cases  cited),  it  may  be  said  that  the 
better  practice,  and  that  which  now  prevails,  forbids  the  examination  of 
the  witness  in  respect  thereof  on  his  voir  dire.  If  there  was  error  in  this 
regard,  it  was  committed  at  the  instance  of  the  defendant,  and  in  his 
interest,  and  he  can  not  complain. 

Returning  to  the  question  of  the  competency  of  the  witness,  the  rule 
seems  to  be  as  above  stated,  unless  changed  by  constitutional  provision 
or  legislative  enactment.  The  tendency  of  modern  times,  by  the  Courts 
and  in  legislation,  is  towards  liberalizing  the  rule,  and  in  many  jurisdic- 
tions incompetency  for  the  want  of  religious  belief  has  been  abolished. 
See  Rapalje  on  Witnesses,  §  13;   Wharton  on  Evidence,  §  395. 

2.  Has  the  rule  announced  by  this  Court  in  Central  Military  Tract 
Railroad  Co.  v.  Rockafellow,  been  changed  in  this  State?  By  section  3 
of  article  2  of  the  Constitution  of  1870,  it  would  seem  that  a  radical 
change  was  effected  in  respect  to  the  matter  under  consideration.  This 
section  guarantees  non-interference  of  the  State  with  the  religious  faith 
of  its  citizens.  .  .  .  No  religious  belief  is  required  to  qualif}^  a  citizen 
to  take  an  oath,  and  no  citizen  can  be  excused  from  taking  an  oath  or 
affirmation  because  of  his  religious  belief.  The  liberty  of  conscience 
secured  by  the  Constitution  is  not  to  be  construed  as  dispensing  with 
oaths  or  affirmations  in  cases  where  the  same  are  required  by  law.  No 
man,  because  of  his  religious  belief,  is  to  be  held  to  be  excused  from  taking 
the  prescribed  oath  of  office  before  entering  upon  the  discharge  of  the 
public  duty;  nor  can  he  be  permitted  to  testify,  because  of  such  religious 
belief  or  opinion,  except  upon  taking  the  oath  or  making  the  affirmation 
required  by  law.  Now,  as  before  the  adoption  of  this  provision,  oaths 
are  to  be  taken  and  affirmations  made  whenever  required  by  law,  but  the 
right  to  take  such  oath  or  make  such  affirmation,  if  such  right  be  a  civil 
right,  privilege  or  capacity,  can  not  be  denied  to  any  citizen.  .  .  .  The 
Constitution  provides  that  no  person  shall  be  denied  any  civil  or  political 
right,  privilege  or  capacity  on  account  of  his  religious  opinions.  .  .  . 
The  obvious  meaning  of  the  provision  in  the  Constitution  is,  that  what- 


No.  484  OATH  721 

ever  civil  rights,  privileges  or  capacities  belong  to  or  are  enjoyed  by  citi- 
zens generally,  shall  not  be  taken  from  or  denied  to  any  person  on  account 
of  his  religious  opinions.  As  said  by  the  Court  of  Appeals  of  Kentucky, 
in  construing  a  similar  provision  of  the  Constitution  of  that  State  in 
Bush  V.  Commonwealth,  80  Ky  244: 

"It  is  a  declaration  of  an  absolute  equality,  which  Is  violated  when  one  class 
of  citizens  is  held  to  have  the  civil  capacity  to  testify  in  a  court  of  justice  because 
they  entertain  certain  oi)inions  in  regard  to  religion,  while  another  class  is  denied 
to  possess  that  capacity  because  they  do  not  conform  to  the  prescribed  belief." 

It  is  manifest,  that  if  the  Legislature  may  prescribe  the  test  of  belief  in 
rewards  and  punishments,  they  may  impose  any  other  test  or  qualifica- 
tion that,  in  the  judgment  of  those  entertaining  the  dominant  belief, 
may  be  necessary  to  afford  the  requisite  sanction.  .  .  . 

We  are  of  the  opinion  that  the  effect  of  this  constitutional  provision 
is  to  abrogate  the  rule  which  obtained  in  this  State  prior  to  the  constitu- 
tion of  1870,  and  that  there  is  no  longer  any  test  or  qualification  in  respect 
to  religious  opinion  or  belief,  or  want  of  the  same,  which  affects  the 
competency  of  citizens  to  testify  as  witnesses  in  courts  of  justice.  It 
follows,  that  there  was  no  error  in  permitting  the  witness  to  testify.  .  .  . 

Judgment  affirmed. 


722  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  486 


SUB-TITLE   II.     SEQUESTRATION  OF   WITNESSES 

486.  The  History  of  Susanna.  (Apocri/pha).  [Two  elders  coveted  Susanna, 
a  very  fair  woman  and  pure,  the  wife  of  Joacim;  they  tempted  her,  but  she  re- 
sisted; then  they  plotted,  and  charged  her  with  adultery;  and  she  was  brought 
before  the  assembly  to  be  tried;]  and  the  elders  said:  "As  we  walked  in  the 
garden  [of  Joacim]  alone,  this  woman  came  in  with  two  maids,  and  shut  the 
garden  doors,  and  sent  the  maids  away.  Then  a  young  man,  who  there  was  hid, 
came  unto  her,  and  lay  with  her.  Then  we  that  stood  in  the  corner  of  the  garden, 
seeing  this  wickedness,  ran  unto  them.  And  when  we  saw  them  together,  the 
man  we  could  not  hold,  for  he  was  stronger  than  we  and  opened  the  door  and 
leaped  out.  But  having  taken  this  woman,  we  asked  who  the  young  man  was, 
but  she  would  not  tell  us.  These  things  do  we  testify."  Then  the  assembly 
believed  them,  as  those  that  were  the  elders  and  judges  of  the  people.  .  .  .  [But 
Daniel,]  standing  in  the  midst  of  them,  said  .  .  .  "Are  ye  such  fools,  ye  sons  of 
Israel,  that  without  examination  or  knowledge  of  the  truth  ye  have  condemned 
a  daughter  of  Israel?"  .  .  .  Then  Daniel  said  unto  them,  "Put  these  two  aside, 
one  far  from  another,  and  I  will  examine  them."  So  when  they  were  put  asunder 
one  from  another,  he  called  one  of  them,  and  said  unto  him:  "Now  then,  if  thou 
hast  seen  her,  tell  me,  under  what  tree  sawest  thou  them  companjnng  together?" 
who  answered,  "Under  a  mastick  tree."  And  Daniel  said,  "Very  well;  thou 
hast  lied  against  thine  owti  head."  ...  So  he  put  him  aside,  and  commanded 
to  bring  the  other,  and  said  unto  him,  .  .  .  "Now  therefore  tell  me,  under  what 
tree  didst  thou  take  them  companying  together?"  who  answered,  "Under  an 
holm  tree."  Then  said  Daniel  unto  him:  Well;  thou  hast  also  lied  against 
thine  own  head."  .  .  .  With  that,  all  the  assembly  cried  out  with  a  loud  voice, 
and  praised  God  who  saveth  them  that  trust  in  him.  And  they  arose  against 
the  two  elders,  for  Daniel  had  convicted  them  of  false  witness,  by  their  own 
mouth.  .  .  .  From  that  day  forth  was  Daniel  had  in  great  reputation  in  the  sight 
of  the  people. 

487.  Kerne's  Trial.  (1679,  7  How.  St.  Tr.  707,  709).  [Charge  of 
being  a  Roman  priest;  tw'o  women,  Edwards  and  Jones,  were  offered  to 
testify  to  hearing  him  say  mass.] 

Defendant.  I  desire  to  ask  her  what  discourse  she  had  with  Mary 
Jones,  the  other  witness,  for  she  has  been  instructing  her  what  to  say, 
and  that  they  may  be  examined  asunder ;   (which  was  granted) . 

L.  C.  J.  ScROGGS.     Did  she  [Jones]  tell  you  what  she  could  say? 

Edwards.     She  did. 

L.  C.  J.     What? 

Edioards.  She  went  once  to  hearken,  and  she  heard  Mr.  Kerne  say 
something  in  Latin,  which  she  said  was  mass. 

L.  C.  J.  Call  the  other  woman;  you  shall  now  see  how  these  women 
agree. 

Clerk.     Call  Mary  Jones. 

L.  C.  J.  Let  the  other  woman  [Edwards]  go  out.  .  .  .  W' hat  did  you 
[Jones]  tell  her  you  could  say? 


No.  490  SEQUESTRATION    OF    WITNESSES  723 

Jones.  I  told  her  ...  he  said  somewhat  aloud  that  I  did  not 
understand. 

L.  C.  J.  Did  you  not  tell  Margaret  Edwards  that  you  heard  him  say 
mass? 

Jo7ies.     No,  my  lord. 

L.  C.  J.  Call  Margaret  Edwards  again.  Margaret  Edwards,  did 
Mary  Jones  tell  you  that  she  heard  Mr.  Kerne  say  mass? 

Edwards.     Yes,  my  lord. 

Jones.  No,  I  am  sure  I  did  not,  for  I  never  heard  the  word  before, 
do  not  know  what  it  means. 

L.  C.  J.      So  they  contradict  one  another  in  that. 

488.  Golden  v.  State.  (1858.  Arkansas,  19  Ark.  590).  Hanley,  J.  The 
course  in  such  case  is  either  to  require  the  names  of  the  witnesses  to  be  stated  by 
the  counsel  of  the  respective  parties  by  whom  they  were  summoned,  and  to 
direct  the  sheriff  to  keep  them  in  a  separate  room  until  they  are  called  for;  or, 
more  usually,  to  cause  them  to  withdraw  by  an  order  from  the  bench  accompanied 
with  notice  that  if  they  remain  they  will  not  be  examined. 

489.  LouIS^^LLE  &  Nashville  R.  Co.  v.  York.  (1902.  Alabama,  128  Ala. 
305).  McClellan,  C.  J.  The  purpose  to  be  subserved  in  putting  witnesses 
under  the  rule  is  that  they  may  not  be  able  to  strengthen  or  color  their  own 
testimony,  or  to  testify  to  greater  advantage  in  line  with  their  bias,  or  to  have 
their  memories  refreshed,  sometimes  unduly,  by  hearing  the  testimony  of  other 
witnesses;  and  it  is  legitimate  argument  against  the  veracity  or  fairness  of  a 
witness  to  say  that  his"  testimony  has  been  developed  along  the  lines  of  his  in- 
clination in  the  case  by  the  opportunities  he  has  had,  from  hearing  the  other 
witnesses,  to  refute  them  or  to  amplify  his  own  statements  to  meet  the  exigencies 
of  the  trial. 

490.  Statutes.  California  (P.  C.  1872,  §  867).  [A  committing  magistrate] 
may  exclude  all  witnesses  who  have  not  been  examined;  he  may  also  cause  the 
witnesses  to  be  kept  separate,  and  to  be  prevented  from  conversing  with  each 
other  until  they  are  all  examined. 

lb.,  §  868.  [He]  must  also,  upon  the  request  of  the  defendant,  exclude 
from  the  examination  every  person  except  his  clerk,  the  prosecutor  and  his  coun- 
sel, the  attorney-general,  the  district  attorney  of  the  county,  the  defendant  and 
his  counsel,  and  the  officers  having  the  defendant  in  custody. 

lb.  (C.  C.  P.  1872,  §  2043).  If  either  party  requires  it,  the  judge  may 
exclude  from  the  court-room  any  witness  of  the  adverse  party;  [amended  by  the 
Commissioners  in  1901,  by  adding:]  but  a  party  to  the  action  or  proceeding 
cannot  be  so  excluded,  and  if  a  corporation  is  a  party  thereto,  it  is  entitled  to  the 
presence  of  one  of  its  officers,  to  be  designated  by  its  attorney. 


724  BOOK   l:     RULES   OF   ADMISSIBILITY  No.   491 

491.   LAUG"HLIN  v.   STATE 

Supreme  Court  of  Ohio.     1849 

18  Oh.  99,  102 

The  plaintiff  in  error  was  indicted  for  rape,  and  for  an  assault  with 
intent  to  commit  a  rape,  and  convicted  and  sentenced  upon  the  latter 
charge.  .  .  . 

Before  the  examination  of  the  witnesses  had  been  commenced,  the 
counsel  for  the  defendant  requested  that  the  witnesses  for  the  State 
should  be  examined  out  of  the  hearing  of  each  other;  and  that  they 
should  be  ordered  to  withdraw  from  the  court  room,  and  the  order  was 
made  as  requested.  Notwithstanding  this  order,  Robert  Johnson,  the 
father  of  the  girl,  whose  name  was  not  on  the  subpoena  as  a  witness,  but 
who  was  sworn  with  the  other  witnesses  before  they  retired,  and  who 
remained  in  court,  seated  by  the  counsel  for  the. State,  and  heard  the 
testimony  of  his  daughter  and  the  other  witnesses  who  were  examined, 
was  offered  as  a  witness  on  the  part  of  the  State.  The  counsel  for  the  de- 
fendant objected  to  his  being  examined,  he  having,  contrary  to  the 
order  of  the  Court,  remained  within  the  bar.  When  inquired  of  by  the 
Court  why  he  disobeyed  the  order  in  remaining  within  the  bar,  he  stated 
that  he  heard  the  order  of  the  Court,  but  did  not  understand  the  meaning 
of  it.  The  Court  overruled  the  objection,  and  Johnson  was  examined  as 
a  witness.  .  .  . 

Caldwell,  J.  The  most  important  question  arising  in  the  case,  and 
the  only  one  that  the  counsel  for  the  accused  have  relied  on  in  argument, 
arises  on  the  admission  of  Robert  Johnson,  the  father  of  the  girl,  as  a 
witness. 

This  is  a  question  of  no  little  delicacy.  It  relates  exclusively  to  the 
fairness  of  proceeding  on  the  trial.  Much  may  be  said  on  both  sides  of 
the  case,  and  on  part  of  the  accused  in  this  case,  many  considerations 
meriting  a  careful  examination  have  been  presented.  On  the  one  side, 
where  the  order  of  the  Court  has  been  made  for  the  witnesses  to  retire, 
and  be  examined  out  of  the  hearing  of  each  other,  if  a  witness  remains  in 
violation  of  the  order,  it  furnishes  strong  ground  of  suspicion  that  the 
witness  is  not  fairly  disposed  in  the  cause,  and  that  he  wishes  to  avail 
himself  of  the  testimony  of  the  other  witnesses,  in  order  to  make  his 
statements  as  potent  as  possible,  by  making  them  correspond  with  theirs. 
Where,  too,  a  party  in  interest  in  the  cause,  after  the  order  has  been 
made,  should  procure  his  witnesses  to  be  present  in  violation  of  such 
order,  it  is  equally  suspicious  that  he  intends  a  similar  degree  of  wrong 
and  unfairness.  On  the  other  hand,  when  we  consider  the  little  control 
that  a  party  can  have  over  his  witnesses;  the  little  attention  he  is  likely 
to  be  able  to  give  to  their  movements;  the  crowds  and  the  confusion 
that  generally  exist  during  exciting  trials;   the  questions  that  may  arise 


No.  491  SEQUESTRATION    OF   WITNESSES  725 

on  the  trial  that  could  not  be  anticipated,  and  which  may  require  by- 
standers to  be  called  in  as  witnesses,  who  have  been  present  and  heard 
the  other  witnesses  testify,  —  these,  and  other  considerations  which 
might  be  presented,  render  it  difficult  and  we  think  impossible  to  establish 
any  general  rule  of  exclusion  that  would  not  in  many  cases  deprive 
parties  of  important  and  necessary  testimony  for  the  fair  presentation 
of  their  cause. 

We  do  not  find  that  any  rule  has  been  established,  in  this  country, 
that  would  justify  this  Court,  as  a  Court  of  errors,  in  deciding  that  it  was 
error  in  an  inferior  Court  to  admit  a  witness  who  had  \iolated  the  order, 
and  heard  the  other  witnesses  testify.  We  think  the  law  is  the  other 
way;  and  that  the  Court  of  Common  Pleas  in  this  instance  had  the  right, 
in  their  discretion,  to  admit  the  witness.  Judgment  affirmed. 


726  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  492 


SUB-TITLE   III.     DISCOVERY   BEFORE   TRIAL. 

492.  History.  I.  Discovery  of  one's  evidence  to  the  opponent  before  trial 
is  a  measure  which  assists  greatly  to  promote  fairness  and  to  shorten  controversy. 

Where  the  testimony  intended  to  be  produced  is  false,  the  opponent  would 
thus  have  the  knowledge  and  opportunity  to  demonstrate  on  the  trial  its  falsity, 
by  bringing  other  testimony;  without  such  prior  knowledge,  he  would  not  be 
prepared;  it  would  be  an  instance  of  "unfair  surprise"  {ante,  No.  2).  Moreover, 
even  where  the  testimony  is  not  actually  false,  yet  it  might  be  explainable  or 
rebuttable  by  other  facts,  and  here  also  a  prior  knowledge  would  be  fair  and 
useful. 

Furthermore,  controversy  would  be  shortened;  because  a  party  who  might 
otherwise  intend  to  adduce  false  or  misleading  testimony  would  know-  it  to  be 
useless,  if  the  opponent  could  have  prior  notice  and  an  opportunity  to  prepare  to 
refute  or  to  explain  it.  Thus,  a  false  claim  or  defense  would  often  be  abandoned, 
and  a  settlement  reached,  without  trial,  because  the  attempt  to  prove  it  on  the 
trial  would  be  futile. 

For  these  reasons,  discovery  to  the  opponent  before  trial  is  a  valuable  pro- 
phylactic measure. 

Nevertheless,  it  involves  dangers.  It  presupposes  the  party  thus  forced  to 
give  discovery  is  the  party  having  a  dishonest  or  unfounded  claim  or  defense,  and 
that  the  opponent  is  the  honest  party  who  needs  protection.  But  in  fact  the 
case  may  be  the  exact  opposite;  and  thus  the  prior  discovery  given  by  the  honest 
party  may  enable  the  dishonest  opponent  to  prepare  false  testimony  in  refutation. 
Experience  shows  this  to  be  a  frequent  situation.  Hence,  a  rule  requiring  un- 
limited discovery  is  not  of  unalloyed  benefit.  Just  where  the  line  should  be 
drawn  practically  is  a  difficult  ciuestion. 

n.  But  at  common  law  there  was  little  or  no  attempt  to  draw  a  line.  The 
principle  of  common  law  trials  was  in  general  that  no  discovery  at  all  need  be 
given.  Each  party  went  to  the  trial  without  being  obliged  to  disclose  to  the 
opponent  the  evidence  held  in  readiness.  This  feature  was  due  to  the  surround- 
ing —  the  Anglo-Norman  traditions  of  landed  aristocracy  and  bold  manhood  — 
amidst  which  the  common  law  was  developed. 

The  common  law,  originating  in  a  community  of  sports  and  games,  was 
permeated  essentially  by  the  instincts  of  sportsmanship.  This  has  had  both 
its  higher  aspects  and  its  lower  aspect.  On  the  one  hand,  it  has  contributed  a 
sense  of  fairness,  of  gentlemanliness,  of  chivalrous  beha\ior  to  a  worthy  adversary, 
of  carrying  out  a  contest  on  equal  and  honorable  terms.  The  presumption  of 
innocence,  the  character  rule,  the  privilege  against  self-crimination,  and  other 
specific  rules  (to  name  those  of  evidence  alone),  show  the  effect  of  this  instinct 
against  taking  undue  advantage  of  an  adversary.  The  minor  rules  of  professional 
etiquette  (now  surviving  much  more  markedly  in  England  than  in  the  United 
States)  illustrate  the  same  tendency  even  more  clearly.  On  the  other  hand,  it 
has  contributed  to  lower  the  system  of  administering  justice,  and  in  particular 
of  ascertaining  truth  in  litigation,  to  the  level  of  a  mere  game  of  skill  or  chance. 
Now  one  of  the  cardinal  moral  assumptions  in  a  contest  of  skill  or  chance  is  that 
a  player  need  not  betray  beforehand  his  strength  of  resource,  and  that  the  op- 
ponent cannot  complain  of  being  surprised.     The  accepted  laws   and   moral 


No.  493  DISCOVERY  727 

standards  of  whist  protect  the  player  from  exposing  his  cards  before  playing 
them;  the  owner  of  the  racing-stable  keeps  as  a  valuable  secret  the  time  made 
by  his  horse  in  the  last  private  trial  before  the  race;  and  a  chess-player's  skill 
consists  largely  in  concealing  from  his  opponent  the  far-seeing  sequence  of  moves 
which  he  has  planned.  It  is  this  feature  of  games  and  sports  that  has  influenced 
powerfully  the  policy  of  the  common  law  in  the  present  aspect.  "Nemo  tenetur 
armare  adversarium  suum  contra  se."  To  require  the  disclosure  to  an  adversary 
of  the  evidence  that  is  to  be  produced,  would  be  rcpungant  to  all  sportsmanlike 
instincts.  Rather  permit  you  to  preserve  the  secret  of  your  tactics,  to  lock  up 
your  documents  in  the  vault,  to  send  your  witness  to  board  in  some  obscure 
village,  and  then,  reserving  your  evidential  resources  until  the  final  moment, 
to  marshal  them  at  the  trial  before  your  surprised  and  dismayed  antagonist, 
and  thus  overwhelm  him.  Such  was  the  spirit  of  the  common  law;  and  such  in 
part  it  still  is.  It  did  not  defend  or  condone  trickery  and  deception;  but  it  did 
regard  the  concealment  of  one's  evidential  resources  and  the  preservation  of  the 
opponent's  defenceless  ignorance  as  a  fair  and  irreproachable  accompaniment 
of  the  game  of  litigation.  There  is  no  accounting  for  this  except  as  in  part  a 
product  of  a  characteristic  instinct  of  the  Anglo-Norman  community  in  which 
our  law  grew  up. 

There  were  but  two  marked  exceptions  to  the  rule  that  no  discovery  need  be 
given  before  trial,  (a)  The  ancient  doctrine  of  Profert  and  Oyer  permitted  a 
party  to  obtain  inspection,  before  trial,  of  sealed  instrvmients  material  to  his 
opponent's  case.  The  principle  was  partly  extended  by  Lord  Mansfield;  but 
this  extension  lost  ground  after  his  death,  (b)  In  Chancery,  a  bill  of  discovery 
would  enable  a  party  to  obtain  discovery  of  documents  in  the  opponent's  pos- 
session and  of  the  opponent's  personal  testimony.  But  even  this  bill  of  discovery 
was  limited  in  its  scope;  and  the  expense  and  tediousness  of  employing  it  made 
it  useless  except  in  the  most  important  litigation. 

III.  By  the  middle  of  the  1800s,  the  obstructions  to  justice,  due  to  a  lack  of 
discovery  in  common  law  trials,  was  fully  appreciated.  Long  before  this,  indeed, 
an  early  step  had  been  taken  in  criminal  cases  (in  the  early  1700s),  by  a  statute 
allowing  the  accused  to  be  furnished  with  a  list  of  the  prosecution's  intended 
witnesses;  but  this  applied  only  to  trials  for  treason.  By  the  middle  of  the 
1800s,  statutes  had  everywhere  made  large  inroads  upon  the  common  law  rules. 

In  criminal  cases,  the  prosecution  was  required  to  furnish  the  accused,  on 
demand,  with  a  list  of  the  witnesses. 

In  civil  cases,  the  party  was  required  (a)  to  give  discovery  of  his  own  testi- 
mony to  the  opponent,  though  not  to  give  discovery  of  the  names  or  expected 
testimony  of  his  witnesses,  and  (6)  to  give  discovery  of  his  documents.  In  some 
statutes  the  apparent  object  was  merely  to  transfer  to  common  law  trials  the 
chancery  practice,  with  its  existing  limitations;  in  others  the  apparent  purpose 
was  a  broader  one. 

The  construction  of  the  effect  of  these  statutes  upon  the  traditional  common 
law  practice  is  the  main  subject  of  present-day  judicial  rulings. 

Topic  1.    Testimony 

Sub-topic  A.     Criminal  Cases 

493.  Stephen  Colledge's  Trial  (1681.  Howell's  State  Trials,  VIII,  569). 
[The  accused  was  a  Protestant  joiner  at  Oxford,  charged  with  fomenting  a  so- 


728  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  493 

called  Presbyterian  plot  against  the  King.  Chroniclers  agree  that  the  poli- 
ticians in  power  were  determined  to  convict  him,  as  an  example  against  meddlers. 
The  principal  witnesses  against  him  turned  out  later  to  be  arrant  perjurers. 
On  his  arraignment  Colledge  thus  complained  of  his  unfair  treatment.] 

Then  the  prisoner  was  brought  to  the  bar. 

CI.  of  Cr.  —  Stephen  Colledge,  hold  up  thy  hand.  (Which  he  did).  .  .  . 
How  sayest  thou,  Stephen  Colledge,  art  thou  guilty  of  this  high  treason,  whereof 
thou  standest  indicted,  and  hast  now  been  arraigned,  or  not  guilty? 

Colledge.  — My  lord,  I  do.  desire,  if  it  please  your  lordship,  to  be  heard  a  few 
words. 

L.  C.  J.  ScROGGS.  —  Look  you,  Mr.  Colledge,  the  matter  that  hath  been  here 
read  unto  you  is  a  plain  matter,  and  it  hatli  been  read  to  you  in  English,  that 
you  may  understand  it.     It  is  an  indictment  of  High  Treason.  .  .  . 

Colledge.  —  Will  you  please  to  spare  me,  that  I  may  be  heard  a  few  words. 
I  have  been  kept  a  close  prisoner  in  the  Tower  ever  since  I  was  taken.  I  was 
all  along  unacquainted  with  what  was  charged  upon  me.  I  knew  not  what 
was  sworn  against  me,  nor  the  persons  that  did  swear  it  against  me,  and  therefore 
I  am  wholly  ignorant  of  the  matter.  I  do  humbly  desire,  I  may  have  a  copy  of 
the  indictment,  and  a  copy  of  the  jury  that  is  to  pass  upon  me,  and  that  I  may 
have  counsel  assigned  me,  to  advise  me,  whether  I  have  not  something  in  law 
pleadable  in  bar  of  this  indictment. 

L.  C.  J.  —  These  are  the  things  you  ask,  you  would  have  a  copy  of  the  in- 
dictment, you  would  have  counsel  assigned  to  you,  to  advise  you  in  matter  of 
law,  and  a  copy  of  the  jury.  .  .  .  Now  for  those  things  that  you  demand,  you 
cannot  have  them  by  law.  No  man  can  have  a  copy  of  the  indictment  by  law. 
.  .  .  For  a  copy  of  the  jury,  that  you  cannot  have  neither,  for  there  is  no  such 
thing  as  yet.  ...  So  as  to  what  you  say  as  to  want  of  preparation  for  yovu*  trial, 
we  cannot  enquire  what  notice  you  have  had;  and  yet  if  you  had  never  so  little 
time,  there  is  no  cause  why  you  should  not  plead,  though  you  were  but  just  now 
taken  and  brought  to  the  bar  to  answer  it,  and  never  heard  of  any  thing  of  it 
before.     So  that  I  think  you  ought  to  plead  presently.  .  .  . 

Colledge.  —  I  had  some  papers,  my  lord,  that  were  taken  from  me,  which  I 
desire  may  be  restored  to  me.  I  only  plead,  that  I  may  have  my  birthright,  and 
that  which  the  law  gives  me;  if  I  may  have  justicj-e,  I  desire  no  more.  Those 
papers  were  taken  from  me  in  the  house  over  the  way  since  I  was  brought  from 
the  prison;  they  were  papers  that  concerned  my  defence;  some  directions  and 
instructions  how  to  manage  myself  in  that  defence.  If  you  please  to  let  me  have 
those  papers,  I  will  not  take  up  much  of  your  time;  I  desire  to  have  but  common 
justice,  and  that  which  is  my  right  by  law.  .  .  . 

L.  C.  J.  —  You  can  say  whether  you  are  not  guilty,  without  any  papers.  .  .  . 

Colledge.  —  If  I  had  those  papers,  I  could  tell  what  I  should  plead.  .  .  . 

CI.  of  Cr.  —  You  have  heard  the  opinion  of  the  Court,  you  must  first 
plead. 

Colledge  —  I  cannot  plead  first.  I  must  lose  my  life,  if  I  must;  I  neither 
know  who  accuses  me,  nor  what  it  is  they  accuse  me  of;  it  is  impossible  I  could 
defend  myself  if  I  have  not  my  papers. 

L.  C.  J.  —  We  know  not  what  papers  you  mean. 

Colledge.  —  The  gaoler  took  them  from  me,  and  one  of  the  king's  mes- 
sengers.  .  .  . 

Just.  Jones.  —  But  this  is  a  matter  of  fact,  and  therefore  you  may  plead  not 
guilty,  as  well  without  your  papers,  as  if  you  had  them.  .  .  . 


No.  493  DISCOVERY  729 

L.  C.  J.  —  Why  don't  you  i)lcad  not  guilty,  then?  .... 

Colledge.  —  Mr.  Attorney,  pray  let  me  have  a  copy  of  the  indictment. 

Att.  Gem.  —  Apply  yourself  to  the  Court  for  it,  we  must  receive  our  directions 
from  thence. 

L.  C.  J.  —  You  have  had  the  opinion  of  the  Court,  you  can't  have  it.  .  .  . 
If  you  desire  the  indictment  read  over  again  distinctly,  that  you  may  have. 

Att.  Gen.  —  Ay,  with  all  my  heart. 

Colledge.  —  Pray  let  me  hear  it  again,  my  lord,  if  you  please. 

L.  C.  J.  —  Read  it  over  again  to  him,  and  read  it  distinctly.  .  .  . 

Colledge.  —  Pray,  my  lord,  either  give  me  my  i)apers  or  assign  me  counsel, 
or  else  I  may  throw  away  my  life,  for  I  am  wholly  ignorant  of  the  law. 

L.  C.  J.  —  When  you  have  pleaded,  we  will  hear  any  motion  you  will  make, 
and  do  that  which  is  just  upon  it;  but  I  see  no  use  you  can  have  of  papers  to  plead 
guilty,  or  not  guilty,  which  is  the  only  question  is  asked  you.  .  .  . 

Just.  Jones.  —  You  have  heard  the  indictment  read,  what  say  you?  For 
you  must  propose  the  matter.  .  .  . 

Colledge.  —  I  pray  I  may  have  my  papers  again;  if  there  be  no  other  plea  for 
me,  pray  let  me  have  my  papers  again. 

L.  C.  J.  —  You  have  heard  the  opinion  of  the  Court;   you  must  plead.  .  .  . 

CI.  of  Cr.  —  Are  you  guilty  or  not  guilty? 

Colledge.  —  Why  then,  as  they  have  laid  it  in  that  indictment,  in  manner 
and  form  as  it  is  there  laid,  I  am  not  guilty.  .  .  . 

L.  C.  J.  —  Now  he  has  pleaded,  Mr.  Attorney.  He  speaks  of  some  papers, 
if  there  be  any  memorandums,  or  anything  that  must  assist  him  that  is  necessary 
for  his  defence  in  his  trial  in  those  papers,  it  will  be  hard  to  deny  him  them. 

Att.  Gen. — If  your  lordships  please  to  give  me  leave,  I  will  give  you  an 
account  of  them.  The  messengers  just  now  did  deliver  these  papers  to  be  delivered 
to  the  Court.  .  .  .  But  if  it  please  your  lordship,  I  desire  you  would  enter  into 
the  examination  of  this  matter;  for  I  have  an  account  from  London  by  a  special 
messenger,  that  there  are  several  persons  go  up  and  do\\'n  to  procure  witnesses 
against  the  king's  evidence,  making  it  a  public  cause;  and  here,  my  lord,  is  another 
paper  which  is  a  list  of  men  as  witnesses  picked  up  together  against  the  king's 
witnesses. 

L.  C.  J.  —  He  must  have  that,  deliver  him  that  presently. 

Att.  Gen.  —  But,  my  lords,  others  have  gone  about  and  framed  witnesses  for 
him. 

L.  C.  J.  —  You  must  give  him  the  list  of  his  witnesses,  for  I  see  not  what  use 
you  can  make  of  it.  .  .  .  What  hurt  is  there,  if  the  papers  be  put  into  some 
trusty  hands,  that  the  prisoner  may  make  the  best  use  of  them  he  can,  and  yet 
they  remain  ready  to  be  produced  upon  occasion:  if  a  man  be  speaking  for  his 
life,  though  he  speak  that  which  is  not  material,  or  nothing  to  the  purpose,  there 
will  be  no  harm  to  permit  that.  .  .  . 

Att.  Gen.  —  If  people  are  permitted  to  go  up  and  down  and  ask  counsel  of 
persons,  and  bring  it  in  papers  to  the  prisoner,  it  is  the  same  thing  as  if  counsel 
came  to  him.  .  .  . 

Colledge.  —  Shall  I  not  have  the  use  of  my  papers,  my  lord :  will  you  not 
please  to  deliver  them  back  to  me  now  you  have  perused  them?  .  .  . 

L.  C.  J.  —  For  that  w'hich  contains  the  names  of  the  witnesses,  that  you 
have  again:  for  the  other  matters,  the  instructions  in  point  of  law,  .  .  .  that 
were  to  give  you  counsel  in  an  indirect  way,  which  the  law  gives  you  not 
directly. 


730  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  493 

Colledge.  —  If  I  am  ignorant  what  question  to  ask  of  the  witnesses,  shall  not 
my  friends  help  me,  my  lord? 

L.  C.  J.  —  We  will  sift  out  the  truth  as  well  as  we  can,  you  need  not  fear 
it.  .  .  . 

Colledge.  —  Will  you  please  to  give  me  the  paper  that  has  the  questions  in 
it,  to  ask  the  witnesses? 

L.  C.  J.  —  There  are  no  papers  with  any  particular  questions  to  any  one 
witness,  but  only  instructions  how  to  carry  yoiu-self  in  this  case.  .  .  .  We  have 
ordered  that  you  shall  have  a  transcript  of  the  paper  of  instructions,  leaving  out 
that  which  is  scandalous. 

Colledge.  —  I  desire  I  may  have  a  copy  of  the  whole. 

Just.  Jones.  —  No,  we  do  not  think  fit  to  do  that. 

Colledge.  —  Pray  let  me  know  which  you  do  except  against. 

L.  C.  J.  —  Look  you,  Mr.  Attorney,  I  think  we  may  let  him  have  a  copy  of 
the  whole. 

494.  Sir  James  Stephen.  History  of  the  Criminal  Law.  (1883,  Vol.  I,  pp. 
225,398).  I  do  not  think  any  part  of  the  old  procedure  operated  more  harshly 
upon  prisoners  than  the  summary  and  secret  way  in  which  justices  of  the  peace, 
acting  frequently  the  part  of  detective  officers,  took  their  examinations  and  com- 
mitted them  for  trial.  It  was  a  constant  and  most  natural  and  reasonable  topic 
of  complaint  by  the  prisoners  who  were  tried  for  the  Popish  Plot  that  they  had 
been  taken  without  warrant,  kept  close  prisoners  from  the  time  of  their  arrest, 
and  kept  in  ignorance  of  the  evidence  against  them  till  the  very  moment  when 
they  were  brought  into  Court  to  be  tried.  This  is  set  in  a  strong  light  by  the 
provisions  of  [1709,  St.  7  Anne,  c.  21,  §  14,  allowing  a  list«of  witnesses  in 
treason].  .  .  .  This  was  considered  as  an  extraordinary  effort  of  liberality. 
It  proves,  in  fact,  that  even  at  the  beginning  of  the  eighteenth  century,  and  after 
the  experience  of  the  State  trials  held  under  the  Stuarts,  it  did  not  occur  to  the 
Legislature  that,  if  a  man  is  to  be  tried  for  his  life,  he  ought  to  know  beforehand 
what  the  evidence  against  him  is,  and  that  it  did  appear  to  them  that  to  let  him 
know  even  what  were  the  names  of  the  witnesses  was  so  great  a  favor  that  it  ought 
to  be  reserved  for  people  accused  of  a  crime  for  which  legislators  themselves  or 
their  friends  and  connections  were  likely  to  be  prosecuted.  It  was  a  matter  of 
direct  personal  interest  to  many  members  of  Parliament  that  trials  for  political 
oflfences  should  not  be  grossly  unfair;  but  they  were  comparatively  indifferent 
as  to  the  fate  of  people  accused  of  sheep-stealing  or  burglary  or  murder.  .  .  . 
[The  prisoner]  was  not  allowed  as  a  matter  of  right,  but  only  as  an  occasional 
exceptional  favor,  ...  to  see  his  [own]  witnesses  or  put  their  evidence  in  order. 
When  he  came  into  Court,  he  was  set  to  fight  for  his  life  with  absolutely  no  knowl- 
edge of  the  evidence  to  be  produced  against  him. 

495.  Statutes.  Michigan.  Compiled  Laws  1897,  §  11883.  [The  foreman 
of  the  grand  jury  shall  return  to  Court  or  deliver  to  the  prosecuting  attorney] 
a  list  of  all  the  witnesses  sworn  before  the  grand  jury,  [when  an  indictment  is 
found]. 

lb.,  §  11893.  [The  indictment],  with  the  names  of  the  complainant  and  all 
the  witnesses  indorsed  on  the  back  thereof,  [is  to  be  filed]. 

lb.,  §  11934.  [The  prosecuting  attorney,  on  filing  an  information,  shall]  indorse 
thereon  the  names  of  all  the  witnesses  known  to  him  at  the  time  of  filing  the 
same,  and  at  such  time  before  the  trial  of  any  case  as  the  Court  may  by  rule  or 


No.  49G  DISCOVERY  731 

otherwise  prescribe,  he  shall  also  endorse  thereon  the  names  of  such  other  witnesses 
as  shall  then  he  known  to  him. 

United  States.  St.  1790,  April  30,  §  29,  Rev.  St.  1878,  §  1033.  [A  list]  of  the 
witnesses  to  be  produced  on  the  trial  by  proving  the  indictment,  stating  the 
place  of  abode,  [is  to  be  delivered]  at  least  three  entire  days  [before  trial,  for 
treason,  and]  at  least  two  entire  days  [before,  for  other  capital  offenses]. 


496.   STATE  v.   MYERS 

Supreme  Court  of  Missouri.     1906 

198  Mo.  225;  94  S.  W.  242 

Appeal  from  Clay  Circuit  Court.  —  Hon.  J.  W.  Alexander,  Judge. 
Affirmed. 

At  a  special  term  of  the  Circuit  Court  of  Clay  county,  convened  on 
the  5th  day  of  June,  1905,  the  defendant  was  put  upon  her  trial  and 
convicted  of  murder  in  the  first  degree.  Motions  for  a  new  trial  and  in 
arrest  of  judgment  were  duly  filed,  heard,  and  overruled,  and  excep- 
tions saved.  Thereupon  the  defendant  was  duly  sentenced  on  the  24th 
day  of  June,  1905,  in  accordance  with  the  verdict  of  the  jury.  From  that 
judgment  and  sentence  she  has  appealed  to  this  Court.  .  .  . 

The  first  error  alleged  by  the  defendant  is  the  refusal  of  the  Circuit 
Court  to  grant  the  defendant  a  continuance  after  both  parties  had  an- 
nounced ready  for  trial,  and  after  the  jury  had  been  impaneled,  on  the 
grounds  that  the  names  of  the  witnesses  Frank  Hottman,  Nettie  Hottman, 
Bertha  Hottman,  Ella  Hottman,  and  John  Hottman  were  not  indorsed 
upon  the  information  until  after  the  jury  were  sworn  to  try  the  case,  and 
because  the  defendant  had  not  been  otherwise  notified  that  said  witnesses 
were  to  be  used  against  her  until  after  the  jury  was  sworn.  The  names  of 
54  witnesses  were  indorsed  on  the  information.  The  record  does  not 
disclose  what  names  of  witnesses  were  indorsed  when  the  information  was 
filed  in  court,  but  it  does  show  that  49  names  were  indorsed  on  the  in- 
formation by  the  prosecuting  attorney  by  leave  of  the  Court  on  the  16th 
day  of  March,  1905.  After  the  jury  was  sworn  to  try  the  case,  and  before 
any  evidence  was  offered,  the  prosecuting  attorney  by  leave  of  the  Court, 
over  the  objection  of  the  defendant,  indorsed  on  the  information  the 
additional  names  of  the  witnesses  Frank,  Nettie,  Bertha,  Ella,  and  John 
Hottman.  After  the  opening  statement  of  the  prosecuting  attorney, 
the  defendant  further  objected  to  going  to  trial,  for  the  reason  that  the 
opening  statement  of  the  prosecuting  attorney  of  Jackson  county,  Mo., 
to  the  jury,  disclosed  a  state  of  facts  which  was  to  be  sustained  and 
proved  only  by  said  Hottmans,  and  that  the  defendant  was  not  prepared 
to  meet  their  testimony.  The  Court  overruled  the  objection,  and  the 
defendant  excepted.  The  defendant  afterward  filed  an  affidavit  in 
support  of  her  exception  and  objection. 

Frank  Gordon,  R.  B.  Ruff,  W.  E.   Fowler,  and  Jos.   S.  Brooks,  for 


732  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  496 

appellant.  (1)  The  Court  erred  in  refusing  to  grant  defendant  a  con- 
tinuance, on  the  ground  that  the  names  of  the  witnesses  Frank  Hottman, 
Nettie  Hottman,  Bertha  Hottman,  Ella  Hottman  and  John  Hottman, 
were  not  indorsed  upon  the  information,  and  defendant  was  not  otherwise 
notified  that  such  witnesses  were  to  be  used  against  her  till  after  the  jury- 
was  impaneled  and  sworn  to  try  the  cause.     Sec.  2517,  R.  S.  1899.  .  .  . 

Herbert  S.  Hadley,  Attorney-General,  and  John  Kennish,  Assistant 
Attorney-General,  for  the  State.  (1)  The  Court  did  not  err  in  refusing 
to  grant  the  defendant  a  continuance  on  the  ground  that  the  names  of 
Frank  Hottman,  Nettie  Hottman,  Ella  Hottman  and  John  Hottman, 
witnesses  for  the  State,  were  not  indorsed  upon  the  information  and  that 
defendant  was  not  otherwise  notified  that  such  witnesses  were  to  be  used 
against  her  until  after  the  jury  was  impaneled  and  sworn  to  try  the  cause. 
...  If  during  the  trial  of  the  case  it  had  been  made  to  appear  to  the 
Court  that  the  State  had  taken  an  undue  advantage  of  defendant  by 
purposely  refraining  from  indorsing  on  the  information  the  names  of  the 
material  witnesses  for  the  State,  it  would  nevertheless  have  been  the 
duty  of  the  Court  to  have  proceeded  with  the  trial,  and  in  case  the  jury 
returned  a  verdict  of  guilty  to  have  granted  a  new  trial  to  defendant  for 
that  reason. 

Gantt,  J.  (after  stating  the  case  as  above) :  The  action  of  the  Court 
in  permitting  the  State  to  call,  and  the  said  witnesses  to  testify,  as  wit- 
nesses for  the  State  presents  the  first  question  for  our  determination.  The 
contention  of  the  defendant,  it  will  be  observed,  is  based  upon  section 
2517,  Rev.  St.  1899,  which  provides:  "When  an  indictment  is  found  by 
the  grand  jury,  the  names  of  all  the  material  mtnesses  must  be  endorsed 
upon  the  indictment;  other  witnesses  may  be  subpoenaed  or  sworn  by 
the  State,  but  no  continuance  shall  be  granted  to  the  State  on  account  of 
the  absence  of  any  witness  whose  name  is  not  thus  endorsed  on  the  in- 
dictment, unless  upon  the  affidavit  of  the  prosecuting  attorney  showing 
good  cause  for  such  continuance."  This  statute  has  been  before  this 
Court  for  construction  many  times.  It  was  enacted  for  the  first  time  in 
1879  as  section  1802. 

The  common  law  did  not  require  the  names  of  any  of  the  witnesses 
■  to  be  indorsed  upon  the  indictment  for  any  purpose  connected  with  the 
trial.     In  Hill  v.  People,  26  Mich.  496,  Christiancy,  C.  J.,  said: 

"But,  as  the  ^^'itnesses  who  were  to  testify  before  the  grand  jury  were  sworn 
in  open  Court  before  they  were  sent  to  the  grand  jury,  a  list  of  the  witnesses 
intended  to  be  examined  before  that  jury  was  required  to  be  indorsed  on  the  back 
of  the  bill  as  drawn  up  to  be  laid  before  them.  This  was  required  for  two  pur- 
poses: First  that  the  crier,  or  other  officer  whose  duty  it  was  to  swear  the  wit- 
nesses, might  know  who  would  be  called  and  sworn,  and  that  he  might  certify  to 
their  being  sworn,  which  he  did  by  adding  after  their  names  'sworn  in  Court'; 
and  second,  that  the  grand  jury  might  know  what  witness  to  call  and  who  had 
been  sworn.  In  this  mode,  it  is  true,  a  defendant  for  a  misdemeanor  incidentally 
got  the  benefit  of  a  list  of  the  witnesses  who  had  testified  before  the  grand  jury. 


No.  496  DISCOVERY  733 

because,  in  cases  of  misdemeanor,  he  was  entitled  to  a  copy  of  the  indictment. 
But,  in  cases  of  felony,  he  failed  to  receive  even  this  incidental  benefit,  as  in  such 
cases  he  was  not  entitled  to  a  copy  of  the  indictment.  It  follows  that,  apart 
from  the  express  or  implied  requirement  of  some  statute,  there  is  at  common  law 
no  rule  of  evidence  excluding  witnesses  whose  names  have  not  been  furnished  to 
the  accused;  nor  is  there  any  rule  of  preliminary  procedure  permitting  the  accused 
to  obtain  such  a  list  by  motion  before  trial." 

3  Wigmore  on  Evidence,  §  1850;  1  Bishop,  New  Crim.  Proc.  §  869a; 
Ballard  v.  State,  19  Neb.  609,  28  N.  W.  271. 

Our  statute  was  evidently  enacted  to  cure  this  defect  in  the  common 
law.  It  was  ruled  in  State  v.  Roy,  83  Mo.  268,  and  State  v.  Grady,  84 
Mo.  220,  that  a  complete  failure  to  indorse  the  names  of  the  material 
witnesses  on  an  indictment  was  a  sufficient  ground  to  quash  it.  .  .  .  It 
is  right  that,  when  a  citizen's  liberty  or  life  is  endangered,  he  should 
know  the  names  of  the  witnesses  by  whom  the  charge  is  to  be  made  good, 
but,  while  this  is  true,  it  cannot  be  said  that,  if  the  State  discovers  evi- 
dence that  the  grand  jury  could  not  obtain,  the  State  shall  not  avail 
itself  of  this  evidence  if  discovered  before  it  closes  its  case.  Indeed, 
section  4097,  Rev.  St.  1889,  now  2517,  Rev.  St.  1899,  expressly  provides: 
"Other  witnesses  may  be  subpoenaed  or  sworn  by  the  State."  And  in 
State  V.  Henderson,  186  Mo.,  loc.  cit.  482,  it  was  said: 

We  have  not  held  in  any  case  that,  where  the  prosecuting  attorney  has  indorsed 
the  names  of  the  witnesses  for  the  State,  the  omission  of  one  name  would  afford 
a  ground  for  new  trial  on  the  mere  objection  that  the  name  of  such  witness  had 
not  been  indorsed  on  the  indictment  or  information. 

And  in  the  recent  case  of  State  x.  Barrington  this  same  view  was  expressed. 
In  the  Henderson  Case  and  in  the  Barrington  Case,  the  view  was 
expressed  that  there  might  be  a  case  so  flagrant  as  to  amount  to  a  surprise, 
and  upon  a  proper  showing  that  the  defendant,  if  advised  that  the  par- 
ticular witness  would  be  called  against  him,  would  have  been  able  to 
impeach  his  character  or  contradict  his  testimony  by  other  witnesses  and 
in  such  a  case,  the  Court,  by  virtue  of  its  inherent  power  and  in  further- 
ance of  justice,  could  grant  a  new  trial.  But,  in  this  case,  it  is  not  con- 
tended that  the  prosecuting  attorney  purposely  refrained  from  indorsing 
the  names  of  the  witnesses  on  the  information,  in  order  to  obtain  an  undue 
advantage  of  the  defendant.  Indeed,  the  testimony  of  the  prosecuting 
attorney  clearly  negatives  such  a  purpose.  To  hold  that  the  State  cannot 
use  any  witness  other  than  those  indorsed  upon  the  indictment  or  informa- 
tion would  be  to  nullify  that  portion  of  the  section  which  gives  to  the 
State  the  right  to  use  other  witnesses  than  those  whose  names  are  indorsed 
on  the  indictment,  although  the  prosecuting  attorney  learned  of  their 
evidence  after  the  finding  of  the  indictment  or  the  filing  of  the  informa- 
tion, and  although  the  common  law  made  no  such  requirement.  We 
are  of  the  opinion  that  the  Circuit  Court  committed  no  error  in  permitting 
the  State  to  call  and  examine  the  witnesses  above  named  who  were  not 
indorsed  upon  the  information,  and  did  not  err  in  refusing  to  grant  a 


734  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  496 

continuance  on  the  ground  that  other  names  were  not  indorsed  on  the 
information,  and  this  ruUng  is  apphcable  likewise  to  the  witnesses 
Meinsen,  McClaskey,  Prewitt,  Bowen,  and  Stohl,  whose  names  also 
were  not  indorsed  on  the  information.  .  .  . 

The  judgment  of  the  Circuit  Court  must  be  and  is  affirmed,  and  the 
sentence  which  the  law  pronounces  is  directed  to  be  carried  into  execution. 

Burgess,  P.  J.,  and  Fox,  J.,  concur. 


Sub-topic  B.     Civil  Cases 

497.  Sir  James  Wigram,  V.  C.  Discovery.  (1S36.  §§  31,  32,  148).  Proposi- 
tion I :  It  is  the  right,  as  a  general  rule,  of  a  plaintiff  in  equity  to  examine  the 
defendant  as  to  all  matters  of  fact  whirh,  being  well  pleaded  in  the  bill,  are  material 
to  the  proof  of  the  plaintiff's  case  and  which  the  defendant  does  not  by  his  form 
of  pleading  admit.  Proposition  II:  Courts  of  equity,  as  a  general  rule,  obliged 
defendant  to  pledge  his  oath  to  the  truth  of  his  defense.  With  this  (if  a)  qualifica- 
tion, the  right  of  a  plaintiiT  in  equity  to  the  benefit  of  the  defendant's  oath  is 
limited  to  a  discovery  of  such  material  facts  as  relate  to  the  plaintiff's  case,  and 
does  not  extend  to  a  discovery  of  the  manner  in  which  or  the  evidence  by  means  of 
which  the  defendant's  case  is  to  be  established,  or  to  any  discovery  of  the  defend- 
ant's evidence.  ...  If  it  were  now  for  the  first  time  to  be  determined  whether  in 
the  investigation  of  disputed  facts  truth  would  be  best  elicited  by  allowing  each 
of  the  contending  parties  to  know  before  the  trial  in  what  manner  and  by  what 
evidence  his  adversary  proposed  to  establish  his  own  case,  arguments  of  some 
weight  might "  a  priori "  be  adduced  in  support  of  the  affirmative  of  this  important 
question.  Experience,  however,  has  shown  —  or,  at  least.  Courts  of  justice  in 
this  country  act  upon  the  principle  —  that  the  possible  mischiefs  of  surprise  at 
a  trial  are  more  than  counterbalanced  by  the  danger  of  perjury  which  must 
inevitably  be  incurred  when  either  party  is  permitted  before  a  trial  to  know  the 
precise  evidence  against  which  he  has  to  contend.  And  accordingly,  by  the  settled 
rules  of  Courts  of  justice  in  this  country  (approved  as  well  as  acknowledged) 
each  party  in  a  cause  has  thrown  upon  him  the  onus  of  supporting  his  own  case 
and  meeting  that  of  his  adversary  without  knowing  beforehand  by  what  evidence 
the  case  of  his  adversary  is  to  be  supported  or  his  own  opposed. 

498.  Common  Law  Practice  Commissioners.  Second  Report  (1853),  p.  35. 
As  to  facts  within  the  knowledge  of  an  adverse  party,  the  Courts  of  law  possess 
no  power  of  compelling  discovery;  except,  indeed,  that  by  the  recent  change  [of 
1851]  in  the  law  each  party  may  be  called  as  a  witness  [on  the  trial]  by  his  opponent; 
but  it  is  obvious  that  this  course  will  only  be  resorted  to  in  the  most  desperate 
emergency.  It  cannot  reasonably  be  expected  that  a  party  ignorant  of  what  his 
adversary  may  be  prepared  to  swear,  shall  put  so  adverse  and  interested  a  witness 
into  the  box,  without  having  had  any  opportunity  of  previous  interrogation. 
For  the  purpose  of  discovery,  previous  to  the  trial,  whether  of  facts  or  of  docu- 
ments, the  party  desiring  it  has  now  no  alternative  but  to  resort  to  a  Court  of 
equity.  We  have  no  hesitation  in  saying  that  this  is  altogether  WTong.  We 
assert  as  an  indisputable  proposition,  that  every  Court  ought  to  possess  within 
itself  the  means  of  administering  complete  justice  within  the  scope  of  its  jurisdic- 
tion. .  .  .  This  opportunity  for  examination  prior  to  the  trial  will  be  useful,  not 


No.  499  DISCOVERY  735 

only  for  the  purpose  of  discovering  facts  exclusively  in  the  knowledge  of  the 
opposite  party,  but  as  the  means  of  sparing  the  trouble  and  expense  of  producing 
evidence  of  facts  which  he  may  be  prepared  to  admit;  while,  on  the  other  hand, 
it  will  tend  to  make  more  clearly  manifest  the  matters  which  are  alone  in  contest 
between  the  parties.  In  some  cases,  such  a  preliminary  discovery  may  even 
altogether  obviate  the  necessity  of  any  trial,  by  compelling  the  one  party  or  the 
other  to  admit  facts  decisive  of  the  case  upon  the  merits,  so  as  to  show  that 
proceeding  to  trial  would  be  a  mere  abuse  of  the  forms  of  justice.  A  power  of 
preliminary  discovery  would  likewise  tend  to  expose  the  motives  of  groundless 
actions  brought  for  vexation,  and  of  unfounded  defences  set  up  and  persisted  in 
for  delay.  It  would,  moreover,  have  a  most  wholesome  effect  in  preventing  false 
pleas  from  being  put  on  the  record;  for  as  soon  as  the  examination  of  the  party 
had  made  manifest  the  falsehood  of  the  plea,  a  judge  might  be  applied  to 
disallow  the  pleading  at  the  expense  of  the  party  pleading  it.  If  the  very 
existence  of  such  a  power  had  not  the  effect  of  preventing  the  necessity  of  its 
exercise,  it  would  at  least  aid  the  Court  in  extirpating  frivolous  and  improper 
litigation. 

We  propose  that  either  party  in  a  cause  shall  be  at  liberty  to  deliver  to  the 
opposite  party,  provided  such  party  would  be  liable  to  be  called  as  a  witness, 
or  his  attorney,  \\Titten  questions  on  the  subjects  on  which  discovery  is  sought; 
and  to  recfuire  such  party,  within  a  time  to  be  fixed,  to  answer  the  questions  in 
WTiting  upon  oath,  sworn  and  filed  in  the  same  manner  and  under  the  same 
sanction,  in  case  of  falsehood,  as  an  affidavit;  and  that  the  party  omitting  to 
answer  within  the  prescribed  time  shall  be  subject  to  the  consequences  of  a  con- 
tempt of  the  Court.  But  we  by  no  means  propose  to  confine  the  power  of  inter- 
rogating such  adverse  party  to  the  WTitten  questions  above  referred  to.  We 
think  that  in  many  cases  an  opportunity  should  be  afforded  for  oral  examination. 
At  the  same  time,  care  must  be  taken  that  the  power  of  personal  examination 
be  not  abused  by  being  made  a  means  of  vexation  and  oppression,  when  used 
against  weak  or  timid  persons.  We  propose,  therefore,  not  to  leave  it  at  the 
option  of  a  party  to  demand  an  oral  examination,  but  to  give  the  Court,  or  a 
judge,  discretion,  on  the  application  of  either  party,  in  case  of  an  insufficient 
answer  to  the  WTitten  questions  before  referred  to,  or  in  any  other  case  in  which 
it  may  be  made  to  appear  essential  to  justice,  to  direct  an  oral  examination  of 
the  other  party  before  either  a  judge  or  a  master  of  the  Court. 

499.  Statutes.  Illinois.  Revised  Statutes,  1874,  c.  51,  §  6.  Any  party 
to  any  civil  action,  suit  or  proceeding,  may  compel  any  adverse  party  or  person 
for  whose  benefit  such  action,  suit,  or  proceeding  is  brought,  instituted,  prose- 
cuted, or  defended,  to  testify  as  a  witness  at  the  trial,  or  by  deposition,  taken  as 
other  depositions  are  by  law  required,  in  the  same  manner,  and  subject  to  the 
same  rules,  as  other  witnesses. 

St.  1905,  May  18  (Municipal  Court  in  Chicago),  §  32.  The  Municipal  Court 
in  any  civil  suit  pending  therein,  at  any  time  before  the  trial  or  final  hearing 
thereof,  may  permit  the  filing  therein  of  interrogatories  to  be  answered  by  any 
party  to  such  suit  or  any  person  for  whose  immediate  benefit  such  suit  is  prose- 
cuted or  defended,  or  by  the  directors,  officers,  superintendent  or  managing  agents 
of  any  corporation  which  is  a  party  to  the  record  in  such  suit,  at  the  instance  of 
the  adverse  party  or  parties  or  any  of  them,  and  to  require  an  answer  under  oath 
to  all  such  interrogatories  as  the  party  to  be  interrogated  might  be  required  to 
answer,  if  called  as  a  witness  upon  the  trial  or  hearing  of  such  suit,  but  the  party 


736  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  499 

filing  such  interrogatories  shall  not  be  concluded  by  the  answers  thereto,  if  he 
shall  elect  to  introduce  the  same  or  any  or  either  of  them  upon  the  trial  or  final 
hearing. 

Massachusetts.  Revised  Laws,  1902,  c.  173,  §§  35,  57-63  (quoted  post,  No. 
396). 

New  York.  C.  C.  P.  1877,  §  870.  The  deposition  of  a  party  to  an  action 
pending  in  a  Court  of  record,  or  of  a  person  who  expects  to  be  a  party  .  .  .  may 
be  taken  at  his  own  instance  or  at  the  instance  of  an  adverse  party  or  of  a  co- 
plaintiff  or  co-defendant  at  any  time  before  the  trial. 


500.   Ex  PARTE  SCHOEPF 

Supreme  Court  of  Ohio.     1906 

74  Oh.  1;  77  N.E.  27Q 

Error  to  Circuit  Court,  Hamilton  County.  Habeas  corpus  proceed- 
ings by  J.  H.  Schoepf  to  secure  petitioner's  discharge  from  custody. 
From  a  judgment  remanding  petitioner,  he  brings  error.  Judgment 
reversed,  and  petitioner  discharged. 

On  the  18th  day  of  June,  1902,  one  Josephine  Pace  filed  a  petition  in 
the  court  of  common  pleas  of  Hamilton  county  against  the  Cincinnati 
Traction  Company,  alleging  in  substance  that  the  defendant  is  a  corpora- 
tion organized  and  doing  business  under  the  laws  of  the  State  of  Ohio; 
that  it  owned  and  used  a  street  railroad  leading  from  Cincinnati  to  the 
village  of  College  Hill,  on  which  cars  were  operated  by  means  of  electricity; 
and  that  on  the  17th  day  of  May,  1902,  while  the  plaintiff  was  a  passenger 
on  one  of  the  cars  of  the  defendant,  "  the  said  defendant,  by  its  agents 
or  servants,  so  carelessly,  negligently,  and  unskillfully  and  improperly 
managed  and  conducted  said  car  that  the  same  was  caused  to  run  roughly 
and  unevenly  and  was  jolted  so  that  this  plaintiff,  through  no  fault  or 
negligence  on  her  part,  was  violently  jolted  and  thrown  from  the  said  car 
and  on  to  the  street  or  roadway  alongside  said  railroad,"  whereby  she  was 
severely  injured.  On  the  26th  day  of  July,  1902,  the  defendant  answered 
the 'Said  petition,  admitting  that  it  was  a  corporation  as  alleged,  and  that 
it  used  a  certain  street  railroad  leading  from  Cincinnati  to  College  Hill, 
with  cars  operated  by  means  of  electricity;  but  it  denied  that  it  owned 
the  said  street  railroad,  and  denied  each  and  every  allegation  contained 
in  the  petition,  except  as  expressly  admitted  in  said  answer.  Thereafter, 
on  the  11th  day  of  August,  1904,  one  Charles  E.  Tenney,  a  notary  pubUc, 
before  whom  notice  had  been  given  to  take  depositions,  issued  a  subpoena 
duces  tecum  to  the  plaintiff  in  error,  J.  H.  Schoepf,  to  appear  before  him 
and  give  testimony  in  the  case  then  pending,  wherein  Josephine  Pace 
was  plaintiff  and  the  Cincinnati  Traction  Company  was  defendant,  and 
containing  the  following  clause:  "  And  to  bring  with  you  any  reports  you 
may  have  control  over,  or  in  your  possession,  made  by  the  motorman  or 
conductor  of  a  College  Hill-]\Iain  car  of  the  Cincinnati  Traction  Com- 


No.  500  DISCOVERY  737 

pany,  concerning  any  accident  occurring  May  17,  1902,  because  of  which 
this  suit  was  brought." 

The  phiintiff  in  error  appeared  before  the  said  notary  public  on  the 
IGth  day  of  August,  1902,  pursuant  to  the  subpoena,  and  on  examination 
testified  that  he  was  the  claim  agent  of  the  Cincinnati  Traction  Company. 
...  He  was  asked:  "Q.  3.  On  the  17th  day  of  May,  1902,  a  woman  fell 
or  was  thrown  off  a  car  belonging  to  the  Cincinnati  Traction  Company, 
at  or  near  the  corner  of  Oak  and  Belmont  streets.  College  Hill.  Who 
was  the  conductor  in  charge  of  this  car?"  Also  the  following  question: 
"Q.  5.  Do  you  know  the  name  of  this  conductor?"  Also  the  following 
question:  "Q.  6.  Do  you  know  the  name  of  the  motorman  of  this  car?" 
Also  the  following  question :  "  Q.  7.  Were  there  any  other  persons  on  this 
car  besides  the  plaintiff,  conductor,  and  motorman?"  Also  the  following 
question :  "  Q.  8.  Were  there  any  persons  that  you  know  of,  besides  the 
plaintiff,  conductor,  and  motorman,  present  at  the  time  of  the  accident, 
and  who  witnessed  it?"  To  each  of  the  aforesaid  questions  the  counsel 
for  the  defendant  company  objected,  and  the  witness  refused  to  answer 
the  same  upon  the  advice  of  counsel,  for  the  reason  that  the  same  were 
immaterial,  irrelevant,  and  incompetent,  and  for  the  reason  that  these 
questions  call  for  hearsay  testimony.  .  .  .  Thereupon  the  said  notary 
public  ordered  the  plaintiff  in  error  to  be  committed  to  jail  until  he  should 
answer  the  said  questions  and  produce  the  said  reports. 

Plaintiff  in  error  began  these  proceedings  by  an  application  in  the 
Court  of  Common  Pleas  of  Hamilton  county  for  a  writ  of  habeas  corpus. 
.  .  .  The  Circuit  Court  held  that  these  five  questions  should  be  answered, 
and  ordered  that  Schoepf  be  remanded  to  the  custody  of  the  sheriff  until 
he  should  answer  the  .  .  .  five  questions  above  set  forth,  and  also  should 
produce  the  said  reports.  This  judgment  of  the  Circuit  Court  is  here 
assigned  for  error;  plaintiff  in  error  seeking  to  have  both  the  judgment  of 
the  Circuit  Court  and  the  judgment  of  the  Court  of  Common  Pleas 
reversed  and  held  for  naught. 

Kitiredge  &  Wilhy,  Joseph  Wilby,  John  W.  Warrington,  George  H. 
Warrington,  Outcalt  &  Foraker,  and  FJlis  G.  Kinkead,  for  plaintiff  in  error. 

Oliver  S.  Bryant  and  Charles  B.  Wilby,  for  defendant  in  error. 

Davis,  J.^  (after  stating  the  facts).  —  1.  It  is  earnestly  argued  in 
behalf  of  the  defendant  in  error,  and  that  also  seems  to  be  the  view 
entertained  by  the  Circuit  Court  and  the  court  of  Common  Pleas,  that  a 
witness  who  is  testifying  in  a  deposition  before  a  notary  public  may  be 
compelled  to  produce  any  document  which  by  any  possibility  may  become 
pertinent  on  the  trial  of  the  case  in  which  the  deposition  is  taken.  It  is 
asserted  that  In  re  Rauh,  Go  Ohio  St.  128,  61  N.  E.  701,  is  authority  for 
this  proposition;  and  it  is  contended  that  the  reports  which  had  been 
made  to  the  plaintiff  in  error,  as  the  claim  agent  of  the  company,  are 
admissions  by  the  company,  and  that  if  the  motorman  and  conductor 


^  [Point  2  of  the  opinion  is  the  only  one  here  involved.  —  Ed.] 


738  BOOK   l:     RULES   OF    ADMISSIBILITY  No.  500 

who  made  these  reports  should  testify  on  the  trial  of  the  case,  the  com- 
pany and  its  agents  might  be  compelled  to  produce  the  reports  for  the 
possible  purpose  of  contradiction.  It  is  also  asserted,  although  it  is  not 
even  suggested  how  or  why  it  might  be  so,  that  these  reports  vuiy  become 
evidence  relating  to  the  merits  of  the  action,  and  as  such  the  company 
might  be  compelled  to  produce  them  for  evidence  or  inspection.  It  is 
even  seriously  maintained  that  a  party  taking  a  depositicm  has  a  greater 
privilege  under  the  law  than  he  would  have  on  the  trial  of  his  case,  in 
that  the  witness  must  produce  any  document  called  for,  although  he  may 
believe  that  it  is  privileged,  and  in  that  the  witness  must  answer  imperti- 
nent and  incompetent  questions,  although  he  may  believe  that  the 
answers  would  be  privileged,  and  although  the  answers  would  not  be 
admissible  if  offered  to  the  jury  on  the  trial  of  the  case.  And  here  again 
it  is  claimed  that  the  case  of  Rauh,  supra,  and  other  cases  in  this  court  and 
elsewhere,  support  this  contention.  It  was  clearly  pointed  out  in  Ex 
parte  Jennings,  60  Ohio  St.  319,  54  N.  E.  262,  [post,  No.  703,]  that 
neither  the  officer  who  takes  a  deposition  nor  the  court  on  the  trial  of  the 
case  has  power  to  punish  a  witness  for  disobedience  of  a  subpoena  or  a 
refusal  to  answer  except  when  the  witness  has  been  "lawfully  ordered." 
Section  5252,  Rev.  St.  1906.  And  in  that  case  and  the  Rauh  Case  also 
it  was  said  that  when  the  witness  undertakes  to  decide  upon  the  question 
w^hether  he  has  been  "lawfully  ordered"  he  does  so  at  his  own  peril. 
It  is  the  same  whether  a  question  of  privilege  is  involved,  or  whether  it 
is  only  a  matter  of  incompetent  or  irrelevant  evidence.  It  is  true  that 
in  the  Rauh  Case  the  qualifying  clause,  "  unless  the  interrogatory  involves 
a  question  of  privilege,"  was  thrown  in.  It  would  have  been  clearer  if 
that  clause  had  been  omitted  or  if  it  had  been  said  "a  question  of  con- 
ceded privilege  " ;  but  it  is  plain  that  when  the  privilege  claimed  is  disputed 
the  witness  takes  the  same  chances  upon  a  refusal  that  he  does  upon  a 
refusal  to  answer  an  incompetent  question.  Accordingly  it  was  nowhere 
said  in  either  of  the  decisions  of  this  Court  already  referred  to,  nor  was  it 
intended  to  be  inferred,  that  a  witness  might  be  compelled  to  surrender 
to  his  adversary  a  coveted  document,  before  the  right  to  compel  produc- 
tion of  it  had  been  submitted  to  the  judgment  of  a  competent  tribunal; 
but  the  correlative  proposition  that  a  witness  might  take  the  chances  of 
being  sustained  on  a  refusal  to  answer  an  incompetent  or  irrelevant 
question  was  distinctly  asserted.  It  would  seem,  therefore,  that  the 
power  of  a  notary  public  in  the  taking  of  depositions  and  the  limitations 
imposed  thereon  have  been  clearly  defined  by  the  statutes  and  the  previ- 
ous decisions  of  this  Court. 

The  counsel  for  the  defendant  in  error  concede  in  their  brief  that 
questions  3,  5,  6,  7,  and  8,  which  the  witness  refused  to  answer  upon  advice 
of  counsel  because  they  were  immaterial,  irrelevant,  and  incompetent 
and  because  they  call  for  hearsay  testimony,  "would  be  inadmissible  if 
offered  to  a  jury  on  the  trial  of  the  case,  because  of  the  rule  against 
hearsay."     Yet  counsel  still  insist  that  the  witness  may  be  compelled 


No.  500  DISCOVERY  739 

by  imprisonment  to  disclose  facts  which  they  admit  could  not  be  admissi- 
ble on  the  trial.  From  what  we  have  already  said,  it  results  that  the 
notary  public  had  no  such  power.  In  Ex  parte  Jennings,  it  was  said  in 
the  opinion:  "Indeed,  it  does  not  seem  to  have  been  finally  determined 
in  any  case  that  the  personal  liberty  of  the  citizen  is  of  so  little  importance 
that  it  should  yield  to  a  desire  to  gather  food  for  idle  gossip."  But  in 
the  present  case  this  is  all  that  such  a  fruitless  extortion  of  testimony 
would  result  in,  unless  it  would  be  to  disclose  to  the  plaintiff  the  names  of 
witnesses  for  or  against  her  adversary;  and  it  is  elementary  that  a  party 
cannot  be  required  to  aid  his  opponent  in  that  way. 

In  answer  to  this,  it  is  urged  that  an  objection  to  the  relevancy  or 
competency  of  evidence  cannot  be  made  by  a  mere  witness,  but  it  must 
come  from  a  party  to  the  action.  However  plausible  this  argument  may 
seem.  Ex  parte  Jennings  conclusively  shows  that  it  is  not  universally' 
sound.  Besides,  the  witness  in  this  case  was  an  officer  and  representative 
of  the  defendant  company,  and  it  is  through  and  by  means  of  him  that 
the  plaintiff  is  here  seeking  to  compel  answers  to  questions  and  to  compel 
the  production  of  papers  which  are  shown  not  to  be  in  the  possession  or 
control  of  the  witness,  except  constructively  by  virtue  of  his  authority 
as  an  official  of  the  defendant  company.  The  Common  Pleas  Court 
held  that  the  witness  was  not  in  contempt  for  refusing  to  answer  these 
questions,  and  in  this  we  think  the  judgment  of  that  Court  was 
right.    ... 

[Had  the  desired  answers  been  relevant,  the  notary  could  enforce 
them,  unless  some  privilege  protected  them.]  It  w^as  held  in  the  Case 
of  Rauh,  supra,  that  a  notary  public  has  power  to  punish  a  witness  for 
contempt  by  imprisonment  when  the  witness  refuses  to  obey  a  subpoena 
duces  tecum  directing  him  to  bring  with  him  any  book,  writing,  or  other 
thing  under  his  control,  which  he  may  be  compelled  to  produce  as  evi- 
dence. 

2.  What  may  he  be  compelled  to  produce?  And  how  may  he  be 
compelled  to  produce  it?    . 

These  questions  are  clearly  answered  by  sections  5289  to  5293, 
inclusive,  of  the  Revised  Statutes,  of  1906.  Section  5289  provides  that 
the  Court  may  require  the  parties  to  an  action  "to  produce  books  and 
writings  in  their  possession  or  power  which  contain  evidence  pertinent  to 
the  issues,  in  cases  and  under  circumstances  where  they  might  heretofore 
have  been  compelled  to  produce  the  same  by  the  ordinary  rules  of  pro- 
ceeding in  chancery."  The  sections  providing  for  inspections  and  copies 
of  writings  for  reference  to  a  master  and  for  action  for  discovery  may  be 
passed  over  as  not  material  to  the  present  discussion.  Section  5289 
limits  the  power  to  compel  the  production  of  books  and  writings  (1)  to 
such  as  are  pertinent  to  the  issue,  and  (2)  to  cases  and  under  circumstances 
where  the  parties  might  heretofore  have  been  compelled  to  produce  the 
same  bj'  the  ordinary  rules  of  proceeding  in  chancery.  Under  these 
limitations,  could  the  court  compel  the  production  of  the  reports  which 


740  BOOK    i:     RULES   OF   .ADMISSIBILITY  No.   500 

were  made  to  this  witness  under  the  rules  of  his  company  and  for  the 
purpose  stated? 

The  rule  in  chancery  as  to  conipelHng  the  production  of  documents 
for  the  purposes  of  evidence  and  inspection  is  {generally  recognized  and 
clearly  defined.  It  is  to  the  effect  that  a  plaintiff  is  entitled  to  a  discovery 
of  such  facts  or  documents  in  the  defendant's  possession  or  under  his 
control  as  are  material  and  necessary  to  the  plaintift"'s  case,  but  that  this 
right  does  not  extend  to  a  discovery  of  the  manner  in  which  the  defend- 
ant's case  is  to  be  established,  nor  to  evidence  which  relates  exclusively 
to  the  defendant's  case.  This  rule  is  also  applied  conversely,  to  the 
defendant  in  an  action.  Wigram  on  Discovery,  Prop.  3,  §  342-347; 
Combe  V.  Loudon,  4  Y.  &  C.  139,  155;  6  Ency.  PI.  &  Prac.  791,  792,  794, 
795,  804-806.  "  It  may  be  added  that  the  principle  of  a  bill  of  discovery 
was  never  considered  to  be  applicable  to  third  persons  not  parties  so  as 
to  secure  from  them  before  trial  a  disclosure  of  possible  evidence."  3 
Wigmore  on  Evidence,  p.  2427,  §  1856.  One  question  here  is  whether 
the  reports  which  were  sent  to  the  witness  and  which  were  by  him  turned 
over  to  the  counsel  for  the  corporation  relate  to  the  plaintiff's  case  and 
are  necessary  and  material  in  establishing  her  case.  It  lies  upon  the 
plaintiff  to  show  this,  and  we  think  that  she  has  not  done  so.  The 
efforts  of  the  plaintiff  appear  to  us  to  be  directly  toward  "fishing"  for 
the  nature  of  the  defense  and  the  persons  by  whom  it  is  to  be  established, 
rather  than  to  obtain  competent  and  necessary  evidence  to  sustain  the 
plaintiff's  petition. 

3.  Another  question  is:  Are  the  reports  privileged?  The  statement 
of  the  witness  that  the  reports  were  made  in  anticipation  of  a  possible 
litigation  and  that  they  are  in  possession  of  counsel  for  use  in  the  suit 
which  did  ensue  stands  uncontradicted,  and  must,  therefore,  be  taken  as 
true.  This  clearly  brings  the  documents  within  the  rule  as  to  privilege; 
and  we  see  no  reason  to  limit  or  modify  the  rule  because  the  defendant  is 
a  corporation  and  obtained  its  information  and  made  its  memoranda  for 
the  purpose  stated,  through  the  usual  agencies  of  a  corporation.  23  Am. 
&  Eng.  Ency.  Law  (2d  Ed.)  99,  100,  notes  1,  2,  and  3;  Davenport  Co.  v. 
Railroad  Co.,  166  Pa.  480,  31  Atl.  245;  Carrol  v.  Railway  Co.,  82  Ga. 
452,  10  S.  E.  163,  6  L.  R.  A.  214;  Cully  v.  Railway  Co.,  35  Wash.  241,  77 
Pac.  202.  The  plaintiff's  counsel  argue  with  a  great  deal  of  earnestness 
that  they  have  the  right  to  extort  the  reports  from  the  defendant  for  the 
purpose  of  using  them  as  admissions  against  interest.  While  it  does 
not  appear  what  the  reports  contain,  nor  whether  they  contain  any  state- 
ments which  would  make  against  the  defendant  on  the  trial,  it  is  certain 
that  the  defendant  has  not  made  any  statement  to  another  which  could 
be  used  against  it;  for  confidential  communications  between  a  principal 
and  his  agent  are  not  admissions.     In  re  Devala,  22  Ch.  Div.,  593. 

We  are  of  the  opinion  that  the  commitment  of  the  witness  for  refusal 
to  answer  any  of  the  questions  which  he  did  refuse  to  answer,  and  for 
refusal  to  produce  the  reports  was  not  "lawfully  ordered";  and  accord- 


No.  502  DISCOVERY  741 

ingly  the  judgments  of  the  Circuit  Court  and  the  Court  of  Common  Pleas 
are  reversed,  and  the  petitioner  discharged. 

Shauck,  C.  J., -and  Price,  Crew,  Summers,  and  Spear,  JJ.,  concur. 

500fl.  Meier  v.  Paulus.  (1887.  70  Wis.  165,  35  N.  W.  301).  Taylor,  J. 
—  Was  it  error  to  refuse  to  permit  the  i)laintiff  to  read  to  the  jury  the  deposition 
of  the  defendant  taken  before  the  trial  in  the  manner  by  §  4096,  R.  S.?  It  seems 
to  us  very  clear  that  the  very  object  of  the  statute  giving  a  party  the  right  to 
examine  the  opposite  party,  when  such  examination  is  made  after  issue  joined  in 
the  action,  was  for  the  purpose  of  obtaining  evidence  in  favor  of  the  party  seeking 
the  examination  and  against  the  party  examined.  .  .  .  The  statute  declares  that 
this  examination  shall  in  all  respects  take  the  place  of  the  old  bill  of  discovery. 
The  very  object  of  the  old  bill  of  discovery  was  to  procure  evidence  against  the 
opposite  party,  to  be  used  on  the  trial  of  an  action.  .  .  .  The  statute  undoubtedly 
goes  further  than  the  bill  of  discovery,  and  not  only  allows  an  examination  of  the 
party  as  to  those  matters  which  the  party  seeking  the  examination  cannot  prove 
by  other  witnesses  or  testimony,  but  it  allows  an  examination  as  to  all  the  material 
issues  in  the  action.  .  .  .  The  examination  of  a  party  is  in  the  nature  of  an  admis- 
sion so  far  as  his  answers  are  material  to  the  issues  in  the  action,  and  such 
admissions  are  always  admitted  as  original  evidence  against  him. 

Topic  2.     Documents 

501.  Wm.  Tidd.  Practice.  (9th  ed.,  1828, 1,  586).  Oyer  of  deeds,  etc.,  is 
demandable  by  the  defendant  or  by  the  plaintiff.  If  the  plaintiff  in  his 
declaration  necessarily  make  a  "profert  in  curia"  of  any  deed,  writing, 
letters  of  administration,  or  the  like,  the  defendant  may  pray  oyer  of  the 
deed,  etc.,  and  must  have  a  copy  delivered  to  him,  if  demanded,  paying 
for  the  same  at  the  rate  of  fourpence  per  sheet.  And  a  defendant  who 
prays  oyer  of  a  deed  is  entitled  to  a  copy  of  the  attestation  and  names  of 
the  witnesses,  as  well  as  of  every  other  part  of  the  deed.  So  likewise, 
if  the  defendant  in  his  plea  makes  a  necessary  "profert  in  curia"  of  any 
deed,  etc.,  the  plaintiff  may  pray  oyer,  and  shall  have  a  copy  at  the  like 
rate.  And  the  party  of  whom  oyer  is  demanded  is  bound  to  carry  the 
deed  to  the  adverse  party.  ...  Formerly  all  demands  of  oyer  were 
made  in  court,  where  the  deed  is  by  intendment  of  law  when  it  is  pleaded 
with  a  profert  in  curia;  and  therefore,  when  oyer  is  craved,  it  is  supposed 
to  be  of  the  Court,  and  not  of  the  party;  and  the  words  "ei  legitur  in 
hsec  verba,"  etc.,  are  the  act  of  the  Court.  In  practice,  however,  oyer 
is  now  usually  demanded  and  granted  by  the  attorneys. 

502.   BOLTON  v.  LIVERPOOL 

Chancery.     1833 

1  Myl.  &  K.  88,  91 

The  plaintiffs,  who  were  merchants  and  copartners  in  Liverpool,  were 
defendants  in  an  action,  brought  by  the  corporation,  for  the  recovery  of 


742  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  502 

certain  dues  levied  by  the  corporation  upon  the  traders  of  that  town. 
The  bill  was  filed  for  the  purpose  of  obtaining  a  discovery  from  the  cor- 
poration in  aid  of  the  plaintiff's  defence  to  the  action  at  law.  The  bill 
an:iong  other  things  charged  that  divers  cases  had  been  lately  submitted 
to  counsel,  for  their  opinion,  touching  the  right  of  the  corporation  to 
receive  the  tolls  and  duties,  and  from  which,  if  produced,  it  would  appear 
that  the  corporation  had  no  such  right,  and  that  all  such  cases  were  then 
in  the  possession  or  power  of  the  defendants;  and  it  further  charged  that 
the  defendants  had  in  their  possession  or  power  divers  charters,  grants, 
deeds,  books,  accounts,  letters,  copies  of  and  extracts  from  letters,  cases, 
written  statements,  tables  or  lists  of  town  dues,  tolls  or  duties,  bills, 
informations,  pleas,  answers,  memorandums,  papers,  and  writings, 
relating  to  the  matters  contained  in  the  bill ;  and  by  which,  if  produced, 
the  truth  of  those  matters  would  appear. 

The  defendants  admitted  that  they  had  then,  in  their  possession, 
certain  grants,  deeds,  documents,  and  papers,  relating  to  the  matters 
aforesaid,  and  that  they  had  in  the  third  schedule  to  their  said  answer, 
and  which  they  prayed  might  be  taken  as  part  thereof,  set  forth  a  list  of 
such  grants,  deeds,  documents  and  papers.  But  the  defendants  said 
that  many  of  such  grants,  deeds,  and  documents  were  the  title  deeds  and 
documents  evidencing  and  showing  the  title  of  the  corporation  to  the 
town  and  lordship  of  Liverpool,  and  to  the  town  dues  and  customs  afore- 
said; and  that  many  of  such  documents  and  papers  were  copies  of 
accounts  from  public  offices,  and  that  they  had  in  the  said  schedule 
particularized  and  distinguished  which  of  the  said  grants,  deeds,  and 
documents  were  the  title  deeds  and  documents  evidencing  the  title  of 
the  corporation  to  the  town  and  lordship  of  Liverpool,  and  town  dues  and 
customs  aforesaid,  and  which  of  the  said  documents  and  papers  were 
copies  of  accounts  from  public  offices;  and  the  defendants  submitted 
that  they  ought  not  to  be  compelled  to  produce  such  grants,  deeds, 
documents,  and  papers. 

A  motion  was  made  before  the  Vice-Chancellor  that  the  plaintiffs 
and  their  agents  might  be  at  liberty  to  inspect  and  take  copies  of  the 
cases  or  statements  and  documents  mentioned  in  the  defendants'  further 
answer,  and  in  the  second  and  third  schedules  thereto.  The  Vice- 
Chancellor  refused  the  application,  except  in  so  far  as  it  related  to  certain 
cases  submitted  to  counsel  on  the  defendants'  behalf  many  years  ago, 
and  long  before  the  present  legal  proceedings  were  in  contemplation. 
And  the  motion  was  now  renewed. 

Mr.  Pepys  and  IMr.  KindersJcy,  for  the  motion;  and  the  Solicitor- 
General  (Sir  W.  Home),  Sir  C.  W ether cU,  Sir  E.  Siigden,  and  Mr.  Duck- 
worth, against  it,  followed.  .  .  . 

Brougham,  L.  C.  —  I  take  the  principle  to  be  this:  A  party  has  a 
right  to  the  production  of  deeds  sustaining  his  own  title  affirmatively, 
but  not  of  those  which  are  not  immediately  connected  w^ith  the  support 
of  his  own  title  and  which  form  part  of  his  adversary's.     He  cannot  call 


No.  503  DISCOVERY  743 

for  those  which,  instead  of  supporting  his  title,  defeat  it  by  entithng  his 
adversary.  Those  under  which  both  claim  he  may  have,  or  those  under 
which  he  alone  claims.  .  .  .  The  plaintiff  here  does  not  claim  anything 
positively  or  affirmatively  under  the  documents  in  question;  he  only 
defends  himself  against  the  claims  of  the  corporation,  and  suggests  that 
the  documents  evidencing  their  title  may  aid  his  defence.  How?  By 
proving  his  title,  he  says.  But  how  can  those  documents  prove  his  title? 
Only  by  disclosing  some  defect  in  that  of  the  corporation.  .  .  .  He  rests 
on  the  right  which  he  has  in  common  with  all  mankind  to  be  exempt  from 
dues  and  customs;  and  he  says,  "Prove  me  liable  if  you  can."  The 
corporation  have  certain  documents  which  they  say  prove  this  liability. 
He  cannot  call  for  these  documents  merely  because  they  may  upon 
inspection  be  found  not  to  prove  his  liability,  and  so  help  him  and  hurt 
his  adversary  whose  title  they  are. 

The  case  of  the  Princess  of  Wales  v.  Lord  Liverpool,  1  Swan.,  114, 
580,  was  cited;  and  it  is,  perhaps,  a  strong  case.  But  it  is  a  peculiar 
one.  Lord  Eldon  at  first  refused  the  application,  and  then  granted  it 
in  the  special  circumstances.  The  instruments  were  two  promissory 
notes,  upon  which  the  suit  was  brought  against  executors.  Lord  Eldon, 
in  delivering  judgment  upon  that  case,  threw  out  many  observations  as 
to  what  might  appear  on  an  inspection.  The  notes,  he  said,  might  be 
duplicates;  they  might  have  important  variations;  some  c^uestion  might 
arise  on  the  stamps,  and  they  might,  at  any  rate,  said  his  lordship,  be 
given  up  at  the  hearing;  for  an  indemnity  will  not  do;  at  least  that  is 
questionable.  Yet  he  held  all  this  matter  of  surmise  not  to  be  enough; 
for  he  required  the  defendant  to  state  in  what  respect  the  inspection  of 
the  notes  was  material  for  his  defence,  and  upon  affidavits  of  circum- 
stances impeaching  their  genuineness,  he  thought  enough  appeared  to 
warrant  an  order  that  the  defendant  should  not  be  compelled  to  answer 
till  he  had  obtained  the  inspection.  It  must  be  admitted,  that  there  the 
thing  sought,  and  in  substance  allowed  to  be  inspected,  was  not  any 
matter  collateral,  but  the  very  instrument  on  which  the  title  of  the 
plaintiff  rested,  and  which  could  only  be  the  title  of  the  defendant  by 
failing  to  support  that  of  the  plaintiff.  His  Lordship  may  have  con- 
sidered the  instruments  as  a  sort  of  title  common  to  both  parties ;  but  it 
could  only  be  so  by  the  one  party  setting  them  up,  and  the  other  im- 
peaching them  on  flaws  discoverable  by  inspection.  It  must,  however, 
be  observed  that  this  was  a  kind  of  case  in  which,  at  law,  inspection  would 
have  been  given. 

In  this  case,  therefore,  I  can,  upon  the  whole,  see  no  reason  for  coming 
to  a  different  conclusion  from  that  at  which  His  Honour  arrived,  when  he 
refused  inspection  of  those  parts  of  the  corporation's  title,  as  being  theirs, 
and  not  the  plaintiff's,  and  not  common  to  both. 

503.  Henry  Brougham.  Speech  on  the  Cowis  of  Common  Law.  (Feb.  7, 
1S28;    Hans.  Pari.  Deb.,  2d  ser.,  §  VIH,  188).     Whatever  brings  the  parties  to 


744  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  503 

their  senses  as  soon  as  possible,  especially  by  giving  each  a  clear  view  of  his  chance 
of  success  or  failure,  and,  above  all  things,  making  him  well  acquainted  with  his 
adversary's  case  at  the  earliest  possible  moment,  will  always  be  for  the  interests 
of  justice,  of  the  parties  themselves,  and  indeed,  of  all  but  the  practitioners.  It 
is  the  practitioners  generally,  that  determine  how  the  matter  shall  proceed,  and  it 
may  be  imagined  that  their  own  interests  are  not  the  last  attended  to.  The 
seeming  interest  of  two  parties  disposed  to  be  litigiovis,  in  many  cases  appears  to 
be  different  from  the  interests  of  justice,  although  their  real  interest,  if  strictly 
examined,  will  not  unfrequently  be  found  to  be  the  same.  Now,  justice  is  em- 
barrassed by  the  disingenuousness  of  conflicting  parties;  justice  wants  the  cases 
of  both  to  be  fully  and  early  stated;  but  both  parties  take  care  to  inform  each 
other  as  little  as  possible,  and  as  late  as  possible,  of  their  respective  merits.  One 
tells  as  much  of  his  case  as  he  thinks  good  for  the  furtherance  of  his  claim,  and  the 
frustration  of  the  enemy's  —  so  does  the  other,  only  as  much  of  his  answer  as 
may  help  him,  without  aiding  his  adversary;  and  the  judge  is  oftentimes  left  to 
guess  at  the  truth  in  the  trick  and  conflict  of  the  two.  The  interest  of  the  Court 
of  Justice  being  to  make  both  parties  come  out  with  the  whole  of  their  case  as 
early  as  possible,  the  law  should  never  lend  itself  to  their  concealments.  This 
remark  extends  to  the  proof  as  well  as  the  statement  of  the  case;  an  intimation 
of  what  the  evidence  is  may  often  stop  a  cause  at  once. 

In  Scotland,  the  law  in  this  respect  is  better  than  oiu-s,  for  no  man  can  produce 
a  wTitten  instrument  on  trial  without  having  previously  shown  it  to  his  adversary. 
For  want  of  this  salutary  rule  I  have  often  seen  the  most  useless  litigation  pro- 
tracted for  the  sole  benefit  of  practitioners.  I  was  myself  lately  engaged  in  a 
cause,  the  circiimstances  of  which  will  give  the  House  an  idea  of  the  mischief. 
I  was  instructed  not  to  show  a  certain  receipt  to  the  opposite  party,  as  my  client, 
the  defendant,  meant  to  nonsuit  his  adversary  in  great  style,  as  he  would  call  it. 
Well,  the  plaintiff,  (an  executor),  stated  his  case,  and  called  his  witnesses  to  prove 
the  debt.  I  did  not  take  the  trouble  to  cross-examine,  which  would  have  been 
quite  unnecessary.  Equally  so  was  it  to  address  the  jury.  I  acknowledged  the 
truth  of  all  that  had  been  sworn  on  the  other  side,  but  added  that  it  was  all  useless, 
as  I  happened  to  have  a  receipt  for  the  money,  which  had  been  paid  to  the  testa- 
tor. This,  of  course,  put  an  end  to  the  case.  The  sum  sought  to  be  recovered  did  not 
exceed  twenty  pounds,  and  the  expenses  could  not  have  been  less  than  a  hundred. 

504.  Common  Law  Practice  Commissioners.  Third  Report  (1831),  p.  45. 
By  law,  no  profert  is  required  to  be  made  and  consequently  no  oyer  can  be  de- 
manded of  any  instrument,  except  private  deeds,  letters  testamentary,  and  letters 
of  administration.  If  there  are  other  cases,  they  are  unfrequent  and  obscure. 
The  following  are  consequently  excluded :  records  and  public  writings  of  whatever 
description,  private  writings  under  seal  but  not  falling  within  the  legal  definition 
of  deeds  (for  example,  a  sealed  will  or  a  sealed  award),  and  private  writings  not 
under  seal  of  whatever  description;  and  even  of  private  deeds  a  numerous  class 
is  excepted,  viz.,  such  as  take  effect  either  by  livery  of  seisin  or  by  operation  of  the 
statute  of  uses.  .  .  .  The  whole  of  this  practice  appears  to  be  too  strict,  too  intri- 
cate, too  prolix,  and  in  some  parts  of  it  obscure  and  unsettled.  It  is  strongly 
calculated  to  give  rise  to  technical  difRcidty  and  formal  objection,  and  tends  in 
some  other  respects  also  to  produce  unnecessary  delay  and  expense.  The  truth 
is  that  the  law  of  profert  and  oyer  was  originally  devised  in  reference  to  a  state 
of  things  that  no  longer  exists;  being  altogether  founded  on  that  method,  now  for 
so  many  ages  obsolete,  of  oral  pleading  between  litigants  actually  confronting 


No.  505  DISCOVERY  745 

each  other  in  open  Court.  .  .  .  The  present  practice  of  profert  and  oyer,  though 
in  its  present  form  chargeable  with  many  defects,  is  in  its  principle  of  the  highest 
importance.  It  is  manifestly  essential  to  the  interests  of  justice  that  a  party 
against  whom  his  own  written  instrument  or  the  instrument  of  another  person  is 
pleaded  should  have  the  means  of  inspection,  and,  if  necessary,  of  procuring  a 
copy  before  he  is  called  upon  to  answer.  .  .  . 

We  can  see  no  good  reason  why,  in  every  case  in  which  profert  would  be 
recjuired  of  a  bond  or  other  deed,  it  should  not  also  be  made  of  any  other  instru- 
ment of  whatever  description,  which  is  either  alleged  to  be  or  which  may  be 
presumed  to  be  in  writing.  Such  an  alteration  of  the  law  would  prevent  the  delay, 
expense,  and  uncertainty  which  attends  an  application  to  the  Court  or  a  judge, 
and  place  the  whole  practice  on  this  subject  on  a  more  simple  and  uniform  as 
well  as  a  more  equitable  footing. 

505.  Statutes.  England.  St.  14  &  15  Vict.  1851,  c.  99.  §  6  [Upon  action 
pending,  any  judge  may  on  application  by  either  party]  compel  the  opposing 
party  to  allow  the  party  making  the  application  to  inspect  all  documents  in  the 
custody  or  under  the  control  of  such  opposite  party  relating  to  such  action  or 
other  legal  proceeding,  and,  if  necessary,  to  take  examined  copies  of  the  same  or 
procure  the  same  to  be  duly  stamped,  in  all  cases  in  which  previous  to  the  passing 
of  this  act  a  discovery  might  have  been  obtained  by  filing  a  bill  or  by  any  other 
proceeding  in  a  Court  of  equity. 

St.  17  &  18  Vict.  1854,  c.  125,  §  50.  Upon  the  application  of  either  party  to 
any  cause  or  other  civil  proceeding  in  any  of  the  superior  Courts  upon  an  affidavit 
by  such  party  of  his  belief  that  any  document  to  the  production  of  which  he  is 
entitled  for  the  purpose  of  discovery  or  otherwise  is  in  the  possession  or  power  of 
the  opposite  party,  it  shall  be  lawful  for  the  Court  or  judge  to  order  [that  the  oppo- 
nent answer  as  to  such  custody  and  as  to  the  objection  if  any  to  production ;  and 
then]  the  Court  or  judge  may  make  such  further  order  thereon  as  shall  be  just. 

Illinois.  Revised  Statutes,  1874,  c.  51,  §  9.  [Courts  are  empowered]  in  any 
action  pending  before  them,  upon  motion,  and  good  and  sufficient  cause  shown, 
and  reasonable  notice  thereof  given,  to  require  the  parties  or  either  of  them  to 
produce  books  or  writings  in  their  possession  or  power  which  contain  evidence 
pertinent  to  the  issue. 

lb.  c.  110,  §  20.     It  shall  not  be  necessary  in  any  pleading  to  make  profert 

.  of  the  instrument  alleged ;   but  in  any  action  or  defence  upon  an  instrument  in 

writing,  whether  under  seal  or  not,  if  the  same  is  not  lost  or  destroyed,  the  opposite 

party  may  have  oyer  thereof  and  proceed  thereon  in  the  same  manner  as  if  profert 

had  been  properly  made  according  to  the  common  law. 

Kansas.  General  Statutes,  1897,  c.  95,  §  380.  [Either  party  may  demand  of 
the  opponent]  an  inspection  and  copy,  or  permission  to  take  a  copy,  of  a  book 
or  paper  or  document  in  his  possession  or  under  his  control  containing  evidence 
relating  to  the  merits  of  the  action  or  defense  therein;  [the  demand  to  be  written 
and  to  specify  particulars;  on  refusal  within  four  days,  the  Court  may  on  motion 
and  notice  order  such  inspection  or  copy,  and  on  failure  to  comply  with  the  order, 
may  exclude  the  document  or  direct  it  to  be  presumed  to  be  as  alleged]. 

lb.  §  381.  [Either  party,  if  required,  shall  deliver  to  the  other]  a  copy  of  any 
deed,  instrument  or  other  writing  whereon  his  action  or  defense  is  founded  or 
which  he  intends  to  offer  in  evidence  at  the  trial;  on  refusal,  the  party's  original 
shall  be  excluded  at  the  trial. 

Massachusetts.  Revised  Laws,  1902,  c.  173,  §  6.     [Written  instruments  shall 


746  BOOK    i:     RULES   OF   ADMISSIBILITY  No.   505 

be  declared  on,  except  insurance  policies,  by  setting  out  a  copy  or  the  part  relied 
on,  or  the  legal  effect];  if  the  whole  contract  is  not  set  out,  a  copy  of  the  original, 
as  the  Court  may  recjuire,  shall  be  filed  upon  motion  of  the  defendant,  [and  the 
copy  may  be  made  a  part  of  the  record  as  if  oyer  had  been  granted];  no  profert.  or 
excuse  therefor  need  be  inserted  in  a  declaration. 

lb.  §  35.  No  party  shall  be  required  [in  his  pleading]  to  state  evidence,  or  to 
disclose  the  means  l)y  which  he  intends  to  prove  his  cause. 

lb.  §§  57-03.  [Interrogatories  may  be  filed,  after  entry  of  action  or  answer, 
and  before  a  trial  on  the  merits,]  for  the  discovery  of  facts  and  documents  material 
to  the  support  or  defence  of  the  action,  [to  be  answered  on  oath  by  the  adverse 
party];  tlocuments  containing  matters  not  pertinent  to  the  subject  of  the  action 
may  be  protected  from  inspection;  no  party  shall  be  obliged]  to  disclose  his  title 
to  any  property  the  title  whereof  is  not  material  to  the  trial  of  the  action  in  the 
course  of  which  he  is  interrogated,  or  to  disclose  the  names  of  the  witnesses  by 
whom  or  the  manner  in  which  he  proposes  to  prove  his  own  case. 

United  States.  St.  1789,  c.  20,  §  15,  Revised  Statutes,  1878,  c.  12,  §  724.  [In 
trials  at  law,  the  U.  S.  Courts  may  on  motion  require  the  parties]  to  produce  books 
or  writings  in  their  possession  or  power,  which  contain  evidence  pertinent  to  the 
issue,  in  cases  and  under  circumstances  where  they  might  be  compelled  to  produce 
the  same  by  the  ordinary  rules  of  proceeding  in  chancery;  [on  failure  to  produce, 
judgment  of  nonsuit  or  default  may  be  given]. 


506.   SWEDISH-AMERICAN  TELEPHONE   CO. 
V.  FIDELITY  &  CASUALTY  CO. 

Supreme  Court  of  Illinois.     1904 

208  ///.  562;  70  A^  E.  768 

Appeal  from  Circuit  Court,  Cook  County;  E.  F.  Dunne,  Judge. 
Action  by  the  Fidelity  &  Casualty  Company  of  New  York  against  the 
Sw^edish-American  Telephone  Company  and  another.  From  a  judgment 
adjudging  the  telephone  company  and  its  officers  and  attorney  guilty  of 
contempt,  they  appeal.     Affirmed. 

This  is  an  appeal  from  an  order,  entered  by  the  Circuit  Court  of  Cook 
county  on  January  9,  1904,  in  a  certain  suit  in  assumpsit,  brought  by  the 
appellee  against  the  appellant  the  Swedish-American  Telephone  Com- 
pany, imposing  a  fine  upon  said  telephone  company  of  S25,  and  imposing 
a  fine  upon  the  appellant  Fayette  S.  Munro  of  $1,050,  for  contempt  of 
court  in  refusing  to  comply  with  an  order  for  the  production  of  the  ledger 
and  journal  of  the  telephone  company,  and  all  sheets  and  memoranda, 
which  were  a  part  thereof,  showing  the  entries  or  memoranda  contained 
therein,  "  which  pertain  to  money  expended  as  compensation  to  employes 
of  the  said  defendant  for  services  rendered  during  the  time  covered  by 
the  policy  of  insurance  issued  by  the  plaintiff  to  said  defendant,  to  wit, 
from  the  7th  day  of  June,  a.d.  1901,  to  the  7th  day  of  June,  a.d.  1902, 
inclusive,  within  10  days  from  this  date,  upon  plaintiff  giving  to  the 
defendant  24  hours'  notice,  said  examination  to  take  place  at  the  office  of 


No.  506  DISCOVERY  747 

defendant's  attorney,  room  734,  159  La  Salle  street,  Chicago,  Illinois," 
which  said  order  was  entered  on  the  27th  day  of  November,  1903. 

The  suit  in  assumpsit  was  begun  on  January  6,  1903,  by  the  appellee, 
the  Fidelity  &  Casualty  Company  of  New  York,  against  the  said  tele- 
phone company.  .  .  .  The  consideration,  stated  in  the  contract  of 
insurance  or  indemnity,  was  twofold :  First,  the  sum  of  S84  as  a  premium ; 
and,  second,  a  promise  by  the  telephone  company  to  pay  an  additional 
premium,  to  be  computed  upon  a  percentage  of  its  pay  roll,  to  wit,  a 
sum  of  money  equal  to  j%%  of  1  per  cent,  of  the  total  amount  that  the 
telephone  company  should  expend  during  the  period  covered  by  the 
insurance  contract  for  labor  and  services  of  its  employes  employed  on  its 
premises  in  Chicago.  The  amended  or  additional  count  averred  that 
the  pay  roll  at  the  end  of  the  year  June  7,  1902,  exceeded  the  sum  of 
$20,000,  etc.  ...  It  was  thereupon,  on  December  16,  1903,  ordered  by 
the  Court  that  the  telephone  company,  its  president,  secretary,  and 
attorney,  should  each  appear  before  the  Court  within  three  days  from 
that  date  to  show  cause  why  they  and  each  of  them  should  not  be  attached 
and  be  punished  for  contempt.  .  .  .  The  objections  were  overruled  by 
the  Court;  to  which  action  of  the  Court  the  telephone  company  took 
exception.  .  .  . 

Fayette  S.  Munro,  for  appellants.     0.  W.  Dynes,  for  appellee. 

Magruder,  J.  (after  stating  the  facts).  The  order  punishing  the 
appellants  herein  for  contempt  of  court  was  made  under  and  in  pursuance 
of  section  9  of  chapter  51  of  the  Revised  Statutes  (Kurd's  Rev.  St.  1901), 
in  regard  to  evidence,  etc.  Section  9  is  as  follow  s :  "  The  several  Courts 
shall  have  power  in  any  action  pending  before  them  upon  motion,  and 
good  and  sufficient  cause  shown,  and  reasonable  notice  thereof  given, 
t©  require  the  parties,  or  either  of  them,  to  produce  books  or  writ- 
ings in  their  possession  or  power,  which  contain  evidence  pertinent  to 
the  issue."  .  .  . 

Second.  The  contention  of  the  appellant  company  is  that  section  9 
of  chapter  51,  as  above  quoted,  does  not  confer  upon  the  Circuit  Court 
power  to  compel  the  production  of  documents  prior  to  the  trial  of  the  case, 
but  should  be  construed  to  apply  only  to  the  production  of  documents 
at  the  trial  of  the  case.  It  is  also  contended  by  the  appellant  company 
that  the  proper  method  for  a  party  litigant  to  obtain  evidence  pertinent 
to  the  issue  and  in  the  control  of  his  adversary  is  by  a  bill  of  discovery, 
or  a  subpoena  duces  tecum. 

The  language  of  section  9  does  not  limit  the  time  when  books  or  writ- 
ings are  to  be  produced  to  the  trial  of  the  canse.  On  the  contrary,  the 
several  Courts  are  given  power  to  require  the  production  of  such  books 
or  writings  "upon  motion  and  good  and  sufficient  cause  shown,"  whether 
before  the  trial,  for  the  purpose  of  preparing  for  the  same,  or  at  the  trial, 
to  be  used  as  e^'idence.  The  contract  of  the  parties  here  provides  that 
the  appellee  shall  have  the  right  and  opportunity  to  examine  the  books 
of  the  assured  "at  all  reasonable  times."     We  see  no  reason  w^hy  an 


748  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  506 

examination  of  the  books  at  a  time  before  the  trial,  in  order  to  prepare 
for  trial,  is  not  as  much  an  examination  at  a  reasonable  time  as  an  exami- 
nation of  the  books  upon  the  trial  itself.  At  common  law,  in  an  action 
ex  contractu,  where  the  instrument  sued  upon  was  in  the  possession  of  the 
defendant,  and  where  the  plaintiff  was  either  an  actual  party  or  a  party  in 
interest,  and  was  refused  inspection  of  the  instrument  upon  request,  the 
Court  was  authorized  to  grant  a  rule  on  the  defendant  to  produce  the 
documents,  or  give  the  plaintiff  a  copy,  when  the  production  was  neces- 
sary to  enable  him  to  declare  against  the  defendant.  1  Greenleaf  on 
Evidence  (15th  Ed.)  §  559.  In  the  case  at  bar,  from  the  very  nature  of 
the  contract  between  the  parties,  the  only  method  by  which  the  amount 
due  to  the  plaintiff  below  could  be  ascertained  was  by  an  examination  of 
the  defendant's  books,  and  the  parties,  in  view  of  this  situation,  have 
expressly  agreed  that  the  plaintiff  should  be  entitled  to  such  examination. 
Without  that  examination  the  appellee  would  not  be  able  to  set  up  in  its 
declaration  the  amount  of  premiinn  due  to  it,  because  such  amount  is 
dependent  upon  the  amount  paid  as  compensation  to  the  employes  of  the 
telephone  company.  There  may  be  expressions  in  the  case  of  Lester  v. 
People,  supra,  which  limit  the  production  of  the  books  of  the  opposite 
party  to  the  trial  of  the  cause;  but  a  careful  examination  of  the  language 
in  that  case  will  show  that  it  was  not  intended  to  make  such  limitation, 
provided  a  proper  showing  was  made  that  the  books  contained  entries 
tending  to  prove  the  issues. 

Nor  do  we  think  that  it  was  necessary  to  file  a  bill  of  discovery  in 
order  to  secure  an  examination  of  the  books.  In  Lester  v.  People,  supra, 
it  was  said  in  reference  to  section  9  above  quoted,  as  follows:  "The 
evident  purpose  and  design  of  this  statute  was  to  furnish  to  a  party 
litigant  a  speedy  and  summary  mode  by  which,  under  the  order  of  th« 
Court,  to  obtain  written  evidence,  pertinent  to  the  issue,  which  might  be 
in  the  possession  and  control  of  his  adversary,  and  thus  obviate  the  neces- 
sity of  a  bill  of  discovery,  seeking  the  same  end."  .  .  .  Section  9  was 
intended  in  actions  at  law  to  be  a  substitute  for  the  bill  of  discovery. 
The  order  provided  for  in  that  section  may  be  made  "in  any  action 
pending  before  them"  (the  courts).  The  words,  "in  any  action  pending 
before  them,"  exclude  the  idea  that  the  evidence  sought  to  be  obtained 
can  only  be  acquired  by  a  bill  of  discovery.  "Any  action"  includes  a 
suit  at  law  as  well  as  a  bill  in  chancery.  .  .  .  The  judgment  of  the 
circuit  court  of  Cook  county  is  affirmed.  Judgment  affirmed. 

507.  REYNOLDS  v.   BURGESS  SULPHITE  FIBRE  CO. 

Supreme  Court  of  New  Hampshire.     1902 

71  N.  H.  332;  51  Atl.  1075 

Action  by  Elizabeth  Reynolds,  administratrix,  against  the  Burgess 
Sulphite  Fibre  Company.  .  .  .  Bill  in  equity.     The  bill  alleges  that  the 


No.  507  DISCOVERY  749 

plaintiff  has  commenced  an  action  at  law  against  the  defendants  to  recover 
damages  for  negligently  causing  the  death  of  the  plaintiff's  intestate  by 
furnishing  him  for  use  in  his  employment  improper,  unsuitable,  and 
dangerous  machinery;  that  on  April  9,  1899,  while  the  intestate  was  in 
the  employ  of  the  defendants,  he  was  killed  by  falling  against  the  governor 
of  an  engine;  that  the  engine  gave  indications,  by  an  unusual  noise, 
that  it  was  in  a  defective  condition,  and,  shortly  afterward  the  strap  (m 
its  connecting  rod  broke,  and  caused  the  connecting  rod  to  break  through 
the  outer  casing  with  a  loud  crash,  and  thereby  caused  the  intestate's 
fatal  fall;  that  the  broken  pieces  of  the  strap  are  in  ihe  defendants' 
possession;  that,  to  properly  prepare  the  plaintift''s  action  at  law  for 
trial,  it  is  necessary  that  these  pieces  should  be  examined  by  the  plaintiff's 
attorneys,  and  also  by  competent  persons,  with  a  view  of  testifying;  and 
that  the  defendants,  though  requested,  have  refused  to  permit  such 
examination.  The  prayer  is  for  a  discovery  of  the  pieces  of  the  broken 
strap,  and  for  an  inspection  of  the  same  by  the  plaintiff's  attorneys  and 
such  other  persons  as  she  may  desire.  The  defendants  filed  a  demurrer, 
which  was  sustained  pro  forma,  subject  to  the  plaintiff's  exception. 

Crawford  D.  Hening,  for  the  plaintiff.  Chambcrlin  &  Rich  and 
Orville  D.  Baker  (of  Maine),  for  the  defendants. 

Chase,  J.  —  Whatever  may  have  been  the  fact  prior  to  1842  (Laws 
1832,  c.  89,  s.  9;  Dover  v.  Portsmouth  Bridge,  17  N.  H.  200),  there  can 
be  no  doubt  that,  ever  since  that  date,  courts  of  this  State  have  possessed 
full  equity  powers  in  respect  to  discovery.  R.  S.,  c.  171,  s.  6;  G.  S.  c. 
190,  s.  1 ;  G.  L.  c.  209,  s.  1 ;  P.  S.  c.  205,  s.  1.  .  .  .  It  is  necessary  to  have 
in  mind  the  origin,  purpose,  and  general  nature  of  this  remedy. 

"The  common  law  laid  down  as  a  maxim,  'Nemo  tenetur  armare 
adversarium  suum  contra  se ' ;  in  furtherance  of  which  principle  it  gener- 
ally allowed  litigant  parties  to  conceal  from  each  other,  up  to  the  time  of 
trial,  the  evidence  on  which  they  meant  to  rely,  and  would  not  compel 
either  of  them  to  supply  the  other  with  any  evidence,  parol  or  otherwise, 
to  assist  him  in  the  conduct  of  his  cause."  Best,  Evidence,  s.  624; 
1  Greenleaf,  Evidence,  s.  329.  A  different  rule  grew  up  in  equity.  .  .  . 
Unless  the  equitable  remedy  of  discovery  has  been  superseded  by  the 
provision  of  some  plain,  adequate,  and  complete  remedy  at  law,  or  is  not 
applicable  to  a  case  of  tort  like  that  alleged  in  the  plaintiff's  action  at 
law,  —  points  that  are  hereinafter  considered,  —  it  is  certain  that  the 
defendants,  through  their  officers  and  agents,  might  be  compelled  in  a 
suit  like  the  present  one  to  discover  the  form  in  which  the  strap  was 
constructed,  the  character  of  the  workmanship  by  which  and  the  materials 
from  which  it  was  made;  in  short,  all  the  facts  within  their  knowledge, 
information,  or  belief  tending  to  show  that  it  was  defective.  If  they  had 
in  their  possession  a  plan  of  the  strap  or  of  the  broken  pieces,  they  might 
be  compelled  to  produce  it  for  examination  by  the  plaintiff.  Why,  then, 
may  they  not  be  compelled  to  produce  the  broken  pieces  themselves? 

Two  reasons  are  suggested :    One  —  positive,  and,  if  well  founded, 


750  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  507 

substantial  —  that  the  defendants'  right  to  possess  and  control  the 
property,  growing  out  of  their  ownership  of  it,  cannot  be  infringed  in 
this  way;  and  the  other  —  negative,  and  not  applying  to  the  merits  of 
the  question  —  that  there  is  no  precedent  for  a  discovery  and  inspection 
of  such  property. 

(1)  The  defendants  say  that  this  case  is  not  within  this  equitable 
jurisdiction,  because  the  discovery  and  inspection  sought  is  of  articles 
of  personal  property  belonging  to  them,  in  which  the  plaintiff  has  no 
right  of  property  or  possession.  The  gist  of  the  action  at  law,  in  aid  of 
which  this  suit  was  brought,  is  the  negligence  of  the  defendants  in  furnish- 
ing the  plaintiff's  intestate,  their  employee,  with  improper,  unsuitable, 
and  dangerous  machinery  for  use  in  his  employment.  It  is  a  necessary 
inference  from  the  allegations  of  the  bill  that  the  "  improper,  unsuitable, 
and  dangerous"  element  in  the  machinery  existed  in  the  strap  on  the 
connecting  rod  of  the  engine.  This  broke  and,  it  is  alleged,  caused  the 
intestate's  death.  The  alleged  unsuitableness  of  the  strap  may  be  due 
to  inadequacy  of  size,  error  in  form,  imperfection  in  construction,  or 
inferiority  of  the  materials  from  which  it  was  made.  An  inspection  of 
the  fragments  will  evidently  aid  in  determining  whether  there  was  one 
or  more  of  these  defects  in  it,  and  if  so,  which.  .  .  .  The  bill  alleges  that 
the  plaintiff  cannot  properly  prepare  her  action  at  law  for  trial  without 
an  inspection  and  examination  of  them.  By  reason  of  the  demurrer, 
this  allegation  must  be  taken  as  true. 

It  must  be  admitted  that  the  defendants'  right  of  property  in  the 
broken  strap  will  be  interfered  with  to  some  extent  if  they  are  required 
to  produce  it,  and  allow  the  plaintiff  and  others  to  examine  it.  But 
such  interference  will  not  differ  in  kind  or  degree  from  that  which  occurs 
when  a  party  is  required  to  produce  his  letters,  deeds,  plans,  other  docu- 
ments, or  books  for  inspection.  The  rights  of  the  defendants  arising  from 
the  ownership  of  the  strap  are  no  more  sacred  than  would  be  their  rights 
arising  from  the  ownership  of  a  plan  of  the  strap,  if  they  had  one.  The 
infringement  of  property  rights  in  such  cases  is  justified  upon  the  ground" 
that  it  is  necessary  to  the  administration  of  justice.  Such  necessity  is 
alleged  by  the  plaintiff  and  admitted  by  the  defendants.  It  is  apparent 
that  an  examination  of  the  strap  will  afford  a  better  means  of  ascertaining 
the  truth  in  respect  to  its  suitableness  or  unsuitableness  for  the  office  it 
was  to  perform  than  any  possible  description  or  plan  of  it  could  afford, 
and  the  necessity  for  an  inspection  of  it  is  correspondingly  greater  than 
the  necessity  for  an  oral  description  or  a  plan.  .  .  . 

(2)  The  defendants'  second  objection  is  because  the  discovery  and 
inspection  are  sought  for  the  purpose  of  having  the  broken  strap  exam- 
ined by  persons  with  a  view  of  enabling  them  to  testify  as  experts  in  the 
action  at  law.  This  objection  must  also  be  overruled.  It  is  evident 
that  expert  testimony  may  be  competent  upon  the  issue  to  be  tried, 
whether  it  relate  to  the  form  of  the  strap,  the  manner  of  its  construction, 
or  the  character  of  the  materials  from  which  it  was  made.   The  defendants 


No,  507  DISCOVERY  751 

have  ample  opportunity  to  procure  such  testimony.  Justice  requires 
that  the  plaintiff  shall  also  have  an  opportunity  to  have  the  strap 
examined  by  persons  in  whose  skill  and  scientific  knowledge  she  has 
confidence.  There  cannot  be  a  fair  trial  of  the  case  unless  such 
opportunity  is  given  to  the  plaintiff.  Indeed,  it  may  be  that  she 
cannot  establish  her  right  —  if  she  have  one  —  without  having  the 
opportunity.  .  .  . 

(3)  The  defendants  place  much  reliance  upon  their  third  point,  viz., 
that  the  equitable  remedy  for  discovery  cannot  be  invoked  in  aid  of  an 
action  at  law  for  a  personal  tort.  They  do  not  question,  and,  in  view  of 
the  authorities,  cannot  question,  the  proposition  that  discovery  may  be 
had  in  aid  of  actions  of  tort  relating  to  property,  such  as  tro\^er,  detinue, 
trespass,  waste,  etc.  But  they  say  that  a  defendant  cannot  be  called 
upon  to  implicate  himself  directly  or  indirectly  in  a  personal  tort,  because 
it  would  tend  to  show  moral  turpitude,  and  so  is  inconsistent  with  prin- 
ciples of  natural  justice.  ...  If  the  absence  of  authorities  is  entitled 
to  any  weight,  it  is,  under  the  circumstances,  very  slight.  Cases  for 
personal  torts  arising  from  the  action  of  the  defendant,  —  wilful  torts,  so 
to  speak,  —  in  which  the  defendant  could  make  discovery  without  in- 
criminating himself,  must,  from  the  nature  of  the  case,  be  very  rare. 
It  is  possible  that  there  have  been  none  excepting  Macaulay  v.  Shackell, 
and  cases  of  like  nature  that  have  been  decided  in  accordance  therewith 
without  again  raising  the  question.  Cases  for  negligence  were  not 
common  prior  to  the  middle  of  the  last  century.  The  use  of  steam  and 
electricity,  and  the  commercial  activity  consequent  thereon,  have 
immensely  multiplied  cases  of  this  kind.  Lord  Campbell's  act  for  giving 
compensation  to  the  families  of  persons  killed  by  the  negligence  of  others 
was  enacted  in  1846.  Eight  years  later  a  procedure  bill  was  passed, 
largely  through  the  agency  of  Lord  Campbell  (17  &  18  Vict.  c.  125),  by 
which,  among  other  things,  it  was  provided  that  either  party  to  a  civil 
action  in  the  superior  courts  shall  be  at  liberty  to  apply  to  the  Court  or 
judge  for  a  rule  or  order  for  the  inspection  by  the  jury,  or  by  himself, 
or  by  his  witnesses  of  any  real  or  personal  property,  the  inspection  of 
which  may  be  material  to  the  proper  determination  of  the  question  in 
dispute."  ...  In  passing,  it  may  be  remarked  that  if  the  act  and  the 
reason  of  its  enactment  do  not  show  that  its  author  understood  that 
courts  of  equity  had  jurisdiction  to  order  an  inspection  of  real  or  personal 
property  when  such  inspection  was  material  to  the  proper  determination 
of  an  issue,  it  certainly  shows  that  he  felt  there  was  a  necessity  for  such 
inspection  in  the  administration  of  justice.  The  act  relieved  parties 
from  the  necessity  of  resorting  to  equity  for  discovery,  and  reasonably 
accounts  for  the  absence,  in  England,  of  bill  of  discovery  in  aid  of  actions 
at  law  for  negligence  since  that  time.  ...  If  Macaulay  v.  Shackell  and 
Wilmot  V.  Maccabe,  4  Sim.  263,  are  not  authorities  in  favor  of  the  mainte- 
nance of  the  plaintiff's  bill,  the  general  principles  governing  the  remedy 
of  discovery  certainly  justify  its  maintenance.     T^e  case  may  be  a  new 


752  BOOK    l:     RULES   OF   ADMISSIBILITY  No.   507 

case  in  specie,  so  far  as  discovery  is  concerned,  hut  it  belongs  to  a  class 
to  which  the  remedy  of  discovery  is  applicable. 

(4)  It  has  been  suggested  that  this  is  a  "fishing  bill,"  and  should  be 
dismissed  for  that  reason.  The  plaintiff  is  not  endeavoring  to  ascertain 
what  defence  the  defendants  contemplate  making,  nor  facts  that  exclu- 
sively relate  to  the  defendants'  case,  but  is  seeking  discovery  of  facts 
that  will  enable  her  to  prove  her  case.     It  is  not  a  fishing  bill. 

(5)  The  defendants  further  say  that  the  statutes  of  the  State  removing 
the  disability  of  parties  as  witnesses  (P.  S.,  c.  224,  s.  13),  authorizing  the 
taking  of  depositions  before  trial  (P.  S.,  c.  225),  and  giving  the  court 
authority  to  order  a  view  at  the  trial  (P.  S.,  c.  227,  s.  19),  furnish  a  full, 
complete,  and  adequate  remedy  at  law  for  obtaining  the  testimony  which 
the  plaintiff  seeks,  and  so  ousts  the  court  of  its  equitable  jurisdiction. 
If  these  statutes  have  such  effect  in  cases  where  the  testimony  sought 
may  be  obtained  under  them,  which  is  doubtful,  ...  it  does  not  appear 
that  the  plaintiff  could  obtain  by  virtue  of  them  an  inspection  of  the 
broken  strap  prior  to  the  trial.  .  .  . 

Exception  sustained.     All  concurred. 


No.  510  NUMBER    OF   WITNESSES  753 


TITLE    V.    SYNTHETIC  MULES 

509.  Introductory.  The  various  Quantitative  or  Synthetic  rules  ^  may 
best  be  classified  for  practical  purposes  under  four  heads;  the  first  and  second 
concern  testimonial  evidence  only;  the  third  concerns  all  kinds  of  evidence  what- 
soever, as  well  as  all  material  forming  a  part  of  the  issue  itself;  the  fourth  concerns 
circumstantial  evidence  only. 

I.  First,  there  are  rules  as  to  the  Number  of  Witnesses  required;  the  question 
throughout  being  whether  a  single  witness  is  in  certain  situations  sufficient,  and 
if  not,  what  other  evidence  will  suffice  therewith. 

II.  Secondly,  there  are  rules  as  to  the  Kind  of  Witness  required;  the  question 
here  being  whether  for  certain  issues  a  certain  kind  of  witness  must  always  be 
present  among  the  general  mass  of  evidence;  practically,  the  only  kind  of  neces- 
sary witness  recognized  in  our  law  is  the  eye-witness. 

III.  Thirdly,  there  is  a  rule  of  Verbal  Completeness,  i.e.  that  the  whole  of  a 
document  or  of  an  oral  utterance  must  be  offered,  in  order  that  any  part  of  it 
may  be  received. 

IV.  Fourthly,  in  the  Authentication  of  docviments  {i.e.  proving  their  genuine- 
ness, or  due  execution),  there  are  rules  which  declare  certain  kinds  of  circum- 
stantial evidence  to  be  insufficient  or  necessary. 


SUB-TITLE   I.     NUMBER   OF   WITNESSES   REQUIRED 

510.  HiSTORY.2  It  is  well  known  that  in  the  civil  law  of  Continental 
Europe,  the  great  rival  of  the  English  common  law,  its  process  of  proof  rested 
fundamentally  on  a  numerical  or  quantitative  system.  By  that  system,  a  single 
witness  to  a  fact  was  in  general  not  sufficient;  specific  numbers  of  witnesses  were 
in  certain  cases  required;  and  in  some  regions,  and  for  some  purposes,  the  weight 
to  be  given  to  each  witness'  testimony  was  measured  and  represented  in  numerical 
values,  even  by  counting  halves  and  quarters  of  a  witness;  and  this  system  con- 
tinued in  force  down  to  comparatively  recent  times.  In  the  English  common-law 
institution  of  jury  trial,  on  the  other  hand,  it  was  completely  otherwise.  At 
common  law,  there  was  but  a  single  instance,  and  that  a  borrowed  and  modern 
one,  of  almost  accidental  and  of  anomalous  origin  (the  rule  in  perjury),  in  which  a 
numerical  rule  existed;  what  little  else  there  is  to-day  of  that  sort  has  come  into 
our  system  either  by  express  statutes  (all  but  one  dating  since  1800),  or  by  the 
filtration  of  civil-law  rules  through  the  Court  of  Chancery,  or  by  local  judicial 
invention.  The  reason  of  this  contrast,  and  of  our  successful  resistance  to  the 
civil-law  rules,  and  the  causes  of  our  freedom  from  a  principle  of  evidence  now 
generally  acknowledged  to  be  unsound  and  deleterious,  form  a  history  worth 
examining. 

(1)  It  has  been  doubted  whether  the  Roman  law  in  its  prime  (that  is,  before 
300  A.D.)  proceeded  upon  a  numerical  system  in  its  treatment  of  witnesses.  But 
it  is  clear  that  by  the  time  of  the  Emperor  Constantine,  and  also  in  the  later  codifi- 

^  Defined  ante,  in  No.  2. 

^  Abridged  from  the  present  Compiler's  "Treatise  on  Evidence"  (1905), 
Vol.  Ill,  §  2032. 


754  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  510 

cation  of  the  Emperor  Justinian,  which  served  as  a  sufficient  foundation  for  the 
Continental  civil  law,  the  Roman  law  had  adopted  the  general  rule  that  one 
witness  alone  was  insufficient  upon  any  material  point.  This  rule  later  came  to 
be  adopted  in  the  Continental  civil  law,  founded  in  part  on  the  Roman  law. 
But,  long  before  this,  it  had  become  a  part  of  the  canon  or  ecclesiastical  law,  which 
for  much  of  its  material  was  accustomed  to  draw  upon  the  Roman  law.  The 
ecclesiastical  law  developed  the  numerical  principle  freely,  and  elaborated  many 
specific  rules  as  to  the  number  of  witnesses  necessary  in  various  situations;  against 
a  cardinal,  for  example,  twelve  or  perhaps  forty-four  witnesses  were  required. 
It  is  enough  to  note  that  its  general  and  fundamental  rule  was  that  a  single  witness 
was  in  no  case  sufficient.  In  the  Church's  system,  however,  this  rule  received  an 
additional  sanction,  over  and  above  the  mere  precedent  of  Roman  law,  from  the 
law  of  God  as  revealed  in  Holy  Writ;  for  passages  in  the  Bible,  both  in  Old  and 
New  Testaments,  were  confidently  appealed  to  as  justifying  and  requiring  this 
rule  by  Divine  command ;  and  this  sanction  sufficed  to  give  to  the  numerical  sys- 
tem of  the  ecclesiastical  law  an  overbearing  momentum  and  a  sacred  orthodoxy 
which  must  be  considered  in  order  to  appreciate  the  force  against  which  in  due 
time  the  common-law  judges  had  to  struggle.^ 

The  truth  was,  however,  that  at  this  time  of  the  Papal  Decretals,  and  even 
after  the  end  of  the  Middle  Ages,  the  rule  precisely  accorded  with  the  testimonial 
notions  of  the  time.  It  was  not,  in  its  spirit,  an  invention  of  the  ecclesiastical 
lawyers,  nor  yet  a  mere  continuance  of  Roman  precedent;  it  was  a  natural 
reflection  of  the  fixed  popular  probative  notions  of  the  time,  —  notions  which 
prevailed  as  well  in  the  sturdy,  self-centred  island  of  England  as  on  the  Continent 
at  large.  The  prevalence  and  meaning  of  this  underlying  notion  must  now  be 
examined. 

(2)  Civilization,  needless  to  say,  almost  began  over  again  with  the  invasion 
and  settlement  of  southern  and  western  Europe  by  the  Gothic  hordes  in  the  400s 
and  500s.  Primitive  notions  prevailed  once  more,  and  the  slow  process  of  develop- 
ment had  to  be  repeated,  —  repeated  for  the  law  as  well  as  for  other  departments 
of  life.  Much  Roman  law  remained  in  the  South,  and  a  large  body  of  it  was 
received  in  a  mass  in  Germany  in  the  1500s;  but  this  affected  chiefly  specific 
rules;  the  popular  and  general  instinctive  legal  notions  had  to  grow  once  more  out 
of  primitive  into  advanced  forms. 

Now  one  of  the  universal  and  marked  primitive  notions  is  that  of  the  oath  as 
a  formal  act,  mechanically  and  ipso  facto  efficacious  (like  the  ordeal  and  the  trial 
by  battle),  and  quantitative  in  its  nature.  This  notion  is  merely  one  particular 
phase  of  the  entire  system  of  formalism  inherent  in  the  stage  of  intellectual 
development  at  which  our  Germanic  ancestors  were  in  that  epoch.  It  is  a  matter 
of  the  whole  spirit  of  the  times,  not  of  a  particular  or  local  belief. 

Professor  Andreas  Heusler,  "Institutions  of  Germanic  Private  Law," 
(1885)  I,  45,  49,  52:  "...  By  'legal  formalism'  I  mean  that  condition  of 
legal  thought  in  which  the  sensibly  perceivable  is  accepted  as  the  only  or  at 
least  the  dominant  element  producing  legal  effects,  and  the  inward  circum- 
stances of  a  spiritual  sort  —  dispositions,  volitions,  purposes,  and  the  like  — 
are  excluded  or  forced  into  the  background.  In  this  larger  sense  the  term 
'formalism'  is  ordinarily  not  taken;  we  are  apt  rather  by  that  term  to  mean 

^  For  an  account  of  the  quantitative  system  of  so-called  "legal  proofs"  on 
the  Continent,  see  Esmein's  "History  of  Continental  Criminal  Procedure"  (1913, 
Continental  Legal  History  Series;  Little,  Brown  &  Co.). 


No.  510  NUMBER    OF   WITNESSES  755 

merely  the  notion  that  transactions  which  are  to  have  legal  significance  must 
have  a  prescribed  form,  i.e.  a  certain  mode  of  utterance  or  action  which  is 
alien  to  the  speech  or  doing  of  ordinary  life.  This  external  aspect  of  'formal- 
ism' is,  however,  only  the  half  of  that  which  I  here  include  by  that  name; 
the  other  half  's  what  may  be  called  the  inward  formalism,  and  it  consists  in 
this,  that  the  substantial  effect,  the  intrinsic  value  of  the  incidents  of  legal 
life,  is  estimated  by  (as  it  were)  stencils  fixed  by  law.  Thus,  for  example,  we 
contrast  the  formal  and  the  rational  theory  of  proof,  and  under  the  former 
we  class  the  rule  that  for  full  proof  a  single  witness  does  not  suffice,  but  that 
two  credible  witnesses  are  necessary.  Where  lies  the  formalism  here?  This 
rule  has  nothing  to  do  with  'form '  in  the  narrow  sense  noted  above;  the  real 
element  of  formalism  in  it  is  that'  (by  reason  of  long  experience  with  the  un- 
trustworthiness  of  witnesses)  a  rule  of  thumb  has  been  made,  which  denies 
to  the  judge  his  free  discretion  in  the  estimation  of  testimony  and  lays  down 
a  fixed  law,  not  trusting  to  the  often  deceptive  valuation  of  each  man's  credi- 
bility, character,  and  the  like,  but  finding  its  security  in  the  external  mark 
of  numbers." 

The  oath,  then,  in  the  Germanic  epoch  is  but  a  single  product  of  the  pervading 
formalistic  conception  of  procedure  and  of  proof.  All  through  the  Saxon  and 
Norman  times,  the  oath  is  a  verbal  formula,  which,  if  successfully  performed 
without  immediate  disaster,  is  conceded  to  be  efficacious  per  se,  and  irrespective 
of  personal  credit.  It  follows,  too,  since  the  performance  of  this  act  is  in  itself 
efficacious,  that  the  multiple  performance  of  it,  if  persons  can  be  obtained  who 
will  achieve  this,  must  multiply  its  probative  value  proportionately.  This 
numerical  conception  is  inherent  in  the  general  formalism  of  it.  Thus,  again, 
all  through  these  times,  the  oath  is  for  greater  causes  sworn  by  greater  numbers, 
sometimes  six-handed,  or  twelve-handed,  or  twenty-four-handed;  that  is,  a 
degree  of  greater  certainty  is  thought  to  be  attained,  not  by  analyzing  the  signifi- 
cance of  each  oath  in  itself  and  relatively  to  the  person,  but  by  increasing  the 
number  of  the  oaths.  An  oath  was  one  oath;  and  though  as  between  persons  of 
inferior  and  superior  rank  certain  differences  were  sometimes  recognized,  yet  in 
general  and  between  persons  of  the  same  rank  one  oath  was  equal  to  any  other 
oath,  with  no  distinctions  based  on  their  testimonial  equipment  for  the  case  in 
hand.  In  short,  whatever  varieties  of  probative  situations  present  themselves, 
the  only  expedient  that  suggests  itself  seems  to  be  some  change  in  the  number 
of  oaths. 

Little  by  little,  to  be  sure,  a  newer  idea  develops.  Numerous  oaths  may  be 
required  to  overcome  certain  strong  masses  of  (what  we  should  now  call)  pre- 
sumptive evidence.  The  classes  of  cases  in  which  oaths  are  allowed  operative 
force  per  se  are  diminished.  Most  important  of  all,  witnesses  may  be  examined 
briefly  before  being  allowed  to  take  the  oath,  and  witnesses  showing  a  total  lack 
of  knowledge  may  not  be  allowed  to  swear;  and  of  a  piece  with  this  comes  the 
separate  examination  of  witnesses  swearing  on  the  same  side,  for  a  conflict  in 
their  stories  when  separately  examined  resulted  in  discrediting  their  oaths.  But 
these  steps  of  progress  in  popular  conceptions  of  the  nature  of  proof  are  only  slow 
and  gradual,  ■ —  much  more  so  than  one  might  suppose.  The  merely  superstitious 
and  extreme  notion  of  a  witness'  oath  dies  out;  but  the  mechanical,  quantitative, 
formal  conception  persists  for  many  centiu-ies: 

Professor  J.  B.  Thayer,  "Freliminary  Treatise  on  Evidence," 23 :  "We  read 
[in  a  case  of  cui  in  vita,  in  1308],  that  they  were  at  issue  issint  cesti  qui  mieulx 


756  BOOK   i:     RULES   OF   ADMISSIBILITY  No.   510 

prove  mieulx  av,  and  the  tenant  proves  by  sixteen  men,  etc.,  and  the 
demandant  by  twelve;  and  because  the  tenant's  proof  'fuit.  greindr  than  the 
demandant's,  it  was  awarded,'  etc.  If  we  take  Fitzherbert's  account  to 
be  accurate,  it  might  appear  that  the  twelve  men  on  each  side  cancelled  each 
other  and  left  a  total  of  four  to  the  credit  of  the  tenant,  a  result  which  left 
his  proof  the  better." 

It  is  surprising  to  us  to-day  to  note  how  long  this  conception  of  the  oath  (i.e. 
of  a  single  testimonial  assertion)  persisted.  As  a  popular  notion  and  instinctive 
mental  attitude  it  was  still  in  almost  full  force  in  the  1500s,  at  the  time  when  the 
conflict  of  the  common  law  and  the  ecclesiastical  system  came  upon  the  stage. 
Even  to-day,  among  juries  in  some  places,  there  is  no  doubt  a  mere  counting  of 
oaths  or  witnesses.     This  trait  has  been  very  well  phrased  by  Sir  James  Stephen : 

Sir  James  Stephen,  "  History  of  the  Criminal  Law,"  I,  400:  "The  opinion  of 
the  time  [before  1700]  seems  to  have  been  that,  if  a  man  came  and  swore  to 
anything  whatever,  he  ought  to  be  believed,  unless  he  was  directly  contra- 
dicted. .  .  .  The  juries  seem  to  have  thought  (as  they  very  often  still  think) 
that  a  direct  unciualified  oath  by  an  eye-  or  ear-witness  has,  so  to  speak,  a 
mechanical  value  and  must  be  believed  unless  it  is  distinctly  contradicted. 
...  If  the  Court  regarded  a  man  as  a  'good'  {i.e.  a  competent)  'witness,' 
the  jury  seem  to  have  believed  him  as  a  matter  of  course,  unless  he  was  con- 
tradicted; though  there  are  a  few  exceptions.  .  .  .  The  most  remarkable 
illustration  of  these  remarks  is  to  be  fovmd  in  the  trial  of  the  five  Jesuits.  .  .  . 
[Chief  Justice  Scroggs  says:]  'Mr.  Fenwick  says  to  all  this,  "Here  is  nothing 
against  us  but  talking  and  swearing."  Bvit,  for  that,  he  hath  been  told  (if  it 
were  possible  for  him  to  learn)  that  all  testimony  is  but  talking  and  swearing; 
for  all  things,  all  men's  lives  and  fortunes,  are  determined  by  an  oath,  and  an 
oath  is  by  talking,  by  kissing  the  Book,  and  calling  God  to  witness  to  the 
truth  of  what  is  said.'  .  .  .  Scroggs  was  right  as  to  what  it  [the  practice  of 
juries]  actually  was,  and  to  a  certain  extent  still  is.  It  is  true  that  juries  do 
attach  extraordinary  importance  to  the  dead  >veight  of  an  oath." 

(3)  There  was,  therefore  (and  this  is  at  once  the  sum  of  the  foregoing  and  the 
key  to  the  ensuing  history),  in  the  English  common-law  Courts  of  the  1500s, 
nothing  at  all  of  repugnance  to  the  numerical  system  already  fully  accepted  in 
the  ecclesiastical  law.  The  same  popular  probative  notion  there  prevailed  among 
judges,  juries,  and  counsellors  as  on  the  Continent.  They  were  equally  prepared 
and  accustomed  to  weigh  testimonies  by  numbers,  and  therefore  would  see  nothing 
fallacious  in  a  rule  declaring  one  witness  not  enough,  and  requiring  specified 
numbers  of  witnesses.  And  this  adoption  was  in  fact  frequently  demanded  of 
the  common-law  Courts.  The  conflict  between  the  ecclesiastical  and  the  common- 
law  Courts  was  at  its  last  and  perhaps  its  crucial  stage,  —  a  conflict  important 
in  other  respects  to  the  rules  of  evidence.  The  methods  of  the  ecclesiastical 
Courts  were  forming  those  of  the  Courts  of  chancery  and  of  admiralty;  the  ecclesi- 
astical lawyers  were  a  distinguished  and  powerful  body;  their  influence  was 
notably  felt  in  politics  and  in  political  trials;  and  there  was  no  way  of  yet  knowing 
whether  their  system  and  not  the  common-law  system  might  ultimately  prepon- 
derate in  the  shaping  of  English  jurisprudence.^    The  attempt  was  now  repeatedly 

^  See  Professor  F.  W.  Maitland's  enlightening  essay,  "English  Law  and  the 
Renaissance"  (1901,  reprinted  in  "Select  Essays  in  Anglo-American  Legal 
History,"  Vol.  I). 


No.  510  NUlVfBER    OF    WITNESSES  757 

made  to  fix  upon  jury  trials  at  common  law  the  fundamental  rule  of  the  eeclesi- 
cstical  law,  and  it  is  apparent,  from  the  utterances  recorded  as  late  as  the  early 
1600s,  that  there  was  no  certainty  that  the  attempt  would  not  succeed. 

(4)  But  the  attempt  failed,  —  and  failed  absolutely.  After  the  middle  of  the 
1600s  there  never  was  any  doubt  that  the  common  law  of  England  in  jury  trials 
rejected  entirely  the  numerical  system  of  counting  witnesses  and  of  requiring 
specific  numbers.  The  only  exception  to  this  —  the  case  of  perjury  —  "proves 
the  rule,"  because  it  was  not  established  until  the  early  1700s,  when  the  rejection 
of  the  numerical  system  had  been  already  definitely  accomplished. 

(5)  What,  then,  was  the  reason  why  the  common-law  Court,  in  their  system 
of  evidence  for  jury  trials,  declined  to  number  witnesses  like  the  ecclesiastical 
Court,  and  to  lay  down  the  rule  that  a  single  witness  was  insufficient?  Briefly,  the 
different  nature  of  the  tribunal.  The  situation  which  would  call  for  such  a  rule 
simply  did  not  exist  for  the  common-law  judge.  The  case  of  having  merely  one 
witness  could  not  arise;  for  the  jurymen  were  already  witnesses  to  themselves, 
as  well  as  triers.  It  is  unnecessary  here  to  do  more  than  recall  that  vital  circum- 
stance which  has  in  so  many  ways  affected  the  history  of  our  rules  of  evidence, 
namely,  that  the  jury,  until  at  least  the  early  1700s,  were  in  legal  theory  entitled 
to  avail  themselves  of  information  contributed  personally  by  themselves  and 
obtained  independently  of  the  witnesses  produced  in  Court;  and  that  during  the 
1500s  and  1600s  this  joint  quality  of  witnesses  and  jurors  still  obtained  practically 
for  a  more  or  less  considerable  part  of  their  evidential  material.^  The  situation 
was,  therefore,  radically  different  for  the  common-law  judge  and  the  ecclesiastical 
judge.  The  former  need  not  and  could  not  measure  the  witnesses  that  appeared 
before  him.  He  could  not  declare  one  insufficient  and  two  or  more  necessary, 
for  this  was  not  all  the  evidence.  There  was  always,  besides  the  witnesses  pro- 
duced in  Court,  an  indefinite  and  supplementary  quantity  of  evidence  existing 
in  the  breasts  of  the  jurors.  There  were  (as  Fortescue  says)  twelve  other  witnesses 
besides  the  one  produced  before  the  bar;  and,  as  to  the  extent  of  the  evidential 
contribution  of  these  others,  the  judge  did  not  know  and  had  no  right  to  know  what 
it  amounted  to.  It  was  therefore  impossible  and  preposterous  for  him  to  attempt 
to  declare  insufficient  and  to  reject  the  one  or  more  witnesses  produced  in  Court. 
The  jury  might  still  go  out  and  find  a  verdict  upon  no  witnesses  (of  the  ordinary 
kind)  at  all.  Judicial  rules  of  number  would  thus  be  wholly  vain  and  out  of  place. 
Such  was  the  logical  and  necessary  answer  to  any  attempt  to  introduce  the 
numerical  system  in  jury  trials. 

(6)  There  did  come  into  our  law,  however,  sooner  or  later,  a  few  specific  rules 
of  the  numerical  sort;  all  of  them  being  of  the  simple  type  that  declares  a  single 
witness  insufficient  and  requires  additionally  either  a  second  witness  or  corroborat- 
ing circumstances.  Some  of  these  —  namely,  the  Chancery  rule  requiring  two 
witnesses  to  overcome  a  denial  on  oath,  the  rule  requiring  two  witnesses  to  a  will 
of  personalty,  and  the  rule  requiring  two  witnesses  to  a  cause  for  divorce  —  existed 
only  in  the  practice  of  the  ecclesiastical  Courts  or  that  of  chancery  founded  upon 
it;  and  wherever  they  came  over  into  American  common-law  Courts,  they  were 
direct  borrowings.  Others,  namely,  the  rule  requiring  an  accomplice  or  a  com- 
plainant in  rape,  or  the  like,  to  be  corroborated,  are  either  express  statutory  inven- 
tions or  plain  judicial  creations;  in  either  case  modern  innovations,  as  well  as 
local  in  the  United  States,  and  not  a  part  of  the  inherited  common  law.     There 


^  Thayer,  "Preliminary  Treatise  on  Evidence,"  pp.  137-170;    and  see  ante, 
No.  1,  in  the  present  volume. 


758  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  510 

remain  two  specific  rules  —  the  rule  in  treason  and  the  rule  in  perjury  —  which 
do  come  down  to  us  as  inheritances;  though  these  also  are  in  strictness  not  com- 
mon-law rules,  the  one  being  statutory  in  origin,  and  the  other  an  indirect  grafting 
from  the  ecclesiastical  law. 

(7)  For  the  policy  of  a  numerical,  or  of  any  quantitative  system  nobody  at  the 
present  day  finds  anything  to  be  said.  The  probative  value  of  a  witness'  assertion 
is  utterly  incapable  of  being  measured  by  arithmetic.  All  the  considerations 
which  operate  to  discredit  testimony  affect  it  in  such  varying  ways  for  different 
witnesses  that  the  net  trustworthiness  of  each  one's  testimony  is  not  to  be  esti- 
mated, either  in  itself  or  in  reference  to  others'  testimony,  by  any  uniform  numeri- 
cal standard.  The  personal  element  behind  the  assertion  is  the  vital  one,  and  is 
too  multifarious  to  be  measured  by  rule.  "Testimony,"  as  Boyle  well  said,  "is 
like  the  shot  of  a  long-bow,  which  owes  its  efficacy  to  the  force  of  the  shooter; 
argument  [i.e.  circumstantial  inference]  is  like  the  shot  of  a  cross-bow,  equally 
forftble  whether  discharged  by  a  giant  or  a  dwarf."  The  cross-bow  notion  of 
testimony  —  the  notion  that  one  shot  is  as  forceful  as  any  other  shot  —  can  find 
no  defenders  to-day. 


511.   INDIANAPOLIS  STREET  R.   CO.  v.  JOHNSON 

Supreme  Court  of  Indiana.     1904 
163  hid.  518;  72  N.  E.  571 

From  Boone  Circuit  Court;   Samuel  R.  Artman,  Judge. 

Action  by  Mary  E.  Johnson  against  the  Indianapolis  Street  Railway 
Company  for  damages  for  personal  injuries.  From  a  judgment  on  a 
verdict  for  S3, 125,  the  defendant  appeals.  Transferred  from  the  Appel- 
late Court  under  §  1337u,  Burns  1901.     Affirmed. 

F.  Winter,  S.  M.  Ralston,  and  TV.  H.  Latta,  for  appellant.  W.  J. 
Beckett,  for  appellee. 

Jordan,  J.  .  .  .  The  Court  gave  to  the  jury  what  apparently  is  a 
carefully  prepared  charge,  but  certain  parts  thereof  are  criticized  by 
counsel  for  appellant.  By  the  third  instruction  the  jury  was  advised 
that,  in  order  to  entitle  the  plaintiff  to  recover,  she  must  prove  by  a 
preponderance  of  all  of  the  evidence  all  the  material  allegations  contained 
in  the  complaint.  Immediately  following  this  statement,  the  Court, 
in  the  same  instruction,  stated  to  the  jury  that  "the  prej^onderance  of 
evidence  does  not  depend  upon  the  number  of  witnesses,  and  does  not  mean 
the  greater  number  of  witnesses.  It  does  depend  upon  the  weight  of  the 
evidence,  and  means  the  greater  weight  of  the  evidence."     (Our  italics.) 

Appellant  criticizes  that  part  italicized,  for  the  reason  asserted  that 
it  does  not  state  the  law  correctly,  and  was  an  invasion  of  the  province 
of  the  jury.  They  assert  that  where  the  witnesses  are  equally  credible 
in  respect  to  their  character,  the  preponderance  of  the  evidence  does 
depend  upon  the  number  of  witnesses,  and  that  the  preponderance  thereof 
is  necessarily  determined  by  the  greater  number  of  witnesses. 

As  a  general  rule,  the  preponderance  of  the  evidence  in  a  case  does  not 


No.   512  NUMBER    OF    WITNESSES  759 

depend  upon  or  mean  the  greater  number  of  witnesses  testifying  upon 
the  matter  or  matters  in  issue.  Counsel  mistake  the  law  in  their  con- 
tention that  where  the  witnesses  in  a  case  are  equally  credible  in  respect 
to  their  character,  then,  in  such  case,  the  preponderance  of  the  evidence 
depends  upon  the  number  of  witnesses  testifying.  This  certainly  is  not 
the  true  test  in  any  case.  Any  number  of  witnesses  may  be  of  equal 
credibility  and  possess  equal  information,  and  still  differ  greatly  in  the 
amount  or  weight  of  their  evidence.  The  authorities  generally  affirm  that 
the  number  of  witnesses  are  not  to  be  counted  by  the  jury  or  Court 
trying  the  case  in  order  to  determine  upon  which  side  is  the  preponder- 
ance, but  the  evidence  given  by  them  is  to  be  weighed,  and  the  prepon- 
derance thereof  does  not  depend  on  the  greater  number  of  the  witnesses 
in  the  particular  case.  Wray  ?'.  Tindall  (1874),  45  Ind.  517;  .  .  .  Village 
of  North  Alton  v.  Dorsett  (1895),  59  111.  App.  612;  Bishop  v.  Busse 
(1873),  69  111.  402.  .  .  .  The  instruction  in  question  is  not  open  to  the 
objections  urged  by  counsel  for  appellant.  .  .  . 

We  find  no  available  error,  and  the  judgment  is  therefore  affirmed. 

512.  Summary.  The  common  law,  then,  in  repudiating  the  numerical 
system,  lays  down  three  general  principles: 

(a)  In  general,  the  testimony  of  a  single  witness,  no  matter  what  the  issue  or 
who  the  person,  may  legally  suffice  as  evidence  upon  which  the  jury  may  found  a 
verdict. 

(b)  Conversely,  the  v^ere  assertion  of  any  witness  does  not  of  itself  need  to  be 
believed,  even  though  he  is  unim peached  in  any  manner;  because  to  require  such 
belief  would  be  to  give  a  quantitative  and  impersonal  measure  to  testimony: 

(c)  As  a  corollary  of  the  first  proposition,  all  rules  requiring  two  witnesses,  or 
declaring  one  wit72css  insufficient  without  corroboration,  are  exceptions  to  the  general 
principle. 

There  are  several  such  exceptions.  But  they  are  connected  by  no  system; 
they  depend  in  part  on  local  statutes  or  decisions,  and  no  one  of  them  is  extensive 
or  complicated  enough  to  merit  scientific  study.  It  is  here  neither  feasible  nor 
profitable  to  take  them  up.«  A  brief  enumeration  of  the  chief  ones  will  suffice. 
They  may  be  classified  according  to  whether  they  apply  (a)  to  a  certain  issue 
{i.e.  to  any  witness  on  that  issue),  or  (b)  to  a  certain  kind  of  witness  {i.e.  to  that 
kind  of  person  on  any  issue). 

A.  Issues.  1.  In  treason,  one  witness  alone  is  not  sufficient;  there  must  be 
two  witnesses  testifying  to  the  same  overt  act. 

2.  In  perjury,  one  witness  to  the  falsity  is  not  sufficient ;  his  testimony  must 
be  corroborated. 

3.  In  sundry  crhnes,  by  local  statutes,  one  witness  alone  is  not  sufficient;  he 
must  be  corroborated. 

4.  In  chancery  cases,  where  the  allegations  of  the  bill  are  denied,  one  witness 
alone  is  not  sufficient  to  sustain  them;  this  leads  into  several  complicating 
details. 

5.  In  testamentary  cases  one  witness  to  the  execution  is  not  sufficient ;  statutes 
prescribe  two  or  three.  In  Pennsylvania,  following  the  English  ecclesiastical 
rule,  these  may  be  any  competent  persons.  Elsewhere,  they  must  be  attesting 
witnesses;  this  rule  has  been  examined  ante,  Nos.  351-358.  —  For  a  nuncupative 


760  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  512 

will,  a  specific  number  is  everywhere  prescribed.  For  a  revocation  or  alteration 
statutes  sometimes  prescribe  a  specific  number.  —  For  the  contents  of  a  last 
will,  similar  rules  are  found. 

B.  Persons.  1.  An  accomplice's  testimony  alone  is  not  sufficient,  in  most 
jurisdictions;   it  must  be  corroborated  by  additional  evidence. 

2.  A  woman-complainant's  testimony,  in  rape,  seduction,  bastardy,  breach  of 
marriage-promise,  etc.,  is  not  sufficient,  in  many  jurisdictions;  there  must  be 
corroborating  evidence. 

3.  Sundry  kinds  of  persons'  testimony,  in  various  jurisdictions,  is  not  sufficient 
without  corroboration. 

4.  The  confession  of  a  respondent  in  divorce  is  not  sufficient,  without  corrobora- 
tion. 

5.  The  extra  judicial  confession  of  an  accused  in  a  criminal  case  is  not  sufficient, 
without  corroboration,  in  most  jurisdictions. 


No.  515  REQUIRED    KINDS    OF    WITNESSES  761 


SUB-TITLE   II.     KINDS   OF  WITNESSES   REQUIRED 

513.  Inthoductcjhy.  The  distinction  between  the  preceding  sort  of 
Quantitative  rules  and  the  present  sort  is  that  those  require  a  specified  number 
of  witnesses,  while  tiiese  require  a  specified  kind  of  witness.  For  example,  a  rule 
requiring  that  among  the  evidence  of  a  certain  fact  there  should  always  be  the 
testimony  of  a  white  person,  or  the  testimony  of  a  male  person,  or  the  testimony  of 
a  military  officer,  or  the  testimony  of  a  citizen,  would  be  a  rule  of  the  present  sort. 

In  fact,  however,  rules  of  this  sort  are  almost  wholly  lacking  in  our  law. 
They  rest  upon  the  assumption  that,  no  matter  how  strong  and  complete  the 
remainder  of  the  evidence  may  be,  a  particular  kind  of  testimony  will  always  be, 
for  the  subject  in  hand,  relatively  so  valuable  that  it  should  be  indispensably 
required  in  every  case  whatever.  There  has  been  practically  no  attempt  to 
establish  such  a  rule  except  for  one  class  of  testimony,  namely,  eye-witnesses,  or, 
more  loosely,  direct  testimony.  Even  for  that  class,  there  is  to-day  no  universally 
accepted  rule  making  an  eye-witness  indispensable.  This  type  of  rule  is  opposed 
to  the  genius  and  traditions  of  the  common  law. 

There  are  three  supposed  rules  of  this  sort:  (1)  The  rule  that  all  eye-witnesses 
of  a  crime  must  be  produced  and  used  by  the  prosecution;  (2)  The  rule  that  the 
"corpus  delicti"  of  a  crime  must  be  evidenced  by  direct  testimony:  (3)  The  rule 
that  a  marriage  by  informal  consent  must  be  evidenced  by  an  eye-witness;  this  last 
rule  has  such  relations  to  the  substantive  law  that  space  does  not  suffice  to  ex- 
amine it  here. 


514.  Rexi'.Simmonds.  (1823. 1  C.&P.S4.  Larceny).  Hullock,B.— Though 
the  covmsel  for  the  prosecution  is  not  bound  to  call  every  witness  whose  name  is 
on  the  back  of  the  indictment,  it  is -usual  for  him  to  do  so;  and  if  he  does  not,  I, 
as  the  judge,  will  call  the  witness,  that  the  prisoner's  counsel  may  have  an  oppor- 
tunity of  cross-examining  him. 


515.   STATE  V.   BARRETT 

Supreme  Court  of  Oregon.     1898 

33  Or.  194;  54  Pac.  807 

From  Multnomah;  Melvin  C.  George,  Judge. 

George  Barrett  wa,?,  convicted  of  manslaughter  and  appeals.  Re- 
versed. 

For  appellant  there  was  a  brief  and  an  oral  argument  by  Mr.  Wilson 
T.  Hume. 

For  the  State  there  was  a  brief  and  an  oral  argument  by  Messrs. 
Cicero  M.  Idleman,  Attorney-General,  Russell  E.  Sewall,  District  Attor- 
ney, and  Roscoe  R.  Giltner,  Deputy  District  Attorney. 

Mr.  Justice  Bean  delivered  the  opinion. 

The  defendant  was  convicted  of  the  crime  of  manslaughter,  for  shoot- 


762  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  515 

ing  and  killing  one  Williams  in  a  saloon  conducted  by  himself  and  one 
Levison,  and  brings  this  appeal  to  reverse  the  judgment.  .  .  . 

1.  .  .  For  this  reason  the  judgment  of  the  Court  below  must  be 
reversed,  and  a  new  trial  ordered.  But  as  there  are  other  questions  in 
the  case,  which  may  arise  on  another  trial,  it  is  thought  proper  to 
notice  them  briefly  at  this  time. 

2.  The  district  attorney  having  closed  the  case  for  the  State  without 
calling  any  of  the  persons  who  were  in  the  saloon  at  the  time  of  the  homi- 
cide, on  the  ground  that  they  were  the  associates  and  employes  of  the 
defendant,  and  in  his  opinion  their  testimony  would  be  unworthy  of 
belief,  although  one  of  them  was  then  in  custody  in  default  of  an  under- 
taking to  appear  and  testify  on  behalf  of  the  State  at  the  trial,  and 
another  was  on  bail  for  that  purpose,  the  defendant's  counsel  moved  the 
Court  to  require  such  persons  to  be  called  as  witnesses  for  the  State. 
The  Court  declined  to  do  so,  and  the  defendant  excepted.  The  parties 
referred  to  were  then  called  by  the  defense,  and  testified,  and  the  ruling 
of  the  Court  in  not  compelling  the  State  to  produce  them  on  the  stand 
is  assigned  as  error. 

*  There  is  a  diversity  of  judicial  opinion  as  to  whether,  in  a  criminal 
case,  the  prosecuting  officer  is  compelled  to  call  as  witnesses  all  the  persons 
present  at  the  commission  of  the  alleged  crime.  There  are  some  early 
English  cases  which  seem  to  lay  down  the  rule  with  more  or  less 
distinctness  to  that  effect.  Reg.  v.  Holden,  8  Car.  &  P.  606;  Reg.  v. 
Chapman,  8  Car.  &  P.  558;  Reg.  v.  Stroner,  1  Car.  &  K.  650;  Roscoe, 
Criminal  Evidence,  139.  And  in  this  country  it  is  the  rule,  in  Michigan 
and  Montana,  that  the  prosecuting  officer  is  bound  to  show  the  res  gestae, 
or  entire  transaction,  by  calling  all  the  obtainable  witnesses  present  at 
the  time,  unless  it  appears  that  the  testimony  of  those  not  called  would 
be  merely  cumulative:  People  v.  Germaine,  101  Mich.  485;  Territory 
V.  Hanna,  5  Mont.  248;  State  v.  Metcalf,  17  Mont.  417.  But  this  doc- 
trine is  denied  and  repudiated,  and  we  think  rightfully,  by  a  great 
majority  of  the  Courts  in  which  the  question  has  come  up  for  adjudica- 
tion: State  V.  Martin,  2  Ired.  101;  Selph  v.  State,  22  Fla.  537;  State  v. 
Eaton,  75  Mo.  587,  593;  Bozeman  v.  State,  34  Tex.  Cr.  R.  503;  Kidwell 
V.  State,  35  Tex.  Cr.  R.  264;  Williford  v.  State,  36  Tex.  Cr.  R.  414; 
Morrow  v.  State,  57  Miss.  836;  Carlisle  v.  State,  73  Miss.  387;  State  v. 
Cain,  20  AV.  Va.  679. 

...  It  probably  came  into  use  in  England  at  a  time  when  the  right 
of  a  defendant  in  a  criminal  case  to  be  represented  by  counsel,  or  to  have 
witnesses  appear  and  testify  in  his  behalf,  was  either  denied  entirely, 
or  very  much  abridged.  Under  such  circumstances,  it  was,  of  course, 
important  that  the  prosecution  be  compelled  to  prove  the  entire  trans- 
action, and  to  call  all  the  witnesses  present  at  the  time,  whether  they 
would  testify  for  or  against  the  defendant.  But  these  restrictions  upon 
the  rights  of  a  defendant  do  not,  and  never  did,  exist  in  this  country. 
Here  the  right  of  the  accused  to  appear  by  counsel,  and  to  have  com- 


No.  517  REQUIRED    KINDS    OF    WITNESSES  763 

pulsory  process  for  obtaining  witnesses  in  his  favor,  is  everywhere  recog- 
nized, and  generally  guaranteed  by  the  fundamental  law.  There  is 
therefore  no  necessity  for  requiring  the  State  to  call  all  the  persons 
who  were  present  when  the  offense  was  committed,  or  any  particular 
number  of  them.  The  rights  of  the  defendant  are  not  in  any  way 
abridged  by  a  failure  to  do  so.  He  has  the  assistance  and  advice  of 
counsel  selected  by  himself,  if  able  to  employ  one,  and,  if  not,  appointed 
by  the  Court,  and  compulsory  process  for  obtaining  witnesses  at  the 
public  expense.  In  addition  to  this,  the  State  is  bound  to  make  out  its 
case  beyond  a  reasonable  doubt;  and  if  the  prosecuting  officer  does  not 
call  sufficient  witnesses  for  that  purpose,  or  if  any  unfavorable  inference 
can  be  drawn  from  his  failure  to  call  any  witness,  the  defendant  is  not 
likely  to  suffer  by  the  omission;  and  if  he  calls  only  such  witnesses  as 
are  favorable  to  the  State,  the  defendant  has  a  right  to  call  any  others 
which  he  may  suppose  will  relate  the  facts  favorable  to  him. 

It  does  not  seem  to  us,  therefore,  that  the  State  should  be  compelled 
to  call  and  vouch  for  a  witness,  even  though  it  be  evident  that  he  knows 
all  about  the  facts,  when  the  prosecuting  officer,  acting  in  good  faith, 
and  under  his  official  oath,  is  of  the  opinion  that  he  will,  by  false  swearing, 
or  by  the  concealment  of  material  facts,  attempt  to  establish  the  inno- 
cence of  the  accused.  .  .  . 

The  judgment  of  the  Court  below  is  reversed,  and  the  cause  remanded 
for  a  new  trial.  Reversed. 

516.  Sir  Matthew  Hale.  Pleas  of  the  Crown,  (ante  1680.  II,  290).  I  would 
never  convict  any  person  for  stealing  the  goods  "cujusdam  ignoti "  merely  because 
he  would  not  give  an  account  how  he  came  by  them,  imless  there  was  due  proof 
made  that  felony  was  committed  of  these  goods.  I  would  never  convict  any 
person  of  murder  or  manslaughter,  vmless  the  fact  was  proved  to  be  done,  or  at 
least  the  body  found  dead,  —  for  the  sake  of  two  cases,  one  mentioned  in  my 
lord  Coke's  P.  C.  cap.  104,  p.  232,  a  Warwickshire  case,  another  that  happened 
in  my  remembrance  in  Staffordshire. 

517.  Commonwealth  v.  Webster.  (Massachusetts.  1850.  5  Cush.  295, 
308,  and  Bemis'  Rep.  473).  Shaw,  C.  J.  The  prisoner  at  the  bar  is  charged  with 
the  wilful  murder  of  Dr.  George  Parkman.  This  charge  divides  itself  into  two 
principal  questions,  to  be  resolved  by  the  proof:  first,  whether  the  party  alleged 
to  have  been  murdered  came  to  his  death  by  an  act  of  violence  inflicted  by  any 
person;  and  if  so,  secondly,  whether  the  act  was  committed  by  the  accused. 
Under  the  first  head  we  are  to  inquire  and  ascertain,  whether  the  party  alleged  to 
have  been  slain  is  actually  dead;  and,  if  so,  whether  the  evidence  is  such  as  to 
exclude,  beyond  reasonable  doubt,  the  supposition  that  such  death  was  occasioned 
by  accident  or  suicide,  and  to  show  that  it  must  have  been  the  result  of  an  act  of 
violence.  When  the  dead  body  of  a  person  is  found,  whose  life  seems  to  have 
been  destroyed  by  violence,  three  questions  naturally  arise.  Did  he  destroy  his 
own  life?  Was  his  death  caused  by  accident?  Or  was  it  caused  by  violence 
inflicted  on  him  by  others?  In  most  instances,  there  are  facts  and  circimistancea 
surrounding  the  case,  which,  taken  in  connection  with  the  age,  character,  and 


764  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  517 

relations  of  the  deceased,  will  j^iit  this  beyond  doubt.  In  a  charge  of  criminal 
homicide,  it  is  necessary  in  the  first  place  by  full  and  substantial  evidence  to 
establish  what  is  technically  called  the  corpus  delicti,  —  the  actual  offense  com- 
mitted; that  is,  that  the  person  alleged  to  be  dead  is  in  fact  so;  that  he  came  to 
his  death  by  violence  and  under  such  circumstances  as  to  exclude  the  supposition 
of  a  death  by  accident  or  suicide  and  warranting  the  conclusion  that  such  death 
was  inflicted  by  a  human  agent;  leaving  the  question  who  that  guilty  agent  is  to 
after  consideration.  .  .  . 

It  has  sometimes  been  said  by  judges  that  a  jury  ought  never  to  convict  in  a 
case  of  homicide  unless  the  dead  body  be  found  and  identified.  This,  as  a  general 
proposition,  is  undoubtedly  true  and  correct;  and  disastrous  and  lamentable 
consequences  have  resulted  from  disregarding  the  rule.  But,  like  other  general 
rules,  it  is  to  be  taken  with  some  qualification.  It  may  sometimes  happen  that 
the  dead  body  cannot  be  produced,  although  the  proof  of  the  death  is  clear  and 
satisfactory;  as  in  a  case  of  murder  at  sea,  where  the  body  is  thrown  overboard 
in  a  dark  and  stormy  night,  at  a  great  distance  from  land  or  any  vessel;  although 
the  body  cannot  be  found,  nobody  can  doubt  that  the  author  of  that  crime  is 
chargeable  with  murder. 


518.   BUEL  V.  STATE 

Supreme  Court  of  Wisconsin.     1899 

104  Wis.  133;  80  N.  W.  78 

Error  to  Circuit  Court,  Sawyer  county;   John  K.  Parish,  Judge. 

Eugene  Buel  was  convicted  of  murder,  and  brings  error.     Reversed. 

J.  B.  Alexander  and  V.  W.  James,  for  plaintiff  in  error.  C.  E.  Buell, 
First  Asst.  Atty.  Gen.,  for  the  State. 

Marshall,  J.  —  The  evidence  produced  on  the  trial  established  or 
tended  to  establish  the  following:  Peter  F.  Nelson,  an  unmarried  man 
of  about  24  years  of  age,  who  had  resided  for  a  considerable  length  of 
time  prior  to  the  17th  day  of  September,  1896,  with  the  plaintiff  in  error, 
Eugene  Buel,  a  man  of  about  36  years  of  age,  near  the  Indian  reserva- 
tion in  a  thinly-settled  district  in  Sawyer  county  about  nine  miles  from 
the  village  of  Haj^-ard,  —  in  August,  1896,  was  charged  by  one  Wetten- 
hall  with  being  guilty  of  ha\dng  sustained  criminal  relations  with  the 
latter's  daughter,  and  being  the  cause  of  her  supposed  condition  of 
pregnancy.  That  resulted  in  Wettenhall  and  Nelson  meeting  a  day  or 
two  thereafter,  by  appointment,  at  the  village  of  Ha\-^vard,  where  Wet- 
tenhall insisted  on  Nelson  marrying  the  daughter,  which  he  declined  to 
do.  Soon  thereafter,  on  the  same  day,  on  hearing  that  he  was  about  to 
be  prosecuted  respecting  the  charge  of  causing  the  pregnancy  of  the 
Wettenhall  girl,  Nelson  fled  from  the  county  and  thereafter  remained 
in  hiding  till  about  the  16th  day  of  September  following,  when  he  met 
Buel,  by  appointment,  at  a  railway  station  a  short  distance  from  Hay- 
ward,  from  which  point  the  two  traveled  together  to  Haj^ard,  arriving 
there  about  daylight  on  the  succeeding  day.     The  purpose  of  the  trip 


No.  51S  REQUIRED    KINDS    OF    WITNESSES  765 

to  Hayward  was  to  enable  Nelson  to  draw  some  $400  which  he  had  in. 
the  Sawyer  County  Bank  and  then  leave  the  county  before  his  presence 
at  Hayward  could  become  sufficiently  known  to  lead  to  his  arrest.  Pugh, 
the  cashier  of  the  bank,  was  called  upon  by  Nelson  and  Buel  at  his  house 
before  daylight  on  the  day  named  and  informed  of  the  purpose  of  Nelson 
as  stated,  and  that  he  intended  to  go  to  Cliicago  by  way  of  Ashland. 
Pugh  acceded  to  the  request  to  immediately  get  the  money  for  Nelson 
and  to  aid  in  keeping  his  presence  in  Hayward  secret,  and  thereupon 
went  to  the  bank  and  obtained  such  money,  Buel  and  a  policeman 
going  with  him,  and  Nelson  remaining  at  the  house.  Pugh  returned  to 
his  house  with  the  money  and  paid  it  to  Nelson,  whereupon  the  latter 
and  Buel  immediately  departed,  going  in  the  direction  of  Buel's  home. 
The  last  that  was  seen  of  Nelson  alive,  he  was  in  the  company  of  Buel 
a  few  miles  from  the  latter's  home  on  the  day  in  question.  The  day  of 
the  occurrence  related,  Buel  was  observed  traveling  on  the  road  from 
Haj-ward  towards  his  home  alone,  carrying  a  satchel,  and  later  in  the 
day  he  left  his  home  with  a  pail  and  gun  under  the  pretense  that  he  was 
going  to  carry  a  lunch  to  Nelson ;  and  still  later  the  same  day  he  returned 
home  in  a  nervous  condition  and  xeported  that  Nelson  complained  that 
he  had  been  chased  by  Indians.  After  the  disappearance  of  Nelson  as 
related,  he  did  not  write  to  any  of  his  old  neighbors  or  acquaintances  as 
he  was  accustomed  to  do  when  away  from  home.  ...  In  July  of  the 
next  year  after  the  occurrences  detailed  in  the  foregoing,  the  remains  of  a 
human  being  were  found  lying  on  the  back  in  a  bunch  of  thick  bushes 
a  few  miles  from  where  Nelson  was  last  seen  with  Buel  and  within  about 
one-half  a  mile  from  an  unoccupied  homestead  claim  of  Buel,  and  some- 
what further  from  such  a  claim  which  belonged  to  Nelson.  The  location 
of  the  discovery  was  in  an  out  of  the  way  place  some  four  miles  from  any 
inhabited  building  except  an  old  logging  camp  about  a  mile  and  a  half 
away,  which  was  occupied  by  a  watchman.  It  was  near  an  old  Indian 
trail  and  the  usual  route  from  Buel's  place  of  residence  to  his  homestead 
claim.  The  fragments  of  the  skull  indicated  that  either  before  or  after 
death  it  was  broken  in  by  some  crushing  blow  or  blows.  The  shoes  were 
on  the  feet  and  the  clothing  was  sufficiently  preserved  to  show  the  color. 
No  money  or  thing  of  value  was  found  near  the  remains  except  a  pocket- 
knife,  which  was  identified  as  one  of  two  knives  that  had  been  sold  by  a 
merchant  in  Ha^^ward,  one  of  which  was  sold  to  Nelson.  The  trousers 
and  shoes  found  on  the  remains  were  similar  to  those  worn  by  Nelson.  .  .  . 
Evidence  was  produced  to  explain  or  discredit  much  of  the  evidence 
of  the  circumstantial  evidentiary  facts  mentioned,  and  to  impair  the 
probative  force  of  circumstances  established,  pointing  to  the  guilt  of 
Buel.  The  jury  found  him  guilty  of  murder  in  the  first  degree  and 
judgment  was  entered  accordingly. 

The  evidence  was  all  circumstantial,  but  that  does  not  count  strongly 
against  the  conviction,  since  a  conviction  may  as  well  rest  on  circum- 
stantial evidence  as  on  direct  evidence,  if  it  has  the  necessary  probative 


766  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  518 

power  to  convince  the  mind  beyond  a  reasonable  doubt  of  the  existence 
of  each  of  the  elements  requisite  to  make  out  the  charge  and  exclude  to  a 
moral  certainty  every  other  reasonable  hypothesis.  .  .  . 

It  appears  to  be  strongly  urged  that  the  verdict  was  not  warranted 
by  the  evidence  as  to  the  corpus  delicti,  because,  on  that  subject  there 
must  be  positive  evidence,  or  circumstantial  evidence  of  such  probative 
power  as  to  convince  the  mind  beyond  the  possibility  of  error.  To 
support  that  contention.  State  v.  Davidson,  30  Vt.  377,  was  cited  to  our 
attention,  where  it  is  said  that  "the  cases  all  hold  that  where  the  corpus 
delicti  is  attempted  to  be  shown  by  circumstantial  evidence,  it  must  be 
positively  established  so  as  to  exclude  all  uncertainty  or  doubt  from  the 
minds  of  the  jury;  not  that  each  particular  circumstance  must  be  of 
that  conclusive  character,  but  all  combined  must  produce  the  same 
degree  of  certainty  as  positive  proof."  That  must  be  construed  to  mean 
that  circumstantial  evidence  is  competent  and  sufficient  to  establish  every 
element  of  the  corpus  delicti  if  as  convincing  as  positive  or  direct  e\a- 
dence.  It  recognizes  the  sufficiency  of  circumstantial  evidence,  and  as 
to  each  etement  of  the  subject  under  consideration.  .  .  . 

There  are  many  authorities  that  might  be  cited  to  support  the  doc- 
trine that  positive  evidence  is  required  to  establish  at  least  the  element 
of  death  by  criminal  means,  and  in  many  legal  opinions  language  is  used 
which  would  indicate  a  holding  that  positive  evidence  must  go  further 
and  establish  the  fact  of  identity.  In  Ruloff  v.  People,  18  N.  Y.  179,  it 
was  stated  as  the  undisputed  law,  that  no  one  should  be  convicted  of 
murder  upon  circumstantial  evidence  unless  the  body  of  the  person 
supposed  to  have  been  murdered  has  been  found,  or  there  be  other  clear, 
irresistible  proof  that  such  person  is  actually  dead.  Baron  Parke,  in 
Reg.  V.  Tawell,  a  case  not  easily  found  reported  in  the  books,  but  re- 
ferred to  in  Will's  Circumstantial  Evidence  (3d  Ed.)  181,  and  contained 
in  Trials  for  Murder  by  Poisoning,  compiled  by  Brown  (1883),  used 
substantially  the  same  language,  and  the  conclusion  was  reached  that 
as  to  the  death  of  the  party  supposed  to  have  been  murdered,  positive 
evidence  is  necessary.  Such  appears  to  be  the  fair  reading  of  the  early 
New  York  cases,  but  that  is  denied,  or  if  not  denied  overrruled,  in  more 
recent  decisions.  .  .  . 

This  Court  has  spoken  in  no  uncertain  language  on  the  subject  under 
consideration.  No  question  in  regard  to  it  is  open  in  this  State.  A 
reference  to  authorities  elsewhere  is  here  made  because  of  the  importance 
of  the  question  in  this  case,  and  to  demonstrate  the  universality  of  the 
doctrine  here  applied.  .  .  .  There  are  many  striking  illustrations  of  this 
doctrine  in  the  books.  In  Ex  parte  Kearny,  55  Cal.  212,  the  body  of  the 
murdered  man  was  destroyed  by  fire  so  that  no  part  of  it  was  ever  dis- 
covered but  some  pieces  of  bone,  not  recognizable  as  human  bones. 
In  State  v.  Ah  Chuey,  14  Nev.  79,  the  body  was  destroyed  by  fire  beyond 
recognition.  So  in  Com.  v.  Webster,  5  Cush.  295,  the  body  had  been 
dissected  and  many  parts  of  it  completely  destroyed,  particularly  in  the 


No.  518  REQUIRED    KINDS    OF    WITNESSES  767 

head,  leaving  no  part  that  could  be  positively  said  to  have  been  a  part 
of  the  body  of  the  supposed  murdered  man.  .  .  . 

So  it  may  be  taken  as  the  settled  law  that  the  corpus  delicti  in  crim- 
inal homicide,  and  each  element  of  it,  may  be  established  by  circum- 
stantial evidence,  and  that  no  greater  degree  of  certainty  is  required 
than  in  regard  to  the  fact  of  the  guilt  of  the  person  charged.  Any 
language  in  State  v.  Davidson,  supra,  indicating  that  the  former  element 
must  be  established  with  such  certainty  as  to  exclude  any  doubt  on  the 
question,  is  not  correct.  True,  the  initial  question  when  criminal  homi- 
cide is  charged  is,  was  a  human  being  deprived  of  life  by  criminal  means? 
and  the  next  question,  was  he  the  person  alleged  to  have  been  murdered? 
And  such  questions,  particularly  the  first,  because  of  their  supreme 
importance,  recjuire,  ordinarily,  stronger  evidence  than  the  questions 
which  follow.  Such  importance  is  obvious  from  the  well-known  fact 
that  convictions  and  executions  have  taken  place,  and  thereafter  the 
persons  supposed  to  have  been  murdered  have  been  discovered  alive. 
The  more  important  the  question  in  any  case,  the  greater  the  proof 
required  to  establish  moral  certainty  in  the  mind,  but  when  that  cer- 
tainty is  established,  whether  by  circumstantial  or  direct  evidence,  the 
fact  itself  must  be  said  to  be  established.  Enough  has  been  said  to  show 
that  there  was  ample  evidence  in  this  case  to  go  to  the  jury  on  every 
element  of  the  corpus  delicti,  and  that  the  assignments  of  error  on  that 
subject  cannot  be  sustained.  .  .  . 

[Judgment  reversed  on  other  grounds.] 


768  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  520 


SUB-TITLE   III.     VERBAL   COMPLETENESS 

520.  Algeunon  Sidney's  Trial.  (1683.  9  How.  St.  Tr.  817,  829,  868). 
[Seditious  libel.  Mr.  Williams,  his  counsel,  had  instructed  the  accused:  "In  the 
evidence  against  you  for  your  writing,  take  care  that  all  that  was  w-ritt  by  you  on 
that  subject  be  produced,  and  that  it  be  not  given  in  evidence  against  you  by 
pieces,  which  must  invert  your  sense; "  on  the  trial,  one  of  the  passages  read  against 
Sidney  from  his  manuscript  was:  "The  general  revolt  of  a  nation  from  its  own 
magistrates  can  never  be  called  rebellion."  At  the  trial,  Sidney,  arguing  against 
using  these  passages  piecemeal,  said] : 

My  lord,  if  you  will  take  Scripture  by  pieces,  you  will  make  all  the  penmen  of 
Scripture  blasphemous.  You  may  accuse  David  of  saying,  "There  is  no  God," 
and  accuse  the  Evangelists  of  saying,  "Christ  was  a  blasphemer  and  a  seducer," 
and  the  Apostles,  that  they  were  drunk. 

Jeffries,  L.  C.  J.  —  "Look  you,  Mr.  Sidney,  if  there  be  any  part  of  it  that 
explains  the  sense  of  it,  you  shall  have  it  read.  Indeed,  we  are  trifled  with  a 
little.  It  is  true,  in  Scripture  it  is  said,  "There  is  no  God";  and  you  must  not 
take  that  alone,  but  you  must  say,  "  The  fool  hath  said  in  his  heart,  There  is  no 
God."  Now-  here  is  a  thing  imputed  to  you  in  the  libel;  if  you  can  say  there  is 
any  part  that  is  in  excuse  of  it,  call  for  it. 

521.  Thomas  Starkie.  EpiWenre.  (1824.  7th  Am.  ed.)  II,  549.  Of  all  kinds 
of  evidence,  that  of  extrajudicial  and  casual  observations  is  the  weakest  and  most 
unsatisfactory.  Such  words  are  often  spoken  without  serious  intention,  and  they 
are  always  liable  to  be  mistaken  and  misremembered,  and  their  meaning  is  apt 
to  be  misrepresented  and  exaggerated.  I  once  heard  a  learned  judge  (now  no 
more),  in  summing  up  on  a  trial  for  forgery,  inform  the  jury  that  the  prisoner, 
in  a  conversation  which  he  had  had  with  one  of  the  witnesses,  had  said,  "I  am 
the  drawer,  the  acceptor,  and  the  indorser  of  the  bill."  Whilst  the  learned  judge 
w'as  commenting  on  the  force  of  these  expressions,  he  was,  at  the  instance  of  the 
prisoner,  set  right  as  to  the  statement  of  the  witness,  which  was  that  the  prisoner 
had  said,  "I  know  the  drawer,  the  acceptor,  and  the  indorser  of  the  bill."  Had 
the  witness,  and  not  the  judge,  made  the  mistake,  the  consequences  might  have 
been  fatal.     The  prisoner  was  acquitted. 

522.  TiLTON  V.  Beecher.  (N.  Y.  1875.  Abbott's  Rep.  II,  837.)  Neilson 
J.)  on  certain  qviotations  being  cited  to  him).  When  you  and  I  were  boys,  we 
found  that  general  principle  cited  in  all  the  text-books  very  much  after  the  form 
that  you  have  put  it.  .  .  .  Perhaps  the  best  statement  of  that  has  been  given 
in  Starkie  on  Evidence,  to  the  effect  that  this  kind  of  testimony  is  dangerous, 
first,  because  it  may  be  misapprehended  by  the  person  who  hears  it;  secondly, 
it  may  not  be  well-remembpred;  thirdly,  it  may  not  be  correctly  repeated. 


523.  Commonwealth  r.  Keyes.  (Massachusetts.  1858.  11  Gray  323,  324). 
INIerhick,  J.  It  is  undoubtedly  the  general  rule  that  whenever  the  statements, 
declarations  or  admissions  of  a  party  are  made  subjects  of  proof,  all  that  was 
said  by  him  at  the  same  time  and  upon  the  same  subject  is  admissible  in  his 


No.   525  VERBAL    COMPLETENESS  769 

favor,  and  the  whole  should  be  taken  and  considered  together.  This  is  essential 
to  a  complete  understanding  of  what  he  intended  to  express  by  the  particular 
phrases  and  language  which  he  used.  To  give  effect  to  general  statements,  with- 
out regard  to  the  qualifications  with  which  they  are  accompanied,  and  by  which 
they  may  be  materially  modified,  would  manifestly  lead  to  error,  and  be  likely 
to  be  directly  productive  of  injustice.  All  therefore  is  to  be  heard  and  weighed 
before  it  can  be  affirmed  that  the  force  and  effect  of  language,  whether  written 
or  spoken,  are  fully  and  justly  apprehended.  In  the  construction  of  contracts, 
the  same  principle  prevails,  requiring  that  each  particular  part  shall  be  examined 
and  considered,  in  order  to  learn  and  comprehend  the  scope  and  i)urport  of  the 
whole.  All  writings,  whether  of  a  public  or  private  character,  are  to  be  subjected 
to  the  same  kind  of  scrutiny.  No  provision  of  a  statute,  however  minute,  is  to 
be  overlooked  when  searching  for  the  design  and  object  of  the  Legislature  in  its 
enactment,  and  in  considering  how  it  ought  to  be  interpreted  and  explained; 
just  as  particular  covenants  in  a  deed,  or  devises  in  a  will,  are  to  be  construed 
according  to  the  intent  of  the  parties  in  the  one  case,  and  of  the  testator  in  the 
other,  so  far  as  it  can  be  ascertained  by  bringing  into  view  all  the  expressions 
and  provisions  contained  in  these  respective  instruments. 


Topic  1.    Compulsory  Completeness 

525.   SUMMONS  v.  STATE 

Supreme  Court  of  Ohio.     1856 

5  Oh.  St.  325 

Murder  by  poisoning.  One  Mary  Clinch,  a  witness  at  the  first 
trial,  had  since  died.  Thomas  A.  Logan  was  offered,  on  the  third  trial, 
to  prove  her  former  testimony.  .  .  .  He  testified  that  he  was  present  at 
the  first  trial,  and  was  the  student  and  clerk  of  Judge  Walker,  one  of  the 
counsel  for  the  State;  that  he  heard  all  the  testimony  given  by  Mary 
Clinch,  and  thought  he  had  taken  it  all  down  in  writing,  and  could  give 
the  substance  of  all  she  testified  from  his  recollection,  aided  by  reference 
to  his  notes.  On  cross-examination  as  to  this  point,  he  stated  that  he 
took  down,  as  nearly  as  possible,  the  substance  of  all  that  Mary  Clinch 
testified  on  examination,  cross-examination,  re-examination,  and  in 
rebutter.  That  he  recollected,  without  reference  to  his  notes,  the  main 
points  of  her  testimony,  and  recollected  the  substance  of  all  of  it,  by 
refreshing  his  recollection  with  his  notes.  That  he  could  not  say  he 
took  everything,  but  he  thought  he  took  the  substance  of  everything. 
That  the  cross-examination  was  rapid,  but  Judge  Walker  frequently 
stopped  the  witness,  Mary  Clinch,  to  enable  him  to  get  it  all  down.  .  .  . 
Logan  was  then  requested  by  counsel  for  the  State  to  give  the  testimony 
of  Mary  Clinch  from  his  recollection,  refreshed  by  his  notes,  which  he 
had  with  him  in  court,  but  the  notes  were  not  offered  in  evidence.  Defend- 
ant's couHBel  objected.  The  objection  was  overruled,  which  was  excepted 
to.  .  .  . 


770  BOOK    i:     RULES   OF    ADMISSIBILITY  No.  525 

The  charge  of  the  Court  as  to  the  evidence  of  Logan,  detaihng  the 
testimony  of  Mary  Chnch,  was  as  follows :  .  .  .  "  Mr.  Logan's  testimony 
is  to  be  received  with  the  greatest  caution;  and  we  have  no  hesitation  in 
ruling  that  a  witness,  called  to  narrate  the  evidence  of  a  deceased  witness, 
should  recollect  the  order  and  connection  of  the  testimony,  so  far  as  such 
order  and  connection  are  necessary  to  convey  an  accurate  understanding 
of  what  the  deceased  said  and  meant,  and  the  influence  and  credit  to  be 
given  to  the  testimony.  But  we  are  not  prepared  to  say,  that  if  Mr. 
Logan  has  failed  to  give  the  substance  of  all  Mary  Clinch's  evidence, 
that  therefore  you  must  entirely  reject  his  testimony;  provided  that, 
taking  his  testimony  and  that  of  the  other  witnesses  who  have  detailed 
what  she  testified  to,  you  are  satisfied  that  you  have  the  substance, 
correctly,  of  all  her  testimony."  .  .  . 

The  jury  found  the  prisoner  guilty  of  murder  in  the  first  degree.  .  .  . 
To  reverse  this  judgment,  the  present  writ  of  error  is  prosecuted,  and 
the  following  matters  are  assigned  for  error: 

L  The  Court  admitted  Thomas  A.  Logan  to  repeat  the  testimony 
of  Mary  Clinch,  a  witness  who  testified  at  a  former  trial,  and  since 
deceased.  ...  3.  The  Court  directed  the  jury,  "That,  if  they  were 
satisfied  from  the  testimony  of  all  the  witnesses,  that  they  had  before 
them  the  substance  of  all  the  evidence  of  the  deceased  witness,  the 
testimony  must  be  considered."  .  .  . 

F.  T.  Chambers,  N.  C.  Read,  and  R.  B.  Hayes,  for  plaintiff  in 
error. 

R.  B.  Hayes,  submitted  the  following  points  and  authorities  on  behalf 
of  plaintiff  in  error :  .  .  .  IL  Such  testimony  is  not  admissible  in  criminal 
cases,  unless  the  very  language  of  the  deceased  witness  can  be  repeated 
by  the  person  who  undertakes  to  give  it.  .  .  . 

C.  P.  Wolcott,  Attorney-General,  submitted  the  following  points  and 
authorities  for  the  State:  .  .  .  Though  it  was  formerly  held  that  the 
testimony  of  a  deceased  witness  could  not  be  proved  except  in  his  very 
words,  yet  such  is  not  the  general  modern  rule.  .  .  .  The  position  taken 
by  the  counsel  for  the  plaintiff  in  error,  that  unless  the  person  called  to 
prove  the  former  testimony  can  state  the  substance  of  all  of  it,  he  is  an 
incompetent  witness,  does  not  seem  to  be  sanctioned  by  reason,  or  borne 
out  by  the  authorities.  .  .  . 

Bartley,  C.  J.,  delivered  the  opinion  of  the  Court.  .  .  . 

L  Is  it  essential  to  the  competency  of  the  testimony  in  question, 
that  it  be  a  narration  of  the  statements  of  the  deceased  witness  ipsissimis 
verbis? 

The  doctrine,  that  the  testimony  must  be  in  the  words  of  the  deceased 
witness,  appears  to  have  taken  its  origin  from  a  dictum  of  Lord  Kenyon, 
in  the  case  of  Rex  v.  Jolliffe,  4  Term,  385,  as  follows: 

"The  evidence  which  the  witness  gave  on  a  former  trial,  may  be  used  in  a 
subsequent  one,  if  he  die  in  the  interim,  as  I  remember  was  agreed  on  all  hands. 


No.   525  VERBAL    COMPLETENESS  771 

on  a  trial  at  bar  in  the  instance  of  Lord  Palmerston;  but  as  the  person  who  wished 
to  give  Lord  Palmerston's  evidence  could  not  undertake  to  give  his  words,  but 
could  merely  swear  to  the  effect  of  them,  he  was  rejected." 

This  remark  of  Lord  Kenyon,  which  appears  to  have  been  thrown  in 
rather  by  way  of  illustration  than  otherwise,  has  been  adopted  by  some 
elementary  writers  on  evidence,  and  given  as  the  true  rule.  .  .  . 

In  Massachusetts  the  rule  requiring  the  statements  of  the  deceased 
witness  at  a  former  trial  to  be  ipsissimis  verbis,  is  laid  down  in  its  utmost 
strictness  in  the  case  of  the  Commonwealth  i).  Richards,  18  Pick.  434. 
And  in  Warren  v.  Nicols,  6  Met.  261,  the  doctrine  was  affirmed,  Hub- 
bard, J.,  dissenting.  In  the  latter  case,  however,  the  majority  of  the 
Court  drew  a  distinction  between  giving  the  substance  of  the  deceased 
witness'  testimony  and  the  substance  of  his  language;  requiring  only  that 
his  language  should  be  stated  substantially,  and  in  all  material  particulars, 
and  not  "ipsissimis  verbis."  It  is  not  very  easy  to  perceive  how  this 
distinction  can  be  reconciled  in  this  regard,  with  the  decision  in  the  case 
of  the  Commonwealth  t.  Richards.  .  .  . 

In  Ohio  it  has  been  settled,  in  a  well-considered  decision  in  the  case 
of  Wagers  v.  Dickey,  17  Ohio,  440,  that  it  is  sufficient  for  the  witness  to 
give  the  substance  of  what  the  deceased  witness  testified  on  the  former 
trial.   ... 

There  would  seem  to  be  no  sound  reason  for  subjecting  it  [former 
testimony]  to  a  rigid  rule  amounting  to  its  almost  total  exclusion,  which 
is  inapplicable  in  other  cases  where  testimony  showing  words  spoken  or 
the  statements  of  a  party  or  other  person  is  admissible.  In  prosecutions 
for  perjury,  the  testimony  of  the  accused  upon  which  perjury  is  assigned 
is  not  required  to  be  "ipsissimis  verbis,"  but  allowed  to  be  given  in  sub- 
stance; so  with  the  declarations  of  a  co-conspirator, declarations  made  "in 
extremis  "  or  the  admissions  or  confessions  of  a  party.  So  also  with  tes- 
timony of  a  verbal  slander,  or  the  declarations  or  statements  of  a  party  or 
witness,  offered  for  purposes  of  contradiction  or  impeachment.  .  .  .  What 
sufficient  reason  can  exist  for  a  departure  from  the  rule  in  case  of  the 
testimony  of  a  deceased  witness  on  a  former  trial?  ...  It  is  apparent, 
from  a  review  of  the  decisions  on  this  question,  that  the  weight  of  authority 
is  very  decidedly  against  the  rule  which  requires  an  exact  recital  of  the 
words  used  by  the  deceased  witness.  The  difficulty  which  appears  to 
have  troubled  courts  so  long  on  the  question,  has  been  a  controversy 
about  words,  rather  than  facts.  The  efficacy  of  the  testimony  consists, 
not  in  the  mere  words  used,  but  the  matters  of  fact  stated  by  the  de- 
ceased witness.  If  the  facts  stated  by  the  deceased  witness  on  the 
former  trial,  can  be  narrated  with  substantial  accuracy  in  all  their 
material  particulars,  there  would  seem  to  be  no  good  reason  for  cavil 
about  the  very  words.  .  .  . 

There  is  a  distinction,  however,  between  narrating  the  statements 
made  by  the  deceased  witness  and  giving  the  effect  of  his  testimony. 


772  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  525 

This  distinction  may  be  illustrated  thus:  If  a  witness  state  that  A,  as  a 
witness  on  a  former  trial,  proved  the  execution  of  a  written  instrument 
by  B,  that  would  be  giving  the  effect,  which  is  nothing  else  than  the  result 
or  conclusion  produced  by  A's  testimony.  But  if  the  witness  states  that 
A  testified  that  he  had  often  seen  B  write,  that  he  was  acquainted  with 
his  handwriting,  and  that  the  name  subscribed  to  the  instrument  of 
writing  exliibitcd  was  B's  signature,  that  would  be  giving  the  substance 
of  A's  testimony,  though  it  might  not  be  in  the  exact  words.  .  .  .  While, 
therefore,  a  witness  should  not  be  trammeled  by  a  rule  restricting  him 
to  the  words  used  by  the  deceased  witness,  he  should  not  be  allowed  the 
latitude  of  giving  the  mere  effect  or  result  of  the  deceased  witness' 
testimony. 

2.  Was  there  error  in  the  charge  of  the  Court  to  the  jury,  that  if 
the}^  should  find  that  Logan  had  not  stated  the  substance  of  all  that  the 
deceased  witness  had  sworn  to  on  the  former  trial,  they  should  not,  for 
that  reason,  exclude  it  from  their  consideration,  provided  that  by  taking 
this  testimony  in  connection  with  the  testimony  of  other  witnesses,  they 
were  satisfied  that  they  had  the  substance  of  all  the  testimony  given  by 
Mary  Clinch  on  the  former  trial?  .  .  .  Shall  the  testimony  be  excluded 
because  it  can  not  all  be  given  by  one  witness,  when  it  can  be  all,  with 
equal  accuracy  and  certainty,  had,  in  distinct  parts,  from  two  witnesses? 
The  requirement  of  the  rule  is  satisfied,  provided  all  that  the  deceased 
witness  had  sworn  to  be  given  the  jury.  There  can  be  no  substantial 
reason  for  requiring  it  all  from  one  witness.  .  .  . 

Judgment  of  the  District  Court  affirmed,  and  Friday,  the  17th  day  of 
April  next,  appointed  as  the  day  for  the  execution  of  the  sentence. 

BowEN,  J.,  dissented. 


526.   STATE  v.  LU  SING 

Supreme  Court  of  Montana.     1906 

3^  Mont.  31;  85  Pac.  521 

Appeal  from  District  Court,  Gallatin  County;  W^.  R.  C.  Stewart, 
Judge.     Lu  Sing  was  convicted  of  murder,  and  he  appeals.     Affirmed. 

J.  L.  Staats,  for  appellant.  Albert  J.  Galen,  Attorney-General,  and 
E.  M.  Hall,  Assistant  Attorney-General,  for  the  State. 

Hollow  AY,  J.  Lu  Sing  was  convicted  of  murder  of  the  first  degree, 
and  appeals  from  the  judgment  and  from  an  order  denying  him  a  new 
trial.  .  .  . 

E.  H.  Williams,  a  policeman  in  the  city  of  Bozeman,  who  arrested  the 
defendant  soon  after  the  homicide  was  committed,  testified  for  the  State, 
over  the  objection  of  the  defendant,  to  a  part  of  a  conversation  which 
took  place  between  himself  and  the  defendant  on  their  way  to  and  at  the 
city  jail.     The  witness  testified  that  the  defendant  spoke  English  very 


No.  526  VERBAL   COMPLETENESS  773 

poorly,  and  that  he  could  not  understand  all  that  defendant  said,  but  did 
understand  the  defendant's  statement:  "If  I  kill  him,  me  good  man. 
If  I  no  kill  him,  no  good."  And  again:  "  If  me  no  kill  him,  me  no  good 
man;  and  if  Tom  Sing  dead,  me  die  happy."  Defendant  moved  to 
strike  out  the  testimony  of  the  witness,  on  the  ground  that  he  had  not 
understood  all  that  the  defendant  said  to  him  and  ought  not  to  be 
permitted  to  testify  to  a  portion  only.  The  motion  was  denied,  and  error 
is  predicated  on  this  ruling. 

In  support  of  his  contention,  counsel  for  appellant  cites  People  v. 
Gelabert,  39  Cal.  663,  decided  in  1870,  and  State  v.  Buster,  23  Nev.  346, 
47  Pac.  194,  decided  in  1896.  The  opinion  in  People  v.  Gelabert  is  very 
brief  and  cites  no  authorities  in  support  of  the  conclusion  reached.  The 
reason  given  for  the  conclusion  goes  to  the  weight,  rather  than  to  the 
competency,  of  the  evidence.  1  Greenleaf  on  Evidence,  §214,  is  cited, 
not,  however,  in  support  of  the  conclusion  reached  by  the  Court,  but 
in  support  of  the  oft-repeated  declaration  of  Courts  and  text-writers 
that  evidence  of  extrajudicial  confessions  should  be  received  with  great 
caution,  because  of  the  danger  of  mistake  of  the  witness  arising  from  his 
misapprehending  what  the  defendant  said,  his  unintentional  misuse  of  a 
particular  word;  or,  if  the  witness  does  not  remember  the  exact  words 
used  by  the  defendant,  his  failure  to  express  in  his  own  language  the 
meaning  intended  to  be  conveyed  by  the  defendant ;  and,  finally,  because 
of  the  infirmity  of  memory.  But  all  of  this  is  directed  to  the  weight, 
rather  than  the  competency,  of  the  evidence,  and  it  is  well  for  the  trial 
Court  to  warn  the  jury  as  to  the  caution  to  be  exercised  respecting  this 
character  of  evidence  (Code  Civ.  Proc.  §  3390,  subd.  4)  as  indicated  above, 
as  was  fully  done  by  the  trial  Court  in  this  case.  .  .  . 

No  fault  is  found  with  the  authorities  which  hold  that  where  the 
State  offers  only  a  part  of  the  conversation  embodying  a  confession, 
the  defendant  has  a  right  to  have  the  whole  of  the  conversation  before 
the  jury;  but  the  great  weight  of  authority  and  reason  hold  that  merely 
because  a  witness  did  not  hear  all  of  the  conversation,  or  did  not  under- 
stand it  all,  does  not  render  incompetent  what  he  did  hear  or  understand. 
The  evidence  goes  to  the  jury  for  what  it  is  worth.  Its  value  may  be 
greatly  impaired  by  the  fact  that  the  witness  heard  or  understood  only 
a  part  of  what  was  said.  But  where  the  jury  is  cautioned,  as  was  done 
in  this  case,  there  can  be  no  error  in  the  reception  of  the  evidence,  merely 
because  the  witness  can  give  only  a  portion  of  what  was  said.  West- 
moreland V.  State,  45  Ga.  225;  ...  3  Wigmore  on  Evidence,  §  2100; 
Wharton's  Criminal  Evidence,  §  688.  Long  after  the  decision  in  People 
V.  Gelabert  was  rendered,  the  Supreme  Court  of  California  held  to  this 
same  doctrine  announced  by  the  Courts  above.  People  v.  Daniels,  105 
Cal.  262,  38  Pac.  720;  People  v.  Dice,  120  Cal.  189,  52  Pac.  477.  There 
cannot  be  any  reason  advanced  for  the  admission  of  the  testimony  of 
witnesses  who  heard  only  a  part  of  a  conversation  which  will  not 
apply  equally  to  the  testimony  of  a  witness  who  heard  it  all  but  only 


774  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  526 

understood  or  remembered  a  portion  of    it.     We  think  the  evidence 
was  properly  admitted.  .  .  . 

The  judgment  and  order  are  affirmed.  Affirmed. 


527.  Read  v.  Hms.  (1613.  Coke's  Third  Institute,  173).  ...  It  was 
resolved  that  no  exemplification  ought  to  be  of  any  letters  patent  or  of  any  other 
record,  or  of  the  inrolment  thereof,  but  the  whole  record  or  the  inrolment  thereof 
ought  to  be  exemplified ;  so  that  the  whole  truth  may  appear,  and  not  of  such  part 
as  makes  for  the  one  party  and  nothing  that  makes  against  him  or  that  mani- 
festeth  the  truth. 

528.   VANCE  v.   REARDON 

Constitutional  Court  of  South  Carolina.     1820 

2  N.  &  McC.  299,  303 

Trover  for  a  slave,  claimed  by  the  plaintiff  under  a  sheriff's  sale 
under  an  execution  on  a  judgment  against  William  Harville,  at  Orange- 
burgh,  in  1806.  The  plaintiff  produced  a  paper  purporting  to  be  an 
exemplification  of  the  proceedings,  certified  by  the  clerk.  It  contained 
a  literal  copy  of  the  process,  (being  within  the  summary  jurisdiction),  the 
judgment  and  the  first  execution.  This  execution  was  for  $95,  including 
debt,  interest,  and  costs,  and  was  entered  in  the  sheriff's  office  the  5th 
November,  1806.  Instead  of  a  literal  copy  of  the  second  execution,  the 
clerk  furnished  only  an  abstract,  containing  the  names  of  the  parties,  the 
amount  of  debt,  interest,  and  costs,  with  a  memorandvmi  of  an  entry  in 
the  sheriff's  office,  2d  July,  1808;  and  a  return  of  "nulla  bona,"  without 
date;  and  also,  that  a  third  execution  was  signed,  19th  March,  1808. 
There  was  also  a  similar  abstract  of  a  third  execution,  entered  in  the 
sheriff's  office,  19th  March,  1808,  on  which  the  following  return  was 
stated  to  have  been  made,  "levied  on  a  negro  man  named  Joe,  sold  the 
same  on  the  4th  April,  1808,  purchased  by  William  Vance,  for  1251.10." 
The  certificate  of  the  clerk  to  these  exemplifications  was  in  these  words : 
"  I,  Samuel  P.  Jones,  Clerk  of  the  Court  of  Common  Pleas,  for  the  district 
of  Orangeburgh,  do  hereby  certify,  that  the  two  sheets  of  paper  hereunto 
annexed,  do  contain  a  true  copy  (or  extract),  of  the  proceedings  in  a 
certain  cause,  wherein  Robert  Tutle  is  plaintiff,  and  William  Harville 
is  defendant,"  etc.  Upon  closing  this  evidence  the  motion  was  made  for 
a  nonsuit  by  the  defendant,  on  the  ground,  that  the  exemplification  was 
only  legal  evidence  so  far  as  it  professed  to  give  a  copy  of  the  proceedings, 
and  there  being  only  an  abstract  of  the  execution,  under  which  the  sale, 
if  any,  was  made,  the  plaintiff  had  failed  in  the  proof  of  property.  This 
motion  was  overruled.  .  .  . 

The  defendant  moved  for  a  new  trial  on  the  following  grounds:  .  .  . 
2.  Because  the  Court  erred  in  admitting  the  exemplification  in  the  form 
presented  as  evidence  of  the  second  and  third  executions.  .  .  . 


No.  528  VERBAL   COMPLETENESS  775 

The  opinion  of  the  Court  was  delivered  by 

Johnson,  J.  .  .  .  The  next  question  arises  out  of  the  admissibihty 
of  the  exempUfications  so  far  as  they  profess  only  to  give  extracts  of  the 
proceedings  in  relation  to  the  second  and  third  executions,  under  the  latter 
of  which  the  levy  and  sale  is  alleged  to  have  been  made. 

The  Act  of  the  Legislature  of  1721,  P.  L.  117,  1  Brev.  Dig.  315, 
authorizes  attested  copies  of  all  records,  certified  by  the  clerks  of  the 
Courts,  to  be  given  in  evidence.  ...  It  appears  to  me  obvious  that  the 
Legislature  never  intended  by  the  term  copies,  to  make  extracts  evidence; 
the  terms  themselves  are  of  different  import,  and  besides  the  mischief  of 
confounding  them  appears  to  me  too  manifest  to  need  exposure.  A  party 
is  not  presumed,  nor  is  he  bound,  to  know  what  evidence  his  adversary 
will  adduce  against  him ;  and  if  he  [the  adversary]  be  permitted  to  extract 
from  a  record  only  so  much  as  he  may  deem  necessary  to  his  own  side  of 
the  question  and  to  give  it  in  as  evidence,  he  will  always  take  care  to 
leave  out  that  which  makes  against  him.  By  the  same  rule,  the  opposite 
party  would  have  the  same  right  to  extract  so  much  as  was  subservient 
to  his  side  of  the  question,  which,  from  the  specimen  of  extraction 
furnished  by  this  case,  would  produce  inexplicable  difficulties.  Thus, 
in  this  case,  we  find  that  on  the  fiist  fi.  fa.,  when  only  $95  was  due,  SllO 
had  been  paid,  and  yet  an  alias  issued,  and  also  a  pluries;  and,  as  if  to 
force  conviction  upon  me  of  the  necessity  of  a  literal  copy,  the  extract 
represents  the  pluries  to  have  been  entered  in  the  sheriff's  office  on  the 
19th  March,  1808,  and  the  alias,  which  must  necessarily  precede  it,  as 
having  been  entered  on  the  2d  July,  1808,  nearly  four  months  after. 

But  it  has  been  argued,  that  these  extracts  were  permissible  as  prima 
facie  evidence  of  the  existence  of  such  judgments  and  executions.  I 
confess  I  do  not  understand  how  this  sort  of  evidence  can  apply  to  a 
case,  when  the  Court  sees  from  the  evidence  produced,  that  better  and 
more  ample  proof  of  the  fact  does  exist,  and  is  in  the  power  of  the  party.' 
And  it  appears  to  me  to  be  at  war  with  that  universal  rule,  that  the  best 
evidence  should  always  be  adduced,  and  can  only  apply  when  there  is 
no  higher  evidence. 

I  think,  therefore,  these  abstracts  were  inadmissible,  and  if  admitted, 
they  proved  nothing,  and  the  motion  ought  to  be  granted. 

NoTT  and  Huger,  JJ.,  concurred. 

CoLCOCK,  J.,  dissented.  ...  If  it  were  necessary,  to  the  support  of 
plaintiff's  case,  that  the  exemplification  should  be  considered  as  complete, 
I  conceive,  by  a  critical  examination  of  it,  it  will  be  found  to  be  so.  .  .  . 
It  is  apparent  that  the  officer  professes  to  set  forth  all  that  is  within  and 
without  the  papers  in  the  case,  except  that  he  does  not  repeat  the  words 
of  the  second  and  third  executions.  And  this  I  did  consider,  and  do  still 
consider,  as  wholly  immaterial,  for  if  it  had  been  found,  upon  their  being 
set  forth,  that  there  had  been  any  error,  it  was  amendable,  and  would  be 
amended  by  the  Court  to  perfect  the  sale;  see  the  case  of  Toomer  r. 
Purkey,  1  Con.  Rep.  323,  which  is  only  a  repetition  of  what  has  often 


776  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  528 

been  decided  in  our  Courts.  Now  if  it  is  immaterial  whether  the  words 
were  those  which,  according  to  the  forms  of  our  proceedings,  ought  to 
have  been  used,  I  am  at  a  loss  to  conceive  why  they  should  have  been 
put  down,  to  the  great  trouble  of  the  officer  and  expense  of  the  party. 

Again,  is  there  any  prescribed  mode  and  form  of  exemplification?  I 
know  of  none.  It  is  admitted  that  in  exemplifications  the  whole  is  exem- 
plified. But  much  depends  on  the  purposes  for  which  they  are  to  be  used. 
It  is  said.  Something  is  kept  back.  I  ask  if  the  officer  does  not  say  what 
that  is?  I  think  he  does,  as  plainly  as  if  he  had  said  that  "I  deem  it 
unnecessary  to  repeat  the  body  or  formal  part  of  the  execution;  but  I 
give  you  all  the  endorsements  thereon,  and  these  it  is  to  be  observed,  cite 
the  only  important  parts  of  the  execution."  .  .  . 

Bay,  J.,  concurred  with  Colcock,  J. 

Simotis,  for  the  motion.     Hunt,  contra. 


529.   PERRY  v.   BURTON 

Supreme  Court  of  Illinois.     1884 

111  ///.  138 

Appeal  from  the  Superior  Court  of  Cook  county;  the  Hon.  John  A. 
Jameson,  Judge,  presiding. 

Mr.  Edmund  S.  Holhrook,  for  the  appellants.  Messrs.  Moore  & 
Brouming,  for  the  appellees.  Messrs.  G.  &  W.  Garnett,  for  the  Louisville 
Banking  Company. 

Mr.  Chief  Justice  Scholfield  delivered  the  opinion  of  the  Court: 

This  Avas  a  bill  for  the  partition,  as  first  drawn,  of  a  tract  of  eighty 
acres  of  land  in  Cook  county,  and  to  quiet  the  title  thereto.  The  tract  was 
entered  by  Isaac  Cook  on  the  30th  of  November,  1835,  and  he  conveyed 
the  undivided  half  thereof  to  Asa  M.  Chambers  and  Sheldon  Benedict, 
by  warranty  deed,  on  the  7th  of  February,  1836.  In  November,  1848, 
Benedict  conveyed  his  interest  in  the  tract  to  Chambers,  and  on  the  10th 
of  November,  1871,  Chambers  conveyed  his  interest  in  the  tract  to  the 
appellants,  James  S.  Perry  and  John  N.  Henderson.  No  question  is 
made  as  to  any  of  these  conveyances,  except  that  by  Benedict  to  Cham- 
bers. The  deed  effecting  that  conveyance  was  lost,  and  its  execution 
and  contents  were  proved  by  oral  evidence  only,  and  counsel  for  appellees 
insist  that  such  evidence  was  not  sufficiently  full  and  satisfactory. 

We  can  not  concur  in  this  view\  The  facts  that  the  deed  was  executed 
and  was  afterwards  lost  were  clearly  proved.  .  .  .  His  testimony  as  to 
the  contents  of  the  deed,  we  think,  is  sufficiently  full.  A  witness  testify- 
ing to  the  contents  of  a  lost  deed  is  not  to  be  expected  to  be  able  to  repeat 
it  verbatim  from  memory.  Indeed,  if  he  were  to  do  so,  that  circum- 
stance would,  in  itself,  be  so  conspicuous  as  to  call  for  an  explanation.  .  .  . 
All  that  parties,  in  such  cases,  can  be  expected  to  remember  is  that  they 


No.  530  VERBAL   COMPLETENESS  777 

made  a  deed,  to  whom,  and  about  what  time,  for  what  consideration, 
whether  warranty  or  quitclaim,  and  for  what  party.  To  require  more 
would,  in  most  instances,  practically  amount  to  an  exclusion  of  oral 
evidence  in  the  case  of  a  lost  or  destroyed  deed.  The  evidence  here 
meets  the  requirements  suggested,  and  in  the  absence  of  contradiction 
or  impeachment,  was  sufficient  to  authorize  the  Court  to  decree  upon 
the  faith  of  it. 

530.   TILTON  v.   BEECHER 

City  Court  of  Brooklyn,  N.  Y.     1875 

Abbott's  Rep.  II,  270 

[Action  for  criminal  conversation.] 

Mr.  Evarts  (cross-examining).  Look  at  this  article,  Mr.  Tilton,  .  .  . 
and  say  if  it  was  written  by  you  and  published  in  your  newspaper.  A. 
Yes,  sir. 

Mr.  Shcarma7i.  —  It  is  an  article  entitled,  "Mr.  Tilton's  Rejoinder  to 
Mr.  Greeley." 

Mr.  Fullerton.  —  If  we  have  the  sermon,  let  us  have  the  text. 

Mr.  Beach.  —  I  think  it  is  the  rule,  sir,  that  where  an  answering  letter 
is  read,  the  letter  to  which  it  was  a  reply  should  be  read  also. 

Judge  Neilson.  —  That  is  the  rule.  Perhaps  if  counsel  will  look  at  it 
they  can  judge  whether  it  is  material. 

Mr.  Evarts.  —  Your  Honor,  we  understand  exactly  what  the  rule  is. 
A\\  that  can  be  claimed  by  our  learned  friends  is  that  it  gives  them  a  right 
to  read  any  part  of  the  paper  to  which  is  it  a  reply,  if  they  see  fit.  They 
cannot  make  us  read  it. 

Judge  Neilson.  —  I  have  had  occasion  to  say  that  where  one  party 
puts  a  paper  in  they  were  at  liberty  to  read  a  part  of  it.  But  it  was 
deemed  all  put  in  by  them,  and  the  other  side  could  read  any  portion  of 
it  they  thought  proper. 

Mr.  FuUerton.  —  That  does  not  present  this  case. 

Mr.  Evarts.  —  How  does  it  fail  to  present  this  case?  Supposing  it  is 
all  in,  are  we  obliged  to  read  it  all?  .  .  .  I  do  not  understand  that  we 
are  obliged  to  read  the  whole  article  to  get  at  the  point  which  is  important 
to  us. 

Judge  Neilson.  —  The  whole  must  be  deemed  put  in  by  you. 

Mr.  Evarts.  —  That  may  be. 

Judge  Neilson.  —  And  you  read  such  part  as  you  now  think  proper, 
and  they  can  afterwards  call  attention  to  other  parts.  I  think  that  will 
answer. 


778  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  531 

531.  PARNELL  COMMISSION'S  PROCEEDINGS 

Special  Court,  London.     1888 
Times'  Rep.  pL  1,  p.  236,  pt  2,  pp.  28,  104,  109;  pt.  23,  p.  60 

[The  Land  League  and  its  leaders  were  charged  with  encouraging 
outrage  and  crime,  and  numerous  speeches  of  the  leaders  were  offered  to 
prove  this;  repeated  discussion  took  place,  during  the  trial,  as  to  the 
fair  and  proper  way  of  using  the  passages  relied  upon.  In  the  Attorney- 
General's  opening,  the  following  statements  were  made.] 

Attorney-General.  —  I  have  not  got  the  whole  of  the  speeches;  I  have 
only  reports.  A  man  may  speak  for  two  hours,  but  I  may  have  only  a 
few  lines  of  his  speech. 

President  Hannen.  —  If  you  have  not  got  the  whole  of  them,  it  will 
be  open  to  Sir  Charles  Russell  [for  the  opposite  side]  to  correct  you  by 
referring  to  such  reports  as  do  exist;  but  what  you  do  use  [in  your  opening 
address]  you  will  put  in  the  whole  of  it  [in  evidence  later]. 

Attorney-General.  —  Without  exception,  the  whole  extract  at  my 
command  of  every  speech  I  read  shall  be  put  in.  .  .   . 

[Then  at  a  later  day,  when  certain  speeches  were  put  in  evidence  by 
Sir  H.  James  from  constables'  notes,  Mr.  Hcaly  having  claimed  that  "  the 
proper  course  is  to  read  the  entire  speech,"] 

President  Hannen.  —  It  is  not  necessary  for  you.  Sir  Henry,  to  read 
the  whole  speech,  but  only  those  portions  on  which  you  rely.  .  .  .  The 
only  regular  course  is  this  (and  whatever  it  leads  to,  it  must  be  followed) : 
You,  Sir  Henry,  will  call  attention  to  what  you  consider  the  material 
parts  of  the  speech,  and  Sir  C.  Russell  can  on  cross-examination  refer  to 
other  portions  which  he  may  consider,  and,  if  necessary,  the  cross- 
examination  can  be  postponed  until  he  has  had  an  opportunity  of  seeing 
the  full  speeches.  .  .  . 

[Shortly  afterwards,  the  counsel  for  the  Times  proposed  an  arrange- 
ment by  which  copies  of  all  the  reports  of  speeches  were  to  be  prepared 
and  underlined  and  furnished  to  all  parties  for  convenient  reference.] 

Mr.  Healy.  —  Some  of  the  speeches  made  would  cover  two  or  three 
columns  if  taken  verbatim,  but  they  have  been  condensed  [in  the  con- 
stable's notes]  into  three  or  fovir  sentences.  What  is  the  intention  with 
regard  to  them? 

Sir  H.  James.  —  We  can  only  present  the  short  report  in  those  cases, 
because  that  is  all  we  have  got.  .  .  .  [On  a  still  later  occasion, 

Mr.  Reid,  the  counsel  for  Mr.  O'Brien,  read  passages  from  his 
speeches  showing  his  opposition  to  criminal  methods,  and  was  interrupted 
by  the] 

Attorney -General. — You  have  omitted  a  passage  which  precedes  that. 

Mr.  Reid.  —  I  thought  the  rule  was  that  what  you  wished  to  read 
should  be  read  subsequently. 


No,   533  VERBAL   COMPLETENESS  779 

Attorney-General.  —  I  was  only  suggesting  that  the  course  which  ha^ 
been  pursued  on  every  other  occasion  by  Sir  Charles  Russell  and  yourself 
should  be  pursued  now. 

President  Hannen  (to  Mr.  Reid).  —  This  question  arose  before,  and 
there  was  great  complaint  on  your  part  that  the  Attorney-General  did 
not  read  all,  and  then  you  read,  or  Sir  C.  Russell  read  something.  But 
I  have  laid  down  the  rule  that,  unless  you  can  come  to  a  compromise,  the 
true  rule  is  for  you  to  read  what  you  attach  importance  to  and  for  the 
other  side  to  do  the  same. 


Topic  2.    Optional  Completeness 

532.  The  Queen's  Case.  (House  of  Lords.  2  B.  &  B.  297.  1820.)  Abbott 
C.J.  —  The  conversations  of  a  party  to  the  suit,  relative  to  the  subject-matter 
of  the  suit,  are  in  themselves  evidence  against  him  in  the  suit,  and  if  a  counsel 
chooses  to  ask  a  witness  as  to  anything  which  may  have  been  said  by  an  adverse 
party,  the  counsel  for  that  party  has  a  right  to  lay  before  the  Court  the  whole 
which  was  said  by  his  client  in  the  same  conversation,  —  not  only  so  much  as 
may  explain  or  quahfy  the  matter  introduced  by  the  previous  examination,  but 
even  matter  not  properly  connected  with  the  part  introduced  upon  the  previous 
examination,  provided  only  that  it  relate  to  the  subject-matter  of  the  suit; 
because  it  would  not  be  just  to  take  part  of  a  conversation  as  evidence  against  a 
party  without  giving  to  the  party  at  the  same  time  the  benefit  of  the  entire  residue 
of  what  he  said  on  the  same  occasion. 


533.   PRINCE  V.   SAMO 

Queens'  Bench.    1838 

7  A.  &  E.  627 

This  was  an  action  for  malicious  arrest  on  a  false  suggestion  that 
money  was  lent  by  defendant  to  plaintiff,  when  it  had  been  in  fact  given. 
The  plaintiff  called  his  attorney  as  a  witness;  he  happened  to  have  been 
present  at  the  trial  of  a  prosecution  for  perjury  instituted  by  the  plaintiff 
against  a  witness  in  tlie  action  wherein  he  had  been  arrested.  The 
defendant's  counsel  inquired  of  him,  in  cross-examination,  whether  the 
plaintiff  had  not,  on  the  trial  for  perjury,  stated  that  he  himself  had 
been  insolvent  repeatedly,  and  remanded  by  the  Court.  This  question 
was  not  objected  to.  On  his  re-examination,  the  same  witness  was  asked 
whether  plaintiff  had  not  also  on  that  occasion,  given  an  account  of  the 
circumstances  out  of  which  the  arrest  had  arisen,  and  what  that  account 
was,  for  the  purpose  of  laying  before  the  jury  proof  that  the  arrest  was 
without  cause,  and  malicious,  of  both  which  facts  there  was  scarcely  any, 
if  any,  evidence  whatever.  This  question,  expressly  confined  to  that 
purpose,  was  whether  plaintiff  did  not  say,  in  the  course  of  his  examina- 
tion, that  the  money  was  given,  and  not  lent.     To  this  question  the  de- 


780  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  533 

fendant's  counsel  objected,  not  on  account  of  its  leading  form,  but  because 
the  defendant's  having  proved  one  detached  expression  that  fell  from  the 
plaintiff  when  a  witness  does  not  make  the  whole  of  what  he  then  said 
evidence  in  his  own  favour.  .  .  . 

Denman,  L.  C.  J.  (after  stating  the  case  as  above). — My  opinion 
was  that  the  witness  might  be  asked  as  to  everything  said  by  the 
plaintiff,  when  he  appeared  on  the  trial  of  the  indictment,  that  could 
in  any  way  qualify  or  explain  the  statement  as  to  which  he  had  been 
cross-examined;  but  that  he  had  no  right  to  add  any  independent 
history  of  transactions  wholly  unconnected  with  it.  .  .  .  Upon  the 
whole,  we  think  it  must  be  taken  as  settled  that  proof  of  a  detached 
statement  made  by  a  witness  at  a  former  time  does  not  authorize 
proof  by  the  party  calling  that  witness  of  all  that  he  said  at  the  same 
time,  but  only  of  so  much  as  can  be  in  some  way  connected  with  the 
statement  proved.  .  .  .  We  cannot  assent  to  [the  rule  as  stated  in  the 
above  passage  of  the  opinion  in  The  Queen's  Case].  We  will  merely 
observe  that  it  was  not  introduced  as  an  answer  to  any  question  pro- 
posed by  the  House  of  Lords,  and  may  therefore  be  strictly  regarded 
as  extrajudicial ;  that  it  was  not  necessary  as  a  reason  for  the  answer  to 
the  question  that  was  proposed;  that  it  was  not  in  terms  adopted  by 
Lord  Eldon  or  any  of  the  other  Judges  who  concurred;  that  it  was 
expressly  denied  by  Lords  Redesdale  and  Wynford;  and  that  it  does 
not  rest  on  any  previous  authority. 

534.  People  ».  ScHLESSEL.  (1909.  196  N.  Y.  476,  90  N.  E.  44).  Will.\rd 
Bartlett,  J. — In  respect  to  the  right  of  a  party  against  whom  part  of  an  utterance 
has  been  put  in  evidence  to  complement  it  by  putting  in  the  remainder,  in  order 
that  the  Court  may  completely  understand  the  total  tenor  and  effect  of  the 
utterance,  Professor  Wigmore  correctly  states  that  the  right  is  subject  to  a  three- 
fold limitation:  (a)  No  utterance  irrelevant  to  the  issue  is  receivable;  (o)  no 
more  of  the  remainder  of  the  utterance  than  concerns  the  same  subject  and  is 
explanatory  of  the  first  part  is  receivable;  (c)  the  remainder  thus  received  merely 
aids  in  the  construction  of  the  utterance  as  a  whole,  and  is  not  in  itself  testimony. 
3  Wigmore  on  Evidence,  §  2113. 


535.   DEWEY  v.  HOTCHKISS 

Court  of  Appeals  of  New  York.     1864 

30  N.  Y.  497,  502 

Action  for  the  price  of  goods  sold  and  delivered.  The  plaintiff's 
clerks  proved  from  his  account-books  items  amounting  to  SI, 269. 72. 
The  defendant  having,  on  the  cross-examination,  shown  that  the  books 
so  produced,  were  the  plaintiff's  books  of  original  entry,  read  therefrom 
certain  items  of  credit,  amounting  to  S152.09;  and  the  plaintiff's  counsel, 
thereupon,  offered  to  read  from  the  said  books,  other  charges  against  the 


No.  535  VERBAL    COMPLETENESS  781 

defendant,  which  had  not  been  proved  by  the  plaintiff's  witnesses.  The 
defendant  objected  to  the  reading  of  these  entries,  but  the  referee  over- 
ruled the  objection,  and  an  exception  was  taken. 

The  items  so  admitted  amounted  to  S137.49,  and  were  allowed  by  the 
referee,  who  reported  a  balance  due  the  plaintiff  of  S299.62.  And  the 
judgment  entered  on  his  report  having  been  affirmed  at  general  term, 
the  defendant  took  this  appeal. 

Clark,  for  the  appellant.     Strong,  for  the  respondent. 

HoGEBOOM,  J.  —  The  plaintiff's  account-books,  it  is  conceded,  were 
properly  in  evidence.  In  connection  with  the  oral  testimony  of  the 
clerks,  they  established  the  larger  part  of  the  plaintiff's  claim.  Being 
in  evidence,  the  defendant  availed  himself  of  them,  to  prove  thereby 
credits  in  his  own  favor.  There  were  equally  well  established,  whether 
they  were  in  the  plaintiffs'  handwriting  or  not.  The  plaintiffs  had 
brought  them  forward  as  their  books,  claiming  for  them  authenticity 
and  credit,  and  could  not  deny  their  admissibility  and  force,  even  when 
they  operated  against  themselves.  In  using  them  for  his  purpose,  the 
defendant  apparently  traveled  over  their  entire  contents,  selecting  his 
items  wherever  he  pleased,  without  reference  to  dates  or  subject-matter, 
or  their  connection  or  relation  to  the  charges  read  by  the  plaintiffs.  Thus, 
he  selected  from  the  day-books  three  different  items,  each  of  considerable 
amount,  of  the  respective  dates  of  2d  May  1848,  22d  March  1849,  and 
27th  October  1849.  He  selected  from  the  cash-book  eight  different  items, 
ranging  between  the  dates  of  21st  July  1848,  and  19th  November  1851. 
He  had,  therefore,  used  the  whole  of  the  books  indifferently  for  his 
purpose.  He  had  taken  the  entire  account  between  the  plaintiffs  and  the 
defendant,  adopted  it  for  his  own  benefit,  and  was  not,  I  think,  at  liberty 
to  renounce  it,  where  it  made  against  him.  .  .  .  The  books  constituted 
one  entire  series  of  accounts  between  these  parties,  and,  for  the  purpose 
of  this  case,  may  be  regarded  as  if  they  contained  nothing  else  whatever 
—  indeed,  as  if  they  had  all  been  presented  in  court  by  the  plaintiffs  on  a 
single  paper  or  account  current.  In  such  case  could  the  defendant  be 
permitted  to  cull  particular  entries  from  the  account  and  exclude  the 
residue?     I  think  not. 

The  rule  that  a  party  whose  oral  declarations,  in  a  conversation  are 
improved  in  evidence  by  his  adversary,  is  not  thereby  permitted  to  intro- 
duce in  his  own  favor  disconnected  portions  of  the  same  conversation 
having  reference  to  distinct  and  independent  matters,  has  no  close  appli- 
cation to  such  a  case;  1st,  Because  the  account  must  be  regarded  as  the 
single,  entire  and  continuous  statement  of  the  party  offering  it,  presenting 
his  version  of  the  true  state  of  the  business  transactions  between  the 
parties,  —  not  necessarily  entitled  to  credit  in  every  part,  -if  discredited 
by  other  evidence,  but  admissible  for  the  consideration  of  the  jury;  2d, 
Because  the  defendant,  having  adopted  the  whole  statement  by  ranging 
through  its  entire  scope  and  contents,  has  given  currency  to  the  whole, 
and  has  made  it  necessary  to  examine  and  take  in  the  whole,  in  order 


782  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  535 

to  determine  how  far  the  portions  rejected  by  him  bear  upon,  affect,  or 
quahfy  the  portions  selected.  There  is  no  evidence  that  the  portions  of 
the  account  introduced  by  the  plaintiff,  after  those  introduced  by  the 
defendant,  do  not  materially  qualify  the  effect  of  the  latter  items,  and 
do  not  in  fact  relate  to  the  same  precise  subject-matter. 

Judgment  affirmed. 

536.   ATHERTON  v.   DEFREEZE 

Supreme  Court  of  Michigan.     1902 

129  Mich.  364;  88  N.  W.  886 

Error  to  Shiawassee;  Smith,  J.  Submitted  January  7,  1902. 
Decided  January  28,  1902.  Replevin  by  John  J.  Atherton  against 
Aaron  Defreeze.  From  a  judgment  for  defendant,  plaintiff  brings  error. 
Reversed. 

A.  J.  Kellogg  (John  T.  McCurdy,  of  counsel),  for  appellant.  Martin 
V.  B.  Wixom,  for  appellee. 

Grant,  J.  —  This  is  an  action  of  replevin  for  two  horses,  and  origi- 
nated in  justice's  Court.  Plaintiff  derived  his  title  from  one  Susan 
Whitman  by  a  bill  of  sale.  .  .  .  The  title  to  the  horses  was  the  issue, 
and  upon  this  the  testimony  was  conflicting.  .  .  . 

One  Miller,  who  formerly  owned  the  horses,  testified  that  he  sold 
them  to  Mrs.  Whitman,  and  that,  after  the  suit  was  brought,  he  had  a 
conversation  with  defendant;  that  defendant  asked  him  what  he  knew 
about  the  case;  that  witness  told  him  that,  at  the  time  of  the  sale,  defend- 
ant said  that  the  cows,  for  which  he  exchanged  the  horses,  belonged  to 
Mrs.  Whitman;  and  that  defendant  said  it  looked  as  though  he  would 
get  beaten.  On  cross-examination  by  the  defendant's  attorney,  the 
witness,  in  reply  to  the  question,  "What  else  did  he  say?"  said:  "He 
said  he  was  so  blind  he  couldn't  see;  and  I  asked  him  about  how  much 
the  colts  were  worth,  and  he  said  about  S300,  and,  if  he  didn't  get  them, 
he  would  go  to  the  poorhouse."  Plaintiff's  attorney  moved  to  strike 
out  the  answer  as  incompetent,  immaterial,  and  not  relative  to  the  issue. 
The  Court  denied  the  motion;  holding  the  answer  "competent  as  test- 
ing the  recollection  of  the  witness,  and  as  a  conversation  between  him 
and  the  defendant." 

The  motion  should  have  been  granted.  .  .  .  Parts  of  a  conversation 
having  no  reference  whatever  to  the  issue  upon  trial,  are  not  admissible 
under  the  rule  that  a  party  is  entitled  to  the  entire  conversation.  The 
rule  means  only  that  he  is  entitled  to  the  entire  conversation  bearing 
upon  the  subject  in  controversy.  Ten  subjects  may  be  talked  about  in 
one  conversation.  When  one  of  the  ten  is  the  subject  of  litigation,  it  is 
not  competent  to  put  in  evidence  the  conversation  about  the  other  nine. 
Defendant's  blindness  and  poverty  had  nothing  to  do  with  the  title  to 
the  property.  .  .  .• 


No.   537  VERBAL    COMPLETENESS  783 

Judgment  reversed,  and  new  trial  ordered. 

Hooker,  C.  J.,  Moore  and  Montgomery,  JJ.,  concurred. 

Long,  J.,  did  not  sit. 


537.   LOMBARD  v.   CHAPLIN 

Supreme  Judicial  Court  of  Maine.     1903 

98  Mc.  309;  56  Atl.  903 

On  motion  and  exceptions  by  defendant.  Exceptions  sustained. 
TVIotion  not  considered. 

Case  for  personal  injuries  which  the  plaintiff  alleged  she  sustained 
while  driving  upon  a  public  street,  April  22,  1902,  in  the  City  of  Portland, 
by  reason  of  the  defendant's  negligence  in  the  operation  of  his  automobile. 
The  jury  rendered  a  verdict  for  the  plaintiff  and  assessed  the  damages  at 
six  hundred  dollars.  After  the  verdict,  the  defendant,  besides  the  usual 
motion  for  a  new  trial,  excepted  to  the  rulings  of  the  presiding  justice 
in  refusing  to  admit  in  evidence,  upon  defendant's  request,  a  certain 
letter  in  the  plaintiff's  possession.  The  letter  was  written  by  the  defend- 
ant to  the  plaintiff's  husband,  and  from  it  the  defendant  claimed  that 
plaintiff's  counsel  had  cross-examined  him  in  such  a  manner  as  to  get  a 
part  of  it  before  the  jury,  to  his  prejudice.  The  exceptions  appear  in  the 
opinion. 

Frank  H.  Haskell  and  Enoch  Foster,  for  plaintiff.  .  .  .  Wm.  C.  Eaton, 
for  defendant. 

Sitting:  Emery,  Whitehouse,  Strout,  Savage,  Powers,  Spear,  JJ. 

Spear,  J.  —  This  is  an  action  in  which  the  plaintiff  seeks  to  recover 
damages  of  the  defendant  for  alleged  negligence  on  his  part  in  running 
and  operating  the  automobile,  in  which  he  was  riding,  so  carelessly  that 
the  horse  which  the  plaintiff  was  driving  became  frightened  and  ran 
away,  throwing  the  plaintiff  from  her  carriage  and  causing  her  to  be 
injured.  The  case  comes  up  on  motion  and  exceptions  by  the  defendant, 
but,  as  the  exceptions  must  be  sustained,  it  becomes  necessary  to  consider 
the  motion. 

It  appeared  from  the  development  of  the  evidence  in  the  case  that 
the  defendant  had  written  a  letter  to  Dr.  Lombard,  husband  of  the 
plaintiff.  This  letter  was  in  the  possession  of  the  plaintiff's  counsel  and 
used  by  him  in  connection  with  his  cross-examination  of  the  defendant, 
and  the  question  is,  was  it  such  a  use  as  made  the  exclusion  of  the  whole 
letter,  when  offered  later  by  the  defendant,  a  matter  of  exception? 

The  plaintiff's  counsel,  during  the  cross-examination  of  the  defendant, 
passed  the  letter  to  the  defendant  with  the  following  inquiries: 

Q.  —  "Will  you  look  and  see  if  you  recognize  that  letter?"  A.  — 
"That  is  my  signature." 

After  putting  several  other  interrogatories,  —  ... 


784  BOOK  i:     RULES   OF  .ADMISSIBILITY  No.  537 

Q.  —  "  That  was  over  two  hundred  feet  away  and  the  horse  was 

running  directly  towards  you?"     A.  —  "I  said  that  was  my  idea  of  the 

way  she  was  running." 

Q.  —  "  When  did  you  say  that?"     A.  —  "I  just  said  it." 

Q.  —  "Did  you  ever  say  it  to  anybody  before  to-night?"     A.  —  "I 

don't  remember." 

Q.  —  "  Did  you  write  it  to  Dr.  Lombard?  "     A.  —  "  What?  " 

Q.  —  "That  the  horse  was  running  furiously  toward  you?"     A.  — 

"I  think  I  did.      You  have  it  in  your  hand.  .  .  ." 

Did  the  putting  in  evidence  a  part  of  the  letter,  as  above  shown, 

entitle  the  defendant  to  the  right  to  put  in  the  whole  letter?    We  think 

it  did. 

1.  It  is  claimed  that  the  whole  letter  is  inadmissible,  even  if  a  part 
of  it  had  been  put  in  evidence,  as  it  was  a  self-serving,  not  self -disserving, 
statement  made  to  a  third  party.  If  the  writer  of  the  letter  was  a 
witness  only,  it  is  true  that  the  letter  could  be  used  only  to  contradict 
hipi  and  impeach  his  credibility,  and  not  for  the  purpose  of  proving  or 
disproving  any  fact  material  to  the  issue  involved.  But  when  the  writer 
is  also  a  party,  this  rule  does  not  apply,  for  every  statement  in  his  letter, 
to  whomsoever  written,  may  be  taken  as  an  admission  to  prove  or  disprove 
any  fact  relevant  to  the  issue.  In  the  former  case,  where  the  writer  is  a 
witness  only,  his  letter  would  be  admissible  only  to  contradict  his  present 
testimony.  But  in  the  latter  case,  where  the  writer  is  also  a  party,  his 
statement  maybe  used  to  contradict  his  present  testimony,  or  as  an  admis- 
sion of  fact  if  material  to  the  issue.  In  the  case  at  bar,  the  extracts  from 
the  defendant's  letter  could  not  have  been  used  to  contradict  his  present 
testimony,  for  no  such  contradiction  appeared  or  was  claimed;  hence 
they  must  necessarily  have  been  used  as  admissions  of  fact  on  the  part 
of  the  defendant. 

2.  Considering  this  letter  then  as  an  admission  previously  made  by 
the  defendant,  did  counsel  for  the  plaintiff,  by  introducing  a  part  of  it, 
thereby  give  the  defendant  the  right  to  introduce  the  balance?  We 
think  he  did.  This  Court  in  Storer  v.  Gowen,  18  Maine  176,  have  held 
that, 

"It  is  a  principle  well  settled  that  the  admissions  of  a  party,  when  given  in 
evidence,  must  be  taken  together  as  well  what  makes  in  his  favor  as  against  him. 
Both  are  equally  evidence  to  the  jury,  who  will  give  every  part  of  the  testimony 
such  credence  as  it  may  appear  to  deserve."  Hammatt  v.  Emerson,  27  Maine, 
308,  336,  46  Am.  Dec.  598. 

In  an  early  decision  in  Massachusetts,  Whitwell  v.  Wyer,  11  Mass. 
91,  this  is  the  language  of  the  Court: 

"Where  you  rely  upon  a  confession  you  must  take  it  all  together." 

And  the  same  Court  says  in  O'Brien  v.  Cheney,  5  Cush.  148: 

"The  general  principle  for  which  the  defendant  contends,  namely,  that,  when 
the  admission  of  a  part  is  offered  in  evidence,  he  is  entitled  to  have  the  whole  of 


No.  537  VERBAL   COMPLETENESS  785 

what  he  said  on  the  subject,  at  that  interview,  stated  as  a  part  of  the  evidence, 
is  correct  and  is  not  denied." 

See  also  Adam  v.  Eames,  107  Mass.  276;  Dole  v.  Wooldredge,  142 
Mass.  IGl .  In  regard  to  the  admission  of  the  defendant,  the  Court  say  in 
Mattocks  V.  Lyman,  18  Vt.  102: 

"That  the  whole  declaration  of  the  party  made  at  one  time,  as  well  that  in 
his  favor  as  that  which  is  against  him,  must  be  received  and  weighed." 

And  in  Moore  v.  Wright,  90  111.  473,  the  Court  holds  that, 

"Wliere  a  party's  admissions  are  called  for,  the  party  calling  for  the  same  is 
bound  to  take  all  the  other  party  said  upon  the  occasion  concerning  the  matter 
in  dispute,  whether  it  makes  for  or  against  him." 

It  is  unnecessary  to  make  further  citations.  The  above,  we  think,  is 
a  fair  statement  of  the  practice  both  in  this  country  and  England  with 
respect  to  the  admissibility  of  admissions  as  testimony.  .  .  . 

In  Maine  the  whole  of  an  oral  admission  is  admissible,  although  it 
may  contain  a  reference  to  matters  entirely  impertinent  to  the  issue  to 
be  tried,  if  so  connected  that  it  cannot  be  separated  from  the  whole. 
It  was  so  held  in  Lord  v.  Moore,  37  Maine,  217,  218.  .  .  . 

Exceptions  sustained. 


786  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  538 


SUB-TITLE    IV.     AUTHENTICATION    OF   DOCUMENTS 

538.  HoRNE  Tooke's  Trial.  (1794.  25  How.  St.  Tr.  78).  [High  treason. 
A  book  purporting  to  be  the  minutes  of  the  Constitutional  Society,  at  a  meeting 
of  March  2iS,  1794,  with  Mr.  Tooke  as  chairman,  was  offered  to  be  read  by  the 
prosecution,  after  some  evidence  of  the  handwTiting.] 

Mr.  Tooke.  —  Is  the  insertion  of  my  name  in  that  book  evidence  of  my  being 
present  at  the  time? 

Lord  Chief  Justice  Eyre.  —  It  is  certainly  evidence  to  go  to  the  jury  of  your 
being  present. 

Mr.  Tooke.  —  My  name  being  found  in  any  book !  That  will  be  the  most 
extraordinary  evidence  I  ever  heard  of.  The  bulk  of  the  trash  that  is  to  be  found 
in  that  book  I  never  saw  or  heard  of  before.  But  that  every  time  that  my  name 
is  to  be  found  in  the  book,  that  that  is  to  be  evidence  that  I  was  present  is  a  most 
extraordinary  proposition.  If  I  WTote  my  name  in  the  book,  that  would  be  evi- 
dence that  I  was  there  when  I  WTote  it;  but  my  name  being  WTitten  in  a  book 
does  not  prove  my  being  there  when  it  was  wrote.  ...  If  this  evidence  were  to 
be  admitted  in  a  charge  of  high  treason,  and  it  should  therefore  follow  that  I  par- 
take of  whatever  is  over  or  under  my  name,  it  would  be  the  most  extraordinary 
evidence  that  ever  was  admitted  in  a  Court  of  justice. 

Lord  Chief  Justice  Eyre.  — You  are  perfectly  right,  if  the  state  of  the  evi- 
dence depended  entirely  upon  your  name  being  found  in  a  book  in  possession  of 
a  Daniel  Adams;  undoubtedly,  in  order  to  prove  your  being  present  at  these  meet- 
ings, they  must  go  a  great  deal  farther  —  they  must  show  that  these  are  the 
books  of  the  society,  they  must  give  probable  evidence  that  these  were  books 
which  you  had  access  to,  which  you  acted  upon,  and  that  you  gave  credit  to  the 
entries  that  were  in  it  by  some  conduct  of  yours.  This  is  only  one  step  toward 
the  evidence,  to  fix  you  with  being  a  person  present  at  this  meeting.   .  .   . 

Mr.  (later  L.  C.)  Erskine  (arguing  against  the  reading  of  the  treasonable 
paper) . — Would  it  be  said  that  this  should  be  read  as  evidence  against  the  prisoner 
before  his  connexion  with  it  is  proved  to  have  had  an  existence?  I  take  the  reason 
of  that  to  be  this  —  and  I  take  the  reason  of  it  to  be  foimded  in  great  wisdom,  in 
that  which  in  my  opinion  forms  the  glory  of  the  English  law  in  all  its  parts,  in  an 
acquaintance  with  the  human  character,  in  the  recognition  of  all  that  belongs  to 
the  principles  of  the  human  mind,  in  the  recollection  of  our  wise  ancestors  that 
men  are  not  angels,  —  that  they  carry  about  them  (and  your  lordships  even  carry 
about  you)  all  the  infirmities  of  humanity,  and  that  it  therefore  shall  not  be 
permitted  to  make  a  strong  impression  upon  the  minds  of  men  by  reading  matters 
at  which  .  .  .  the  mind  of  man  revolts,  and  so  in  the  course  of  a  long  trial  the 
jury  afterwards  cannot  discharge  from  their  recollection  what  they  have  heard. 
They  do  not  remember  with  precision  whether  that  which  was  read  was  brought 
home  to  the  prisoner;  and  then  they  mix  up  in  their  imagination  and  recollection 
matters  which  they  may  disapprove  with  disapprobation  of  the  person  who  is  on 
trial  before  them.  I  take  that,  with  humility  to  be  the  principle.  ...  It 
must  be  brought  home  to  the  person  who  is  to  be  affected  by  it,  before  it  is 
suffered  to  be  read;  for  after  it  is  read,  the  effect  is  had,  and  that  is  the  dan'ger  I 
complain  of. 

L.  C.  J.  Eyre.  —  If  the  cjuestion  is  whether  it  is  now  to  be  read,  I  think  the 


No.  542  AUTHENTICATION   OF   DOCUMENTS  787 

objection  is  good.  If  the  question  is  whether  it  is  evidence  admissible,  not  yet 
to  be  read,  but  to  be  read  or  not  as  other  evidence  shall  bring  the  matter  of  it 
sufficiently  home  to  the  prisoner,  then  the  objection  is  ill-founded. 

539.  Wilson  z'.  Betts.  (1847.  New  York  4  Den.  201,  213).  Bronson,  C.  J. 
In  the  ordinary  affairs  of  men,  it  is  very  often  assumed,  without  proof,  that 
he  whose  name  has  been  affixed  to  a  written  instrument  placed  it  there  him- 
self. But  when  the  signing  becomes  a  matter  of  legal  controversy,  it  must  be 
established  by  proof. 

540.  Stamper  v.  Griffin.  (1856.  Georgia.  20  Ga.  312,  320).  Benning,  J. 
No  writing  can  be  received  in  evidence  as  a  genuine  writing  until  it  has 
been  proved  to  be  a  genuine  one,  and  none  as  a  forgery  until  it  has  been 
proved  to  be  a  forgery.  A  writing,  of  itself,  is  not  evidence  of  the  one  thing 
or  of  the  other.  A  writing,  of  itself,  is  evidence  of  nothing,  and  therefore  is 
not,  unless  accompanied  by  proof  of  some  sort,  admissible  as  evidence. 

541.  Siegfried  v.  Levan.  (1820.  Pennsylvania.  6  S.  &  R.  308,  311). 
Duncan,  J.  This  was  an  action  for  debt  on  bond;  the  plea,  non  est  factum. 
The  plaintiff  gave  evidence,  as  stated  in  the  bill  of  exceptions,  and  then  offered 
the  bond  (of  which  he  had  made  profert  and  given  oyer)  to  the  jury-in  evidence; 
this  was  objected  to,  and  the  Court  sustained  the  objection,  and  would  not  suffer 
the  bond  to  be  read  in  evidence.  The  exception  to  be  considered  is  to  this  opinion 
of  the  Court.  .  .  . 

The  mistake  arises  from  supposing  that  the  Court,  in  suffering  the  deed  to 
go  in  evidence  to  the  jury,  decide  the  issue;  nothing  can  be  more  unfounded.  .  .  . 
All  that  is  done  by  the  Court,  in  admitting  the  deed  in  evidence,  is  this:  That  if 
the  execution  of  the  deed  is  proved  by  the  subscribing  witness,  the  party  has 
made  out  a  prima  facie  case,  —  not  a  conclusive  one;  or,  in  cases  where  recourse 
is  had  to  the  secondary  evidence,  that  the  collateral  proof  is  such  that  a  jury  might 
presume  [i.e.  infer]  the  execution;  and  then  these  facts  are  submitted  to  the  jury 
to  exercise  their  own  judgment,  to  draw  their  own  conclusion  of  the  sealing  and 
delivery.  ...  If  the  bond  is  proved  by  the  subscribing  witness,  it  is  read  in  evi- 
dence. Why?  Not  because  the  Court  pronounce,  by  admitting  it  in  evidence, 
that  it  is  the  deed  of  the  party;  but  because  the  party  has  given  evidence  of  its 
execution.  So,  where  the  execution  is  to  be  made  out  by  facts  and  circumstances, 
it  is  admitted,  not  because  the  Court  draw  any  conclusion  of  the  fact  in  issue,  but 
because  sovie  evidence  is  offered  from  which  the  jury  might  presume  [i.e.  infer]  the 
fact  in  issue,  the  sealing  and  delivery  of  the  bond. 

If  there  be  no  evidence  of  the  execution,  the  Court  will  not  permit  the  bond 
to  be  read  in  evidence.  But  if  there  be  any  fact  or  circumstance  tending  to 
prove  the  execution  or  from  which  the  execution  might  be  presumed,  then  like 
other  presumptive  evidence  it  is  open  for  the  decision  of  the  jury. 

542.  Modes  of  Authenticating  Documents.^  Some  of  the  various 
possible  modes  of  proving  a  document's  genuineness  are,  of  course,  never  ques- 
tioned to  be  sufficient  to  entitle  it  to  go  to  the  jury.  Those  about  which  question 
has  arisen  are  only  certain  kinds  of  circumstantial  evidence.     It  will  be  necessary 

^  From  the  present  Compiler's  "Treatise  on  Evidence"  (1905),  Vol.  Ill, 
§  2131. 


788  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  542 

therefore  to  eliminate  at  the  outset  the  kinds  of  evidence  as  to  which  there  is  no 
dispute  from  the  present  point  of  view. 

Evidence  may  be  of  three  different  sorts,  namely,  "  real  evidence,"  testimonial 
evidence,  and  circumstantial  evidence. 

(1)  Autoptic  proference  (or  "  real  evidence"),  occurs,  for  the  execution  of  writ- 
ings, when  the  act  of  writing  is  done  in  the  presence  of  the  tribunal.  The  sufficiency 
of  this  is  plain. 

(2)  Tesiimonial  evidence  is  always  regarded  as  sufficient;  the  only  questions 
being  the  ordinary  ones  as  to  the  qualifications  of  the  witness  by  knowledge. 
Ordinary  admi--<sioJut  of  a  party  are  a  sort  of  evidence  always  regarded  as  sufficient 
to  admit  a  document  to  the  jury,  but  they  are  to  be  distinguished  from  judicial 
admissions. 

(3)  Circumstantial  evidence  is  of  various  sorts;    and  first,  of  those  not  here 

involved : 

(a)  Style  of  handwriting,  i.e.  similarity  between  that  of  the  document  and 
that  of  the  person  alleged  as  its  maker,  is  a  sort  of  circumstantial  evidence  undis- 
puted in  its  sufficiency;  the  controversies  have  arisen  over  the  proper  modes  of 
proving  the  fact  of  similarity. 

{}))  Sundry  circumstances  preceding  or  following  the  act  of  \\Titing  may  be 
appealed  to  as  evidence.  For  example,  if  an  unsigned  wTiting  is  left  in  a  room  with 
pen  and  ink,  and  Doe  goes  alone  into  the  room,  then  comes  out  with  fresh  ink- 
marks  on  his  hand,  and  the  writing  is  then  found  to  bear  his  name  in  signature, 
this  would  be  regarded,  no  doubt,  as  sufficient  evidence  to  go  to  the  jury;  it  is 
the  same  sort  of  evidence  that  might  be  used  to  prove  a  murder  or  any  other  act 
done  in  that  room.  For  evidence  of  this  sort  there  seem  to  be  no  specific  rules  of 
sufficiency. 

(c)  The  remaining  sorts  of  circumstantial  evidence  are  those  which  give  rise 
to  quantitative  rulings  of  sufficiency.  They  consist  of  groups  of  circumstances, 
each  by  itself  perhaps  insufficient,  but  all  combined  amounting  in  common 
experience  to  a  sufficiency.  They  fall,  roughly,  under  four  heads:  (A)  Age;  (B) 
Contents;    (C)  Custody;    (D)  Signature  or  Seal. 


Topic  1.    Authentication  by  Age 

544.   MIDDLETON  v.   MASS 

Constitutional  Court  of  South  Carolina.      1819 

2  N.  &  McC.  55 

This  was  an  action  of  trespass,  to  try  the  title  to  a  tract  of  land 
originally  granted  to  Wm.  Bull,  in  1737.  The  grant  to  Bull  was  produced 
on  the  part  of  the  plaintiff,  and  he  then  offered  in  evidence  a  deed  from 
Bull  to  James  Oglethorpe,  under  whom  he  claimed,  and  from  whom  he 
deduced  a  title,  dated  in  1739,  which  had  been  proved  before  a  magistrate, 
and  recorded  in  the  auditor's  office,  a  few  days  after  its  execution;  but 
he  offered  no  proof  of  its  execution,  nor  did  he  prove  any  possession  of 
the  land,  or  any  act  of  ownership  over  it,  by  himself  or  any  other  person, 
through  or  from  whom  he  deduced  his  title:    so  that  the  question  was. 


No.   544  AUTHENTICATION    OF    DOCUMENTS  789 

whether  it  was  admissible  as  an  ancient  deed,  without  proof  of  its  execu- 
tion? The  presiding  judge  being  of  opinion  that  it  was  not,  the  plaintiff 
then  offered  to  prove  that  the  deed  had  been  in  thepossession  of  himself 
and  those  under  whom  he  claimed,  for  more  than  thirty  years,  and  con- 
tended that  it  ought  to  be  admitted  on  this  proof;  but  the  Court  thought 
otherwise,  and  the  plaintiff  was  nonsuited.  A  motion  was  now  made  to 
set  aside  the  nonsuit,  on  the  ground  that  the  deed  ought  to  have  been 
received  in  evidence,  as  an  ancient  deed,  on  proof  of  the  possession  of  the 
deed,  alone,  for  the  time  mentioned. 

Johnson,  J.  —  Until  this  case  occurred,  I  did  not  suppose  that  this 
question  admitted  of  any  doubt;  for  the  converse  of  the  proposition 
contained  in  the  motion,  is  certainly  recognized  in  the  case  of  Thompson 
V.  Bullock,  1  Bay,  357,  and  the  practice,  so  far  as  I  have  been  conversant 
w'ith  it,  accords  with  that  view  of  it.  But  the  question  is  made,  and  I 
understand  that  there  is  some  diversity  in  the  practice  in  the  different 
parts  of  the  State,  and  in  the  opinions  entertained  by  the  bar  on  the 
subject;  it  becomes,  therefore,  necessary  to  consider  it  and  to  put  it  to 
rest. 

Mr.  Justice  Buller,  in  his  introduction  to  the  law  relative  to  trials, 
at  Nisi  Prius,  56,  from  whence  the  whole  doctrine  is  drawn,  says,  if  the 
deed  be  thirty  years  old,  it  may  be  "given  in  evidence,  without  any 
proof  of  its  execution."  "There  ought,"  he  adds,  "to  be  some  account 
given  of  the  deed,  where  found,  &c."  Regarding  this  as  a  finished  sen- 
tence, it  would  seem  to  follow,  that  it  was  only  necessary  to  show,  that 
the  deed  had  been  in  the  possession  of  the  party  claiming  under  it,  or  in 
a  place  where,  from  the  nature  of  its  provisions,  it  would  probably  be 
deposited ;  and  this  is  doubtless  a  correct  conclusion,  so  far  as  it  relates 
to  a  peculiar  species  of  writings  which  are,  in  some  measure,  to  be  regarded 
as  public  property,  and  partake  in  some  degree  of  the  character  of  records. 
...  It  is  not,  therefore,  the  place  only,  where  an  ancient  deed  is  found, 
that  always  makes  it  evidence,  but  it  is  when  the  possession  is  according 
to  the  provisions  of  the  deed.  Vide  Phillips,  349.  Dunlap's  Ed.  and 
note  a. 

Independent,  however,  of  authority,  it  appears  to  me  the  reason- and 
propriety  of  the  rule  is  apparent,  and  the  more  so  from  the  only  reason 
which  I  have  seen  in  opposition  to  it.  It  is  because  old  things  are  hard 
to  be  proved.  Now,  if  this  be  a  good  reason,  it  operates  with  a  twofold 
force  on  the  opposite  side  of  this  question :  for  it  is  certainly  more  difficult, 
to  say  the  least  of  it,  to  disprove  an  old  thing  than  to  prove  it,  especially 
when  in  most  cases  the  party  would  be  called  on  to  do  so  without  notice 
of  its  antiquity  or  the  necessity  of  doing  it.  Policy  requires,  that  the 
possession  of  individuals  to  their  landed  estates  should  be  shielded  by 
every  legitimate  means;  for  it  is,  in  truth,  the  sheet  anchor  of  the  right 
of  a  great  proportion  of  the  citizens  of  this  country,  to  such  property 
And  hence  it  is,  that  after  a  lapse  of  thirty  years,  when  it  may  be  reason- 
ably presumed,  that  the  witnesses  to  the  deed  are  dead,  or  in  the  transi- 


790  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  544 

tory  state  of  the  community,  they  are  removed  without  the  knowledge 
of  the  party,  the  law  will  presume  the  legal  execution  of  the  deed  in  favor 
of  a  possession,  accoi-ding  to  its  provisions.  .  .  .  No  such  indulgence  is 
due  to  him  who,  as  in  the  present  case,  neglects  for  almost  a  century  to 
assert  his  claim,  by  one  single  act  of  ownership.  The  doctrine  contended 
for  on  the  part  of  the  motion  might  in  its  consequences  be  productive  of 
incalculable  mischiefs;  for,  although  it  is  not  now  usual  to  enter  upon  a 
course  of  villainy  the  fruits  of  which  are  not  to  be  reaped  for  thirty  years 
to  come,  yet  establish  the  rule  contended  for,  and  it  opens  the  door,  and 
many  will  no  doubt  find  an  easy  entry.  On  the  other  hand,  it  is  con- 
ceived, that  no  such  mischiefs  can  ensue.  Apprize  the  owner  of  the 
danger  to  which  he  is  exposed,  he  has  the  power,  and  will  avert  its  conse- 
quences. 

The  motion  must  be  discharged. 

CoLCOCK,  NoTT  and  Gantt,  JJ.,  concurred. 


545.   McGUIRE  v.   BLOUNT 

Supreme  Court  of  the  United  States.    1905 

199  U.  S.  142;  26  Sup.  1 

This  case  was  begun  in  the  Circuit  Court  of  the  United  States  for 
the  Northern  District  of  Florida,  to  recover  in  ejectment  certain  lands 
described  in  the  declaration.  The  defendants  answered,  and  issues  were 
joined  as  to  the  right  of  possession  of  the  lands  in  question.  Upon  the 
trial,  after  the  testimony  was  submitted  and  the  cause  argued,  the 
Court  instructed  the  jury  to  find  for  the  defendants.  .  .  . 

The  petitioners,  who  were  plaintiffs  in  the  original  case,  sought  to 
recover  the  tract  of  land  as  the  heirs  of  one  Gabriel  Rivas.  The  tract 
originally  owned  by  him  consisted  of  about  three  hundred  "arpents" 
of  land  near  the  city  of  Pensacola,  Florida.  The  defendants  at  the  trial 
undertook  to  defeat  the  plaintiffs'  right  of  recovery,  not  by  establishing 
a  perfect  title  in  themselves,  but  relied  upon  showing  the  divestiture  of 
the  plaintiffs'  title  as  heirs  of  Gabriel  Rivas.  .  .  . 

The  defendants  sought  to  show,  by  the  production  of  certain  ancient 
documents,  bound  together,  styled  a  protocol,  that  Gabriel  Rivas'  will 
had  been  established  by  proceedings  had  during  the  Spanish  control  of 
Florida,  which  showed  that  Rivas,  who  had  received  the  lands  in  con- 
troversy by  grant  of  November  10,  1806,  from  Morales,  intendant,  etc., 
of  Spain,  had  died  on  April  28,  1808,  his  will  being  probated  by  certain 
proceedings  approved  by  the  Governor  of  Florida,  on  May  2,  1808.  .  .  . 
These  original  documents,  evidencing  the  probate  of  the  will  of  Rivas 
and  the  sale  of  the  lands,  including  those  in  controversy,  were  presented 
to  this  Court,  having  been  admitted  in  testimony  at  the  trial  against 
the  objections  of  plaintiffs  under  the  stipulation  that  they  came  from 


No.  546  AUTHENTICATION    OF    DOCUMENTS  791 

the  custody  of  the  surveyor  general  of  the  United  States,  keeper  of  the 
archives. 

Mr.  Benjamin  Micou,  with  whom  Mr.  Hilary  A.  Herbert,  IVIr.  E.  T. 
Davis  and  Mr.  Simeoti  S.  Bclden,  were  on  the  brief  for  phiintift'  in  error. 

Mr.  William  A.  Blount  in  propria  persona,  and  for  other  respondents, 
and  with  whom  Mr.  A.  C.  Blount,  Jr.,  was  on  the  brief. 

IVIr.  Justice  Day  (after  stating  the  case  as  above)  delivered  the  opinion 
of  the  Court. 

Many  objections  are  urged  to  the  authenticity  and  admissibility  of 
these  documents  as  well  as  to  the  regularity  of  the  proceedings  under  the 
Spanish  law.  The  production  of  the  originals  of  these  documents  has 
given  the  Court  an  opportunity  to  inspect  them.  They  bear  upon  their 
face  every  evidence  of  age  and  authenticity.  There  is  nothing  about 
them  to  suggest  that  they  have  been  forged  or  tampered  with.  They 
present  an  honest  as  well  as  ancient  appearance  and  come  from  official 
custody.  To  such  public  and  proprietary  records  the  Courts  have  applied 
the  rules  of  admissibility  governing  ancient  documents.  3  Wigmore, 
Evidence,  §  2145,  and  notes.  With  reference  to  such  documents  and 
records  it  is  only  necessary  to  show  that  they  are  of  the  age  of  thirty 
years  and  come  from  a  natural  and  reasonable  custody;  from  a  place 
where  they  might  reasonably  be  expected  to  be  found.  3  Wigmore, 
§§  2138  and  2139.  While  the  testimony  tends  to  show  that  these  docu- 
ments were  subjected  to  various  changes  of  possession  during  the  transi- 
tion of  the  government  of  Florida  from  Spain  to  the  United  States  and 
upon  the  evacuation  of  Pensacola  during  the  civil  war,  there  is  nothing 
to  establish  that  they  were  ever  out  of  the  hands  of  a  proper  custodian. 
Nor  is  there  proof  to  show  that  the  originals  were  lost,  or  any  evidence 
of  a  fraudulent  substitution  of  a  made-up  record  in  the  interest  of  parties 
to  be  benefited  thereby. 

In  view  of  the  frequency  with  which  these  proceedings  have  been  given 
express  or  tacit  recognition  in  subsequent  official  investigations  and  con- 
veyances of  the  lands,  corroborating  the  inference  of  genuineness  to  be 
gathered  from  the  appearance  and  history  of  these  documents,  and  the 
possession  of  the  lands  conveyed,  we  have  no  question  that  the  Court 
properly  admitted  them  in  evidence. 

Topic  2.    Authentication  by  Contents 

546.   INTERNATIONAL  HARVESTER  CO.   r.   CAMPBELL 

Court  of  Civil  Appeals  of  Texas.     1906 

43  Tex.  Civ.  App.  421;  96  S.  W.  92 

Appeal  from  District  Court,  Bexar  County;  A.  W.  Seeligson,  Judge. 
Action  by  R.  A.  Campbell  against  the  International  Harvester  Company 
of  America.     From  a  judgment  for  plaintiff,  defendant  appeals.  Affirmed. 


792  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  546 

Cobbs  &  Hildebrand  and  Wm.  Aubrey,  for  appellant.  Davis  & 
McFarland,  for  appellee. 

Neill,  J.  —  This  suit  was  brought  by  appellee  against  the  appellant 
to  recover  S660  damages  for  a  breach  of  contract  of  employment.  The 
appeal  is  from  a  judgment  for  S570  in  favor  of  the  appellee.  .  .  . 

The  second  assignment  of  error  is  that  "  the  Court  erred  in  permitting 
plaintiff  to  testify,  over  the  objections  of  defendant  that  a  letter  alleged 
to  have  been  written  by  defendant  to  J.  D.  Cameron  as  follows,  viz.: 
'  We  have  received  your  letter,  also  Mr.  Campbell's  references  which  are 
good.  You  are  on  the  ground,  employ  him '  —  as  appears  more  fully 
by  defendant's  bill  of  exceptions  No.  1." 

The  bill  of  exceptions  discloses  a  number  of  objections  to  the  testi- 
mony, but  as  the  proposition  under  the  assignment  embraces  only  one, 
it  alone  will  be  considered.  It  is:  "In  order  to  admit  parol  evidence  of 
the  contents  of  a  letter,  its  genuineness  must  be  established."  This 
proposition  involves  only  the  establishment  of  the  genuineness  of  the 
letter.  If,  then,  there  was  sufficient  evidence  of  its  genuineness  to  admit 
its  contents  in  evidence,  the  assignment  should  be  overruled,  regardless 
of  any  other  objection  that  may  have  been  urged  upon  the  trial  to  the 
introduction  of  such  testimony,  for  no  other  objection  is  presented  for  our 
consideration. 

The  genuineness  of  a  writing  may  be  proved  by  indirect  or  circumstan- 
tial evidence,  as  other  facts;  and  in  some  instances,  this  is  the  only  charac- 
ter of  evidence  that  can  be  adduced.  Before  the  testimony  complained 
of  was  introduced,  it  was  shown  by  the  testimony  of  appellee  that  the 
letter  in  question  was  WTitten  on  one  of  the  International  Company's 
letterheads;  that  Mr.  Cameron,  the  agent  of  the  company,  showed  him 
the  letter  about  the  first  of  June,  1903;  that  the  signature  was  the  same 
as  that  affixed  to  a  letter  he  had  received  from  the  company  a  few  days 
before  and  to  other  letters  of  the  company  written  to  Mr.  Boldic,  its 
traveling  agent.  The  defendant  and  its  attorney  had  been  duly  notified 
to  produce  the  letter  upon  the  trial,  or  that  secondary  evidence  would  be 
introduced  to  prove  its  contents.  It  was  not  denied  by  defendant  or  its 
counsel  that  such  letter  had  been  WTitten,  or  was  in  their  possession. 
The  only  challenge  to  plaintiff  was :  "  You  must  show  the  genuineness  of 
such  letter  before  you  can  prove  its  contents."  These  circumstances, 
when  taken  in  connection  with  the  contents  of  the  letter,  fully  meet  the 
challenge. 

Upon  the  subject  of  authentication  of  a  WTiting  by  its  contents, 
Wigmore  on  Evidence,  §  2148,  observes: 

"If  Doe  is  the  sole  person  who  knows  the  circumstances  of  a  certain  event, 
and  if  a  letter  arrives  purporting  to  be  from  Doe  and  stating  those  circumstances, 
and  the  statements  appear  by  subsequent  development  to  be  accurate,  it  would 
be  a  simple  matter,  for  the  law,  as  well  as  for  common  sense,  to  deem  that 
sufficient  evidence  of  Doe's  authorship  had  been  furnished." 


No.   548  AUTHENTICATION    OF   DOCUMENTS  793 

Campbell  was  seeking  employment  from  the  company;  its  agent, 
Cameron,  had  written  informing  the  company  of  the  fact;  Campbell's 
references  had  been  sent  to  the  company;  a  letter  is  received  in  reply 
written  from  the  company's  office  in  Chicago,  on  one  of  its  letterheads, 
bearing  the  same  signature  as  other  letters  of  the  company  to  its  agent, 
in  which  it  is  said:  "We  have  received  your  letter,  also  Mr.  Campbell's 
references,  which  are  good."  As  no  one,  save  the  company,  could  have 
received  the  letter  and  references  mentioned  in  the  letter  received  by 
Cameron,  and  shown  to  plaintiff,  its  contents,  when  taken  in  connection 
with  other  facts,  are,  under  the  principle  quoted,  cogent  evidence  of  its 
genuineness.  We  by  no  means  wish  to  be  understood  as  holding  that 
the  mere  contents  of  a  written  communication,  purporting  to  be  a  particu- 
lar person's,  are  of  themselves,  sufficient  evidence  of  genuineness,  for 
the  contrary  is  the  rule.  .  .  . 
The  judgment  is  affirmed. 

547.  Barhajh  v.  Bank  of  Delight.  (1910.  94  Ark.  158,  126  S.  W.  396). 
Frauenthal,  J.  —  As  a  general  rule,  a  letter  that  is  offered  in  evidence  must  be 
authenticated  by  proving  the  genuineness  of  the  signature  of  the  writer.  But 
Avhen  a  letter  is  received  in  the  due  course  of  mail,  and  purports  to  be  in  answer 
to  a  letter  that  was  previously  duly  addressed  and  mailed,  the  presumption  arises 
that  such  letter  is  the  genuine  instrument  of  the  purported  writer;  it  is  then 
sufficiently  authenticated  to  go  to  the  jury;  and,  upon  its  genuineness  being 
denied,  it  then  becomes  a  question  of  fact  for  the  jury  to  determine  as  to  whether 
the  letter  is  genuine  or  not.  3  Wigmore  on  Evidence,  2153;  Lancaster  v.  Ames, 
103  Me.  87. 

548.   COBB  T.   GLENN  BOOM  &  LUMBER  CO. 

Court  of  x\ppeals  of  West  Virginia.      1905 

57  W.  Va.  49;  49  S.  E.  1005 

Error  to  Circuit  Court,  Rucker  County.  Action  by  W.  H.  Cobb 
against  the  Glenn  Boom  &  Lumber  Company.  Judgment  for  defendant, 
and  plaintiff  brings  error.     Affirmed. 

This  is  an  action  of  assumpsit  brought  in  the  Circuit  Court  of  Tucker 
county,  wherein  the  plaintiff  claims  that  he  entered  into  an  executory 
contract  with  the  defendant  by  which  he  purchased  from  it  800  acres  of 
land,  lying  in  Randolph  county,  at  $15.00  per  acre,  and  that  after  the 
making  of  said  contract,  the  defendant  sold  the  timber  on  said  land  to 
another  person,  thereby  rendering  it  impossible  for  it  to  carry  out  its 
contract  with  him;  and  claiming  damages  in  the  sum  of  .''r5,000.  The 
defendant  pleaded  non-assumpsit,  and  filed  an  affidavit  denying  that  it 
signed  or  authorized  the  signing  of  the  telegrams  in  the  declaration 
mentioned,  and  upon  this  issue  the  case  was  tried.  After  the  plaintiff 
introduced  all  his  evidence,  the  Court,  upon  motion  of  the  defendant, 
excluded  it  from  the  jury,  and  instructed  them  to  find  a  verdict  in  fa^•or 


794  BOOK    l:     KULES    OF   ADMISSIBILITY  No.  548 

of  the  defendant.  The  jury  returned  a  verdict  as  instructed,  and  the 
Court  rendered  judgment  thereon,  and  it  is  this  judgment  that  we  are  now- 
asked  to  review.  .  .  . 

To  estabhsh  his  case  plaintiff  rehes  upon  certain  letters  and  telegraphic 
communications,  which,  in  order  to  get  a  more  complete  understanding 
of  the  case,  are  here  given  in  extenso: 

"Sunbury,  Pa.,  Nov.  25,  1901.  W.  H.  Cobb,  Esqr.,  Elkins,  W.  Va.  Dear 
Sir:  —  Your  valued  communication  of  22nd  inst.  just  at  hand.  .  .  .  But  we  do 
not  think  the  price  you  offer  ($12.50)  per  acre  for  the  land  on  Otter  Creek  side  is 
sufficient  for  it.  .  .  .  Yours  truly,  Glenn  Boom  &  Lumber  Co.  per  W.  H.  Sager, 
Secty." 

"Elkins,  W.  Va.,  Nov.  27th,  1901.  To  W.  H.  Sager,  care  Glenn  Boom  & 
Lumber  Co.,  Sunbury,  Pa.  Wire  best  cash  price  on  Otter  Creek  land.  My 
order  about  limit.     W.  H.  Cobb." 

"Sunbury,  Pa.,  Nov.  27th,  1901.     Fifteen  dollars.     W.  H.  Sager." 

"Elkins,  W.  Va.,  Nov.  27,  1901.  To  W.  H.  Sager,  care  Glenn  Boom  & 
Lumber  Co.,  Sunbury,  Pa.  Will  take  Otter  Creek  land  at  price  named.  W.  H» 
Cobb." 

"Sunbury,  Pa.,  Nov.  28th,  1901.  To  W.  H.  Cobb,  Elkins,  W.  Va.  Our  Mr. 
Chester  will  reach  Elkins  Monday  to  consult  with  you.  Letter  today.  W\  H. 
Sager." 

"Sunbury,  Pa.,  Nov.  2Sth,  1901.  W.H.Cobb,  Elkins,  W.  Va.  Dear  Sir: 
Your  telegram  of  27th  rec'd.  Our  Mr.  Chester  will  reach  Elkins  about  Monday 
evening  to  arrange  terms  of  sale  with  you  and  enter  into  agreement  with  you  if 
satisfactory  all  around.  Yours  truly,  W.  H.  Sager,  Secty  Glenn  Boom  &  Lumber 
Co." 

The  Court  sustained  the  objection  to  the  introduction  of  all  the 
telegrams,  except  the  first  one  mentioned,  sent  by  the  plaintiff  to  Sager, 
care  of  the  defendant,  inquiring  the  price  of  the  land,  and  also  sustained 
the  objection  to  the  introduction  of  the  letter  dated  November  28, 
190L 

W.  B.  Maxwell  and  J.  P.  Scott,  for  plaintiff  in  error.  A.  Jay  Valentine 
and  L.  Hansford,  for  defendant  in  error. 

Sanders,  Judge  (after  stating  the  case  as  above).  .  .  . 

1.  While  these  letters  and  telegrams  constitute  a  complete  con- 
tract between  the  parties  to  them,  yet,  if  they  were  WTitten  and  sent 
by  some  person  other  than  the  one  who  is  sought  to  be  charged,  it  is 
necessary  that  the  authority  of  the  person  writing  and  sending  them 
should  be  shown.  The  defendant  filed  an  affidavit  with  its  plea  as  pro- 
vided by  §  40,  c.  125  of  the  Code,  denying  that  it  signed  or  authorized 
the  signing  of  the  telegrams  which  are  claimed  to  have  been  received  by 
the  plaintiff.  .  .  .  The  secretary  not  having  authority  by  virtue  of  his 
office  to  make  such  a  contract  as  is  relied  upon  by  the  plaintiff  for  the 
basis  of  this  suit,  the  defendant  cannot  be  held  liable  by  reason  of  the 
letters  and  telegrams  sent  by  Sager,  unless  he  had,  at  the  time,  express 
authority  from  the  corporation  to  make  sale  of  this  land,  or  unless  he 


No.  548  AUTHENTICATION    OF    DOCUMENTS  795 

was  held  out  by  the  defendant  in  such  a  way  as  to  make  it  apparent 
that  he  had  such  authority,  or  unless  the  contract  was  ratified  by  the 
defendant.   .  .  . 

It  is  claimed  that  the  letter  of  the  25th  day  of  November,  1901, 
addressed  to  the  plaintiff"  and  signed  by  Glenn  Boom  &  Lumber  Co.,  per 
W.  H.  Sager,  Secty.,  shows  that  negotiations  were  pending  for  the  sale 
of  this  land,  and  that  the  telegrams  sent  by  Sager  to  the  plaintiff  in  reply 
to  the  plaintift''s  telegram,  having  come  from  the  proper  place,  and  the 
proper  officer  of  the  defendant,  raises  the  presumption  that  they  were 
directed  to  be  sent  by  the  defendant.  There  is  no  such  presumption 
arising  from  the  facts  in  this  case.  While  the  letter  shows  that  it  was 
signed  by  the  defendant,  per  Sager,  Secretary,  yet  that  does  not  show 
that  Sager  had  authority  to  sign  it.  .  .  . 

2.  But  even  if  Sager  had  been  shown  to  have  authority  to  make  this 
sale  for  the  defendant,  the  telegrams  sent  by  Sager  were  not  proper  to  be 
admitted  as  evidence,  because  their  genuineness  had  not  been  shown. 
There  is  nothing  to  show  that  they  had  in  reality  been  written  and 
signed  by  Sager.  From  the  authorities  there  is  some  difficulty  in  deter- 
mining ^vhat  are  original  telegrams  within  the  meaning  of  the  rule  that 
the  best  evidence  must  be  produced.  .  .  .  "Of  course,  there  must  be 
competent  -proof  that  the  alleged  sender  did  actually  send  or  authorize 
the  sending  of  the  message  in  question.  ...  In  proving  a  contract  by 
telegrams,  the  best  evidence  is  the  telegram  containing  the  offer  as 
received  at  the  point  of  destination  and  the  dispatch  containing  the 
acceptance  as  delivered  for  transmission."     Jones  on  Evidence,  §  209. 

Now,  in  this  case,  the  plaintiff  adopted  the  telegraphic  system  as  a 
means  for  making  the  contract  here  relied  upon,  and  made  inquiry  of 
Sager  as  to  what  he  would  take  for  the  land  in  question,  to  which  Sager 
replied,  giving  him  the  price,  which  plaintiff  accepted.  Now,  in  accord- 
ance with  the  above  authority,  the  best  evidence  is  the  telegrams  of  the 
plaintiff  as  received  at  their  destination  and  the  telegram  of  Sager  at  the 
place  at  which  it  was  delivered  for  its  transmission.  But  then,  again, 
there  is  no  evidence,  as  we  have  noticed  above,  that  Sager,  in  sending 
the  telegrams,  was  acting  as  the  agent  of  the  defendant,  and,  of  course, 
for  that  reason  they  were  inadmissible. 

It  is  argued  that  the  telegrams  are  without  the  jurisdiction  of  the 
Court,  and,  even  if  this  is  true,  it  does  not  authorize  the  introduction  of 
copies  of  them  until  their  genuineness  has  been  shown,  and  the  authority 
of  the  person  sending  them  to  do  so.  If  such  a  message  as  the  plaintiff 
claims  was  sent  to  him,  he  could  have  shown  the  authenticity  of  it  when 
delivered  to  be  telegraphed  to  him,  and  then  show,  that,  as  it  was  delivered 
to  the  telegraph  company,  it  was  transmitted  and  delivered  at  the  place 
of  destination.  But  whether  a  copy  is  introduced  or  the  original,  it 
is  necessary  that  the  genuineness  of  it  should  be  shown  before  it  becomes 
competent  evidence.  "  k  dispatch  or  a  copy  of  a  dispatch  purporting 
to  have  been  sent  by  A.  B.,  as  Cashier,  to  C.  D.,  cannot  be  read  in  evi- 


796  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  54<S 

dence  without  first  proving  that  it  was  genuine  paper,  that  is,  that  it 
was  written  and  sent  by  the  party  whose  name  it  bears."  National 
Bank  v.  Bank,  7  W.  Va.  544.  And  also  see  Smith  &  Whiting  v.  Easton,  54 
Md.  138;  Jones  on  Evidence,  §  209.  There  being  no  evidence  to  show  or 
tending  to  show  that  these  telegrams  which  were  claimed  to  have  been 
sent  by  Sager  were  signed  by  him  and  delivered  to  the  telegraph  company 
for  transmission,  the  Court  committed  no  error  in  rejecting  them. 

For  the  foregoing  reasons  we  find  no  error  in  the  judgment  of  the 
Circuit  Court,  and  it  must,  therefore,  be  affirmed.  Affirmed. 


549.   BARRETT  v.   MAGNER 

Supreme  Court  of  Minnesota.      1908 

105  Minn.  118;   117  A^  IF.  245 

Action  in  the  Municipal  Court  of  Minneapolis  to  recover  possession 
of  certain  personal  property  or  $355,  its  value.  Defendant  Daniel  J. 
Molan  alone  answered.  The  case  was  tried  before  Charles  L.  Smith, 
J.,  and  a  jury,  which  rendered  a  verdict  in  favor  of  defendant.  From 
an  order  denying  their  motion  for  a  new  trial,  plaintiffs  appealed.  Re- 
versed and  new  trial  granted. 

March  30,  1907,  appellants  sold  to  B.  J.  Magner,  in  considera- 
tion of  $525,  a  team  of  horses  and  a  set  of  harness.  Magner  paid 
$100  cash  and  executed  a  chattel  mortgage  upon  the  team  and  har- 
ness, and  upon  three  other  horses,  two  other  sets  of  harness,  and  a 
wagon,  as  security  for  the  deferred  payments.  The  mortgage  was  duly 
filed  in  the  office  of  the  city  clerk  of  Minneapolis,  April  2,  1907.  The 
following  May  22d  respondent  Molan  purchased  from  Magner  the  team 
which  had  been  sold  to  him  by  appellants,  and  this  action  was  brought  in 
replevin  to  recover  possession  of  the  team.  Molan  claimed  to  be  an 
innocent  purchaser,  without  notice  of  appellants'  mortgage,  and  upon 
the  issues  presented  recovered  a  verdict  in  the  trial  court.  One  of  the 
issues  at  the  trial  was  that  appellants  had  given  Magner  permission  to 
sell  the  team,  and  that  he  had  accordingly  acted  upon  appellants'  sugges- 
tion and  sold  the  team  to  Molan,  without  conveying  to  him  knowledge 
of  the  fact  that  the  mortgage  was  in  existence.  Magner  testified  that 
after  he  had  purchased  the  team  from  appellants,  and  before  he  knew 
anything  about  Molan,  he  had  a  personal  conversation  with  Mr.  Zimmer- 
man, which  took  place  on  or  about  the  10th  or  12th  of  April,  at  which  he 
told  Mr.  Zimmerman  that  one  of  the  horses  was  balky;  that  he  could 
not  do  anything  with  it  so  far  as  hauling  heavy  loads  was  concerned,  and 
that  he  (Magner)  wanted  to  get  rid  of  the  team ;  that  appellants  would 
have  to  take  it  back  or  let  him  sell  it;  that  Zimmerman  had  replied: 
"Let  them  go.  Sell  them,  if  you  can."  After  this  conversation  Magner 
advertised  the  team  for  sale  in  the  Minneapolis  newspapers,  and  in 


No,  549  AUTHENTICATION    OF   DOCUMENTS  797 

response  Molan  appeared  as  a  prospective  purchaser.  Before  any  deal 
was  closed,  Magner  called  up  appellants  on  the  telephone  and  asked  to 
talk  with  Zimmerman,  and  his  testimony  on  that  point  is  as  follows: 
"They  said  he  was  out,  and  I  says:  'Can  I  talk  with  him?'  And  they 
brought  some  one  to  the  telephone.  Whoever  it  was,  it  was  supposed 
to  be  him.  I  don't  know  whether  it  was  or  not.  I  couldn't  SM'ear  to  it. 
I  had  occasion,  prior  to  the  month  of  May,  1907,  to  call  up  Barrett  & 
Zimmerman  at  different  times  over  the  'phone.  .  .  .  Q.  —  Whom  did 
you  ask  for  over  the  'phone?  A.  —  I  asked  for  Mr.  Zimmerman,  and 
received  the  reply  that  he  was  out,  but  that  they  would  call  him  in ;  and 
I  waited  until  they  answered  again,  and  some  one  else  came  to  the  'phone, 
and  I  told  him  who  I  was,  and  I  said,  '  I  have  a  chance  to  sell  that  team,' 
and  he  said,  'Go  ahead,  sell  them,'  if  I  wanted  to>"  This  testimony 
was  objected  to  upon  the  ground  that  it  was  incompetent,  that  no  proper 
foundation  was  laid,  and  that  it  was  not  shown  that  Mr.  Zimmerman  had 
any  authority  with  reference  to  the  matter  under  consideration. 

Sivion  Meyers,  for  appellants.  James  E.  O'Brien,  for  respondent 
Molan. 

Lewis,  J.  (after  stating  the  case  as  above).  .  .  .  Was  it  error  to 
receive  in  evidence  a  telephonic  conversation  testified  to  by  Molan  as 
having  taken  place  between  himself  and  Moses  Zimmerman,  appellants' 
manager?  .  .  . 

Appellants  make  the  point  that  it  does  not  appear  from  the  telephone 
conversation  whether  Magner  referred  to  the  team  which  he  had  bought, 
and  which  is  involved  in  this  action,  or  not;  that  the  evidence  is  not 
sufficient  to  identify  Zimmerman  as  the  party  at  the  other  end  of  the 
telephone.  In  the  case  note  to  Planters'  Cotton  Oil  Co.  v.  Western 
Union  Telegraph  Company  (Ga.)  6  L.  R.  A.  (N.  S.)  1180,  the  authorities 
upon  this  subject  have  been  collected  and  carefully  analyzed,  and  the 
editor  states  as  a  general  proposition: 

"When  the  admissibility  of  a  telephonic  communication  depends  upon  its 
having  been  made  with  a  particular  individual,  and  not  merely  with  a  person 
connected  with  a  certain  office  or  place  of  business,  it  is  clear  that  the  identification 
of  the  office  or  place  of  business  will  not  be  sufficient  to  lay  the  foundation  for  the 
admission  of  the  telephonic  communication,  unless  under  the  circumstances  of  a 
particular  case  the  identification  of  the  office  amounts  to  a  practical  identification 
of  the  individual." 

For  instance,  in  R.  I.  &  P.  Ry.  Co.  v.  Potter,  36  111.  App.  590,  the 
testimony  of  a  witness  that  he  inquired  by  telephone  of  the  railroad 
telegraph  office,  where  the  consignees  generally  got  their  information, 
with  reference  to  a  certain  shipment,  and  that  some  one  answered  giving 
him  the  information  he  sought,  was  held  sufficient  to  show  prima  facie 
that  the  answer  came  from  an  agent  of  the  railroad  company,  and  to 
make  it  admissible  against  the  railroad  company.  .  .  . 

However,  when  the  communication  is  of  such  a  nature  as  to  require 


798  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  549 

identification  of  the  individual,  there  must  be  evidence  of  such  identity, 
in  addition  to  the  mere  fact  that  the  witness  asked  for  a  connection  with 
his  place  of  business,  and  that  when  the  connection  was  made  some  one 
who  claimed  or  assumed  to  be  such  person  responded.  This  is  illustrated 
by  the  case  of  Oberman  Brewing  Co.  v.  Adams,  35  III.  App.  540.  It  was 
there  held  error  for  the  Court  to  admit  the  testimony  of  the  plaintiff  to 
the  effect  that  he  called  up  the  brewery  over  the  'phone,  and  that  the 
individual  at  the  other  end  of  the  wire  assured  him  that  the  party  inquired 
about  had  authority  to  purchase  goods  on  credit;  the  witness  having 
admitted  that  he  did  not  recognize  the  voice  of  the  individual  who  spoke 
with  him  through  the  'phone,  as  he  never  knew  any  of  the  people  con- 
nected with  the  brewery  company.  .  .  .  While  the  identification  of  the 
voice  of  the  party  responding  at  the  'phone  has,  in  many  cases,  been 
held  sufficient  to  establish  identification  prima  facie,  it  does  not  follow 
that  the  recognition  of  the  voice  is  the  exclusive  means  of  identifying 
the  party.  Surrounding  circumstances  may  be  taken  into  account. 
Davis  ^.Walter  &  Son,  70  Iowa,  465,  30  N.  W.  804;  Wolfe  v.  Mo.  P. 
Ry.  Co.,  97  Mo.  473,  11  S.  W.  49,  3  L.  R.  A.  539,  10  Am.  St.  Rep.  331; 
Godair  v.  The  Nat.  Bank,  225  111.  572,  80  N.  E.  407,  116  Am.  St.  Rep. 
172;  Wigmore  on  Evidence,  §  2155. 

Magner  had  already  testified  that  soon  after  making  the  purchase  of 
the  horses  he  found  that  one  of  them  was  balky;  that  he  then  had  a 
personal  conversation  with  Mr.  Zimmerman,  and  told  him  the  condition 
of  the  horse,  and  that  he  wanted  to  get  rid  of  the  team;  that  Mr.  Zimmer- 
man would  have  to  take  it  back,  or  let  him  sell  it ;  and  that  Zimmerman 
told  him  to  sell  them  if  he  wanted  to.  Assuming  that  the  sale  was 
consummated  entirely  by  Zimmerman  as  appellants'  manager,  and 
that  such  a  personal  conversation  had  taken  place,  we  are  inclined  to  the 
opinion  that  sufficient  ground  was  laid  for  the  introduction  of  the  evidence 
as  to  the  telephone  conversation.  While  Magner  did  not  identify 
Zimmerman  as  the  person  who  answered  the  telephone,  a  failure  in  that 
respect  did  not  necessarily  make  the  conversation  inadmissible.  Had 
there  been  no  previous  personal  conversation,  a  failure  to  identify  the 
party  under  such  circumstances  might  not  be  sufficient  to  make  it  admissi- 
ble prima  facie.  Afterwards,  in  the  course  of  the  trial,  Mr.  Zimmerman 
testified  that  he  never  had  any  conversation  whatever  with  Magner, 
either  personally  or  by  telephone,  and  that  he  had  never  in  any  way 
consented  that  the  mortgaged  property  might  be  sold  free  from  the 
mortgage.  But,  conceding  that  such  denial  conclusively  overcame  the 
effect  of  the  evidence  already  introduced,  no  motion  was  made  to  strike 
it  out,  and,  so  far  as  the  question  now  before  the  Court  is  concerned,  we 
hold  that  the  evidence  was  competent.  Conkling  v.  Standard  Oil  Co. 
(Iowa)  116  N.  W.  822.  .  .  . 

The  jury  returned  a  general  verdict  in  favor  of  defendant.  It  was 
error  to  submit  to  the  jury  the  question  of  the  sufficiency  of  the  description 
in  the  mortgage,  for  the  reason  discussed  in  the  second  branch  of  the 


No.  552  AUTHENTICATION    OF    DOCUMENTS  799 

opinion;    and,  it  being  impossible  to  determine  upon  which  ground  the 
jury  based  the  verdict,  a  new  trial  must  be  granted.     Peterson  v.  C,  M. 
&  St.  P.  Ry.  Co.,  3G  Minn.  399,  31  N.  W.  515. 
Reversed.     New  trial. 


Topic  3.    Authentication  by  Official  Custody 

550.   ADAMTHWAITE  v.   SYNGE 

Nisi  Prius.     1816 

4  Camp.  372;   1  Stark.  183 

Debt  on  a  judgment  recovered  in  the  Court  of  Exchequer  in  Ireland. 
The  witness  called  to  prove  an  examined  copy  of  the  judgment,  stated, 
that  at  the  request  of  an  attorney  in  Dublin,  he  went  to  the  building  where 
the  four  courts  are  held,  and  there  compared  the  copy  produced  with  a 
parchment  roll  produced  by  the  attorney. 

Lord  Ellenborough  deemed  this  evidence  insufficient,  without 
either  showing  that  the  original  came  from  the  proper  place  of  deposit  or 
out  of  the  hands  of  the  officer  in  whose  custody  the  records  of  the  Ex- 
chequer were  kept. 

Coiirthopc,  for  the  plaintiff,  suggested,  that  from  the  contents  of 
the  copy,  it  would  appear,  that  the  original  was  a  record  of  the 
Exchequer. 

Ellenborough,  L.  C.  J. —  It  must  in  the  first  place  be  proved  by  the 
witness  that  the  original  came  out  of  the  proper  custody ;  this  cannot  be 
shown  by  any  light  reflected  from  the  record  itself,  which  may  have  been 
improperly  placed  where  it  was  found. 

It  then  appeared,  that  the  records  of  the  different  courts  in  Dublin 
were  all  kept  in  one  room,  but  in  different  presses. 

Ellenborough,  L.  C.  J. —  Since  the  records  are  kept  in  different 
presses,  the  same  difficulty  still  presents  itself;  it  is  very  distressing  to 
strain  the  rules  of  law,  when  evidence  might  so  easily  have  been  procured. 
If  the  witness  had  stated,  that  the  record  came  out  of  the  hands  of  the 
proper  officer,  it  would  have  been  sufficient.  The  evidence  must  be 
launched  by  proving  that  the  document  came  either  from  the  proper 
person  or  proper  place;  till  then  I  cannot  look  upon  it  as  a  record.  To 
admit  this  evidence  would  afford  a  precedent  for  laxity  of  proof  in  other 
cases. 

Plaintiff  nonsuited. 


Topic  4.    Authentication  by  Official  Seal 

552.     J.  C.  Jeaffreson.  A   Book  about  Lawyers.  (1S67)  I,  21.       The  Great 
Seal.     In  days  when  writing  was  an  art  almost  entirely  confined  to  religions  per- 


800  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  552 

sons,  sealing  was  a  far  more  important  and  efficacious  means  of  testifying  the  gen- 
uineness of  documents  than  it  is  at  present.  ...  In  the  feudal  ages  any  needy 
clerk  who  had  turned  his  attention  to  caligraphy,  could  have  perpetrated  forgeries 
in  perfect  confidence  that  they  would  endure  the  scrutiny  of  the  most  accurate 
and  skilful  of  living  readers.  But  the  necessity  for  sealing  placed  almost  insuper- 
able obstacles  in  the  way  of  those  who  w^ere  best  qualified  and  most  desirous  to 
triumph  over  right  by  fictitious  deeds.  It  was  no  easy  matter  to  procure  seals 
of  any  kind ;  it  was  very  difficult  to  obtain  for  dishonest  ends  the  temporary  posses- 
sion of  well-known  seals.  .  .  .  Great  barons,  ecclesiastical  dignitaries,  secular  and 
religious  corporations,  had  distinctive  seals  at  an  early  date;  Init  they  were  con- 
fided to  the  care  of  trusty  keepers,  and  were  guarded  with  jealousy.  When  an 
official  seal  was  used,  its  keeper  brought  it  with  reverential  care  from  its  customary 
place  of  concealment,  and  it  was  not  applied  to  any  document  without  satisfactory 
cause  shown  why  its  sanction  was  required.  An  obscure  tamperer  with  parch- 
ments could  not  hope  to  lay  his  hand  on  one  of  these  important  seals.  If  he 
procured  an  impression  of  a  respected  seal,  he  could  not  obtain  a  fac-simile  of  the 
original.  Seal-engraving  was  an  art  in  which  there  were  but  few  adepts;  and 
the  artists  were  for  the  most  part  men  to  whom  no  rogue  would  dare  propose  the 
hazardous  task  of  counterfeiting  an  official  device.  .  .  .  The  forger  of  deeds  in 
older  time  had  not  overcome  all  difficulties,  when  he  had  surreptitiously  obtained 
a  seal.  The  mere  act  of  sealing  was  by  no  means  the  simple  matter  that  it  is 
now  a  days.  To  place  the  seal  on  fit  labels  rightly  placed,  and  in  all  respects  to 
make  the  fictitious  deed  an  accurate  imitation  of  the  intended  deeds  to  which 
the  particular  seal  of  a  particular  great  man  was  applied,  were  no  trifling  feats  of 
dexterity  ere  scriveners  had  congregated  into  fraternities,  and  law-stationers  had 
been  called  into  existence.  To  get  a  supply  of  suitable  wax  was  an  undertaking 
by  no  means  easy  in  accomplishment.  Sealing-wax  was  not  to  be  bought  by  the 
pound  or  stick  in  every  street  of  feudal  London.  Cire  d'Espagne  —  sealing-wax 
akin  to  the  bright,  vermilion  compound  now  in  use  —  was  not  invented  till  the 
middle  of  the  sixteenth  century.  William  Howe  assures  his  readers  that  "  the 
earliest  letter  known  to  have  been  sealed  with  it  was  written  from  London  August 
3,  1554,  to  Heingrave  Philip  Francis  von  Daun,  by  his  agent  in  England,  Gerrand 
Herman,"  and  long  after  that  date  the  manufacture  of  sealing-wax  was  a  secret 
known  to  comparatively  few  persons.  In  feudal  England  there  were  divers 
adhesive  compounds  used  for  sealing.  Every  keeper  of  an  official  seal  had  his 
own  recipe  for  wax.  Sometimes  the  wax  was  white;  sometimes  it  was  yellow; 
occasionally  it  was  tinged  with  vegetable  dyes;  most  frequently  it  was  a  mess 
bearing  much  resemblance  to  the  dirt-pies  of  little  children.  But  its  combination 
was  a  mystery  to  the  \'ulgar;  and  no  man  could  safely  counterfeit  a  sealing- 
impression  who  had  not  at  command  a  stock  of  a  particular  sealing-earth  or  paste, 
or  wax.  Eyes  powerless  to  detect  the  falsity  of  a  forger's  hand\ATiting  could  see 
at  a  glance  whether  his  wax  was  of  the  right  colour.  Moreover,  this  practice  of 
attesting  private  deeds  by  public  or  well-known  seals  gave  to  transactions  a 
publicity  which  was  the  most  valuable  sort  of  attestation.  A  simple  knight 
could  not  obtain  the  impression  of  his  feudal  chieftain's  seal  without  a  formal 
request,  and  a  full  statement  of  the  business  in  hand.  The  wealthy  burgher,  who 
obtained  permission  to  affix  a  municipal  seal  to  a  private  parchment,  proclaimed 
the  transaction  which  occasioned  the  request.  The  thriving  freeholder,  who  was 
allowed  the  use  of  his  lord's  graven  device,  had  first  sought  for  the  privilege 
openly.  "Quia  sigillum  meum  plurimis  est  incognitum "  were  the  words  intro- 
duced into  the  clause  of  attestation;   and  the  words  show  that  publicity  was  his 


No.  554  AUTHENTICATION    OF    DOCUMENTS  801 

object.     And  to  attain  that  object  the  seal  was  pressed  in  open  court,  in  the  pres- 
ence of  many  witnesses.^ 

553.  Chief  Baron  Gilbert.  Evidence,  p.  19  {ante  1726).  The  distinc- 
tion is  to  be  made  between  seals  of  public  and  seals  of  private  credit; 
for  seals  of  public  credit  are  full  e\idence  in  themselves,  without  any 
oath  made;  but  seals  of  private  credit  are  no  evidence  but  by  an  oath 
concurring  to  their  credibility.  Seals  of  public  credit  are  the  seals  of 
the  King,  and  of  the  public  courts  of  justice,  time  out  of  mind. 

554.  Theory  of  Authentication  by  Seal.-  —  When  a  document 
bearing  a  purporting  official  seal  —  a  notary's  certificate  of  protest,  for 
example  —  is  offered  in  court,  then,  if  the  Court  accepts  it  for  the 
offered  purpose,  this  involves  the  assumption  of  four  things;  namely, 

(1)  that  there  is  an  official  of  that  name, 

(2)  that  this  is  genuinely  his  seal's  impression, 

(3)  that  this  seal-impression  was  affixed  by  him;  and,  furthermore, 

(4)  that  it  is  allowable  to  receive  his  hearsay  official  statement  as 
testimony  to  the  fact  stated  by  him. 

The  first  three  of  these  elements  go  to  the  matter  of  the  genuineness  of 
the  document;  that  is  to  say,  the  document  purports  to  be  that  of  J.  S., 
a  notary,  asserting  a  certain  fact,  and  the  net  result  of  the  first  three 
elements  is  that  we  accept  as  a  fact  that  J.  S.,  a  notary,  did  make  this 
written  assertion.  If  there  were  a  signature  only,  with  no  seal,  and  the 
document  was  similarly  accepted,  the  second  and  third  elements  would 
merge  {i.e.,  the  purporting  J.  S.'s  signature  is  accepted  as  WTitten  by 
him) ;  it  is  only  in  the  case  of  a  seal  that  they  are  distinct  (for  it  might 
be  his  seal's  impression  yet  and  another  person  might  have  affixed  it). 
Thus  it  is  that  the  second  and  third  elements  are  always  judicially  united, 
i.e.,  any  presumption  of  genuineness,  whenever  made,  covers  both 
elements;  there  is  no  case  presuming  the  seal's  impression  to  have  been 
of  his  seal  but  not  affixed  by  him,  nor  vice  versa. 

Hence,  in  effect,  the  situation,  for  seal  or  signature  alike,  is  reducible 
to  the  following  elements  and  is  so  in  practice  treated:  (1)  that  there  is 
an  official  of  that  name;  (2)  (3)  that  this  document  was  genuinely  executed 
by  him.  The  remaining  element  (4),  that  this  hearsay  statement  of  his 
is  admissible,  is  ob^•iously  concerned  with  the  Hearsay  rule  only,  and 
may  therefore  be  dismissed  as  having  no  present  relation  with  the  princi- 
ple of  Authentication. 

^  [For  an  account  of  the  history  of  the  seal,  in  its  other  function  of  making 
the  document  unimpeachable  as  a  correct  memorial  of  an  oral  transaction,  see 
post,  No.  820.] 

^  [From  the  present  Compiler's  "Treatise  on  Evidence"  (1905),  Vol.  Ill, 
§  2161.] 


802  BOOK  i:     RULES   OF   ADMISSIBILITY  No.  555 

555.  CHURCH  v.   HUBBART 
Supreme  Court  of  the  United  States.     1804 

2  Cr.  186,   238 
[Printed  ante,  as  No.  436;   Point  2  of  the  opinion.] 

556.  GRISWOLD   v.   PITCAIRN 
Supreme  Court  of  Errors  of  Connecticut.     1816 

2  Conn.  85,  90 

Assumpsit  on  a  charter  party;  plea  in  bar,  a  judgment  of  the  same 
cause  in  the  Supreme  Court  of  Denmark,  at  Copenhagen,  affirming  a 
judgment  of  the  Sea  Court.  A  purporting  copy  of  this  record  was 
offered.  The  record  was  authenticated  by  the  great  seal  of  Denmark. 
There  was  no  certificate  that  the  decree,  &c.  offered  in  evidence,  was  a 
copy  of  record,  but  below  the  seal  was  the  signature  Colbiornsen,  without 
any  addition  of  his  official  character.  The  translator  of  the  record, 
deposed,  that  he  knew  the  seal  attached  to  the  original  to  be  the  royal 
seal  of  the  kingdom  of  Denmark.  J.  M.  Forbes,  Esq.  agent  of  the 
United  States  at  Copenhagen,  certified,  that  the  signature  at  the  foot  of 
the  record  was  that  of  the  counsellor  of  conferences,  Colbiornsen,  chief 
judge  of  the  highest  court.  To  the  admission  of  this  record  the  plaintiff 
objected. 

The  Court  also  instructed  the  jury,  that  if  they  should  find  the  docu- 
ment shown  in  evidence  of  the  proceedings  in  the  court  of  Denmark  to 
be  genuine,  —  and  it  was  to  be  presumed  to  be  genuine  until  the  contrary 
was  shown,  —  their  verdict  upon  the  second  issue  should  be  for  the 
defendant.  The  jury  having  found  a  verdict  for  the  defendant  on  both 
issues,  the  plaintiffs  moved  for  a  new  trial;  and  the  questions  arising  on 
such  motion  were  reserved  for  the  consideration  and  advice  of  the  nine 
judges. 

The  case  was  very  fully  discussed,  by  Daggct  and  Cleaveland,  in  sup- 
port of  the  motion,  and  by  Latv  and  Brainard,  contra. 

The  former  contended,  among  other  points,  which,  from  the  decision 
of  the  Court,  it  has  become  unnecessary  to  state,  1.  That  the  writing 
given  in  evidence  as  the  record  of  a  court  in  Denmark,  was  not  properly 
.  authenticated  as  a  genuine  document.  Moses  v.  Thornton,  8  Term 
Rep.  303.  Henry  v.  Adey,  3  East.  221.  2.  That  admitting  the  docu- 
ment to  be  genuine,  yet  it  was  not  a  legal  exemplification.  It  does  not 
purport  to  be  a  copy  of  an  original  record ;  nor  does  it  appear  from  extrin- 
sic evidence  that  it  was  so.  2  Cranch,  237,  8.  8  Term  Rep.  307,  8. 
It  is  signed  by  an  indi\'idual,  without  any  addition  to  show  that  he  was 


No.   556  AUTHENTICATION    OF   DOCUMENTS  803 

an  officer  of  the  court,  or  if  he  was,  that  he  was  then  acting  in  his  official 
capacity.  Nor  does  it  appear,  by  whom  or  by  what  authority  the  seal 
was  affixed.  .  .  . 

On  the  other  side,  it  was  insisted,  1.  That  the  record  of  the  Danish 
court  being  authenticated  under  the  national  seal,  was  proved  by  the 
highest  evidence  which  could  be  given.  The  affixing  of  a  national  seal 
to  an  instrument,  is  symbolical  language,  importing  absolute  verity, 
which  the  courts  of  other  nations  judicially  take  notice  of,  and  give 
credit  to.     Swift's  Ev.  8.     Peake's  Ev.  73.  (q).     4  Dall.  416.  .  .  . 

Swift,  Ch.  J.  ...  It  is  contended  for  the  plaintiffs,  that  this  record 
ought  not  to  have  been  admitted  in  evidence,  because  it  is  not  duly 
authenticated,  and  does  not  appear  to  have  been  certified  by  any  officer 
having  power  to  do  it.  But  this  Court  does  not  know  the  form  of  making 
up,  attesting  or  certifying  their  record.  If  it  appear  to  be  a  judicial 
proceeding  under  the  great  seal,  it  is  to  be  presumed,  that  all  the  formal- 
ities required  by  their  law,  have  been  complied  with.  This  appears  to 
be  the  record  of  a  judgment  rendered  in  a  court  of  the  kingdom  of  Den- 
mark, under  the  great  seal  of  the  king.  This  seal  proves  itself,  and  the 
Court  is  bound  to  take  judicial  notice  of  it.  This  is  all  the  evidence  re- 
quired by  our  law  to  prove  a  foreign  judgment,  and  the  record  was 
properly  admitted.  .  .  . 

I  would  not  advise  a  new  trial. 

Gould,  J.  ...  It  is  first  objected  that  the  record  in  question  is  not 
duly  authenticated,  —  i.e.  not  accompanied  with  sufficient  evidence  of 
its  being  genuine.  But,  in  the  proof  of  foreign  documents,  there  must 
from  the  nature  and  necessity  of  the  case  be  some  ultimate  limit,  beyond 
which  no  solemnity  of  authentication  can  be  required.  And  the  public 
national  seal  of  a  Kingdom  or  sovereign  State  is,  by  the  common  consent 
and  usage  of  civilized  communities,  the  highest  evidence  and  the  most 
solemn  sanction  of  authenticity,  in  relation  to  proceedings  either  diplo- 
matic or  judicial,  that  is  known  in  the  intercourse  of  nations.  The  seals 
of  foreign  municipal  courts,  on  the  contrary,  must  be  proved  by  extrinsic 
evidence.  ...  In  the  present  case,  the  proof  of  the  genuineness  of  the 
record,  given  in  evidence,  is,  in  point  of  solemnity,  the  highest  possible, 
the  national  seal  of  the  kingdom  of  Denmark.  And,  as  if  the  production 
of  the  seal  were  not,  of  itself  sufficient;  its  genuineness  has  been  proved 
by  evidence  aliunde,  to  which  there  was  no  objection.  .  .  . 

,  But  there  is  no  evidence,  it  is  said,  that  the  seal  was  affixed  by  a 
proper  officer.  Assuming  the  seal  to  be  genuine,  that  fact  must  of  course 
be  presumed,  unless  the  contrary  is  shown.  For  any  higher  evidence  of 
the  fact,  appearing  upon  the  face  of  the  record,  than  the  seal  itself  imports 
is  impossible,  and  to  require  extrinsic  evidence  of  it  would  be  to  subvert 
the  rule  itself  that  a  national  seal  is  the  highest  proof  of  authenticity, 
and  as  such,  is  taken  notice  of,  judicially,  by  Courts  of  justice  in  other 
States. 

The  Danish  record,  then,  was  clearly  admissible;   and  if  so,  I  am  at  a 


804  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  556 

loss  to  discover  how  the  direction  to  the  jury  could  have  been  substantially 
otherwise  than  it  was;  except,  indeed,  that,  in  relation  to  the  genuine- 
ness of  the  seal,  it  was  somewhat  more  qualified  in  favor  of  the  plaintiffs 
than  it  might  have  been.  .  .  . 

The  other  judges  concurred,  except  Goddard,  J.,  who  declined  acting, 
having  been  of  counsel  in  the  cause. 

New  trial  not  to  be  granted. 

557.   WALDRON   v.   TURPIN 

Supreme  Court  of  Louisiana.     1840 

15  La.  552 

Appeal  from  the  Court  of  the  First  Judicial  District. 

This  is  an  action  on  two  promissory  notes  for  five  hundred  and 
ninety-three  dollars  and  twenty-three  cents,  and  five  hundred  and 
ninety-five  dollars  and  thirty-seven  cents,  signed  by  White,  Turpin  & 
Nephew,  a  commercial  firm  residing  and  doing  business  at  Grand  Gulf, 
in  the  State  of  Mississippi,  dated  the  7th  April,  1838,  payable  on  the  15th 
of  November,  and  1st  of  December  following,  to  the  order  of  the  plaintiffs, 
at  the  Grand  Gulf  Railroad  and  Banking  Company,  in  Mississippi,  and 
protested  for  non-payment  at  maturity.  .  .  .  The  defendant  pleaded  the 
general  issue,  and  avers  that  he  is  no  way  liable  to  pay  said  notes;  and 
that  one  of  them  has  been  extinguished  by  a  draft  given  by  him.  He 
prays  to  be  dismissed  from  said  suit. 

The  principal  question,  on  which  the  whole  case  turns,  is  embraced 
in  a  bill  of  exceptions,  taken  by  the  defendant's  counsel  to  the  admissibility 
of  the  protest  of  the  notes  in  evidence,  to  prove  demand  of  payment  at  the 
place  where  made  payable,  on  the  ground  that  the  signature  and  official 
capacity  of  the  notary  or  justice  of  the  peace,  who  purports  to  have  made 
the  protest,  icas  not,  and  should  he  first  proved.  The  Court  overruled  the 
exception,  and  admitted  the  protests  to  go  in  evidence,  without  such 
preliminary  proof,  wherefore  the  defendant's  counsel  took  his  bill  of 
exception  to  the  opinion  of  the  Court. 

There  was  judgment  for  the  plaintiffs,  and  the  defendant  appealed. 

Wharton,  for  the  plaintiffs,  insisted  on  the  affirmance  of  the  judgment. 
He  contended  that,  by  the  commercial  law,  it  was  not  required  to  prove 
signatures,  or  the  authority  of  notaries  to  protest  bills  and  notes.  That 
in  aid  of  commerce,  this  preliminary  proof  was  dispensed  with. 

T.  Slidell,  for  the  defendant,  argued,  .  .  .  that  there  was  no  evidence 
authenticating  the  signature  and  capacity  of  the  notary;  but  the  Court, 
as  defendant  contends,  improperly  permitted  the  introduction  of  said 
protests. 

Morphy,  J. — This  action  is  brought  on  two  promissory  notes,  dated 
at  Grand  Gulf,  in  the  State  of  Mississippi,  drawn  to  the  order  of  plaintiff, 
by  the  firm  of  White,  Turpin  &  Nephew,  of  which  defendant  was  a  mem- 


No.   558  AUTHENTICATION    OF    DOCUMENTS  805 

ber,  and  made  payable  at  the  Grand  Gulf  Railroad  and  Banking  Com- 
pany, in  that  State.  Defendant  pleaded  the  general  issue  and  novation, 
us  to  one  of  the  two  notes.  Judgment  being  rendered  in  favor  of  the 
plaintiffs,  this  appeal  was  taken.  To  prove  the  demand  at  the  place 
mentioned  in  the  body  of  the  notes  sued  on,  two  documents  were  offered 
in  evidence,  purporting  to  be  notarial  protests  of  the  notes.  Their 
introduction  was  opposed,  on  the  ground  that  no  proof  had  been  adduced 
of  the  signature  and  official  capacity  of  the  person  who  made  them. 
This  objection  having  been  overruled  by  the  judge,  a  bill  of  exceptions  to 
his  opinion  was  taken,  to  which  our  attention  has  been  particularly 
requested. 

We  understand  the  general  rule  on  this  subject  to  be,  that  the  signa- 
ture and  official  capacity  of  persons  assuming  the  character  of  public 
officers  in  foreign  countries,  must  be  proved  when  contested  in  a  court  of 
justice.  The  different  States  of  the  Union  must,  we  apprehend,  be 
viewed  in  the  light  of  foreign  countries,  with  regard  to  each  other,  so  far 
as  their  municipal  laws,  and  the  individual  sovereignty  retained  by  each 
of  them,  are  concerned;  and  the  Courts  of  one  State  can  have  or  be 
presumed  to  have  no  more  knowledge  of  the  signature  and  capacity  of  the 
public  officers  of  another  State  than  of  any  other  foreign  country. 

To  the  above  rule  there  exists  an  exception  as  regards  notarial  protests  < 
of  foreign  bills  of  exchange.  It  has  been  introduced  in  aid  of  commerce,  \ 
founded  wholly  upon  the  custom  of  merchants  and  public  convenience; 
it  has  been  acknowledged  and  maintained  by  the  Courts  of  law,  and  such 
protests  receive  credit  everywhere  without  any  auxiliary  evidence.  We 
are  now  asked  to  extend  this  exception  to  the  protests  of  two  notes, 
executed  and  payable  in  the  State  of  Mississippi,  and  to  receive  such 
protests  as  evidence  per  se,  of  a  demand  of  payment  at  the  indicated  place. 
No  adjudged  cases  have  been  shown  to  us,  nor  have  we  been  able  to  find 
any  in  which  the  extension  contended  for  has  been  allowed,  nor  do  we 
see  any  good  reason  why  it  should.  The  importance  and  almost  universal 
use  of  bills  of  exchange  as  the  means  of  remittances  from  one  country  to 
another;  the  great  commercial  facilities  they  have  found  to  offer;  and 
the  delay  and  trouble  of  procuring  evidence  from  distant  places  are 
among  the  grounds  upon  which  this  exception  has  grown  up.  They  do 
not  apply  to  promissory  notes,  or  other  moneyed  obligations,  more 
limited  in  their  circulation  and  general  usefulness  to  foreign  trade. 

We  are  then  of  opinion  that  the  documents  objected  to  are  improperly 
admitted,  and  do  not  establish  a  demand  of  payment  at  the  place  men- 
tioned in  the  notes.  Without  this  no  recovery  can  be  had.  3  Mart.  N. 
S.  423;   10  Id.  552. 

It  is  therefore  ordered,  adjudged  and  decreed,  that  the  judgment  of 
the  District  Court  be  avoided  and  reversed,  and  that  there  be  judgment 
as  in  a  case  of  nonsuit ;  the  plaintiffs  and  appellees  paying  the  costs  in 
both  courts. 

558.     Statutes.     [Printed  ante,  as  No.  429]. 


806  BOOK   l:     RULES    OF   ADMISSIBILITY  No.  559 

559.   COMMONWEALTH  v.  PHILLIPS 

Supreme  Judicial  Court  of  Massachusetts.     1831 

11  Pick.  28,  30 

Information  praying  for  additional  punishment  for  one  convicted 
for  the  third  time  of  larceny.  The  prior  convictions  were  to  be  proved. 
It  was  objected  that  the  exemphfication  of  the  record  of  the  conviction, 
before  the  Supreme  Judicial  Court  in  Middlesex,  certified  by  the  clerk, 
under  the  seal  of  the  Court,  was  not  properly  authenticated  without  the 
certificate  of  the  chief  justice,  that  the  person  certifying  was  the  clerk 
duly  authorized,  and  that  it  was  not  competent  evidence  of  such  convic- 
tion to  go  to  the  jury.  On  this  point  the  prisoner's  counsel  remarked, 
that  the  clerk  is  appointed  by  the  Supreme  Court;  that  his  certificate 
used  before  another  tribunal,  in  a  difl^erent  place,  has  no  validity  "proprio 
vigore,"  because  the  judges  of  other  courts  have  no  means  of  knowing 
whether  he  is  the  clerk  lawfully  appointed,  or  a  usurper  of  the  office; 
and  that  the  seal  of  the  Court,  without  a  clerk's  signature,  is  insufficient, 
for  a  stranger  might  get  possession  of  the  seal. 

Shaw,  J.  C. — Without  expressing  any  opinion  as  to  the  requisites 
for  giving  authenticity  to  records  of  other  governments  and  states  so  as 
to  entitle  them  to  be  received  as  evidence  in  this  commonwealth,  the  Court 
are  of  the  opinion,  that  a  copy  of  the  proceedings  of  any  court  of  record 
in  this  Commonwealth,  certified  to  be  a  true  copy  of  the  record  of  such 
court,  by  the  clerk  of  such  court,  under  the  seal  thereof,  is  competent 
evidence  of  the  existence  of  such  record  in  every  other  judicial  tribunal 
in  the  Commonwealth. 

560.     Statutes.     [Printed  ante,  as  No.  393.] 

561.   GARDEN  CITY  SAND   CO.   v.   MILLER 

Supreme  Court  of  Illinois.     1895 
157  ///.  225;  41  A^  E.  753 

Appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon.  L.  C. 
Collins,  Judge,  presiding.  Appellees,  as  vendors,  filed  their  bill  for 
specific  performance  against  appellant,  as  assignee  of  one  Harpold, 
vendee  of  certain  lands  in  Manitou  county,  State  of  Michigan.  .  .  . 

On  the  hearing  there  was  offered  in  evidence  a  transcript  of  certain 
proceedings  in  chancery  in  the  Circuit  Court  of  ISIackinac  county, 
Michigan.  .  .  .  The  transcript  of  the  proceedings  in  chancery  in  the 
Circuit  Court  of  Mackinac  county,  relating  to  the  matter  of  guardianship 
referred  to  above,  is  certified  by  only  the  clerk  of  that  court,  the  judge 
not  having  added  his  certificate  that  the  clerk's  attestation  is  in  due 
form.     A  decree  was  entered  for  complainants,  as  prayed. 


No.  561  AUTHENTICATION    OF    DOCUMENTS  '   807 

Edwin  C.  Crawford,  for  appellant.  .  .  .  The  records  of  the  proceed- 
ings of  a  Court  of  another  State  must  be  proved,  in  a  suit  in  this  State, 
by  the  attestation  of  the  clerk  of  the  former  court  and  the  seal  of  the  same, 
together  with  a  certificate  of  the  judge  of  said  court  that  said  attestation 
is  in  due  form.  U.  S.  Rev.  Stat.  (2d  ed.)  1878,  title  13,  chap.  17;  McMil- 
lan V.  Lovejoy,  115  111.  498.  .  .  . 

F.  IV.  Becker,  for  appellees.  .  .  .  The  act  of  Congress  on  evidence 
is  not  exclusive.  .  .  .  Section  13,  chapter  51,  of  the  Revised  Statutes, 
supplements  it,  and  the  common  law  rule  as  to  transcripts  of  record  of  a 
Court  in  this  State  introduced  in  another  court  in  this  State  is  the  same 
as  in  Massachusetts.  Commonwealth  v.  Phillips,  11  Pick.  27  [ante,  No. 
559].   .  .  . 

Per  Curiam: — The  transcript  of  the  Chancery  Court  of  Michigan 
which  authorized  the  guardian  to  make  the  sale  and  approved  the  con- 
tract is  attested  by  the  certificate  of  the  clerk,  under  the  seal  of  the  Court. 
The  attestation  is  not  in  accordance  with  the  act  of  Congress,  which 
requires  the  presiding  judge  to  certify  the  attestation  of  the  clerk  is  in 
due  form.  The  admission  of  that  transcript  in  evidence  is  assigned  as 
error. 

Prior  to  1872  there  was  no  statute  in  this  State  providing  for  the  man- 
ner of  attestation  of  the  judgments  of  the  Courts  of  another  State  to 
make  the  same  evidence  in  the  courts  of  this  State.  In  the  absence  of 
such  legislation  this  Court  held,  in  numerous  cases,  that  where  a  judg- 
ment of  a  foreign  State  was  sought  to  be  introduced  in  evidence  in  the 
courts  of  this  State  it  was  necessary  that  it  should  be  attested  by  the 
clerk,  under  the  seal  of  the  Court,  together  with  a  certificate  of  the 
presiding  judge  that  the  attestation  was  in  due  form.  Among  the  cases 
declaring  such  rule  we  refer  to  Brackett  v.  People  ex  rel.,  64  111.  170. 

By  section  13,  chapter  51,  of  Kurd's  Statutes,  enacted  in  1872,  it 
was  declared  by  the  Legislature  of  this  State  that  "the  papers,  entries 
and  records  of  Courts  may  be  proved  by  a  copy  thereof,  certified  under 
the  hand  of  the  clerk  of  the  Court  having  the  custody  thereof,  and  the 
seal  of  the  Court,  or  by  the  judge  of  the  court  if  there  be  no  clerk." 
Since  that  legislation,  the  question  of  the  admissibility  in  evidence  of 
the  transcripts  of  records  of  the  Courts  of  other  States  has  been  frequently 
before  this  Court.  .  .  . 

Before  the  enactment  of  1872  the  records  of  judgments  of  Courts  of 
this  State,  when  offered  in  evidence  in  other  Courts  of  this  State,  were 
attested  as  at  common  law.  There  was  no  statutory  provision  on  the 
subject.  At  common  law  the  manner  of  authentication  was  by  certificate 
of  the  officer  having  custody  of  the  record,  or  by  exemplification,  —  that 
is,  affixing  the  Great  Seal  of  State.  It  has  been  universally  held  a 
sufficient  authentication  of  a  record  of  a  judgment  of  a  Court  of  a  State, 
when  offered  in  evidence  in  another  Court  of  the  same  State,  that  it  be 
certified  by  the  clerk,  under  the  seal  of  the  Court.  This  was  evidence  at 
common  law,  and  was  the  rule  in  this  State  when  the  act  of  1872  was 


808  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  561 

adopted.  So  far  as  the  admissibility  of  evidence  was  concerned,  section 
13  of  chapter  51  made  no  new  rule  with  reference  to  domestic  judgments. 
That  section  changed  no  rule  of  law  by  adding  to  or  limiting  the  admissi- 
bility of  evidence  of  domestic  judgments  within  the  Courts  of  this  State 
from  what  the  rule  was  at  common  law.  The  intention  of  the  Legislature 
could  not  have  been  to  declare  as  a  rule  of  evidence  that  which  had 
immemorially  existed.  By  the  enactment  of  section  13  of  chapter  51 
there  is  no  limitation  as  to  the  class  of  judgments  to  be  so  authenticated, 
and  the  language  used  includes  both  domestic  and  foreign  judgments. 

The  Act  of  Congress  as  to  the  manner  of  authentication  of  judgments 
of  sister  States  does  not  abrogate  common  law  proof,  and  is  not  exclusive. 
The  States  may  pass  laws  as  to  what  shall  be  evidence  of  foreign  records 
within  their  Courts,  not  inconsistent  with  the  Acts  of  Congress  yet 
waiving  some  of  the  requirements  of  that  act.  Ordway  v.  Conroe,  4 
Wis.  45;  Goodwyn  v.  Goodwyn,  25  Ga.  203;  Karr  v.  Jackon,  28  Mo., 
316;  Dean  v.  Chapin,  22  Mich.  275;  Ex  parte  Povall,  3  Leigh,  816; 
Kingman  v.  Cowles,  103  Mass.  283. 

The  record  of  the  Chancery  Court  of  Michigan,  though  not  certified 
in  accordance  with  the  Act  of  Congress,  was  authenticated  in  consonance 
with  section  13  of  chapter  51  of  the  Revised  Statutes,  and  was  admissible 
in  evidence.  .  .  . 

We  find  no  sufficient  evidence  in  the  record  to  justify  the  vendee  in 
his  refusal  to  perform  the  contract.  The  decree  of  the  Circuit  Court 
will  therefore  be  affirmed.  Degree  affirmed. 


562.  WILLOCK  v.   WILSON 
Supreme  Judicial  Court  of  Massachusetts.     1901 
178  Mass.  68;  59  N.  E.  757 

Contract  on  a  judgment  obtained  in  the  District  Court  of  Shawnee 
County,  Kansas,  Third  Judicial  District,  by  the  plaintiff,  a  resident  of 
the  State  of  Missouri,  against  Edwin  E.  Wilson,  of  this  Commonwealth, 
and  William  B.  Johnson,  of  the  State  of  Vermont,  copartners,  having  a 
usual  place  of  business  in  Boston  in  this  Commonwealth.  Writ  dated 
August  14,  1899. 

At  the  trial  in  the  Superior  Court,  before  Hardy,  J.,  the  plaintiff 
offered  in  evidence  a  certificate  of  the  proceedings  in  the  Kansas  court. 
.  .  .  The  certificate  of  proceedings  purported  to  be  attested  by  the  clerk 
of  the  above  named  Kansas  court,  but  was  signed  "A.  M.  Callaghan, 
Clerk  District  Court,  by  J.  F.  Curtis,  Dep.  Clerk."  There  was  also  a 
certificate  of  the  judge  of  the  court  that  A.  M.  Callaghan  was  the  clerk 
of  that  court;  but  no  certificate  or  other  verification  as  to  J.  F.  Curtis, 
who  signed  the  certificate,  and  no  signature  or  certificate  by  A.  M. 
Callaghan.     There  was  a  third  certificate,  purporting  to  be  by  "A.  M. 


No.  562         AUTHENTIC  A.TI ON  OF  DOCUMENTS  809 

Callaghan,  Clerk  of  the  District  Court  of  the  Third  Judicial  District  of 
Shawnee  County  in  the  State  of  Kansas,"  that  the  judge  signing  the 
preceding  certificate  was  the  judge  of  that  court.  This  certificate  was 
also  signed  "A.  M.  Callaghan,  Clerk  District  Court,  by  J.  F.  Curtis, 
Deputy  Clerk."  These  certificates  were  under  the  seal  of  the  Kansas 
court. 

The  certificate  of  the  judge  was  as  follows:  "State  of  Kansas, 
Shawnee  County,  ss.  I,  Z.  T.  Hazen,  Judge  of  the  District  Court  in 
and  for  the  county  and  State  aforesaid,  and  of  the  Third  Judicial  District, 
do  hereby  certify  that  A.  M.  Callaghan,  whose  name  is  subscribed  to  the 
foregoing  certificate  of  attestation,  now  is,  and  was  at  the  time  of  sealing 
the  same,  the  clerk  of  said  court  whereof  I  am  the  judge,  and  the  keeper 
of  the  records  and  seal  thereof,  duly  elected,  commissioned  and  qualified 
as  such  clerk.  The  signature  to  the  above  certificate  is  in  his  handwriting, 
and  said  attestation  is  in  due  form'  of  law  and  made  by  the  proper  officers. 
In  witness  whereof,  I  have  hereunto  set  my  hand,  at  Topeka  in  said 
State  and  county,  this  second  day  of  March,  1899.  Z.  T.  Hazen,  Judge 
of  the  District  Court."     The  seal  of  the  court  was  attached.  .  .  . 

The  defendant  objected  to  the  admission  of  the  certificate  of  proceed- 
ings in  evidence,  but  the  judge  admitted  it  and  the  defendant  excepted. 
The  defendant  requested  the  judge  to  rule  that  upon  all  the  evidence 
the  plaintiff  was  not  entitled  to  recover. 

The  judge  refused  so  to  rule  and  found  for  the  plaintiff;  and  the 
defendant,  Wilson,  alleged  exceptions. 

J.  E.  Kelley,  for  Wilson.     E.  C.  Bates,  for  the  plaintiff. 

Hammond,  J. — This  is  an  action  on  a  judgment  rendered  by  a  court 
in  the  State  of  Kansas  against  the  defendant  Wilson,  of  this  Common- 
wealth, and  one  Johnson,  of  the  State  of  Vermont.  ...  At  the  trial  the 
plaintiff  offered  in  evidence  a  certificate  of  the  proceedings  in  the  Kansas 
Court.  .  .  . 

2.  The  defendant  further  objected  to  the  admission  of  the  certificate 
upon  the  ground  that  it  was  not  properly  authenticated,  because  it  does 
not  appear  that  the  judge  who  signed  it  was  the  sole  or  presiding  justice 
of  the  court,  and  because  the  attestation  of  the  records  is  made  by  the 
deputy  clerk.  The  Federal  statute  upon  this  subject  requires  that  the 
records  shall  be  proved  "by  the  attestation  of  the  clerk  and  the  seal  of 
the  court  annexed,  if  there  be  a  seal,  together  with  the  certificate  of  the 
judge,  chief  justice  or  presiding  magistrate  that  the  attestation  is  in  due 
form."  Rev.  St.  U.  S.  1878,  §  905.  The  oflicers  are  the  judge  and  the 
clerk.  The  judge  in  his  certificate  in  this  case  says  that  Callaghan  is 
the  "clerk  of  said  court  whereof  I  am  the  judge."  He  uses  the  definite 
article,  "the  judge,"  in  the  very  language  of  the  statute;  and  the  fair 
inference  is  that  he  is  the  sole  judge  of  the  court,  and  the  proper  person  to 
sign  the  attestation.  But  the  certificate  as  to  the  records  is  not  signed 
by  the  clerk,  but  by  a  deputy  clerk.  The  statute  requires  that  the 
attestation  shall  be  made  by  the  clerk.     An  attestation  by  a  deputy  clerk 


810  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  562 

is  not  within  its  terms.  1  Greenleaf ,  Evidence,  §  506 ;  Morris  v.  Patchin, 
24  N.  Y.  394;  Sampson  v.  Overton,  4  Bibb  409;  Lothrop  v.  Blake,  3 
Pa.  St.  483;  Ensign  v.  Kindred,  163  Pa.  St.  638.  And  that  would  be  so 
even  if  the  State  in  which  the  Court  existed  had  given  to  the  deputy  clerk 
the  same  power  to  certify  as  to  the  clerk.  To  hold  otherwise  would  leave 
it  in  the  power  of  the  State  to  change  the  Federal  statute  in  respect  to 
the  persons  who  should  certify  the  records  under  it,  or,  in  other  words, 
to  modify  or  control  an  Act  of  Congress,  where  by  the  Constitution  of  the 
United  States  that  Act  was  supreme.     Lothrop  v.  Blake,  3  Pa.  St.  483. 

Nor  is  this  defect  cured  by  the  certificate  of  the  judge  that  the  attesta- 
tion is  in  the  handwriting  of  the  clerk,  and  that  the  attestation  is  made  by 
the  proper  officers.  The  only  thing  to  which,  under  the  statute,  the 
judge  can  certify,  is  that  the  "attestation  is  in  due  form."  This  is  a 
certificate  simply  that  in  the  attestation  the  forms  in  use  in  the  State 
from  which  the  record  comes  have  been  observed,  and  this  is  necessary, 
because  the  Courts  of  one  state  do  not  officially  know  the  forms  in  use  in 
another  State.  The  certificate  of  the  judge  as  prescribed  by  the  statute 
is  that  the  attestation  of  the  clerk  is  in  due  form,  but  he  is  not  authorized 
to  certify  that  the  certificate  of  the  deputy  clerk  is  of  equal  validity  with 
that  of  the  clerk  in  the  State  where  made.  Morris  v.  Patchin,  ubi  supra. 
It  follows  that  the  record  was  not  attested  by  the  proper  officer,  and  that 
it  was  not  admissible  under  the  Federal  statute. 

3.  But  that  statute  was  passed  for  the  purpose  of  prescribing  the 
kind  of  proof  of  the  existence  of  a  record  of  a  court  in  one  State  upon 
which  a  sister  State  might  insist  before  it  could  be  called  upon  to  give  to 
the  record  the  full  faith  and  credit  imposed  by  the  Federal  Constitution ; 
and  it  is  well  settled  that  the  method  of  authentication  therein  prescribed 
is  not  exclusive.  Neither  the  Federal  Constitution  nor  the  statute 
forbids  the  States  from  authorizing  the  proof  of  records  in  other  modes 
in  their  own  State  courts,  providing  always,  of  course,  that  the  State 
statute,  if  put  into  force,  shall  not  have  the  effect  of  excluding  a  record 
authenticated  according  to  the  requirements  of  the  Federal  statute.  1 
Greenleaf,  Evidence,  §  505;   Kingman  v.  Cowles,  103  Mass.  283. 

It  remains  to  be  seen  whether  the  record  was  admissible  under  our 
own  statute,  which,  so  far  as  material,  is  as  follows :  "  The  records  and 
judicial  proceedings  of  any  court  of  another  state  .  .  .  shall  be  admissi- 
ble in  evidence  .  .  .  when  authenticated  by  the  attestation  of  the  clerk, 
prothonotary,  or  other  officer  having  charge  of  the  records  of  such  court, 
with  the  seal  of  such  court  annexed."  Pub.  St.  c.  169,  §  67.  It  is  not 
necessary,  under  this  statute,  that  there  should  be  any  certificate  by  the 
judge  of  the  court;  although  in  Capen  v.  Emery,  5  Mete.  436,  his  certifi- 
cate under  seal  of  the  court  that  the  court  in  which  the  judgment  was 
rendered  was  abolished,  and  the  records  transferred  to  his  court,  was 
taken  as  evidence  of  those  facts.  The  clerk  is  the  proper  custodian  of 
the  records  of  a  court,  and  the  seal  of  the  court  attached  to  his  certificate 
attests  the  possession  of  the  records  in  the  person  who  certifies,  and  a 


No,  563  AUTHENTICATION    OF    DOCUMENTS  811 

record  so  certified  is  admitted  under  our  statutes  without  further  proof. 
But  where  the  certifying  officer  is  other  than  the  clerk  it  should  appear  by 
the  certificate  or  otherwise  that  he  has  "charge  of  the  records."  King- 
man V.  Cowles,  ubi  supra.  The  person  attesting  the  records  in  this  case 
is  the  deputy  clerk  acting  in  the  name  of  the  clerk.  It  should,  therefore, 
be  made  to  appear  somewhere  that  the  deputy  clerk  is  in  charge  of  the 
records.  Upon  looking  into  the  attestation,  it  appears  that  they  are 
under  the  custody  of  the  clerk;  and  the  judge  certifies  under  the  seal  of 
the  court  that  the  clerk  "is  the  keeper  of  the  records  and  seal,"  and  it  is 
nowhere  stated  that  the  records  are  at  any  time  in  the  custody  of  the  dep- 
uty clerk.  The  attestation,  therefore,  does  not  appear  to  have  been 
made  by  the  person  having  the  charge  of  the  records,  within  the  meaning 
of  Pub."^St.  c.  169,  §  67. 

It  is  true  that  the  judge  certifies  that  the  signature  is  in  the  hand- 
writing of  Callaghan,  the  clerk,  and  that  the  attestation  is  in  due  form 
and  made  by  the  proper  officers.  \Ye  hardly  see  how  it  happened  that 
if  the  clerk  desired  to  make  an  attestation  himself,  and  was  present, 
with  pen  in  hand,  to  do  it,  he  concluded  to  affix  the  name  of  the  deputy 
clerk,  so  as  to  make  it  appear  not  as  his  own  personal  act,  but  as  that  of 
his  deputy  acting  for  him ;  and  the  most  natural  explanation  of  the  judge's 
certificate  is  that  he  took  a  printed  form  to  be  used  by  him  when  the 
attestation  was  signed  by  the  clerk,  and  inadvertently  signed  it  without 
erasing  or  modifying  the  printed  clause.  At  any  rate,  even  if  we  are  to 
consider  the  certificate  of  the  judge  as  evidence  of  the  statements  therein 
contained,  it  still  appears  that  the  attestation  is,  in  form  and  in  law,  not 
the  clerk's  own  personal  act,  but  the  act  of  his  deputy  in  the  name  of  the 
clerk.  The  further  statement  of  the  judge  that  the  attestation  is  in  due 
form  and  made  by  the  proper  officers,  especially  when  taken  in  connection 
with  the  statement  that  the  clerk  is  the  keeper  of  the  records,  falls  far 
short  of  a  statement  that  the  person  personally  making  the  attestation, 
namely,  the  deputy  clerk,  is  the  one  having  charge  of  the  records.  The 
result  is  that  the  attestation  did  not  meet  the  requirements  of  the  federal 
or  State  statute,  and  the  record  was  not  admissible.  .  .  . 

Exceptions  sustained. 

563.  Mode  of  Authenticating  \\'hen  Genuineness  is  not  Presumed; 
Certificates  of  Attestation;  Statutes  Presuming  Genuineness.*  Suppose, 
now,  that  the  seal  or  signature  is  one  of  a  kind  which  does  not  sufficiently  exndence 
its  o^Ti  genuineness,  • —  a  tax-collector  in  another  State,  for  example.  Its  genu- 
ineness therefore  remains  to  be  proved  by  testimony.  The  inconvenience  of  pro- 
ducing a  witness  who  of  his  knowledge  can  testify  to  the  genuineness  of  the  seal 
or  signature  would  be  intolerable,  and  a  resort  to  hearsay  testimony  in  the 
shape  of  official  statements  has  long  been  accepted  as  proper.  But  who  is  the 
appropriate  officer  to  make  such  statements?  Naturally,  at  common  law,  that 
chief  officer,  at  the  source  of  executive  power,  who  knows  what  persons  have 


*  [From  the  present  Compiler's  "Treatise  on  Evidence"  (1905),  Vol.  Ill, 
§  2162]. 


812  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  563 

been  appointed  and  what  are  their  seals  or  signatures.  He  must  also  know  their 
duties  and  be  authorized  to  certify  to  these,  because  the  document,  being  usually 
offered  as  a  hearsay  statement,  must  appear  to  have  been  made  under  an  official 
duty.  Finally,  the  certifying  officer  must  himself  have  such  a  seal  as  is  presumed 
genuine,  because  otherwise  the  process  of  certifying  would  only  have  to  be 
repeated  anew.  Such  a  seal,  at  common  law,  would  practically  be  the  seal  of 
State  only,  for  foreign  officers  at  least,  though  for  domestic  officers  it 
might  be  one  of  a  lower  grade.  It  will  thus  be  seen  that  at  common 
law,  whenever  a  seal  not  itself  presumed  genuine  is  to  be  authenticated  other- 
wise than  by  testimony  on  the  stand,  two  distinct  rules  are  always  involved  in 
practice;  namely,  the  admissibility  of  the  hearsay  certifying  officer's  statement 
(ante,  Nos.  427-442),  and  the  genuineness  of  his  purporting  certificate. 

In  other  words,  two  questions  must  be  answered:  (1)  What  higher  officer  is 
authorized  to  certify  to  the  authority  of  the  lower  office,  the  official  incumbency 
of  the  person  exercising  it,  and  the  genuineness  of  the  document  purporting  to 
be  executed  by  him;  and  (2)  Is  this  higher  officer's  jnirpoHing  certificate  to  he 
presumed  genuine  f  The  one  requirement  might  be  satisfied  without  the  other, 
for  example,  (1)  a  judge  of  court  might  be  a  proper  officer  to  certify  to  a  clerk's 
authority  to  copy  the  records  and  to  the  genuineness  of  a  copy  purporting  to 
be  by  the  clerk;  but  (2)  the  judge's  own  purporting  certificate  might  not  be 
sufficiently  authenticated  by  his  seal  if  from  a  foreign  State,  though  it  might  be 
from  the  domestic  jurisdiction;  and  resort  might  further  be  required  to  the  seal 
of  State,  which  would  be  presumed  genuine.  Now  it  is  the  Authentication 
principle  which  answers  the  second  question,  and  the  Hearsay  exception  which 
answers  the  first  question. 

The  matter  is  further  complicated  by  the  circumstance  that  most  statutes 
dealing  with  the  subject  provide  in  the  same  section  for  both  sets  of  rules,  i.e. 
they  not  only  declare  the  higher  officers  authorized  to  certify  to  other  official 
documents,  but  also  declare  how  far  up  the  process  must  be  continued 
before  reaching  a  seal  which  will  be  presumed  genuine.  For  example,  they  may 
provide  that  a  city  tax-collector's  certified  copy  may  be  authenticated  by  the 
mayor's  certificate  under  city  seal,  and  this  in  turn  by  the  seal  of  the  governor, 
or  chancellor,  or  secretary  of  State  under  seal  of  State.  Every  such  statute 
includes  a  declaration  of  the  Authentication  rule  as  well  as  of  the  rule  of  the 
Hearsay  exception. 

The  following  English  statute  is  an  example  of  the  few  that  keep  the  two 
principles  distinct:  1845,  St.  8  &  9  Vict.  c.  113,  §  1.  "Whereas  it  is  provided  by 
many  statutes  .  .  .  [that  various  official  documents,  corporation  proceedings, 
certified  copies,  etc.,  shall  be  admissible  when  duly  authenticated],  and  whereas 
the  beneficial  effect  of  these  provisions  has  been  found  by  experience  to  be  greatly 
diminished  by  the  difficulty  of  proving  that  the  said  documents  are  genuine,  and 
it  is  expedient  to  facilitate  the  admission  in  evidence  of  such  and  the  like  docu- 
ments," it  is  enacted  that  whenever  any  certificate,  official  document,  etc.,  is 
receivable  in  evidence,  it  shall  be  admitted  if  it  "purport  to  be  sealed  or  impressed 
with  a  stamp,  or  sealed  and  signed,  or  signed  alone,  as  required,  or  impressed 
with  a  stamp  and  signed,  as  directed  by  the  respective  Acts  .  .  .  without  any 
proof  of  the  seal  or  stamp,  where  a  seal  or  stamp  is  necessary,  or  of  the  signature 
of  the  official  character  of  the  person  appearing  to  have  signed  the  same,  and 
without  any  further  proof  thereof,  in  every  case  in  which  the  original  record  could 
have  been  received  in  evidence." 


No.  567  ILLEGALLY   OBTAINED   EVIDENCE  813 


PART  II.     RULES  OF  EXTRINSIC  POLICY 

565.  Inthoductouy.  Rules  of  Extrinsic  Policy  {ante,  No.  1)  forbid  the 
use  of  certain  kinds  of  evidence  because  their  use  would  contravene  some  extrinsic 
policy  of  substanti\e  law  or  of  general  ethics  which  is  regarded  as  more  impor- 
tant for  the  time  being  than  is  the  investigation  of  truth  by  this  particular  means. 

The  most  natural  grouping  of  these  rules  of  Extrinsic  Policy  is  that  which 
regards  them  according  as  they  are  absolute  or  conditional. 

The  former  class  of  prohiljitions  would  be  such  as  are  invariably  and  imperson- 
ally enforced  by  the  Court,  like  other  rules  of  evidence;  the  latter  would  be  such 
as  are  applied  only  on  demand  of  the  person  who  is  supposed  to  be  affected  in 
his  interests  by  the  extrinsic  policy  in  question  and  to  be  protected  by  the  rule 
from  an  injury  to  that  interest. 

The  latter  class  of  rules  —  the  rules  of  Privilege  —  have  features  in  common, 
which  sharply  distinguish  them  from  the  former.  The  former  class  is  practically 
non-existent;  it  can  hardly  be  said  that  there  are  any  definite  and  well-established 
rules  of  exclusion  of  that  type;  they  have  usually  been  discountenanced  in  judicial 
opinion.  The  rules  of  the  latter  class,  on  the  contrary,  are  numerous  and  well 
established,  and  affect  in  a  marked  degree  the  daily  course  of  proof  in  litigation. 


TITLE  I.    RULES  OF  ABSOLUTE  EXCLUSION 

566.  Stevison  v.  Earnest.  (1875.  Illinois.  80  111.  513).  Scholfield,  J. 
(answering  an  objection  that  certain  records  offered  in  evidence  were  obtained 
in  violation  of  law) :  It  is  contemplated,  and  such  ought  ever  to  be  the  fact, 
that  the  records  of  Courts  remain  permanently  in  the  places  assigned  by  the  law 
for  their  custody.  It  does  not  logically  follow,  however,  that  the  records,  being 
obtained,  cannot  be  used  as  instruments  of  evidence;  for  the  mere  fact  of  [illegally] 
obtaining  them  does  not  change  that  which  is  written  in  them.  .  .  .  Suppose 
the  presence  of  a  witness  to  have  been  procured  by  fraud  or  violence,  while  the 
party  thus  procuring  the  attendance  of  the  witness  would  be  liable  to  severe 
punishment,  surely  that  could  not  be  urged  against  the  competency  of  the  wit- 
ness. If  it  could  not,  why  shall  a  record,  although  illegally  taken  from  its  proper 
place  of  custody  and  brought  before  the  Court,  but  otherwise  free  from  suspicion, 
be  held  incompetent? 

567.   WILLIAMS  v.   STATE 

Supreme  Court  of  Georgia.     1897 

100  Ga.  511;  28  S.  E.  624 

Error  from  City  Court  of  Macon ;  J.  P.  Ross,  Judge. 
Sarah  Williams  was  convicted  of  violating  the  Sunday  liquor  law,  and 
brings  error.     Affirmed. 

Marion  Harris,  for  plaintiff  in  error.     Roht.  Hodges,  Solicitor-General, 

for  the  State. 


814  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  567 

Lumpkin,  P.  J. —  1.  On  the  trial  of  this  case  in  the  court  below, 
Jenkins,  a  detective,  was  introduced  as  a  witness  in  behalf  of  the  State. 
It  appeared  from  his  testimony  that  on  Sunday  morning,  the  2d  day  of 
August,  1896,  Mose  Lucas  and  Jessie  Bunkley  (both  colored)  came  to  his 
house  in  Macon,  and  woke  him  up;  Lucas  saying  that,  if  he  "wanted  to 
catch  those  parties  down  on  Third  street  selling  whisky,  now  was  the 
time."  He  gave  to  Lucas  "a  silver  quarter,  marked  with  a  cross,"  and 
"an  empty  half -pint  whisky  flask,  with  a  file  on  the  neck  thereof,"  and 
to  Bunkley  "  a  silver  ten-cent  piece,  marked  with  a  cross  on  the  woman's 
head."  Both  then  went  on  down  the  street,  in  the  direction  of  the  house 
of  Sarah  Williams,  the  accused.  "  In  about  five  minutes  these  two  men 
came  out  of  Sarah's  back  yard,  and  Mose  Lucas  handed  [Jenkins]  the 
same  bottle  that  [he]  had  given  him,  and  in  the  same  condition,  except 
that  it  was  full  of  whisky."  As  to  what  then  transpired,  Jenkins 
testified:  "I  called  Police  Officer  Charley  Moseley,  and  we  went  to 
Sarah's  house.  We  went  in,  and  I  walked  up  to  Sarah  and  put  my  hand 
in  her  apron  pocket,  took  out  her  purse,  and  found  these  two  pieces  of 
money  in  it.  The  two  pieces  of  money  are  the  same  I  marked  and  gave 
to  Lucas  and  Bunkley.  I  then  searched  her  house,  and  found  a  gallon 
jug  of  blackberry  wine,  and  three  bottles,  to  wit,  two  quart  bottles  and 
one  half-gallon  bottle.  One  of  the  bottles  was  nearly  full  of  whisky, 
another  had  only  the  bottom  covered  with  whisky,  and  the  third,  the 
half-gallon  bottle,  was  full  of  something  that  looked  like  whisky,  though 
I  have  never  opened  it,  and  do  not  know  for  certain  what  it  contains.  .  .  . 
I  had  no  search  warrant  to  search  either  the  defendant  or  the  house." 
Moseley,  the  police  officer,  who  also  appeared  at  the  trial  as  a  witness, 
corroborated  Jenkins  as  to  the  account  above  given  of  the  search  made  by 
them,  and  the  finding  and  seizure  of  the  marked  coins  and  the  liquor, 
and  identified  a  small  tin  funnel  as  having  also  been  found  at  the  same 
time.  The  "jug  of  wine,  the  half-gallon  bottle  of  whisky,  the  quart 
bottle  of  whisky,  partly  used,  and  the  other  bottle  of  whisky,  which 
contained  a  little  bit  in  the  bottom  of  it,"  together  with  the  tin  funnel 
and  "the  twenty-five  cent  and  ten  cent  pieces  of  silver  money,"  were 
then  tendered  in  evidence  by  the  State,  and  admitted  over  objection  by 
the  accused. 

All  of  the  testimony  of  Jenkins  and  Moseley  with  regard  to  the 
search  of  the  person  and  premises  of  the  accused,  and  the  seizure  of 
the  articles  above  enumerated,  was  also  specifically  objected  to  on  the 
grounds  that  this  evidence  "was  obtained  under  the  circumstances  just 
narrated,  and  particularly  that  it  was  obtained  from  defendant  and  her 
house  without  a  search  warrant;  that  this  search  was  an  illegal  search 
and  seizure,  in  violation  of  the  constitutional  rights  guarantied  to 
defendant,  as  a  citizen  of  the  State  and  of  the  United  States,  under 
paragraph  16  of  the  bill  of  rights  of  the  State  constitution  of  1877,  and 
under  the  United  States  Constitution;  that  this  was  a  constitutional 
right  of  defendant,  to  be  secure,  in  her  person,  property,  home,  and 


No.  567  ILLEGALLY   OBTAINED   EVIDENCE  815 

effects,  from  such  unlawful,  unreasonable,  and  outrageous  searches  and 
seizures." 

The  position  assumed  by  counsel  for  the  accused  does  not  present  for 
determination  a  new  question.  That  evidence  pertinent  and  material 
to  the  issue  is  admissible,  notwithstanding  it  may  have  been  illegally 
procured  by  the  party  producing  it,  was  early  settled  by  the  English 
courts.  The  case  of  Legatt  v.  Tollervey,  14  East  302,  to  this  effect, 
decided  in  1811,  followed  a  previous  ruling  made  in  Jordan  «.  Lewis  (1739), 
the  substance  of  which  is  stated  in  a  note,  as  the  report  of  the  latter  case 
in  2  Strange  1122,  was  meager  and  imperfect.  And  such  was  the  rule 
observed  in  subsequent  decisions.  Caddy  v.  Barlow,  1  Man.  &  R.  275; 
Stockfleth  V.  De  Tastet,  4  Camp.  10;  Robson  v.  Alexander,  1  Moore  & 
P.  448.  In  this  country  the  question  certainly  arose  as  early  as  1841. 
Com.  V.  Dana,  2  Mete.  (Mass.)  329.  There  it  was  insisted  that  the 
issuing  of  a  warrant  authorizing  a  search  of  the  premises  of  the  accused, 
who  was  suspected  of  having  in  his  possession  lottery  tickets,  invaded 
his  constitutional  right  to  be  secure  against  unreasonable  searches  and 
seizures,  and  "  that  the  seizure  of  the  lottery  tickets  and  materials  for  a 
lottery,  for  the  purpose  of  using  them  as  evidence  against  the  defendant, 
[was]  virtually  compelling  him  to  furnish  evidence  against  himself,  in 
violation  of  another  article  in  the  declaration  of  rights."  But  Wilde,  J., 
speaking  for  the  Supreme  Court  of  Massachusetts,  summarily  disposed 
of  this  contention  by  saying: 

"Admitting  that  the  lottery  tickets  and  materials  were  illegally  seized,  still 
this  is  no  legal  objection  to  the  admission  of  them  in  evidence.  If  the  search 
warrant  were  illegal,  or  if  the  officer  serving  the  warrant  exceeded  his  authority, 
the  party  on  whose  complaint  the  warrant  issued,  or  the  officer,  would  be  respon- 
sible for  the  \\Tong  done;  but  this  is  no  good  reason  for  excluding  the  papers 
seized  as  evidence,  if  they  were  pertinent  to  the  issue,  as  they  unquestionably 
were.  When  papers  are  offered  in  evidence,  the  Court  can  take  no  notice  how 
they  were  obtained,  whether  lawfully  or  unIa^\'fully,  nor  would  [it]  form  a  col- 
lateral issue  to  determine  that  question;"  citing  Legatt  v.  Tollervey  and 
Jordan  v.  Lewis,  supra,  and  adding,  "We  are  entirely  satisfied  that  the  prin-. 
ciple  on  which  these  cases  were  decided  is  sound  and  well  established." 

Such  has  been  the  view  since  entertained,  and  consistently  adhered 
to,  by  the  Massachusetts  court.  Com.  v.  Lottery  Tickets,  5  Cush.  369, 
374;  Com.  v.  Intoxicating  Liquors,  4  Allen  593,  600;  Com.  v.  W^elsh,  110 
Mass.  359,  360;  Com.  v.  Taylor,  132  Mass.  261,  262;  Com.  v.  Henderson, 
140  Mass.  303,  305;  Com.  v.  Keenan,  148  Mass.  470,  472;  Com.  v.  Ryan, 
157  Mass.  403,  405;  Com.  v.  Tibbetts,  157  Mass.  519,  521;  Com.  v. 
Hurley,  158  Mass.  159;  Com.  v.  Brelsford,  161  Mass.  61,  64;  Com.  r. 
Welch,  163  Mass.  372;   Com.  v.  Smith,  166  Mass.  370,  376. 

It  may  here  be  remarked  that  no  distinction  is,  or  should  be,  observed 
between  an  unauthorized  search  of  the  person,  and  one  which  merely 
involves  an  invasion  of  the  citizen's  constitutional  right  to  be  secure  in 
his  "houses,  papers  and  effects";  for  none  is  recognized  either  by  the 


816  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  567 

federal  or  by  our  State  constitution,  the  right  to  be  secure  in  the  lawful 
possession  and  enjoyment  of  property  evidently  being  regarded  as  no 
less  sacred  than  the  citizen's  right  to  immunity  from  an  unreasonable 
search  of  his  person.  In  Welch's  Case,  just  cited,  it  appeared  that  an 
officer  unlawfully  seized  an  object  which  a  daughter  of  the  accused  was 
carrying  under  the  folds  of  a  loose  dress,  suspecting  it  to  be  a  bottle  of 
whisky,  over  the  protest  of  the  accused,  who  was  present;  but,  though 
the  knowledge  so  acquired  by  the  officer  was  thus  wrongfully  obtained, 
he  was  nevertheless  permitted  to  testify  that  the  object  she  was  carrying 
was,  "in  size  and  shape,  like  a  quart  bottle."  In  State  v.  Flynn,  36  N. 
H.  64,  No.  599,  the  Court  was  called  upon  to  pass  on  the  same  constitu- 
tional questions  raised  in  Dana's  Case,  supra,  and  unhesitatingly  adopted 
as  sound  the  conclusions  reached  by  the  Massachusetts  court;  holding 
that 

"evidence  obtained  by  means  of  a  search  warrant  is  not  inadmissible,  either  upon 
the  ground  that  it  is  in  the  nature  of  admissions  made  under  duress,  or  that  it  is 
evidence  which  the  defendant  has  been  compelled  to  furnish  against  himself,  or 
on  the  ground  that  the  evidence  has  been  unfairly  or  illegally  obtained,  even  if 
it  appears  that  the  search  warrant  was  illegally  issued."  .  .  . 

Mr.  Greenleaf  evidently  regarded  the  admissibility  of  evidence  of 
this  character  as  no  longer  a  vexed,  but  as  a  definitely  settled,  question; 
for  in  his  treatise  on  the  Law  of  Evidence  (section  254a)  he  thus  briefly 
deals  with  the  subject : 

"It  may  be  mentioned  in  this  place  that  though  papers  and  other  subjects  of 
evidence  may  have  been  illegally  taken  from  the  possession  of  the  party  against 
whom  they  are  offered,  or  otherwise  unlawfully  obtained,  this  is  no  valid  objec- 
tion to  their  admissibility,  if  they  are  pertinent  to  the  issue.  The  Court  will 
not  take  notice  how  they  were  obtained,  —  whether  lawfully  or  unlawfully,  — 
nor  will  it  form  an  issue  to  determine  that  question." 

Almost  identically  the  same  language  is  to  be  found  in  2  Taylor,  Ev. 
(9th  Ed.)  §  922.  The  correctness  of  the  view  announced  by  the  Supreme 
-Court  of  Massachusetts  in  the  earlier  part  of  this  century  has  long  been 
acquiesced  in.  In  more  recent  years  a  few  attempts  have  been  made  in 
this  country  to  overturn  this  now  well-established  rule  of  evidence. 
They  have,  however,  met  with  anything  but  success.  In  Illinois,  South 
Carolina,  Alabama,  Missouri,  Connecticut,  and  Arkansas,  the  Courts 
of  last  resort  have  declined  to  venture  a  departure  from  this  sound 
doctrine.     See  Gindrat  v.  People,  138  111.  103,  wherein  it  was  held  that 

"the  fact  that  evidences  of  the  commission  of  a  crime  are  found  by  a  mere 
private  detective  on  an  unauthorized  search  of  a  party's  rooms  will  not,  of  it- 
self, render  the  evidence  thus  foumi  incompetent  against  the  party  in  whose 
possession  the  articles  are  found,  if  such  evidence  is  otherwise  competent." 

which  ruling  was  followed  in  the  later  cases  of  Siebert  v.  People,  143  111. 
571,  and  Trask  v.  People,  151  111.  553.  .  .  . 

Irrespective  of  the  many  respectable  authorities  above  referred  to. 


No.  5G7  ILLEGALLY  OBTAINED  EVIDENCE  817 

and  speaking  for  ourselves,  we  are  satisfied  that  the  contention  of  the 
accused,  that  her  constitutional  rights  were  infringed  by  the  ruling  of  the 
trial  judge  admitting  the  evidence  complained  of,  ought  not  to  be  sus- 
tained. As  we  understand  it,  the  main,  if  not  the  sole,  purpose  of  our 
constitutional  inhibitions  against  unreasonable  searches  and  seizures, 
was  to  place  a  salutary  restriction  upon  the  powers  of  government. 
That  is  to  say,  we  believe  the  framers  of  the  constitutions  of  the  United 
States  and  of  this  and  other  States  merely  sought  to  provide  against  any 
attempt,  by  legislation  or  otherwise,  to  authorize,  justify,  or  declare 
lawful,  any  unreasonable  search  or  seizure.  This  wise  restriction  was 
intended  to  operate  upon  legislative  bodies,  so  as  to  render  ineffectual 
any  effort  to  legalize  by  statute  what  the  people  expressly  stipulated 
could  in  no  event  be  made  lawful ;  upon  executives,  so  that  no  law  viola- 
tive of  this  constitutional  inhibition  should  ever  be  enforced;  and  upon 
the  judiciary,  so  as  to  render  it  the  duty  of  the  courts  to  denounce  as 
unlawful  every  unreasonable  search  and  seizure,  whether  confessedly 
without  any  color  of  authority,  or  sought  to  be  justified  under  the  guise  of 
legislative  sanction.  For  the  misconduct  of  private  persons,  acting  upon 
their  individual  responsibility  and  of  their  own  volition,  surely  none  of 
the  three  divisions  of  government  is  responsible.  If  an  official,  or  a  mere 
petty  agent  of  the  State,  exceeds  or  abuses  the  authority  with  which  he 
is  clothed,  he  is  to  be  deemed  as  acting,  not  for  the  State,  but  for  himself 
only;  and  therefore  he  alone,  and  not  the  State,  should  be  held  account- 
able for  his  acts.  If  the  constitutional  rights  of  a  citizen  are  invaded 
by  a  mere  individual,  the  most  that  any  branch  of  government  can  do  is 
to  afford  the  citizen  such  redress  as  is  possible,  and  bring  the  wrongdoer 
to  account  for  his  unlawful  conduct.  The  office  of  the  Federal  and  State 
Constitutions  is  simply  to  create  and  declare  these  rights.  To  the 
legislative  branch  of  government  is  confided  the  power,  and  upon  that 
branch  alone  devolves  the  duty,  of  framing  such  remedial  laws  as  are  best 
calculated  to  protect  the  citizen  in  the  enjoyment  of  such  rights,  and  as 
will  render  the  same  a  real,  and  not  an  empty,  blessing.  With  faithfully 
enforcing  such  laws  as  are  thus  provided,  the  responsibility  devolving 
upon  the  executive  and  judicial  branches  must  necessarily  end.  We 
know  of  no  law  in  Georgia  which  renders  inadmissible  in  evidence  the 
fruits  of  an  illegal  and  wrongful  search  and  seizure,  nor  are  we  aware  of 
any  statute  from  which  it  could  be  logically  gathered  that  the  admission 
of  such  evidence  violates  any  recognized  principle  of  public  policy. 
Whether  or  not  prohibiting  the  Courts  from  receiving  evidence  of  this 
character  would  have  any  practical  and  salutary  effect  in  discouraging 
unreasonable  searches  and  seizures,  and  thus  tend  towards  the  preserva- 
tion of  the  citizen's  constitutional  right  to  immunity  therefrom,  is  a 
matter  for  legislative  determination.  .  .  .  We  have  therefore  reached 
the  conclusion  that  for  no  reason  assigned  by  the  accused,  or  disclosed 
by  the  record  brought  to  this  court,  should  her  conviction  be  set  aside. 

Judgment  affirmed. 


818  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  568 


TITLE  II.    RULES   OF  CONDITIONAL  EXCLUSION 
(riiJVILEGE) 

568.  History.^  To  understand  the  history  of  Testimonial  Privileges,  we 
must  consider  the  history  of  Testimonial  Duty,  to  which  all  such  privileges  are 
exceptions.  And  the  history  of  testimonial  duty  is  united  with  the  history  of 
the  process  used  for  compelling  attendance,  and  of  jury  trial  in  general. 

It  must  be  kept  in  mind  that,  up  to  the  1400s,  the  modern  witness  is  prac- 
tically unknown  in  jury  trials,  and  that  not  until  the  1500s  is  he  a  common  figure 
in  the  trial  and  an  important  source  of  information  for  the  jury.^  Even  in  Coke's 
time,  in  the  early  1600s,  it  is  a  comparatively  recent  feature  that  he  is  alluding 
to  when  he  remarks  "most  commonly  juries  are  led  by  the  depositions  of  wit- 
nesses." Up  to  that  period  the  jury  had  fulfilled  the  double  capacity  of  triers 
and  of  witnesses;  their  own  knowledge  of  the  affair,  acquired  as  neighbors  of 
the  parties  or  by  searching  about  for  evidence  before  the  trial,  had  been  a 
chief  source  of  that  information  which  is  nowadays  furnished  to  them  by 
ordinary  witnesses. 

In  the  meantime  the  ordinary  modern  witness  —  i.e.,  the  person  who  hap- 
pens to  know  something  on  the  matter  in  issue  —  was  gradually  appearing, 
and  was  asked  by  the  party  to  come  and  contribute  his  help,  or  he  came  of  his 
own  motion  and  interest  in  the  cause.  But  he  could  not  be  compelled  to  come. 
A  marked  feature  of  the  primitive  Germanic  law  was  the  failure  to  recognize  any 
general  testimonial  duty.  There  must  be  some  specific  pledge  of  faith  before- 
hand (as  in  the  case  of  the  deed-witness  or  transaction-witness)  to  bear  testi- 
mony for  the  party  when  called  on.^  This  tradition  was  inherited  by  our  law, 
and  was  at  the  period  in  question  (the  end  of  the  1400s)  still  a  living  force. 

But  more  than  this.  The  ordinary  witness  (such  as  we  now  know  him)  was 
not  only  not  compelled;  he  was  not  welcomed.  There  was  a  radical  and  strict 
discouragement  of  maintenance.  And  the  man  who  comes  to  labor  privately 
with  his  neighbors  on  the  jury  by  generally  urging  his  influence  in  favor  of  one 
of  the  parties  was  not  carefully  distinguished  from  the  man  who  comes  merely 
to  tell  them  what  he  knows  of  the  facts.  He  is,  in  either  case  (they  thought), 
trying  to  make  them  decide  for  one  of  the  parties  rather  than  the  other;  he  is  a 
meddler.  This  feature  of  the  thought  of  the  times  is  perhaps  difficult  nowadays 
to  conceive.  But  it  contains  the  whole  explanation  of  the  ordinary  witness' 
position  in  the  1400s. 

The  result  of  this  rooted  opposition  to  whatever  bore  the  semblance  of  main- 
tenance was  that  anybody  who  was  not  somehow  concerned  as  a  party  or  a 


^  [Abridged  from  the  present  Compiler's  "Treatise  on  Evidence"  (1905), 
Vol.  Ill,  §  2190.] 

^  Thayer,  "A  Preliminary  Treatise  on  Evidence,"  pp.  122-134. 

^  Schroeder,  "  Lehrbuch  der  deutschen  Rechtsgeschichte,"  4th  ed.,  1902,  pp. 
86,  365  ("In  order  to  bind  document-witnesses  once  for  all  to  a  subsequent  giving 
of  testimony,  the  party  had  to  pay  document-money  or  give  wine;  for  no  public 
testimonial  obligation  existed  [in  the  Prankish  period],  and  a  civil  obligation  could 
be  created  only  by  a  contract  entered  into  with  a  consideration");  Pollock  and 
Maitland,  1895,  "  Hist.  Eng.  Law,"  II,  599  ("It  seems  to  have  been  a  general  rule 


No.  568  VIATORIAL   PRIVILEGE  819 

counsel  in  the  cause  ran  the  risk,  if  he  came  forward  to  testify  to  the  jury,  of 
being  afterwards  sued  for  maintenance  by  tlie  party  against  whom  he  had  spoken.^ 
"If  he  had  come  to  the  bar  out  of  his  own  head  and  spoken  for  one  or  tiie  other," 
says  a  judge  in  1450,^  "it  is  maintenance,  and  he  will  be  punished  for  it.  And 
if  the  jurors  come  to  a  man  where  he  lives,  in  the  country,  to  have  knowledge  of 
the  truth  of  the  matter,  and  he  informs  them,  it  is  justifiable;  but  if  he  comes  to 
the  jurors  or  labors  to  inform  them  of  the  truth,  it  is  maintenance,  and  he  will  be 
punished  for  it."  Thus  the  state  of  things  was  that  the  person  informing  the 
jury  must  (if  he  would  escape  a  charge  of  maintenance)  either  be  an  interested 
party,  or  his  counsel  or  his  servant  or  tenant  or  relative  —  in  short,  so  situated 
that  "the  law  presumes  him  bound  to  be  with  the  party"  ^  —  or  he  must  have 
been  officially  called  upon,  either  by  summons  as  a  juror  or  deed-witness,  or  by 
the  express  request  of  the  jury  or  of  the  judge  —  in  short,  by  "compulsion  of 
law";^  since  "what  a  man  does  by  compulsion  of  law  cannot  be  called  mainte- 
nance." ^     This  state  of  things  lasted  well  on  into  the  1500s.® 

But  gradually  it  became  intolerable,  as  may  be  imagined.  By  that  time 
the  jury  was  less  and  less  able  to  do  justice  to  the  cause  through  the  means  of  its 
own  neighborhood-knowledge.  The  summoning  of  deed-witnesses  and  transac- 
tion witnesses  with  the  jury  (a  method  in  any  event  available  in  only  certain 
classes  of  cases)  had  through  its  cumbrousness  fallen  into  disuse.  No  other  form 
of  compulsory  summons  than  that  appropriate  to  jurors  and  these  quasi-jurors 
was  known  in  tradition.'^  The  doctrine  of  maintenance  was  a  harsh  obstacle  in 
the  way  of  obtaining  by  persuasion  the  attendance  of  any  other  persons  capable 
of  giving  material  information.  In  these  conditions,  the  trend  of  the  law  was 
naturally  marked  out  by  the  circumstances. 

The  lead  was  furnished  by  the  existing  qualification,  already  noted,  that 
"what  a  man  does  by  compulsion  of  law  cannot  be  called  maintenance."  Create 
a  general  compulsion  of  law  for  all  persons  whose  information  may  be  needed  or 
desired  as  useful  by  the  parties,  and  the  obstacle  to  getting  witnesses  would  be 
removed.  Let  an  order  of  the  judge,  commanding  such  a  person's  appearance, 
be  obtainable,  as  of  course,  before  the  trial,  and  the  risk  of  a  charge  of  main- 
tenance would  be  removed,  and  no  man  need  fear  to  come  forward  as  a  witness. 
Such  w^as  the  expedient  which  was  plainly  dictated  by  the  exigency;  and  such, 
beyond  a  doubt,  was  the  genesis  —  slow  though  the  creative  process  was  —  of 

that  no  one  could  be  compelled,  or  even  suffered,  to  testify  to  a  fact,  imless  when 
that  fact  happened  he  was  solemnly  'taken  to  witness'").  It  has  been  pointed 
out  by  Professor  Glasson  ("Histoire  du  droit  etdes  institutions  de  la  France,  1895, 
VI,  540  ")  that  the  liability  of  the  witness,  if  his  oath  weje  challenged  as  false  by 
the  opponent,  to  vindicate  himself  by  judicial  combat,  was  a  serious  one,  and 
naturally  pre\ented  the  recognition  of  any  legal  obligation  to  appear  as  a  witness; 
and  he  notes  the  contrast  in  the  ecclesiastical  courts,  where  the  testimonial  obliga- 
tion already  existed. 

^  The  data  are  given  in  Thayer,  124-129. 

2  Y.  B.  28  H.  VI,  6,  1;  quoted  in  Thayer,  129. 

3  Cheyne,  C.  J.,  in  1433,  Y.  B.  11  H.  VI,  43,  36;  quoted  in  Thayer,  126. 

4  1406,  Y.  B.  9  H.  IV,  pi.  24;  Y.  B.  8  id.  6,  8;  quoted  in  Thayer,  125. 

^  Littleton,  arguing,  in  1450,  Y.  B.  28  H.  VI,  6,  1;  quoted  in  Thayer,  128. 
«  1537,  Y.  B.  27  H.  VIII,  2,  6;  quoted  ante,  §  575. 

7  As  late  as  1481  (Y.  B.  28  Ed.  IV,  28,  1;  quoted  in  Thayer,  129,  note)  a 
judge  even  refuses  to  compel  a  man  to  testify  who  is  already  in  the  court. 


820  BOOK    l;     RULES    OF   ADMISSIBILITY  No.  568 

the  notable  statute  of  Elizabeth,  in  1562-3,  by  which  a  penalty  was  imposed  and 
a  civil  action  was  granted  against  any  person  who  refused  to  attend,  after  service 
of  process  and  tender  of  expenses. 

St.  5  Eliz.  c.  9,  §  12:  "If  any  person  or  persons  upon  whom  any  process 
out  of  any  of  the  courts  of  record  within  this  realm  or  Wales  shall  be  served 
to  testify  or  depose  concerning  any  cause  or  matter  depending  in  any  of  the 
same  courts,  and  having  tendered  unto  him  or  them,  according  to  his  or 
their  countenance  or  calling,  such  reasonable  sums  of  money  for  his  or  their 
costs  or  charges  as  having  regard  to  the  distance  of  the  places  is  necessary 
to  be  allowed  in  that  behalf,  do  not  appear  according  to  the  tenor  of  the 
said  process,  having  not  a  lawful  and  reasonable  let  or  impediment  to  the 
contrary,  that  then  the  party  making  default"  shall  forfeit  £10  and  give 
further  recompense  for  the  harm  suffered  by  the  party  aggrieved. 

No  doubt  a  process  had  been  issued  on  demand,  increasingly  often,  in  the 
preceding  generation;  but  this  appears  as  the  first  definite  recognition  of  the 
general  right  to  have  that  process  and  the  general  duty  implied  by  it.  This 
statute  did  for  testimony  at  common  law  what  John  de  Waltham's  subpoena 
had  done  for  testimony  in  chancery,  more  than  a  hundred  years  before,  by  an 
expedient  almost  precisely  similar.^ 

This  statute  of  Elizabeth,  then,  which  in  our  day  appears  merely  to  supply 
a  means  of  getting  a  hold  upon  persons  who  are  not  willing  to  testify,  and  typifies 
the  duty  of  being  a  witness,  appears  in  its  inception  as  serving  also  a  different 
and  more  restricted  purpose.  By  giving  a  command  to  those  who  were  willing 
enough,  but  were  timorous,  it  represented  their  right  to  come  and  to  testify, 
unmolested  by  the  apprehension  of  maintenance-proceedings.  Of  a  legal  duty 
to  attend  or  to  give  testimony,  it  can  hardly  be  said  that  there  is  at  this  stage  any 
settled  recognition.  The  effort  is  rather  merely  to  create  a  freedom  to  attend. 
As  this  freedom  came  to  be  exercised  more  and  more  generally,  and  the  ordinary 
witness  became,  by  the  1600s,  the  chief  source  of  the  jury's  information,  the 
notion  of  a  duty  was  naturally  developed  from  and  added  to  the  notion  of  a 


^  "He  first  framed  it  in  its  present  form,  when  a  clerk  in  Chancery,  in  the 
latter  end  of  the  reign  of  Edward  III  [about  1375];  but  the  invention  consisted  in 
merely  adding  to  the  old  clause  'quibusdam  certis  de  causis,'  the  words  'et  hoc 
sub  poena  centum  librorum  nullatenus  omittas;'  and  I  am  at  a  loss  to  conceive 
how  such  importance  was  attached  to  it,  or  how  it  was  supposed  to  have  brought 
about  so  complete  a  revolution  in  equitable  proceedings;  for  the  penalty  was 
never  enforced,  and  if  the  party  failed  to  appear,  his  default  was  treated  (accord- 
ing to  the  practice  prevailing  to  our  own  time)  as  a  contempt  of  court,  and  made 
the  foundation  of  compulsory  process  "  (Campbell,  "  Lives  of  the  Chancellors,"  5th 
ed.,  I,  259).  The  learned  writer  would  not  have  been  "at  a  loss  to  conoeive"  the 
importance  of  the  expedient,  if  he  could  have  been  acquainted  with  the  modern 
researches  into  the  history  of  wntnesses.  There  had  been  before  that  time  no 
compulsion;  and  the  "poena"  of  "centum  libri"  effectually  supplied  the  compul- 
sion. We  may  well  understand  that  a  "revolution  in  equitable  proceedings" 
W'as  by  this  "sub  pcena"  clause  brought  about.  This  and  the  statute  of  Elizabeth 
mark  an  epoch  in  the  history  of  legal  theory  and  practice.  The  history  of  the 
subpoena  is  further  noticed  in  Leadam's  Introduction  to  "Select  Cases  in  the  Star" 
Chamber,"  p.  xxii  (Selden  Society  Publications,  vol.  XVI). 


No.  568  VIATORIAL  PRIVILEGE  821  ^     ,"    H 

freedom  or  right. ^     In  the  next  century,  and  hardly  before  then,  do  we  find  a 
plain  recognition  of  the  duty. 

And  it  is  noticeable  that  there  are  two  stages  of  development,  for  the  duty 
of  attendance  to  be  sworn  comes  earlier  than  the  duty  of  disclosure  of  knowledge. 
The  obligation  to  attend  and  bear  testimony  generally  had  been  settled;  but 
for  some  time  afterwards  there  appears  still  to  be  lacking  the  full  conception  that 
the  answer  to  a  specific  question  on  the  stand  can  be  compelled;  and  that  all 
desired  facts  are  bound  to  be  disclosed.^  The  history  of  the  various  claims  of 
exemption,  from  that  time  onward,  shows  that  the  final  achievement  was  in  the 
early  1600s  distinctly  a  new  one: 

Sir  Francis  Bacon,  in  the  Countess  of  Shrewsbury's  Trial,  1612,  2  How. 
St.  Tr.  769,  778:  "You  must  know  that  all  subjects,  without  distinction  of 
degrees,  owe  to  the  king  tribute  and  service,  not  only  of  their  deed  and 
hand,  but  of  their  knowledge  and  discovery.  If  there  be  anything  that  im- 
ports the  king's  service,  they  ought  themselves  undemanded  to  impart  it; 
much  more,  if  they  be  called  and  examined,  whether  it  be  of  their  own  fact 
or  of  another's,  they  ought  to  make  direct  answer." 

But  as  yet  there  was  one  important  step  to  be  taken.  The  statute  of  Eliza- 
beth had  apparently  intended  to  provide  only  for  civil  causes.  In  criminal  causes, 
the  date  w^ien  process  began  to  be  issued  for  the  Crown's  witnesses  does  not 
appear;  though  presumably  it  preceded  the  time  of  Elizabeth's  statute.  But 
the  accused  in  a  criminal  cause  was  not  allowed  to  have  witnesses  at  all,  —  much 
less  to  have  compulsory  process  for  them.  By  the  early  1600s  this  disqualifica- 
tion began  to  disappear,  and  the  accused  was  occasionally  allowed  to  put  on 
witnesses,  who  spoke  without  oath.  After  two  generations,  and  by  1679,  under 
the  Restoration,  the  judges  began  to  grant  him,  by  special  order,  compulsory 
process  to  bring  them;  and  finally,  at  slow  intervals,  in  1695  and  in  1701,  he  was 
guaranteed  this  right  by  general  statutes.^  This  guarantee  was  afterwards 
embodied  in  mo^t  of  the  constitutions  of  the  United  States.* 

In  the  remaining  important  field  of  jurisdiction,  the  Com-t  of  Chancery, 
the  general  doctrine  becomes  a  part  of  English  history  at  a  time  when  it  w^as 
already  in   part  achieved   in   another  system  of  law.     When  the  Chancellors 

^  1599,  Dobson  v.  Crew,  Cro.  Eliz.  705  (bond  to  give  testimony;  the  Court 
said  that,  even  apart  from  the  bond,  "he  is  compellable  by  the  law"). 

^  As  late  as  about  1630,  a  clerk  of  the  Star  Chamber,  Hudson,  is  found  writing 
("Treatise  on  the  Star  Chamber,"  part  III,  §  21,  Hargraves'  Collectanea  Juridica, 
II,  209)  that  "the  great  question  hath  been,  whether  a  witness  which  in  examina- 
tion will  not  give  any  answer  shall  be  compelled  to  make  answer  to  the  interroga- 
tories; .  .  .  [and  Lord  Chancellor  Egerton]  gave  me  answer,  that  he  knew  no 
law  to  compel  a  witness  to  speak  more  than  he  would  of  his  own  accord." 
-  ^  1695-6,  St.  7  &  8  W.  Ill,  c.  3,  §  7  (persons  indicted  for  treason  and  mis- 
prision "shall  have  the  like  processe  of  the  court  where  they  shall  bee  tryed,  to 
compell  their  witnesses  to  appeare  for  them  att  any  such  tryal  or  tryals  as  is 
usually  granted  to  compell  witnesses  to  appear  against  them") ;  1702,  St.  1  Anne, 
c.  9,  §  3  (requires  that  witnesses  produced  for  the  accused  in  felony  shall  be 
sworn);  the  latter  statute  was  treated  by  implication  as  authorizing  compulsory 
process:  1824,  Starkie,  Evidence,  I,  86. 

*  The  usual  provision  is  that  in  criminal  cases  the  accused  shall  have  the  right 
to  "compulsory  process  for  obtaining  witnesses"  (or,  "process  to  compel  the 
attendance  of  witnesses")  "in  his  favor"  (or,  "in  his  behalf"). 


822  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  568 

in  the  1400s  were  forming  the  procedure  of  their  court  after  the  model  of  the 
ecclesiastical  law,  they  found  a  doctrine  "de  testibus  cogendis"  long  canvassed 
as  a  theoretic  principle  in  the  system  from  which  they  borrowed.  There  had 
indeed  been  a  time  when  that  system  was  passing  through  a  development  some- 
thing like  our  own,  —  at  least,  when  the  compellability  of  witnesses  was  a  new 
thing;  the  decretals  of  the  1200s  indicate  this;  ^  and  a  final  settlement  had  not 
been  reached  when  the  English  Court  of  Chancery  began  to  flourish,  and  to 
borrow  the  Continental  rules.'^  But  the  Chancellors,  without  waiting,  pushed  the 
princi{)le  to  the  extreme  test  of  practicality,  and  invented  the  keen  compulsory 
weapon  of  the  subpoena  writ.  This  gave  them  more  than  a  century's  start  of 
the  common-law  Courts  in  the  recognition  of  a  definite  testimonial  compulsion 
and  duty. 

For  three  hundred  years,  then,  the  fundamental  maxim  has  been  that  the 
public  (in  the  words  sanctioned  by  Lord  Hardwicke)  has  a  right  to  every  man's 
evidence.  We  may  start,  in  examining  the  various  claims  of  exemption,  with 
the  primary  assimiption  that  there  is  a  general  duty  to  give  what  testimony 
one  is  capable  of  giving,  and  that  any  exemptions  wliich  may  exist  are  so  many 
derogations  from  a  positive  general  rule. 

569.  Introductory.  Kinds  of  Privilege,  Summarized.  The  kinds  of 
exemption  which  are  accorded  to  a  person  in  respect  of  his  testimonial  duty  may 
be  grouped  under  two  heads,  according  as  they  exempt  him  either  merely  from 
the  task  of  travelling  to  and  attending  the  court  where  his  testimony  is  desired, 
or,  having  attended,  from  disclosing  a  certain  part  of  his  knowledge.  An  exemp- 
tion of  the  first  sort  —  which  may  be  termed  viatorial  privilege  —  may  and  some- 
times does  result  in  an  exemption  also  of  the  second  sort,  i.e.,  from  giving  any 
testimony  whatever;  but  this  is  rather  an  accidental  and  not  an  intended  effect 
■ —  as  appears  when  a  witness  is  exempted  from  attendance  at  the  court-room, 
but  is  nevertheless  still  liable  to  testify  before  a  commissioner  sent  to  take  his 
deposition  at  his  residence.  An  exemption  of  the  second  sort*  which  may  be 
termed  testimonial  -privilege,  or  Privilege  proper,  never  includes  or  effects  an 
exemption  of  the  first  sort. 

The  viatorial  privilege  consists  in  exempting  the  witness  from  attendance 
until  three  conditions  are  fulfilled:  first,  he  is  to  have  notice  that  his  testimony 
is  required,  and  be  summoned  to  attend ;  secondly,  he  is,  in  some  cases,  to 
receive  in  advance  an  indemnity  for  his  expenses;  and,  thirdly,  he  is  to  be  ex- 

^  "Corpus  Juris  Canonici,"  Decretal.  II,  20  (de testibus  et  attest.),  21  (de 
testibus  cogendis);  Glasson,  cited  supra,  note  8. 

^  That  law  seems  to  have  suffered  an  arrest  of  development,  and  never  to 
have  reached  explicitly  the  complete  conception  of  a  testimonial  duty.  "The 
canon  law  recognized  a  public  fluty  and  liability  to  bear  witness,  .  .  .  although  to 
be  sure  the  earlier  doctrine  had  partially  refused  this  recognition,  for  criminal 
cases  in  general,  or  at  least  for  the  cfccM5a</o-proceeding  in  particular"  (Hinschius, 
"  Kirchenrecht,"  1897,  VI,  pt.  1,  § 364,  p.  97,  note  1).  The  modern  Church  jurists, 
in  regard  to  the  coercion  of  a  witness,  "incline  to  hold  it  allowable,  at  least  when 
proof  cannot  be  supplied  in  any  other  manner  "  (Droste,  "  Canonical  Procedure,"  tr. 
Messmer,  1887,  §  66).  Even  in  modern  French  criminal  procedure  (which  is 
founded  on  canon-law  methods),  a  witness  who  refuses  on  the  stand  to  answer  a 
specific  question  cannot  be  compelled  (Bodington,  "French  Law  of  Evidence," 
1904,  p.  116.). 


No.  569  VIATORIAL  PRIVILEGE  823 

cused  where  his  health  or  other  sufficient  circumstance  constitutes  an  inability 
to  attend. 

The  testimonial  privileges  fall  naturally  under  two  heads,  according  as  the 
disclosure  which  they  affect  is  a  tojjic  or  class  of  facts  in  his  knowledge,  or  is  a 
communication  from  or  to  another  person,  irrespective  of  its  subject. 

The  concededly  privileged  topics  are  some  half-dozen  in  number,  although 
others  have  been  from  time  to  time  sought  to  be  added  to  the  list. 

The  privileged  communications,  as  universally  conceded,  are  those  made  by 
persons  holding  a  certain  confidential  relation,  —  in  particular,  that  of  husband 
and  wife,  attorney  and  client,  fellow-jurors,  and  government  and  informer;  to 
these  are  added,  in  some  jurisdictions,  the  relations  of  priest  and  penitent,  and 
physician  and  patient;  and  occasionally  sundry  other  additions  have  been 
attempted. 

SUB-TITLE   I.     VIATORIAL   PRIVILEGE 

570.   BRADDON'S  TRIAL 

(1684.     9  How.  St.  1127,  1167.) 

Mr.  Thompson.    Call  Mr.  Fielder,  and  Mrs.  Mewx,  and  Mr.  Lewes. 

Lewes  appeared. 

Crier.  Lay  your  hand  on  the  book. 

Lewes.  My  lord,  I  desire  my  charges  may  be  paid,  before  I  swear. 

L.  C.  J.  Jefferies.  Pr'ythee,  what  have  I  to  do  with  thy  charges? 
I  won't  make  bargains  between  thee.  If  you  have  any  evidence  to  give, 
and  will  give  it,  do ;  if  not  let  it  alone. 

Lewes.   My  lord,  I  shall  not  give  any  evidence  till  I  have  my  charges. 

L.  C.  J.  Braddon,  If  you  will  have  your  witnesses  swear,  you  must 
pay  them  their  charges. 

Mr.  Braddon.  My  lord,  I  am  ready  to  pay  it,  I  never  refused  it;  but 
what  shall  I  give  him? 

L.  C.  J.  Nay,  I  am  not  to  make  bargains  between  you,  agree  as  you 
can. 

Mr.  Thompson.  My  lord,  we  are  willing  to  do  what  is  reasonable. 
You,  Lewes,  what  do  you  demand? 

Lewes.   He  can't  give  me  less  than  Qs.  a  day? 

L.  C.  J.  Why,  where  dost  thou  live? 

Leives.    At  Marlborough. 

L.  C.  J.  Why,  canst  thou  earn  6s.  a  day  by  thy  own  labour  at  Marl- 
borough? 

Lnves.  My  lord,  I  am  at  40.9.  or  3/.  a  week  charge  with  my  family  and 
servants. 

L.  C.  J.  What  trade  art  thou? 

Lewes.  A  stapler. 

L.  C.  J.   And  does  your  trade  stand  still  while  you  are  in  town? 

Lewes.   Yes,  to  be  sure  it  can't  go  well  on. 

L.  C.  J.  Well,  I  say  that  for  you,  you  value  your  labor  high  enough, 


824  BOOK   i:     RULES    OF   ADMISSIBILITY  No,  570 

I  know  not  what  your  evidence  may  be,  but,  Mr.  Braddon,  you  must  pay 
your  witness,  if  you  will  have  him. 

Mr.  Braddon.  I  will,  my  lord,  very  readily.  What  will  you  have? 
I  have  paid  you  something  already. 

Lewes.   Give  me  20s.  more  then.     You  can't  give  me  less. 

Then  Mr.  Braddon  paid  him  20s.,  and  he  was  sworn. 


571.   WEST  V.   STATE 
Supreme  Court  of  Wisconsin.     1853 
1  Wis.  210,  230 

The  plaintiff  in  error  was  indicted  at  the  April  term  of  the  circuit 
court  for  the  county  of  Fond  dii  Lac,  for  the  seduction  of  Eliza  Pierce. 
Before  the  trial  commenced,  the  defendant,  by  his  counsel,  moved  the 
Court  for  an  attachment  against  one  Ashel  Brooks,  on  whom  a  subpoena, 
as  a  witness  in  behalf  of  the  defendant  had  been  regularly  served,  and 
who  had  been  in  attendance  as  such  AVitness,  in  obedience  to  said  subpoena, 
during  that  term,  but  had  left  and  gone  home  the  day  before  the  applica- 
tion was  made.  No  fees  had  been  paid  or  tendered  the  witness,  and  it 
appeared  that  his  testimony  was  material  to  the  defense.  The  motion 
was  denied  by  the  Court,  on  the  ground  that  no  fees  had  been  paid  or 
tendered  to  the  witness  by  the  defendant.  To  which  decision  of  the 
Court,  the  defendant  excepted.  .  .  . 

Smith,  J.: — It  is  alleged  for  error,  that  before  the  trial  commenced, 
the  defendant,  by  his  counsel,  moved  the  Court  for  an  attachment 
against  one  Ashel  Brooks,  who,  it  appeared,  had  been  duly  subpoenaed 
to  attend  as  a  witness  on  behalf  of  the  defendant,  and  who  had  been  in 
attendance,  but  had  left  and  gone  home  the  day  before  the  trial;  which 
said  motion  was  overruled  by  the  Court,  on  the  ground  that  no  fees  had 
been  paid  or  tendered  to  the  witness.  .  .  . 

1.  It  was,  anciently,  the  commonly  received  practice,  in  the  common 
law  courts,  that  no  counsel  should  be  allowed  the  defendant  upon  his  trial 
upon  the  general  issue,  in  any  capital  crime,  unless  some  point  of  law 
arose,  proper  to  be  debated.  ...  At  different  times  afterwards,  the  rule 
was  so  modified  by  acts  of  parliament,  as  to  admit  the  examination  of 
witnesses  on  oath,  in  behalf  of  the  defendant,  in  particular  cases;  until 
at  length,  it  was  declared  by  statute  (1  Ann.  St.  2  c.  9),  "that  in  all  cases 
of  treason  and  felony,  all  witnesses  for  the  prisoner  should  be  examined 
upon  oath,  in  like  manner  as  the  witnesses  against  him."  .  .  .  And  in 
conformity  with  the  full  equity  of  the  rule,  the  Constitution  of  the  United 
States,  and  of  this  State,  declares  "  that  in  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  be  heard  by  himself  and  counsel  for 
assistance  in  his  defense,  and  to  have  compulsory  process  to  compel 
the  attendance  of  witnesses  in  his  behalf."  .  .  . 


No.  571  VIATORIAL  PRIVILEGE  825 

The  right  to  compulsory  process,  secured  by  the  provisions  of  the 
Constitution,  above  referred  to,  cannot  be  taken  away  by  legislative 
enactment,  and  ought  not  to  be  hampered  by  judicial  construction. 
The  Legislature,  so  far  from  attempting  to  restrict  this  right,  have 
expressly  recognized  it,  and  provided  ample  means  for  its  full  enjoy- 
ment. Section  8  of  chapter  146  of  the  Wisconsin  Revised  Statutes,  page 
724,  is  in  the  following  words :  "  It  shall  not  be  necessary  to  pay  or  tender 
any  fees  to  any  witness  who  is  subpoenaed  in  any  criminal  prosecution, 
but  every  such  witness  shall  be  bound  to  attend,  and  be  punishable  for 
nonattendance,  in  the  same  manner  as  if  the  fees  allowed  by  law  had 
been  paid  him."  By  no  rule  of  construction,  can  this  section  be  restricted 
to  witnesses  subpoenaed  on  behalf  of  the  State.  It  is  evidently  enacted 
in  aid  of  the  constitutional  guaranty  above  mentioned,  and  includes, 
as  well  the  witnesses  for  the  defendant,  as  those  for  the  State. 

2.  But,  it  is  urged,  that  this  section  of  the  statute,  if  held  to  refer  to 
witnesses  summoned  on  behalf  of  the  defendant,  is  repugnant  to  that 
provision  of  the  Constitution,  which  provides  that  "  the  property  of  no 
person  shall  be  taken  for  public  use,  without  just  compensation  therefor." 
The  time  and  labor  of  attendance  of  the  witness  are  said  to  be  as  much 
property,  within  the  meaning  of  the  Constitution,  as  are  chattels  or  land. 
.  .  .  But,  in  no  just  sense,  can  the  requisition  upon  the  citizen  of  his 
attendance  upon  the  Courts  to  testify  as  a  witness,  be  considered  as  the 
taking  of  private  property  for  public  use,  within  the  meaning  of  the 
Constitution.  The  object  of  that  provision  in  the  fundamental  law, 
was  to  protect  the  citizen  from  the  grasping  demands  of  government, 
not  to  absolve  him  from  any  of  those  various  personal  duties  which  every 
good  citizen  owes  to  his  country;  such  as  the  performance  of  militia  duty, 
obedience  to  the  call  of  the  proper  authority  for  his  personal  service  in 
suppressing  a  riot,  the  apprehension  of  a  felon,  affording  assistance  to 
officers  in  making  arrests  when  resisted,  and  the  like.  There  are  very 
many  instances  in  which  the  citizen  is  required  to  perform  personal 
service,  or  render  aid  to  his  government,  Avithout  other  compensation 
than  that  of  his  participation  in  the  general  good,  and  his  enjoyment  of 
the  general  security  and  advantage  which  result  from  common  acquies- 
cence in  such  obligations  on  the  part  of  all  the  citizens  alike,  and  which  is 
essential  to  the  existence  and  safety  of  society.  .  .  .  We  hold,  therefore, 
that  a  witness  is  bound  to  obey  the  process  of  subpoena  in  a  criminal  prose- 
cution, as  well  on  the  part  of  the  defendant  as  on  that  of  the  State,  without 
payment  or  tender  of  fees. 

3.  But  it  does  not  follow  that  the  refusal  by  the  Court,  to  grant 
an  attachment  against  the  witness  for  non-attendance,  is  error.  The 
award  of  the  attachment  rests  in  the  sound  discretion  of  the  Court,  to 
whom  application  was  made,  and  whose  process  is  disobeyed.  It  is 
somewhat  like  a  motion  for  continuance,  or  new  trial,  and  other  like 
matters  addressed  to  the  discretion  of  the  Court,  the  refusal  of  which  is 
not  necessarily  error,  and  only  becomes  so  when  that  discretion  is  clearly 


826  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  571 

abused,  to  the  manifest  injury  of  the  party,  or  to  the  perversion  of 
justice.  No  such  abuse,  nor  indeed  any  abuse  of  discretion,  appears  in 
this  case.  It  is  true,  the  defendant  in  his  affidavit,  alleges  that  the 
witness  was  material.  But  he  does  not  apply  for  a  continuance  on 
account  of  his  absence;  he  does  not  state  that  he  cannot  prove  the  same 
facts  by  other  witnesses,  or  that  he  cannot  safely  proceed  to  trial  without 
his  testimony;  nor  does  any  fact  appear,  that  in  the  least  evinces  an 
improper  exercise  of  the  discretion  of  the  Court.  All  that  does  appear  is, 
that  the  Court  assigned  an  erroneous  reason  for  its  judgment,  which 
may,  for  aught  that  is  apparent  upon  the  record,  have  been  correct. 


572.   PEOPLE   V.   DAVIS 

Supreme  Court  of  New  York.     1836 

15  Wend.  602,  608 

The  defendant  was  brought  up  on  an  attachment  for  disobedience 
to  a  subpoena  served  upon  him  to  attend  as  a  witness  for  the  plaintiff 
in  a  cause  of  Kelley  v.  De  Forrest,  noticed  for  trial  at  the  Warren  circuit, 
on  the  first  Tuesday  of  June  last.  The  defendant  was  duly  subpoenaed 
on  the  26th  May,  (13  days  before  the  circuit),  at  the  city  of  New-York, 
where  he  resided.  Ten  dollars  were  given  to  him  to  pay  his  expenses. 
He  did  not  attend.  Being  brought  into  court,  interrogatories  were 
filed,  to  which  he  answered.  .  .  . 

The  substance  of  the  answers  is  that  he  is  entirely  insolvent,  and  had, 
when  subpoenaed,  delivered  up  all  his  property  without  reserve,  into 
the  hands  of  his  assignees  under  the  insolvent  law,  except  what  was 
exempt  from  execution ;  that  he  had  a  wife  and  three  children  for  whom 
he  provided,  and  that  two  of  his  children  were  at  the  time  when  the 
subpoena  was  served,  and  up  to  the  time  of  the  circuit,  so  sick  as  to  render 
it  improper  for  him  to  leave  them;  that  his  family  were  wholly  dependent 
on  his  daily  labor  for  their  daily  support,  and  that  they  must  have 
suffered,  if  left,  for  the  common  necessaries  of  life;  that  his  wife  was 
unable  to  attend  the  children  alone  during  nights,  and  he  could  not 
procure  her  any  assistance;  that  the  ten  dollars  which  he  received  as 
witness's  fee  would  not,  as  he  believes,  have  defrayed  his  expenses  of 
travel  by  the  public  conveyances;  that  he  advised  with  his  friend, 
and  leaving  the  fees  with  him,  procured  him  to  write  to  the  plaintiff's 
attorney,  stating  his  excuse.  .  .  . 

CowEN,  J. —  It  was  the  duty  of  the  witness  to  obey  the  subpoena; 
and  he  is  guilty  of  a  contempt  in  disregarding  it,  and  must  be  punished 
unless  he  has  furnished  us  with  a  legal  excuse.  Both  insolvency  and 
poverty  in  the  witness  are  sworn  to  by  himself  and  Mr.  Lamb,  who  was 
one  of  his  assignees.  But  it  is  scarcely  necessary  to  observe  that  these 
form  no  excuse  in  the  abstract.     If  received  at  all  it  must  be  in  connec- 


No.  573  VIATORIAL  PRIVILEGE  827 

tion  with  the  situation  of  the  family,  or  as  showing  the  utter  inabihty 
of  the  defendant  to  defray  his  expenses.  In  rendering  these  excuses 
of  sickness  and  extreme  poverty,  while  we  are  not  disposed  to  deny  the 
validity  of  either  if  clearly  made  out  in  a  proper  degree,  we  cannot  allow 
the  witness  to  judge  for  himself.  Were  we  to  stop  and  be  content  with 
his  telling  us  in  this  general  way,  "  some  of  my  family  were  so  sick  that, 
with  want  of  assistance  and  considering  our  poverty,  I  deemed  it  improper 
to  leave  home,"  we  should  surrender  our  own  judgment.  .  .  .  The 
process  of  subpoena  demands  great  and  extraordinary  efforts  on  the  part 
of  the  witness  to  obey.  It  commands  him  expressly  to  lay  aside  his 
business  and  excuses;  and,  while  it  lays  him  under  severe  obligations,  it 
clears  away  obstructions  in  the  path  of  obedience;  the  witness  was  always 
privileged  from  arrest  on  civil  process  in  going,  staying,  and  returning. 
It  is  not  denied  that  serious  sickness  in  his  family,  such  as  would  prevent 
a  prudent  father  or  husband  from  leaving  home  on  his  own  important 
business,  would  save  him  from  the  imputation  of  a  contempt  and,  perhaps 
from  an  action.  But  such  a  cause  ought  clearly  to  be  shown  to  the  Court. 
.  .  .  Above  all,  where  the  summons  allows  him  full  time,  he  should 
struggle  to  get  ready,  as  he  would  to  go  abroad  on  his  own  pressing 
business.  If  inevitably  disappointed,  after  exhausting  every  reasonable 
expedient,  he  ought  certainly  to  be  excused  from  the  payment  of  a  penalty 
which  presupposes  some  degree  of  neglect,  at  least.  Witnesses  are  the 
summary  instruments  of  investigation  in  all  our  common-law  courts. 
It  is  not  until  a  positive  disability  is  apparent  that  their  domestic  exami- 
nation will  be  received  as  a  substitute  for  their  actual  presence.  The 
important  right  of  oral  examination  and  cross-examination  is  at  stake; 
and  every  good  citizen,  if  he  could  be  supposed  to  regard  nothing  beyond 
his  own  rights,  should  struggle  for  the  front  rank  in  the  order  of  obedience. 
The  least  we  can  say  of  the  case  before  us  is,  that  it  presents  an  unpleasant 
contrast  to  all  this ;  great  diligence,  from  first  to  last,  in  devising  colorable 
excuses,  without  lifting  a  finger  in  preparation  to  go  forward. 

The  defendant  must  be  fined,  and  the  fine  ought,  at  least,  to  be  so 
large  as  to  indemnify  the  plaintiff  Kelley  against  the  expenses  of  the  last 
circuit,  with  the  costs  of  this  proceeding. 

573.  Statutes.  California.  P.  C.  1872,  §  1330.  (No  person  is  obliged  to 
attend  out  of  the  county  of  residence  or  of  service  of  subpoena,  unless  a  subpoena 
is  indorsed  by  the  trial  judge's  order,  or  a  judge  of  the  wSupreme  or  Superior  Court, 
on  affidavit  of  the  party  "stating  that  he  believes"  the  evidence  to  be  material 
and  attendance  necessary.) 

United  Stafes.  Revised  Statutes,  1878,  §  870.  (No  witness  is  compellable  to 
attend  for  a  dedimus  deposition  "out  of  the  county  where  he  resides,  nor  more 
than  forty  miles  from  the  place  of  his  residence."  No  witness  subpoenaed  to 
depose  under  a  dedimvs  poiestatem  "shall  be  deemed  guilty  of  contempt  for 
disobeying  .  .  .  unless  his  fee  for  going  to,  returning  from,  and  one  day's  attend- 
ance at,  the  place  of  examination,  are  paid  or  tendered  to  him  at  the  time  of 
the  service  of  the  subpoena.") 


828  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  573 

Ibid.  §  876.  (In  civil  cases,  a  subpoena  shall  not  run  more  than  one  hundred 
miles  from  the  place  of  the  Court,  if  the  witness  lives  out  of  the  district  of  the 
Court.) 

574.   DIXON  V.   PEOPLE 

Supreme  Court  of  Illinois.  1897 

168  ///.  179;  48  N.  E.  108 

Appeal  from  the  Appellate  Court  for  the  Third  District;  —  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Sangamon  county,  the 
Hon.  James  A.  Creighton,  Judge,  presiding. 

At  the  January  term,  1895,  of  the  Circuit  Court  of  Sangamon  county, 
the  case  of  Olive  Purdy  against  the  city  of  Springfield  was  on  trial.  It 
was  a  suit  for  damages  for  injury  caused  by  a  defective  sidewalk.  The 
appellant,  Dr.  J.  N.  Dixon,  was  called  as  an  expert  witness  on  the  part 
of  the  city,  and  testified  that  he  was  a  physician  and  surgeon;  that  he 
had  practiced,  as  such,  twenty-one  years,  and  nineteen  of  them  in  Spring- 
field ;  that  he  was  a  surgeon  for  five  railroads  running  into  said  city,  and 
had  been  such  surgeon  from  two  to  seventeen  years;  and  that  he  was  a 
graduate  of  regular  schools  of  medicine,  and  had  been  practicing  general 
surgery  for  eighteen  years.  The  witness  was  then  asked  this  question: 
"Dr.  Dixon,  suppose  a  patient,  .  .  .  what  would  you  say  as  to  such 
injuries  being  the  probable  results  of  such  fall?"  This  question  the 
witness  declined  to  answer,  stating  the  following,  as  his  reason  for  so 
declining:  " On  the  ground  that  an  expert  witness  is  entitled  to  a  differ- 
ent and  greater  compensation  than  an  ordinary  witness  is  allowed,  and 
that  an  expert  is  not  required  to  give  expert  testimony  without  compensa- 
tion as  an  expert,  unless  a  reasonable  compensation  shall  have  been  paid 
or  provided  for.  My  reasonable  fee  for  an  expert  or  professional  opinion 
in  this  case  is  $10.00.  I  have  not  been  paid,  nor  offered  anything  for 
compensation  for  my  expert  or  professional  opinion  in  this  case,  nor  has 
said  compensation  been  in  any  way  promised  to  me  or  provided  for. 
On  the  contrary,  it  has  been  expressly  refused.  Therefore  I  decline  to 
testify  until  such  fee  is  provided  for."  It  was  conceded,  that  the  witness 
knew  nothing  about  the  facts  of  the  case,  and  was  called  as  an  expert 
only.  It  was  also  conceded,  that  the  charge  of  SIO.OO  as  a  fee,  if  a  legal 
one,  was  reasonable,  but  that  the  city  had  no  means  provided  for  paying 
such  fee,  and  had  not  promised  to  pay  the  same.  The  witness  was 
brought  into  court  by  a  regular  subpoena,  the  same  as  any  ordinary 
witness.  .  .  . 

In  answer  to  a  further  question  by  the  Court  the  witness  stated,  that 
he  was  not  willing  to  testify,  although  informed  by  the  Court  that  it 
was  his  duty  to  do  so;  and  the  witness  refused  to  answer  the  question. 
.  .  .  Thereupon  the  Court  found  him  guilty  of  contempt,  and,  for  such 
contempt,  fined  him  in  the  sum  of  S25.00.     This  order,  fining  the  witness. 


No.   574  VIATOHIAL   PRIVILEGE  829 

was  excepted  to,  and  his  counsel  made  a  motion  for  remission  of  the  fine, 
which  motion  was  overruled  by  the  Court.  To  the  order  overruling  the 
motion  exception  was  taken,  and  an  appeal  was  brought  to  the  Appellate 
Court.  The  A^ppellate  Court  has  affirmed  the  judgment  of  the  Circuit 
Court  and  given  a  certificate  of  importance.  The  present  appeal  is 
prosecuted  from  such  judgment  of  affirmance  so  entered  by  the  Appellate 
Court. 

Conlding  &  Grout,  for  appellant.  ...  In  England  the  statute  of  5 
Eliz.  chap.  9  [ante,  No.  565]  doubtless  formulated  a  pre-existing  custom, 
and  provided  that  witnesses  should  be  paid,  according  to  their  counte- 
nance and  calling,  a  reasonable  sum.  .  .  .  There  seems  to  be  a  reasonable 
distinction  between  the  case  of  a  witness  called  to  depose  to  a  fact  and 
one  who  is  called  to  speak  to  a  matter  of  opinion  depending  on  his  skill 
in  a  particular  profession  or  trade.  The  former  is  bound,  as  a  matter  of 
public  duty,  to  speak  to  the  fact  which  has  occurred  within  his  knowledge ; 
but  the  latter  is  under  no  such  obligation,  and  is  selected  by  the  party 
to  give  his  opinion,  merely,  and  he  is  entitled,  therefore,  to  demand  a 
compensation  for  loss  of  time.  2  Phillips  on  Evidence,  (4th  Am.  ed.) 
828.  .  .  . 

The  English  practice  is  now  settled  that  extra  compensation  to  scien- 
tific witnesses  may  be  taxed.  .  .  .  The  question  as  to  what  constitutes 
the  "reasonable  costs  and  charges"  of  a  witness  under  the  statute  of 
5  Eliz.  was  left  in  former  times  very  much  to  the  discretion  of  the  tax 
officers.  .  .  . 

James  M.  Graham,  State's  Attorney,  for  the  People.  ...  It  will  be 
well  to  bear  in  mind  from  the  outset  that  at  common  law  no  witness  fees 
were  paid,  and  that  in  the  absence  of  a  statute  authorizing  it  no  fees 
can  now  be  taxed  as  costs  or  recovered.  ...  A  professional  witness  in 
the  discharge  of  his  duty  as  a  good  citizen  is,  like  any  other  person, 
whether  he  be  laborer,  merchant,  broker,  manufacturer  or  banker, 
compellable  to  attend  in  obedience  to  process  and  to  testify  as  to  what 
he  may  know,  whether  it  be  observed  facts  or  accumulated  knowledge 
acquired  by  study  and  experience.  .  .  . 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  Court: 

The  question  in  this  case  is,  whether  a  physician,  who  has  been  sub- 
poenaed and  is  interrogated  as  an  expert  witness  onl}-,  can  be  punished  as 
for  a  contempt  for  refusing  to  testify,  when  no  compensation,  greater  than 
that  allowed  to  an  ordinary  witness,  has  been  paid  to  him  or  promised  to 
him. 

The  question  here  involved  has  never  been  directly  decided  by  this 
Court.  .  .  . 

1.  'At  common  law  no  witness  fees  were  paid.  Costs  are  a  creature 
of  the  statute,  and,  in  the  absence  of  a  statute  authorizing  it,  no  fees  can 
now  be  taxed  as  costs  or  recovered.  (3  Blackstone's  Commentaries,  366 ; 
Constant  v.  Matteson,  22  111.  546;  Elmer  v.  Eimer,  47  id.  373;  Smith  v. 
McLaughlin,  77  id.  596;   County  Commissioners  v.  Lee,  3  Col.  Ct.  App. 


830  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  574 

177.)  Section  47  of  chapter  53  of  the  Revised  Statutes  of  this  State 
provides  that  "  every  witness  attending  in  his  own  county  upon  trials  in 
the  court  of  record  shall  be  entitled  to  receive  the  sum  of  one  dollar  for 
each  day's  attendance  and  five  cents  per  mile  each  way  for  necessary 
travel."  There  is  also  a  provision  for  paying  witnesses  from  a  foreign 
county  in  criminal  cases.  As,  therefore,  such  fees  only  can  be  taxed  as 
costs,  as  are  provided  for  in  the  statute,  and  as  only  such  witness  fees,  as 
are  specified  in  said  section  47,  are  provided  for  in  the  statute,  it  is  mani- 
fest, that  no  extra  compensation  for  the  services  of  an  expert  witness, 
testifying  to  a  matter  of  opinion,  can  be  taxed  as  costs  against  the 
defeated  party. 

Many  of  the  cases  in  England,  which  are  referred  to  as  sustaining 
the  doctrine  that  such  expert  witness  may  be  allowed  an  extra  fee  for 
his  services  are  based  upon  the  statute  of  5  Eliz.  chap.  9,  which  enacted 
that  the  witness  must  "have  tendered  to  him  according  to  his  counte- 
nance or  calling  his  reasonable  charges."  Greenleaf  in  his  work  on 
Evidence  (15th  ed.  §  310)  says,  that  "in  this  country  these  reasonable 
expenses  are  settled  by  statutes,  at  a  fixed  sum  for  each  day's  actual 
attendance,  and  for  each  mile's  travel,  from  the  residence  of  the  witness 
to  the  place  of  the  trial  and  back,  without  regard  to  the  employment  of 
the  witness,  or  his  rank  in  life."  Our  statute  treats  all  witnesses  alike, 
regardless  of  their  "countenance  or  calling,"  whether  they  be  physicians, 
or  lawyers,  or  ordinary  citizens,  so  far  as  the  question  of  the  taxation  of 
their  fees  as  costs  is  concerned.  .  .  . 

It  follows,  that,  in  this  case,  the  Court  could  not  fix  a  compensation 
to  be  paid  to  appellant,  nor  order  his  fee  of  $10.00  to  be  taxed  as 
costs  nor  order  the  party  calling  the  witness  to  pay  or  secure  to  him 
compensation. 

2.  It  is  claimed,  however,  that,  in  a  civil  suit,  a  witness,  who  is  called 
to  testify  as  an  expert  only,  should  not  be  punished  for  contempt  in  refus- 
ing to  testify  because  no  compensation  is  provided  for  his  professional 
opinion  other  than  ordinary  witness  fees. 

The  grounds  upon  which  the  right  to  such  extra  compensation  on  the 
part  of  expert  witnesses  has  been  sustained  have  generally  bieen  three  in 
number. 

[1]  The  first  ground  is  that  the  time  of  the  expert  witness  is  more 
valuable  than  the  time  of  ordinary  men  and  that,  by  attendance  at  court 
to  give  his  testimony,  such  a  witness  meets  with  a  loss  of  time.  .  .  .  Loss 
of  time,  as  a  ground  for  claiming  extra  compensation  for  services  as  a 
witness,  applies  as  well  to  all  ordinary  witnesses  as  to  expert  witnesses. 
It  is  conceded  that  when  any  witness,  whether  he  is  an  expert  witness  or 
not,  is  acquainted  with  any  facts  which  bear  upon  the  matter  ih  con- 
troversy in  a  litigation,  he  is  obliged  to  testify;  and  a  distinction  is  drawn 
between  the  testimony  of  an  expert  witness  who  is  acquainted  with  the 
facts  about  which  he  testifies,  and  an  expert  witness  who  is  called  upon 
to  give  his  opinion,  in  reply  to  a  hypothetical  question,  without  any 


No.  574  VIATORIAL  PRIVILEGE  831 

knowledge  of  facts.  Manifestly,  the  witness  who  goes  to  court  and  testi- 
fies as  to  the  facts  of  which  he  knows  is  subjected  to  a  loss  of  his  time 
as  much  as  a  witness  who  goes  there  to  testify  as  an  expert  upon  a  mere 
matter  of  opinion. 

[2]  The  second  ground  upon  which  the  claim  for  such  extra  compensa- 
tion is  based  is  that  the  skill  and  accumulated  knowledge  of  the  expert 
are  his  property,  and  that  a  man's  property  should  not  be  taken  without 
just  compensation.  .  .  .  There  is  no  infringement  here  to  a  property 
right.  It  may  be  conceded  that  in  a  certain  sense  the  knowledge  of  the 
physician,  acquired  by  special  study,  is  property;  but  the  question  here 
is,  not  so  much  whether  certain  knowledge  is  property,  as  whether  the 
requirement  that  he  shall  answer  a  hypothetical  question  is  a  taking  of 
his  property.  Where  he  is  required  to  make  an  application  of  his  knowl- 
edge to  a  particular  case,  so  as  to  secure  a  particular  result,  —  such  as, 
for  instance,  the  curing  of  a  disease  or  the  healing  of  a  wound,  —  then  he 
would  undoubtedly  be  entitled  to  compensation.  A  physician  or  surgeon 
cannot  be  punished  for  a  contempt  for  refusing  to  make  a  post  mortem 
examination  unless  paid  therefor;  nor  can  he  be  required  to  prepare 
himself  in  advance  for  testifying  in  court,  by  making  an  examination, 
or  performing  an  operation,  or  resorting  to  a  certain  amount  of  study, 
without  being  paid  therefor.  But  when  he  is  required  to  answer  a  hypo- 
thetical question,  which  involves  a  special  knowledge  peculiar  to  his 
calling,  he  is  merely  required  to  do  what  every  good  citizen  is  required 
to  do  in  behalf  of  public  peace  and  public  order.  .  .  . 

[3]  If  the  precedent  is  once  established  that  expert  witnesses  must 
be  paid  a  reasonable  compensation  for  their  testimony,  then  it  will  not 
be  long  before  such  testimony  will  be  offered  to  the  highest  bidder.  The 
temptation  will  be  to  give  opinions  in  favor  of  that  party  to  the  suit  who 
will  pay  the  highest  price.  The  testimony  of  expert  witnesses  will  thus 
become  partisan  and  one-sided.  The  theory  upon  which  such  witnesses 
are  required  to  testify  in  cases  like  this  is  that  they  are  "amici  curise," 
and  that,  testifying  under  the  sanction  of  an  oath,  they  do  so,  not  with 
intent  to  take  the  part  of  either  contestant  in  the  suit,  but  with  a  view  to 
arriving  at  the  truth  of  the  matter,  and  for  the  purpose  of  aiding  the 
Court  to  pronounce  a  correct  judgment.  .  .  .  Moreover,  if  a  physician 
is  to  be  allowed  extra  compensation  as  an  expert  witness,  then  men 
pursuing  other  occupations  which  require  special  experience  will  have  the 
same  right  to  demand  extra  fees.  A  banker  will  claim  that  he  has  earned 
extra  compensation,  a  merchant  will  make  the  same  claim,  and  so  with 
men  engaged  in  other  branches  of  business.  It  will  be  easy  to  say  in 
such  cases  that  the  testimony  called  for  is  the  result  of  special  knowledge 
and  required  skill,  and  therefore  should  be  paid  for.  Almost  every  law 
suit  involves  testimony  which  is  in  the  nature  of  opinion,  in  addition  to 
testimony  which  speaks  of  the  mere  facts  within  the  knowledge  of  the 
witness.  For  instance,  A  sells  B  a  certain  quaiitity  of  wheat,  and  delivers 
the  same,  and  sues  for  the  price  of  the  wheat.     One  witness  testifies  a? 


832  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  574 

to  the  contract,  which  he  heard  the  parties  make.  Another  testifies  to 
the  dehvery  of  the  wheat,  which  he  saw  dehvered.  These  witnesses 
testify  to  actual  facts  heard  and  seen.  But  still  another  witness,  who 
ma}'  know  nothing  about  the  facts,  may  yet  be  required  to  state  the 
value  of  the  wheat  at  the  time  of  the  contract,  or  at  the  time  of  the  de- 
livery; and  he  may  be  required  to  testify  from  his  knowledge  of  the 
market  prices  of  wheat,  as  given  in  the  market  quotations.  Such  a 
witness,  however,  as  to  the  value,  and  as  to  market  prices,  is  not  regarded 
as  an  expert  witness  who  is  entitled  to  extra  compensation.  .  .  . 

It  can  make  no  difference  whether  the  suit  in  which  the  witness  is 
called  upon  to  testify  is  a  suit  between  private  parties,  or  is  a  suit  between 
the  State  and  an  alleged  criminal.  In  either  case  the  object  is  to  pro- 
mote public  justice,  and  to  aid  the  due  administration  of  justice.  It  is 
just  as  important  to  the  peace  and  good  order  of  society  that  private 
controversies  should  be  settled  upon  correct  proofs,  and  in  accordance 
with  truthful  testimony,  as  that  criminals  who  violate  the  laws  of  the 
State  should  be  punished.  It  is  the  duty  of  the  ordinary  witness  and  of 
the  expert  witness  to  testify  as  to  facts  within  his  knowledge  which  bear 
upon  the  decision  of  controversies  in  the  courts.  Such  duty  devolves 
upon  him  as  a  citizen;  and  in  view  of  the  protection  which  he  receives 
from  the  laws  of  the  country,  in  the  matter  of  his  personal  liberty,  and  in 
the  matter  of  the  protection  of  his  property,  this  duty  devolves  as  much 
upon  a  physician  who  is  required  to  testify  as  an  expert  witness  in  answer 
to  hypothetical  questions  as  it  does  upon  the  ordinary  witness  testifying 
to  facts  within  his  knowledge. 

Accordingly,  the  judgments  of  the  Appellate  Court  and  of  the  Circuit 
Court  are  affirmed.  Judgment  affirmed. 

575.     In  re  Shaw 

United  States  Circuit  Court,  Southern  District 
OF  New  York.     1909 

172  Fed.  520 

Applications  for  Orders  Quashing  Subpoenas. 

De  Lancey  Nicoll  and  John  M.  Bowers,  for  petitioners.  Henry  L. 
Stimson,  United  States  Attorney. 

Ward,  Circuit  Judge.  This  is  a  motion  to  quash  and  set  aside 
subpoenas  served  on  witnesses  Shaw  and  McLaughlin;  the  subpoena 
ticket  being  in  the  following  form : 

"U.  S.  Grand  Jury: — By  virtue  of  a  writ  of  subpoena  to  you  directed 
and  herewith  shown,  you  are  commanded  and  firmly  enjoined  that  laying 
all  other  matters  aside,  and  notwithstanding  any  excuse,  you  be  and 
appear  in  your  proper  person  before  the  grand  inquest  of  the  body  of  the 
people  of  the  United  States  of  America  for  the  Southern  district  of  New 
York  at  a  Circuit  Court  to  be  held  at  the  United  States  Court  and  Post 


No.  575  VIATORIAL  PRIVILEGE  833 

Office  Building,  room  119,  fourth  floor,  in  tlie  city  of  New  York  in  and 
for  the  said  Southern  district  on  the  18th  day  of  January,  1909,  at  10:30 
o'clock  in  the  forenoon  of  the  same  day,  to  testify  all  and  everything 
which  you  may  know  generally  on  the  part  of  the  said  United  States. 
And  this  you  are  not  to  omit  under  the  penalty  of  two  hundred  and  fifty 
dollars. 

"Dated  this  4th  day  of  January,  1909. 

"By  the  Court,  Henry  L.  Stimson,  U.  S.  Attorney." 

There  were  struck  out  of  the  printed  form  the  words  "  to  give  evidence 
in  a  certain  cause  now  depending  in  the  said  court  between  the  United 
States  of  America  and,"  and  the  word  "generally"  substituted.  The 
statutory  form  of  subpoena  in  the  State  of  New  York  (section  612,  Code 
Cr.  Proc.)  contains  a  similar  provision  to  the  one  struck  out,  viz.,  to 
appear  "as  a  witness  in  a  criminal  action  prosecuted  by  the  people  of 
the  state  of  New  York  against."  The  form  of  subpoena  in  the  Federal 
courts  is  not  prescribed  by  law.  The  only  regulation  on  the  subject  is 
section  877,  Rev.  St.  U.  S.  .  .  . 

The  form  used  in  this  district  indicates  at  least  a  general  intention 
that  a  witness  shall  be  informed  of  the  matter  about  which  he  will  be 
called  upon  to  testify.  I  think  it  is  proper  that  he  should  be.  .  .  .  It  is 
quite  clear  that  the  ordinary  citizen  called  upon  to  testify  in  the  strange 
environment  of  the  grand  jury  room  under  the  interrogation  of  the 
United  States  attorney  will  be  quite  unable  to  assert  his  rights,  even  if 
he  knows  what  they  are.  He  ought  to  have  an  opportunity  to  consult 
counsel  and  be  advised  of  the  extent  of  his  right  to  refuse  to  testify,  and 
of  the  way  in  which  to  protect  himself  against  giving  testimony  that 
might  incriminate  him. 

The  United  States  attorney  contends  that  in  this  country  the  grand 
jury  has  an  inquisitorial  power  to  investigate  of  its  own  motion,  and 
that  in  some  instances  the  utmost  secrecy  may  be  necessary  to  the  success 
of  its  inquiry,  and  that  the  protection  of  witnesses  may  safely  rest  on 
the  presumption  that  neither  the  grand  jury  nor  the  United  States 
attorney  will  do  anything  unfair  or  oppressive.  [To  this  it  may  be 
answered  that]  It  would  also  contribute  greatly  to  the  success  and 
celerity  of  some  investigations  if  the  authorities  had  an  unlimited  right 
to  search  and  seize  persons,  houses,  and  papers.  But  the  right  of  the 
"citizen  against  such  proceedings  is  not  left  to  depend  upon  any  such 
presumption.  He  is  guaranteed  against  unreasonable  searches  and 
seizures  by  the  fourth  amendment  to  the  Constitution.  So  it  would 
unquestionably  speed  the  detection  and  conviction  of  crime  to  compel 
suspected  persons  to  testify;  but  no  principle  of  our  law  is  better  settled 
than  that  this  cannot  be  done. 

The  subpoena  being  the  Court's  writ,  it  is  the  duty  of  the  Court, 
consistently  with  existing  statutes,  to  regulate  the  use  of  it.  It  is  not  a 
question  of  the  nature  of  the  particular  subject  now  under  consideration 
by  the  grrnd  jrry,  ror  of  the  fairness  of  the  present  United  States  attor- 


834  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  575 

ney  and  his  assistants  and  of  the  present  grand  jury;  but  the  question 
is  to  determine  the  practice  to  be  followed  in  this  district  in  all  cases  by 
all  United  States  attorneys  and  grand  juries,  a  matter  concededly  of  the 
utmost  moment. 

It  is  pointed  out  [on  behalf  of  the  Government]  that  the  grand  jury 
may  often  be  unable  to  name  any  person  as  connected  with  the  subject 
that  it  is  investigating  of  its  own  inquisitorial  power,  and,  if  it  cannot 
subpoena  witnesses  without  meaning  some  person,  the  inquiry  must  be 
altogether  abandoned.  I  think  the  answer  to  this  is  that  it  can  in  such 
a  case  state  in  the  subpoena  the  subject  of  its  inquiry,  and  so  fix  some 
definition  of  and  limit  to  the  examination  to  which  the  witness  may  be 
subjected.  This  was  done  in  the  subpoena  issued  out  of  this  court  in 
the  case  of  United  States  v.  Kimball,  (C.  C.)  117  Fed.  156.  It  must  be 
admitted  that  there  is  a  strange  absence  of  authority  upon  the  subject; 
but  Justice  Brown,  in  Hale  v.  Henkel,  201  U.  S.  43,  65,  said: 

"We  deem  it  is  entirely  clear  that  under  the  practice  in  this  country,  at  least, 
the  examination  of  witnesses  need  not  be  preceded  by  a  presentment  or  indict- 
ment formally  drawn  up,  but  that  the  grand  jury  may  proceed,  either  upon  their 
own  knowledge  or  upon  the  examination  of  witnesses,  to  inquire  for  themselves 
whether  a  crime  cognizable  by  the  Court  has  been  committed,  that  the  result 
of  their  investigations  may  be  subsequently  embodied  in  an  indictment,  and 
that  in  summoning  witnesses  it  is  quite  sufficient  to  apprise  them  of  the  names 
of  the  parties  with  respect  to  whom  they  will  be  called  upon  to  testify,  ■without 
indicating  the  nature  of  the  charge  against  them."  .  .  . 

It  is  quite  in  line  with  his  view  that,  if  the  witness  cannot  be  apprised 
of  the  name  of  the  person  so  charged,  he  should  be  informed  of  the 
subject  about  which  he  will  be  called  upon  to  testify.  .  .  . 

The  motion  to  quash  and  set  aside  the  subpoenas  is  therefore  granted. 


No.  576  PRIVILEGED   TOPICS  835 

SXJB-TITLE   II.     PRIVILEGED   TOPICS 

576.   DOE  dem.   EGREMONT   v.   DATE 
Queen's  Bench.     1842. 
3  q.  B.  609,  621 

Ejectment  for  lands  in  Somersetshire.  The  lessor  of  the  plaintiff, 
George,  Earl  of  Egremont,  claimed  under  the  demise  of  Charles,  late 
Earl  of  Egremont,  who  died  in  1763,  leaving  his  will  dated  30th  July,  1761. 
By  the  will,  lands  were  devised  to  George  O'Brien,  late  Earl  of  Egremont, 
for  life,  with  limitations  over  in  remainder,  under  which  remainder  the 
lessor  of  the  plaintiff  was  now  entitled  as  tenant  in  tail.  ...  In  order  to 
show  that  the  lands  in  question  were  part  of  the  lands  devised,  and  had 
been  the  property  of  the  devisor,  it  was  proposed  to  prove  that  they  had 
been  held  by  the  tenant  for  life,  the  late  George  O'Brien,  Earl  of  Egre- 
mont, as  landlord. 

The  evidence  opened  in  support  of  this  was  a  rent  book,  belonging  to 
the  late  tenant  for  life,  and  now  in  the  hands  of  his  executor,  Colonel 
Wyndham,  in  which  was  an  entry  of  the  receipt  of  rent  for  his  property, 
by  the  steward  of  the  tenant  for  life,  in  1800.  A  subpoena  duces  tecum, 
to  produce  the  book,  was  served  on  Colonel  Wyndham :  and  (by  consent 
of  the  parties)  Mr.  Murray,  Colonel  Wyndham's  attorney,  appeared  for 
him,  with  it.  .  .  .  He  then  objected  to  produce  the  rent  book,  on  the 
ground  that  it  was  a  document  relating  to  the  title  of  Colonel  Wyndham ; 
but  the  learned  judge  overruled  the  objection;  and  the  book  was  produced. 
Verdict  for  the  plaintiff. 

Sir  W.  W.  Follett,  Erie,  Croivder,  and  Montague  Smith  showed  cause. 
First,  even  if  the  witness  was  not  compellable  to  produce  the  book,  that 
is  no  ground  for  a  new  trial  on  the  application  of  one  of  the  parties.  The 
book  being,  in  itself,  legitimate  evidence,  what  right  has  the  party 
against  whom  it  is  produced  to  make  the  objection?  The  only  person 
injured,  if  any,  is  the  owner  of  the  book :  but  he  is  not  the  party  making 
the  application. 

Lord  Denman,  C.  J.  —  Surely  injustice  is  done  to  the  defendant  if 
that  is  admitted  in  evidence  against  him  which  ought  not  to  have  been 
admitted.  It  seems  very  difficult  to  say  that  such  a  situation  is  not  to 
be  reviewed. 

Kelly,  Bere  and  Butt,  contra.  .  .  .  Even  where  the  judge  directs  the 
witness  to  produce  the  evidence,  if  the  witness  still  refuse,  all  that  the 
judge  can  do  is  to  pimish  him  for  contempt;  and  yet,  if  the  judge  improp- 
erly refuse  to  order  the  evidence  to  be  produced,  it  is  admitted  that  this 
is  a  ground  for  a  new  trial. 

Patteson,  J. — Taking  that  to  be  so,  it  shows  only  that  a  party  to 
the  suit  has  a  right  to  complain  that  the  judge  has  not  exercised  on  his 


836  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  576 

hehalf  the  power  which  ought  to  have  been  exercised;  but,  where  a 
judge  refuses  to  protect  a  witness  from  giving  the  evidence,  that  is  not  a 
decision  against  either  party  in  the  cause.  .  .  . 

Lord  Denman,  C.  J. — With  respect  to  the  preHminary  point,  I  may 
perhaps  have  expressed  myself  too  strongly  during  the  argument,  con- 
sidering the  case  of  Marston  v.  Downes,  1  A.  &  E.  31,  which  was  not 
present  to  my  mind  at  the  moment.  I  must  own,  however,  that  I  am 
not  altogether  satisfied  with  the  principle  of  that  decision.  Perhaps  I 
might  be  inclined  to  put  the  argument  thus.  A  party  to  a  suit  has  a 
right  to  insist  that  no  evidence  shall  be  produced  against  him,  except  such 
as  can  be  given  legally.  Now,  if  a  witness  be  compelled  by  a  judge  at 
Nisi  Prius  to  produce  a  title-deed  which  he  is  legally  entitled  to  withhold, 
it  strikes  me  that  the  party  to  the  suit  against  whom  the  evidence  is 
produced,  is  affected  by  that  which  ought  not  to  have  been  laid  before 
the  jury.  .  .  . 

These  observations,  however,  are  only  thrown  out  for  the  purpose  of 
indicating  a  doubt  upon  a  question  of  considerable  importance,  which 
seems  to  me  to  have  arisen  quite  unnecessarily  in  this  case.  For  I  have 
not  the  least  doubt  that  the  witness  was  compellable  to  produce  the 
book  in  question.  .  .  . 

Coleridge,  J. :  ...  I  must  say  that  I  entertain  great  doubt  whether 
we  could  have  reviewed  the  decision  of  the  learned  judge.  There  is  a 
very  broad  distinction  betw^een  cases  where  the  privilege  has  been  allowed, 
and  those  where  it  has  been  disallowed.  In  the  former  case,  a  party  has 
been  precluded  from  proving  that  which  he  was  entitled  to  prove.  In 
the  latter  case,  the  party  whose  privilege  has  been  disallowed  has  no 
"locus  standi  in  banco."  I  recollect  a  case  on  the  western  circuit,  in 
which  I  was  retained  as  counsel  for  a  witness,  to  resist  his  being  compelled 
to  produce  some  evidence.  Mr.  Justice  Park,  who  was  perfectly 
familiar  with  the  course  of  practice  at  Nisi  Prius,  would  not  for  a  moment 
allow  me  to  appear  in  that  character.  He  said,  "  I  must  be  left  to  take 
care  of  the  witness,  and  I  alone;  I  shall  not  hear  counsel  on  his  behalf." 
If  counsel  cannot  be  heard  for  a  witness  at  Nisi  Prius,  certainly  he  cannot 
be  heard  for  that  witness  in  banc.  And,  if  the  witness  cannot  call  upon 
us  to  review  the  decision,  can  the  party  to  the  cause  do  so?  Legitimate 
evidence  has  been  produced  against  him:  he  is  not  prejudiced  by  that, 
and  can  have  no  ground  of  complaint.' 


577.   GREAT  WESTERN  TURNPIKE   CO.   v.  LOOMIS 

(1865.  New  York.    32  X.  Y.  127,  138.)  ,     ■ 

LooMis,  i.  —  Strictly  speaking,  there  is  no  case  in  which  a  witness  is  at 
liberty  to  object  to  a  question.  That  is  the  office  of  the  party  or  of  the  Court. 
The  right  of  the  witness  is  to  decHne  an  answer,  if  the  Court  sustains  his  claim 
of  privilege. 


No.   578  PRIVILEGED   TOPICS  837 

When  the  question  is  relevant,  it  cannot  be  excluded  on  the  objection  of 
the  party,  and  the  witness  is  free  to  assert  or  to  waive  his  privilege.  But 
when  the  question  is  irrelevant,  the  objection  properly  proceeds  from  the  party, 
and  the  witness  has  no  concern  in  the  matter  unless  it  be  overruled  by  the 
judge. 

Topic  1.    Privilege  for  Party-Opponent  in  Civil  Cases 

578.  History.  It  is  a  little  singular  that  the  oldest  and  once  the  most 
firmly  established  of  all  the  privileges  should  be  also  the  most  obscure  in  its 
history  and  precise  mode  of  origin.  That  the  party-opponent  in  a  jury-trial  at 
common  law  was  not  compellable  to  be  a  witness  seems  unquestioned,  since  the 
beginning  of  recorded  trials,  though  it  is  not  explicitly  stated  until  the  late  1700s. 
On  the  other  hand,  that  a  party-opponent  in  chancery  was  compellable  to  answer 
interrogatories  under  oath,  like  any  witness,  is  equally  clear,  from  the  beginning 
of  systematic  chancery-practice.  The  absence  of  a  privilege  in  chancery  is  easily 
explainable;  because  the  Chancellor  merely  adopted  the  system  of  the  ecclesias- 
tical Courts,  in  this  as  in  so  many  other  respects;  and  the  ecclesiastical  practice 
regarded  as  compellable  the  party,  no  less  than  other  persons.  But  why  was 
this  not  done  in  common-law  trials  also?  Before  the  statute  of  Elizabeth,  which,' 
virtually  created  compulsory  process  for  witnesses  in  jury-trials,  it  is  easy  to  seel 
that  a  party-opponent  was  not  compellable  to  appear;  but,  after  that  time^ 
from  the  middle  of  the  1500s,  why  were  not  parties  summoned  by  subpoena  like 
other  desired  witnesses,  as  they  were  in  chancery? 

How  readily  the  common-law  practice  has  been  grafted  with  the  chancery 
rule,  may  be  seen  from  the  circumstance  that  this  very  measure  was  taken  in 
Massachusetts  by  the  colonists,  two  centuries  before  the  general  reform  of  the 
law  in  that  direction.^ 

As  to  the  policy  of  such  a  privilege,  it  is  amazing  that  there  should  have 
been  so  long  a  continuance  in  its  recognition.  The  very  denial  of  it  in  chancery, 
alongside  of  its  recognition  at  common  law,  was  an  anomaly  and  an  absurdity; 
and  the  great  commentator  himself  had  long  ago  pointed  out"  that  "it  seems  the 
height  of  judicial  absurdity  that  in  the  same  cause  between  the  same  parties  in 
the  examination  of  the  same  facts  a  discovery  by  the  oath  of  the  parties  should 
be  permitted  on  one  side  of  Westminster  Hall  and  denied  on  the  other."  The 
benighted  doctrine  of  the  common-law  Courts  could  not  prevail,  when  the  force 
of  reason  and  common  sense  was  once  brought  to  bear,  and,  by  the  middle  of, 
the  1800s,  statutes  had  everywhere  abolished  the  privilege.  There  were  four 
modes  in  which  the  privilege  might  conceivably  apply,  though  the  statutes  dealt 
expressly  with  two  only.  These  four  were:  (1)  The  party's  personal  testimony; 
(2)  Documents  in  his  possession;  (3)  Premises  or  chattels  in  his  possession;  (4)  ; 
His  own  corporal  condition.  -^ 

(1)  Personal  testimony.  The  common-law  rule  was  abolished  by  statutes 
dating  from  the  second  half  of  the  1800s.  A  few  of  these  statutes,  indeed,  par- 
ticularly in  the  Southern  States  and  in  special  classes  of  litigation,  had  before 

^  1641,  Mass.  Body  of  Liberties  (Whitmore's  ed.)  §  26  (every  man  may  have 
help  in  pleading  his  cause,  but  "this  shall  not  exempt  the  partie  himself  from 
answering  such  questions  in  person  as  the  court  shall  thinke  meete  to  demand  of 
him"). 

^  Blackstone,  Commentaries,  HI,  382. 


838  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  578 

that  date  made  the  opponent  compellable,  but  not  competent,  as  a  witness; 
but  the  great  majority  employed  a  single  enactment  to  declare  him  both  com- 
petent and  compellable. 

The  statutory  enactments  are  usually  of  two  sorts,  corresponding  to  the  two 
purposes  that  were  to  be  accomplished.  One  of  these  was  the  recognition  of 
the  right  to  compel  the  opponent  to  testify  at  the  trial;  this  was  in  most  juris- 
dictions provided  in  express  terms.  The  other  was  the  securing  of  the  right  to 
discovery  of  his  evidence  before  trial  {atite,  Nos.  497-500).  This  was  usually 
accomplished  by  authorizing  the  filing  of  written  interrogatories,  and  thus  trans- 
ferred to  common-law  Courts  the  chancery  method  of  a  bill  of  discovery.  But 
this  latter  measure  virtually  accomplished  also,  at  the  same  time,  the  former 
purpose;  for  the  answers  to  these  interrogatories  could  be  put  in  at  the  trial  as 
his  admissions,  without  actually  calling  him  to  the  stand;  hence,  in  a  few  juris- 
dictions, this  latter  mode  remains  as  the  only  one,  and  is  regarded  as  sufficiently 
attaining  both  ends.  In  most  jurisdictions,  both  modes  are  provided  for,  as 
they  should  be,  by  separate  statutes. 

(2)  Documents.  By  the  middle  of  the  1800s,  statutes  began  to  be  passed, 
in  nearly  every  jurisdiction,  effectually  annulling  the  common-law  privilege  and 
providing  a  means  for  compelling  disclosure.  These  statutes,  like  those  compel- 
ling the  opponent's  oral  testimony,  of  which  indeed  they  were  the  historical  asso- 
ciates, either  directly  required  production  at  the  trial,  or  authorized  inspection 
before  trial,  in  the  manner  of  a  bill  of  discovery,  or  made  both  these  provisions. 
The  effect  was  to  destroy  the  common-law  privilege  entirely,  except  as  far  as 
the  limitations  of  the  chancery  rule  for  discovery  were  in  some  statutes  main- 
tained. Under  the  principle  of  these  statutes,  it  has  usually  and  properly  been 
held  that  the  simple  method  of  subpoena  duces  tecum  (which  was  indeed  the 
earliest  proceeding  for  this  purpose),  instead  of  the  more  formal  motion  to  pro- 
duce, may  be  used  for  compelling  production  of  documents  by  the  opponent  at 
the  trial." 

579.    Statutes.     [Printed  ante,  as  Nos.  499,  505] 


580.   REYNOLDS  v.   BURGESS  SULPHITE   FIBRE   CO. 

Supreme  Court  of  New  Hampshire.     1902 

71  N.  H.  332;  51  .1^/.  1075 

[Printed  ante,  as  No.  507] 

581.   WANEK  X.   WINONA 

Supreme  Court  of  Minnesota.     1899 

78  Minn.  98;  80  A'.  W.  851 

Action  in  the  District  Court  for  Winona  county  to  recover  $10,050 
for  personal  injuries.  The  case  was  tried  before  Snow,  J.,  and  a  jury, 
which  rendered  a  verdict  in  favor  of  plaintiff  for  84,000.  The  Court 
made  an  order  granting  a  motion  for  a  new  trial,  unless  plaintiff  should 


No.  581  PRIVILEGED   TOPICS  839 

consent  to  a  reduction  of  the  verdict  to  $3,000  and  otherwise  denying 
the  motion.  Plaintiff  consented  to  the  reduction,  and  from  the  order 
defendant  appealed.     Reversed. 

The  alleged  injuries  were  sustained  October  19,  1898.  The  plaintiff's 
notice  of  his  claim  for  damages  was  served  on  the  city  November  14,  1898. 
This  action  was  commenced  December  9  of  the  same  year,  and  defendant's 
application  for  a  physical  examination  was  made  May  1,  1899,  the  first 
day  of  the  term  at  which  the  action  was  tried.  The  complaint  alleged 
that  the  injuries  would  be  permanent,  and  the  existence  or  nonexistence 
of  at  least  some  of  the  injuries  could  only  be  ascertained  by  a  physical 
examination  of  plaintiff's  person.  The  trial  Court  denied  the  application 
upon  the  grounds,  as  shown  by  his  memorandum :  First,  that  he  had  no 
power  in  any  case  to  order  a  party  to  submit  to  a  physical  examination 
of  his  person;  and,  second,  even  if  he  had  the  power,  he  would,  in  the 
exercise  of  his  discretion,  have  refused,  under  the  circumstances  of  the 
case,  to  grant  defendant's  application. 

JV.  A.  Finkclnhurg  and  0.  B.  Gould,  for  appellant.  The  overwhelming 
weight  of  authority  sustains  the  power  of  the  Court,  as  a  matter  of  right, 
to  order  an  examination.  .  .  . 

//.  M.  Lamberton  and  Brown  &  Abbott,  for  respondents.  The  Court 
had  power  in  its  discretion  to  deny  the  application  for  an  examination. 
Hatfield  v.  St.  Paul  &  D.  R.  Co.  33  Minn.  130.  It  is  true  that  where  the 
Court  has  discretion,  but  refuses  to  exercise  it  on  the  ground  that  such 
discretion  does  not  exist,  error  is  committed.  But  the  reason  for  the 
rule  is  that  if  the  discretion  had  been  exercised,  it  might  have  been  in 
favor  of  the  complaining  party.  Leonard  v.  Green,  30  Minn.  496; 
Seibert  v.  Minneapolis  &  St.  L.  R.  Co.  58  Minn.  58.  In  this  case  the 
denial  was  on  the  merits.  The  Court  has,  however,  no  power  to  grant 
such  examination.  Union  Pacific  Ry.  Co.  v.  Botsford,  141  U.  S.  250; 
.  .  .  Peoria  v.  Rice,  144  111.  227;  Cole  v.  Fall  Brook,  159  N.  Y.  59. 

Mitchell,  J.  (after  stating  the  case  in  part  as  above).  1.  We  are 
very  clearly  of  the  opinion  that  the  Court  has  the  power,  in  a  case  of  this 
kind,  to  order  the  plaintiff  to  submit  to  a  physical  examination  of  his 
person.  We  shall  not  go  into  any  extended  discussion  of  a  question  which 
has  been  so  much  and  so  often  discussed  by  Courts  and  text  writers. 
Upon  both  principle  and  reason  we  are  of  opinion  that  in  a  civil  action 
for  physical  injuries,  where  the  plaintiff  tenders  an  issue  as  to  his  physical 
condition,  and  appeals  to  the  Courts  of  justice  for  redress,  it  is  within  the 
power  of  the  trial  Court  in  the  exercise  of  a  sound  discretion,  in  proper 
cases,  upon  an  application  reasonably  made,  under  proper  safeguards 
designed  to  preserve  the  rights  of  both  parties,  to  order  such  an  inspection, 
and  to  require  the  plaintiff  to  submit  to  it  under  the  penalty  of  having 
his  action  dismissed  in  case  he  refuses  to  do  so. 

We  are  aware  that  there  are  some  eminent  authorities  to  the  contrary. 
But,  with  all  due  deference  to  them,  we  cannot  avoid  thinking  that  they 
base  their  conclusion  upon  a  fallacious  and  somewhat  sentimental  line  of 


840  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  581 

argument  as  to  the  inviolability  and  sacredness  of  a  man's  own  person, 
and  his  right  to  its  possession  and  control  free  from  all  restraint  or 
interference  of  others.  This,  rightly  understood,  is  all  true,  but  his  right 
to  the  possession  and  control  of  his  person  is  no  more  sacred  than  the 
cause  of  justice.  When  a  person  appeals  to  the  State  for  justice,  tendering 
an  issue  as  to  his  own  physical  condition,  he  impliedly  consents  in  advance 
to  the  doing  justice  to  the  other  party,  and  to  make  any  disclosure  which 
is  necessary  to  be  made  in  order  that  justice  may  be  done.  No  one 
claims  that  he  can  be  compelled  to  submit  to  such  an  examination.  But 
he  must  either  submit  to  it,  or  have  his  action  dismissed.  Any  other 
rule  in  these  personal  injury  cases  would  often  result  in  an  entire  denial 
of  justice  to  the  defendant,  and  leave  him  wholly  at  the  mercy  of  the 
plaintiff's  witnesses.  In  very  many  cases  the  actual  nature  and  extent 
of  the  injuries  can  only  be  ascertained  by  a  physical  examination  of  the 
person  of  the  injured  party.  Such  actions  were  formerly  very  infrequent, 
but  of  late  years  they  constitute  one  of  the  largest  branches  of  legal 
industry,  and  are  not  infrequently  attempted  to  be  sustained  by  malinger- 
ing on  the  part  of  the  plaintiff,  false  testimony,  or  the  very  unreliable 
speculations  of  so-called  "medical  experts."  To  allow  the  plaintiff  in 
such  cases,  if  he  sees  fit  to  display  his  injuries  to  the  jury,  to  call  in  as 
many  friendly  physicians  as  he  pleases,  and  have  them  examine  his 
person,  and  then  produce  them  as  expert  witnesses  on  the  trial,  but  at 
the  same  time  deny  to  the  defendant  the  right  in  any  case  to  have  a 
physical  examination  of  plaintiff's  person,  and  leave  him  wholly  at  the 
mercy  of  such  witnesses  as  the  plaintiff  sees  fit  to  call,  constitutes  a  denial 
of  justice  too  gross,  in  our  judgment,  to  be  tolerated  for  one  moment. 

2.  The  next  question  is  whether  there  was  an  abuse  of  discretion  in 
denying  plaintiff's  request.  .  .  .  We  are  of  opinion  that  the  trial  Court 
erred  in  not  granting  defendant's  application. 

We  discover  no  other  error  in  the  record,  but  for  this  one  the  order 
appealed  from  must  be  reversed,  and  a  new  trial  granted.  It  is  so 
ordered. 

Topic  2.    Privilege  for  Anti-Marital  Facts 

583.  Sir  Edward  Coke.  Commentary  upon  Littleton,  6b  (1629).  .  .  . 
Note,  it  hath  been  resolved  by  the  justices  that  a  wife  cannot  be  produced  either 
against  or  for  her  husband,  "qua  sunt  du£e  animse  in  carne  una;"  and  it  might 
be  a  cause  of  implacable  discord  and  dissention  between  the  husband  and  wife, 
and  a  meane  of  great  inconvenience;  but  in  some  cases  women  are  by  law  wholly 
excluded  to  bear  testimony,  as  to  prove  a  man  to  be  a  villain. 

584.  Lady  Ivy's  Trial.  (1684.  Mossam  v.  Ivy,  Howell's  State  Trials,  X, 
555,  628.)  [Lady  Ivy's  title  rested  on  certain  deeds,  said  to  have  been  forged 
by  her  procurement.  Mrs.  Duffett  had  testified  that  her  husband,  now  dead, 
was  the  forger,  and  had  been  paid  for  it  by  Lady  Ivy.  The  defence  now  offers 
to  impeach  Mrs.  Duffett,  by  her  husband's  deposition.]  Sol.  (Ten. — My  lord, 
I  submit  what  I  offer  for  my  client  to  the  judgment  of  the  Court.     But  that 


No.  585  PRIVILEGED   TOPICS  841 

which  I  would  say  now,  is  this:  We  have  here  the  husband's  oath  concerning 
this  matter,  that  this  woman  who  now  takes  upon  her  to  swear  these  forgeries 
and  things,  told  him  she  could  have  £500  if  she  would  swear  against  my  Lady  Ivy. 

L.  C.  J.  Jeffreys  —  Is  that  evidence  against  the  wife? 

Sol.  Gen.  —  He  is  now  dead,  it  seems;  but  here  is  his  oath. 

L.  C.  J.  —  Pray,  consider  with  yourself;  could  the  husband  have  been  a 
witness  against  the  wife  about  what  siie  told  him  upon  an  information  for  that 
offence  of  subornation? 

Sol.  Gen.  —  No,  my  lord,  I  think  not. 

L.  C.  J.  —  Could  the  wife  be  an  evidence  against  the  husband  for  the  forgery? 

Sol.  Gen.  —  No,  my  lord,  she  could  not;  and  yet  she  swears  it  upon  him  here. 

L.  C.  J.  —  That  is  not  against  him,  man;  he  is  out  of  the  case;  but  against 
my  Lady  Ivy;  and  how  can  the  oath  of  the  husband  be  evidence  here?  .  .  . 

Sol.  Gen.  —  Suppose,  my  lord,  that  both  husband  and  wife  were  brought  as 
evidence  against  my  Lady  Ivy,  were  that  good? 

L.  C.  J.  —  Certainly,  that  were  very  good. 

Sol.  Gen.  —  Wliy  then,  my  lord,  one  of  them  says,  that  she  saw  such  and  such 
things  done  by  Lady  Ivy,  and  by  him  for  her;  and  the  other  says,  such  things  were 
not  done,  but  she  confessed  she  could  have  £500  to  swear  they  were  done;  shall 
not  this  evidence  be  admitted  to  contradict  the  other? 

L.  C.  J.  —  Why,  good  Lord !  gentlemen,  is  the  philosophy  of  this  so  witty, 
that  it  need  be  so  confidently  urged?  Is  it  good  logic,  that  because  they  both^ 
were  good  witnesses  against  my  Lady  Ivy,  therefore,  either  of  them  is  a  good  wit-i 
ness  against  the  other?  Shall  the  husband's  oath  be  read  against  the  wife,  to' 
fix  a  crime  upon  her?  Sure  you  do  not  intend  this  shall  pass  for  argument,  but, 
to  spend  time.  .  .  .  Nay,  be  not  angry,  Mr.  Solicitor;  for  if  you  be,  we  cannot \' 
help  that  neither.     The  law  is  the  law  for  you  as  well  as  me. 

Sol.  Gen.  —  My  lord,  I  must  take  the  rule  from  you,  now. 

L.  C.  J.  — And  so  you  shall.  Sir,  from  the  Court,  as  long  as  I  sit  here;  and 
so  shall  everybody  else,  by  the  grace  of  God.  I  assure  you  I  care  not  whether 
it  please  or  displease.  .  .  . 

They  would  have  read  her  husband's  oath,  he  being  dead;  but  that  is  no 
point  of  evidence  at  all  neither;  for  in  case  the  man  were  alive,  it  would  not  be 
evidence  what  he  should  have  heard  his  own  wife  say.  If  both  of  them  indeed 
had  been  heard  together,  and  testified  against  my  Lady  Ivy,  it  had  been  good 
evidence;  or  they  both  might  have  testified  for  her.  But  by  the  law  the  husband 
cannot  be  a  witness  against  his  wife,  nor  a  wife  against  her  husbatid,  to  charge 
them  with  anything  criminal,  except  only  in  cases  of  high  treason.  This  is  so 
known  a  common  rule,  that  I  thought  it  could  never  have  borne  any  question 
or  debate. 

585.   REX  V.   ALL  SAINTS 

King's  Bench.     1817 

6  M.  &  S.  195 

Upon  appeal  the  sessions  confirmed  an  order  for  the  removal  of 
Esther  Newmap,  otherwise  Esther  Willis,  from  the  parish  of  Cheltenham, 
in  the  county  of  Gloucester,  to  the  parish  of  All  Saints,  in  the  city  of 
Worcester,  subject  to  the  opinion  of  this  Court  on  the  following  case: 


842  BOOK    l:     RULES   OF   ADMISSIBILITY  No.  585 

The  appellants  having  produced  the  pauper,  the  counsel  for  the  respon- 
dents began  their  case  by  calling  a  witness,  named  Ann  Willis,  for  the 
purpose  of  proving  that  she  had  been  married  in  Ireland  to  one  George 
Willis.  The  counsel  for  the  appellants  objected  to  the  competency  of 
this  witness,  declaring  themselves  prepared  with  evidence  of  the  subse- 
quent marriage  of  the  same  George  Willis  to  Esther  the  pauper;  but  the 
Court  determined  to  admit  the  witness. 

Scarlett  and  Campbell,  in  support  of  the  order  of  sessions,  argued  that 
Ann  Willis  was  a  competent  witness  to  prove  her  marriage  with  George 
Willis.  ...  In  order  to  maintain  this  position  it  was  not  necessary  to 
dispute  the  rule  that  husband  and  wife  cannot  be  witnesses  for  each 
other,  nor  against  each  other,  provided  the  rule  were  limited  to  cases 
where  the  interest  of  husband  and  wife  is  the  matter  in  controversy,  as 
where  either  of  them  is  party  to  the  record.  But  suppose  an  issue 
between  A.  and  B.,  and  A.  calls  a  witness,  who  proves  certain  facts,  and 
also  calls  the  wife  of  that  witness,  with  a  view  of  confirming  his  evidence; 
if  the  wife,  instead  of  confirming,  should  contradict  her  husband,  this 
testimony,  according  to  the  argument  below  at  the  sessions,  must  be 
rejected,  otherwise  it  may  tend  to  shew  her  husband  guilty  of  perjury. 
But  would  it  not  be  a  strange  anomaly  in  the  law,  if  the  competency  of  a 
feme  covert  to  be  a  witness  should  depend  upon  whether  her  evidence 
would  or  would  not  agree  with  the  evidence  of  her  husband,  his  interest 
not  being  in  litgation?  It  seems,  indeed,  as  if  some  such  doctrine  had 
led  to  the  decision  of  Rex  v.  Cliviger,  2  T.  R.  263,  where,  upon  a  question 
touching  the  settlement  of  A.  and  B.  his  wife,  A.  having  denied  a  former 
marriage  with  C,  C.  was  held  an  incompetent  witness  to  prove  that 
marriage. 

Jervis,  Taunton,  and  Twiss,  contra,  argued  that  Rex  v.  Cliviger  was 
decisive  of  this  question  .  .  .  for  although  in  that  case  the  husband  was 
one  of  the  parties  included  in  the  order  of  removal,  and  had  been  called 
as  a  witness,  and  denied  his  former  marriage,  in  which  respect  it  differs 
from  the  present  case,  yet  having  been  decided  upon  the  principle  that 
the  law  does  not  permit  husband  and  wife  to  give  evidence  that  may  even 
tend  to  criminate  each  other,  that  decision  entirely  disposes  of  the  present 
case. 

Lord  Ellenborough,  C.  J. — With  the  best  attention  I  have  been 
able  to  give  this  case,  I  cannot  discover  any  incompetence  of  the  first 
wife  to  give  evidence  touching  the  fact  of  her  marriage.  .  .  .  She  affirmed 
that  he  was  her  husband.  How  does  this  criminate  him?  Does  it 
contradict  anything  which  he  had  sworn  to  before,  so  as  to  involve  him 
in  the  crime  of  perjury?  Not  at  all.  Does  it  even  relate  to  a  matter  on 
which  he  had  given  previous  evidence?  By  no  means.  .  .  .  The  objec- 
tion rests  only  on  the  language  of  the  King  v.  Cliviger,  that  it  may  "  tend 
to  criminate"  him;  for  it  is  not  an  immediate  tendency,  inasmuch  as 
what  she  stated  could  not  be  used  in  evidence  against  him.  ...  If  we 
were  to  determine,  without  regard  to  the  form  of  proceeding,  whether 


No.  586  PRIVILEGED  TOPICS  843 

the  husband  was  impUcated  in  it  or  not,  that  the  wife  is  an  incompetent 
witness  as  to  every  fact  which  may  possibly  have  a  tendency  to  criminate 
her  husband,  or  which  connected  with  other  facts  may  perhaps  go  to 
form  a  hnk  in  a  comphcated  chain  of  evidence  against  him,  such  a  decision, 
as  I  think,  would  go  beyond  all  bounds. 

And  there  is  not  any  authority  to  sustain  it,  unless,  indeed,  what  has 
been  laid  down,  as  it  seems  to  me,  somewhat  too  largely,  in  Rex  v.  Clivi- 
ger,  may  be  supposed  to  do  so.  I  would  observe  that  by  the  present 
decision  the  Court  does  not  mean  to  break  in  on  the  rule,  founded  in  the 
policy  of  the  law,  that  husband  and  wife  shall  not  be  permitted  to  be 
witnesses  for  or  against  or  to  criminate  each  other. 

Bayley,  J. — There  was  no  objection  arising  out  of  the  policy  of  the 
law  because  by  possibility  her  evidence  might  be  the  means  of  furnishing 
information  and  might  lead  to  inquiry  and  perhaps  to  the  obtaining  of 
evidence  against  her  husband.  It  is  no  objection  to  the  information 
that  it  has  been  furnished  by  the  wife.  .  .  . 

I  am  not  sure  that  the  import  of  the  expression  "tendency  to  crimi- 
nate" was  very  accurately  defined  in  that  case  [of  R.  v.  Cliviger].  It  was 
probably  not  understood  as  meaning  that  the  wife's  evidence  could  be 
used  against  her  husband,  for  we  know  that  this  could  not  be  so.  .  .  . 
Nothing  which  the  wife  proved  on  this  occasion  could  be  the  direct 
means  of  founding  a  prosecution  against  her  husband,  although  it  might 
afford  the  means  of  procuring  evidence  against  him ;  but  such  a  collateral 
consequence  is  not  a  sufficient  objection. 

Abbott,  J.  —  I  also  am  of  opinion  that  this  witness's  testimony  was 
well  received,  and  ought  not  to  have  been  struck  out.  ...  It  may 
properly  be  said  of  her  evidence  that  it  has  not  any  tendency  to  criminate 
him,  provided  that  expression  be  understood  with  the  limitation  which  I 
affix  to  it,  that  is,  to  criminate  him  in  the  course  of  some  proceeding  in 
which  a  crime  is  imputed  to  him.  .  .  .        Order  of  Sessions  confirmed. 

586.  State  v.  Briggs.  (Rhode  Island.  1869.  9  R.  I.  361.)  Durfee,  J. 
—  Some  of  these  cases  recognize  the  distinction,  suggested  in  the  cases  of  Rex 
V.  All  Saints  [ante,  No.  585]  and  Rex  r.  Bathwick,  between  testimony  which  is 
directly  criminative  and  that  which  is  criminative  only  when  connected  with 
other  testimony,  —  a  husband  and  wife  being  deemed  competent  witnesses  to 
give  testimony,  in  collateral  cases  which  relate  to  the  other,  when  it  is  of  the 
latter,  but  not  when  it  is  of  the  former  description.  But  upon  principle  we 
find  no  satisfactory  ground  for  the  distinction.  The  supposed  disqualification  of 
husband  and  wife  to  give,  in  collateral  cases,  testimony  directly  criminative  of 
each  otlier,  is  said  to  rest  on  the  policy  of  avoiding  dissensions  between  husband 
and  wife;  and,  if  so,  the  disqualification  ought  to  be  complete,  for  such  dissen- 
sions, differing  only  in  degrees  of  virulence,  would  be  likely  to  result  from  testi- 
mony which  tends  to  criminate,  as  well  as  from  that  which  is  directly  criminative. 
There  are  logically  only  two  alternatives,  —  either  to  exclude  the  testimony 
entirely,  or  to  admit  it  to  any  extent  in  collateral  proceedings,  provided  that  no 
use  can  afterwards  accrue  therefrom  in  any  direct  proceeding.  We  think  it  the 
better  rule,  subject  to  such  proviso,  to  admit  the  testimony.  .  .  . 


844  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  586 

[However]  if  we  accord  to  the  witness  the  privilege  of  objecting  to  testify 
on  the  ground  that  the  testimony,  if  given,  will  criminate,  or  tend  to  criminate, 
a  husband  or  wife,  we  think  that,  there  is  no  sound  principle  of  public  policy 
which  requires  that  we  should  go  still  further,  and  put  it  in  the  power  of  a  third 
person,  by  objecting  when  the  witness  does  not  object,  to  defeat,  it  may  be,  a 
just  claim,  or  escape  a  merited  punishment. 

We  concur  in  the  ojjinion  expressed  by  Mr.  Justice  Bayley  in  Rex  v.  All 
Saints,  that  a  husband  or  wife,  objecting  to  give  such  testimony,  would  be 
entitled  to  the  protection  of  the  Court. 


587.   CALDWELL  v.   STUART 

Supreme  Court  of  South  Carolina.     1832 

2  Bail.  574 

Action  of  trover  for  the  recovery  of  certain  slaves,  w^hich  the  plaintiff 
claimed  by  parol  gift  from  the  defendant's  testator,  who  was  her  step- 
father. The  only  witness  to  prove  the  gift  was  Mrs.  Stuart,  the  widow 
of  the  testator,  and  she  was  objected  to,  as  incompetent  by  reason  of  her 
i  relation  to  the  testator.  The  presiding  judge  overruled  the  objection; 
^^°^and  the  plaintiff  obtained  a  verdict,  which  the  defendant  now  moved  to 
set  aside,  on  the  ground  that  the  testimony  of  the  widow  ought  to  have 
been  excluded. 

Johnson,  J. — We  are  very  clearly  of  opinion  that  Mrs.  Stuart  was 
properly  admitted  as  a  witness.  The  rule,  which  excludes  the  wife  from 
giving  evidence  for,  or  against  the  husband,  is  founded,  in  some  degree, 
upon  the  legal  identity  of  the  husband  and  wife.  .  .  .  Domestic  quiet 
and  harmony  of  families  have  suggested  the  propriety  of  excluding  it 
where  it  would  be  volunteered.  .  .  .  Neither  the  rule,  nor  any  of  the 
reasons  upon  which  it  proceeds,  have  any  the  most  remote  application 
here.  The  husband  is  no  party;  he  has  ceased  to  have  any  interest  in 
temporal  concerns.  The  defendant,  the  executor,  represents  the  interests 
of  the  creditors,  legatees,  or  distributees,  as  the  case  may  be,  and  not  the 
husband's.  There  is  no  danger  of  matrimonial  discord;  nor  is  there  any 
violation  of  confidence.  She  has  only  disclosed  what  the  husband  in- 
«  tended  should  be  known.  Without  it,  his  intention  in  making  the  gift 
would  have  been  defeated. 

O'Neall,  J.,  concurred.  Motion  refused. 

588.   STATE  v.   WOODROW 

Supreme  Court  of  Appeals  of  West  Virginia.     1905 

58  W.  Va.  527;  52  S.  E.  545 

Error  to  Circuit  Court,  Mineral  County.     William  Woodrow  was 
convicted  of  murder  in  the  second  degree,  and  brings  error.     Reversed. 


No.  588  PRIVILEGED   TOPICS  845 

Frank  C.  Reynolds,  for  plaintiff  in  error.  The  Attorney-General, 
Frank  Lively,  and  0.  A.  Hood,  for  the  State. 

Brannon,  p. —  William  Woodrow  was  indicted  in  Mineral  County 
for  the  murder  of  his  child,  Ruth  Elizabeth  Woodrow,  and  was  sentenced 
to  the  penitentiary  for  eight  years  upon  a  verdict  of  murder  in  the  second 
degree.  The  deceased  was  a  baby  14  months  of  age,  and  was  in  the 
arms  of  its  mother,  at  her  breast,  when  a  pistol  shot  killed  it,  the  ball  i 
passing  through  the  baby's  head  and  wounding  the  mother,  according! 
to  her  evidence.  The  accused  offered  a  plea  in  abatement  to  quash 
the  indictment,  on  the  ground  that  his  wife  had  been  examined  before 
the  grand  jury;  but  the  plea  was  ejected.  On  the  trial  the  wife  of  the 
accused  gave  evidence  at  the  instance  of  the  State  against  her  husband, 
over  his  protest.     Was  the  wife  a  competent  witness  against  him?  .  .  . 

Bishop's  New  Criminal  Procedure,  vol.  1,  §  1153,  says  that,  "if 
personal  violence  is  inflicted  on  the  wife  by  the  husband,  she  from 
necessity  may,  or,  if  required,  must,  testify  to  it  in  a  criminal  proceeding 
against  him  for  the  battery;  and  he  may  do  the  like  if  she  beats  him." 
This  ancient  rule  of  the  common  law  is  stated  in  all  the  books.  The 
sole  question  in  this  case  is:  Does  this  case  come  within  the  exception 
to  the  rule ;  that  is,  was  the  prisoner's  act  of  shooting  the  child  a  crime 
against  the  wife? 

It  was  not  violence  to  her  person.  It  was  not  a  crime  against  her 
person  corporeally.  Such  it  has  to  be  under  this  exception.  It  is  true 
that  there  has  been  considerable  difference  of  opinion  as  to  what  instances 
fall  within  this  exception.  Some  cases  hold  that  bodily  violence  to  the 
wife  is  not  the  only  case  under  the  exception.  For  instance,  cases  of 
bigamy,  and  other  cases,  have  been  held  to  fall  within  the  exception. 
The  books  must  be  resorted  to  for  full  discussion.  ...  I  can  safely  say 
that  the  great  bulk  of  American  decision  is  that,  to  come  within  the 
exception,  the  case  must  be  one  of  personal  violence  to  the  spouse. 
Bassett  v.  U.  S.,  137  U.  S.  496;  Baxter  v.  State  (Tex.  Cr.  App.)  31  S.  W. 
394;  Crawford  v.  State  (Wis.)  74  N.  W'.  537,  829;  Commonwealth  v. 
Sapp  (Ky.)  14  S.  W.  834.  And  I  repeat  that  those  cases,  like  bigamy 
and  others  that  do  not  actually  involve  violence  to  the  person,  which  are 
held  within  the  exception,  are  cases  where  the  wrong  is  to  the  individual 
particularly  and  directly  injured  by  the  crime  for  which  the  husband  is 
prosecuted.  .  .  .  An  enormous  wrong  this  murder  was  to  the  mother  in 
a  moral  point  of  view,  in  an  emotional  point  of  view,  in  a  sentimental 
point  of  view,  in  a  pathetic  point  of  view,  under  emotions  of  the  heart 
which  move  human  beings,  owing  to  the  relation  of  mother  and  child. 
W^e  are  apt  to  consider  this  terrible  crime  as  a  greater  one  against  the 
mother  than  to  any  other  living  human  being.  Still,  in  a  ph^^sical 
point  of  view,  the  homicide  did  not  touch  the  person  of  the  wife,  but  was 
only  a  crime  against  her  as  one  member  of  the  community  —  I  mean 
in  the  eye  of  the  law.  Remember  that  W^oodrow  was  tried  for  killing 
the  child,  not  for  shooting  his  wife.  .  .  .  The  homicide  of  the  child  is 


846  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  588 

one  distinct  crime;  the  shooting  of  the  mother  another  distinct  crime. 
The  close  connection  of  the  two  in  time  and  circumstances  does  not 
blend  the  results  of  the  ball,  and  make  the  killing  of  the  child  a  personal 
or  corporeal  violence  to  the  mother.  .  .  . 

Necessity,  the  want  of  another  witness,  is  pleaded  for  the  admission 
of  the  wife's  evidence  in  this  case.  That  was  the  parent  of  the  common- 
law  exception.  But  that  exception  may  often  arise  and  call  as  loudly  as 
in  this  case.  Suppose  the  husband  should  kill  a  grown  child  in  the 
privacy  of  the  home,  there  being  no  other  witness  of  the  fact  but  the 
wife;  would  this  necessity  admit  her  evidence?  Suppose  he  would 
there  kill  the  wife's  grown  sister  or  any  one  else;  would  she  be  competent? 
I  say  not.  If  there  were  other  witnesses  present,  would  she  be  com- 
petent? I  suppose  not,  as  the  necessity  would  not  then  exist.  Then, 
the  evidence  would  be  competent  or  incompetent  according  as  there 
was,  or  was  not,  another  witness  than  the  wife.  .  .  .  Therefore  we  con- 
clude that  the  evidence  of  \\  oodrow's  wife  was  improperly  used  against 
him.  .  .  . 

We  reverse  the  judgment,  set  aside  the  verdict,  and  grant  a  new 
trial,  and  remand  the  case  for  such  new  trial. 

PoFFEXBARGER,  J.  (dissenting). —  The  judgment  is  reversed  because 
of  the  admission  of  the  testimony  of  the  wife  of  the  accused  on  his  trial. 
On  the  question  of  its  admissibility  I  am  compelled  to  differ  from  the 
majority  of  the  Court,  though  I. am  in  perfect  accord  wdth  all  their  rulings 
as  to  other  phases  of  the  case.     Therefore  I  would  affirm  the  judgment. 

By  the  common  law,  husband  and  wife  were  not  competent  witnesses 
either  for  or  against  each  other.  This  was  the  general  rule.  There  was 
an  exception  to  it,  first  declared  in  Lord  Audley's  Case,  [ante,  No. 
584].  .  .  .  The  existence  of  this  exception  to  the  general  rule  of  the  com- 
mon law  is  generally  admitted  by  the  Courts  of  this  country.  People  v. 
Green,  1  Denio,  614;  .  .  .  Davis  v.  Commonwealth,  99  Va.  838.  In 
the  case  last  cited  the  rule  is  stated  as  follows :  "  At  common  law  the  wife 
was  a  competent  witness  to  testify  against  her  husband  in  relation  to 
offenses  alleged  to  have  been  committed  by  him  upon  her."  .  .  . 

For  the  State,  it  is  insisted  that,  under  this  exception  to  the  common- 
law  rule,  the  evidence  of  the  wife  is  admissible  under  the  circumstances 
of  this  case.  .  .  .  Whether  the  exception  is  broad  enough  to  make  the 
wife  a  competent  witness  against  the  husband,  under  the  circumstances 
of  this  case,  involves  a  consideration  of  the  reason  or  principle  upon 
which  that  exception  stands.  x\ll  the  authorities  say  it  arises  "ex 
necessitate  rei."  What  sort  of  necessity  is  its  basis?  In  Bentley  v. 
Cook,  3  Doug.  422,  Lord  Mansfield  said 

"that  necessity  is  not  a  general  necessity,  as  where  no  other  witness  can  be  had, 
but  a  particular  necessity,  as  where,  for  instance,  the  wfe  would  otherwise  be 
exposed  without  remedy  to  personal  injury." 

In  Soule's  Case,  5  Greenl.  407,  Mellen,  C.  J.,  said: 


No.  588  PRIVILEGED  TOPICS  847 

"From  the  general  rule  some  exceptions  have  been  established,  founded  on  the 
necessity  of  the  case.  For  instance,  if  a  wife  could  not  be  admitted  to  testify 
against  the  husband  as  to  threatened  or  executed  violence  and  abuse  upon  her 
person,  he  could  play  the  tyrant  and  brute  at  his  pleasure,  and  with  perfect 
security  beat,  wound,  and  torture  her  at  times  and  in  places  when  and  where 
no  witnesses  could  be  present  nor  assistance  be  obtained." 

Wigmore  on  Evidence,  §  2339,  says: 

"That  was  commonly  placed  on  the  ground  of  necessity;  that  is,  a  necessity  to 
avoid  that  extreme  injustice  to  the  excluded  spouse  which  would  ensue  upon 
an  undeviating  enforcement  of  the  rule."  ... 

The  nature  of  the  necessity  being  thus  disclosed,  is  it  applicable  to 
the  case  of  a  wrong  done  by  either  spouse  to  an  infant  child?  Plainly  it 
appears  that  this  necessity  grows  out  of  the  privacy  and  seclusion  in 
which  such  wrongs  may  be  perpetrated.  The  husband  is  master  of  his 
home.  The  law  terms  it  his  castle.  From  it  he  may  exclude  all  except 
members  of  his  family.  There  he  has  the  right  to  require  the  presence 
and  continuance  of  his  wife  and  children.  In  the  secret  recesses  of  his 
mansion  they  are  bound  by  duty  to  stay.  Against  his  will  they  are 
not  entitled  to  have  others  present.  He  is  entitled  to  the  custody  and 
control  of  his  children.  He  may  make  them  utterly  dependent  upon  him 
for  their  support,  by  denying  to  strangers  the  right  to  give  them  employ- 
ment and  to  receive  them  within  their  doors.  His  right  to  their  custody 
is  admitted  to  be  superior  to  that  of  the  mother,  even  when  the  parents 
are  living  separately  from  each  other.  Is  it  possible  that  the  law  will 
not  permit  the  wife  to  reveal  the  brutality  and  inhumanity  of  the  husband 
to  children  of  such  tender  years  as  to  make  them  incompetent  as  wit- 
nesses? If  she  cannot,  what  remedy  is  there  in  the  law  for  their  protec- 
tion? .  .  .  To  say  it  is  not  an  injury  and  a  wrong  to  her  is  to  set  at 
defiance  the  laws  of  nature.  The  lowest  orders  of  the  animal  kingdom 
will  not  only  protect  their  young,  but  will,  as  a  rule,  sacrifice  life  itself 
for  their  safety.  Men  and  women  who  have  the  true  natural  instincts, 
and  in  whom  the  parental  affection  is  normal,  undepraved,  and  unre- 
strained by  viciousness,  will  make  any  sacrifice,  even  that  of  their  per- 
sonal safety  and  lives,  for  the  protection  of  their  children.  No  sacrifice 
can  be  greater  than  that  of  the  child.  In  subjecting  Abraham  to  the 
final  and  highest  test  of  his  faith,  God  required  him  to  offer  up  his  son; 
and  the  highest  ideal  of  sacrifice  is  embodied  in  the  scriptural  declaration: 
"God  so  loved  the  world  that  he  gave  His  only  begotten  Son,"  etc. 

Any  interpretation  of  the  common  law  which  ignores  natural  rights 
is  not  to  be  entertained,  for  its  object  is  the  vindication  of  such  rights.  .  .  . 
If  we  say  that  disqualification  goes  so  far  as  to  prevent  the  wife  from  testi- 
fying against  the  husband  concerning  a  wrong  done  to  a  helpless  child, 
to  whose  voice  the  Courts  will  not,  and  cannot,  listen,  we  must  say  that 
reasons  of  public  policy  shall  be  paramount  to  natural  right.  .  .  . 

The  Courts  of  this  country  seem  to  hold  that  nothing  short  of  per- 


848  BOOK  i:     RULES   OF  .ADMISSIBILITY  No.  588 

sonal  violence  to  the  husband  or  wife  will  make  one  a  competent  witness 
against  the  other,  under  the  common-law  exception.  Brock  v.  State,  44 
Tex.  Cr.  R.  335.  ...  In  none  of  these  cases,  however,  did  the  necessity 
of  admitting  the  testimony  appear.  Some  were  charges  of  rape,  per- 
petrated on  the  wife  before  marriage  and  when  she  was  not  the  wife. 
Others  were  charges  of  bigamy,  which  the  Court  said  were  not  offenses 
against  the  wife,  but  against  the  marital  relation.  One  was  for  incest 
committed  with  the  daughter  of  the  wife,  stepdaughter  of  the  accused. 
None  of  these  cases,  in  the  facts  presented,  come  up  to  the  exigency  of 
this  one.  In  each  of  them  there  was,  or  ought  to  have  been,  some 
competent  witness,  without  calling  the  wife.  .  .  . 

Having  thus  considered  the  circumstances  and  the  principles  of  law 
relating  to  them,  I  am  firmly  convinced  (1)  that  the  killing  or  wounding 
of  a  child,  too  young  to  protect  itself  by  its  testimony,  is,  in  law,  a  wrong 
to  the  parent,  affecting  the  person  and  liberty,  and  so  making  the  parent 
a  competent  witness  against  the  other  spouse  on  his  trial  for  the  crime; 
and  (2)  that,  independently  of  any  wrong  to  the  parent,  he  or  she  is  a 
competent  witness  against  his  or  her  wife  or  husband,  as  the  case  may  be, 
on  trial  for  the  offense,  ex  necessitate  rei. 

Sanders,  J.  (dissenting)  .^ — I  do  not  agree  that  the  evidence  of  the 
wife  is  incompetent,  and  therefore  concur  in  the  dissenting  opinion  of 
Judge  PoFFENBARGER.  I  think  the  case  entirely  free  from  error,  and 
would  affirm  the  judgment. 


589.   RHEA  v.   TERRITORY 

Court  of  Criminal  Appeals  of  Oklahoma.     1909 

3  Okl.  Cr.  230;   105  Pac.  314 

Appeal  from  District  Court,  Canadian  County;  C.  F.  Irwin,  Judge. 
William  H.  Rhea  was  convicted  of  manslaughter,  and  he  appeals. 
Affirmed. 

At  the  March  term,  1907,  of  the  District  Court  of  Canadian  county, 
the  grand  jury  returned  an  indictment  against  Wm.  R.  Rhea,  hereinafter 
called  "defendant,"  charging  him  with  the  murder  of  Arthur  Newall. 
Said  cause  was  tried  at  the  July  term,  1907,  of  said  court,  and  the  defend- 
ant was  found  guilty  of  manslaughter.  A  motion  for  a  new  trial  was 
presented  and  overruled,  and  the  punishment  of  the  defendant  was  fixed 
by  the  Court  at  30  years'  imprisonment  in  the  penitentiary,  and  sentence 
was  pronounced  accordingly.     The  case  is  regularly  before  us  on  appeal. 

./.  M.  Frame  and  R.  B.  Forrest,  for  appellant. 

Chcrles  West,  Atty.  Gen.,  and  E.  G.  Spillman,  Asst.  Atty.  Gen.,  for 
the  Territory. 

FURMAN,  P.  J.    .    .   . 

Third.    Counsel  in  their  brief  say:  "Plaintiff  in  error  next  complains 


No.  589  PRIVILEGED   TOPICS  849 

that  the  Court  erred  in  giving  the  following  instructions:  'The  jury  are 
instructed  that  by  the  laws  of  the  Territory  a  wife  is  not  a  competent 
witness  against  her  husband  in  a  criminal  case,  and  that  the  Territory  has 
njo  power  to  compel  her  to  testify,  nor  will  she  be  allowed  voluntarily  to 
do  so;  but  she  can  be  used  in  behalf  of  the  defendant  when  called  by  him, 
the  defendant  having  that  right  if  he  desires  to  use  the  same.'"  The 
record  shows  that  the  above  instruction  was  given  by  the  Court  after 
the  prosecution  had  closed  its  opening  argument,  and  while  defendant's 
counsel  was  making  his  closing  speech  to  the  jury.  It  was  contended, 
and  the  appellant  now  contends,  that  the  giving  of  the  instruction  was 
inopportune  and  constitutes  prejudicial  error. 

In  support  of  this  contention,  counsel  cite  State  v.  Hatcher,  29  Or. 
313,  318,  from  the  Supreme  Court  of  Oregon.     The  Supreme  Court  said: 

"The  record  discloses  that  the  defendant's  counsel,  in  their  argument  to  the  jury, 
maintained  that  the  deceased  was  killed  while  attempting  to  commit  a  forcible 
felony  on  the  defendant's  wife.  The  district  attorney,  replying  thereto,  said 
in  substance:  'There  were  but  three  persons  present  at  the  tragedy  —  the 
defendant,  his  wife,  and  the  deceased.  That  the  voice  of  the  deceased  was 
hushed  in  death.  That  the  State  could  not  call  Mrs.  Hatcher  as  a  witness,  and 
it  was  in  the  power  of  the  defendant  to  have  produced  her.  That  she  could 
have  told  all  about  the  affair.  That,  if  present,  her  testimony  would  have  been 
adverse  to  the  defendant,  otherwise  he  would  have  secured  her  attendance; 
but  failing  to  do  so  is  proof  that  her  testimony  would  have  been  against  the 
defendant.'  The  defendant's  counsel  objected  to  this  language,  for  the  reason 
that  the  absence  of  the  defendant's  wife  was  no  evidence  of  his  guilt;  but,  the 
objection  having  been  overruled,  an  exception  was  allowed." 

In  passing  upon  this  question,  the  Supreme  Court  said : 

"First,  the  record  fails  to  disclose  that  the  defendant's  wife  was,  at  the  time  of 
the  trial,  within  the  reach  of  the  process  of  the  Court;  and,  second,  it  is  also  silent 
as  to  whether  she  had  consented  to  become  a  witness  for  her  husband,  for  with- 
out such  consent  upon  her  part  she  could  not  be  compelled  to  testify.  Hill's 
Ann.  Laws  Or.  1892,  §  1366.  In  criminal  actions  the  accused  shall,  at  his  own 
request,  but  not  otherwise,  be  deemed  a  competent  witness,  provided  his  waiver 
of  said  right  shall  not  create  any  presumi)tion  against  him;  but  when  he  offers 
himself  as  a  witness  he  becomes  subject  to  the  ordinary  rules  of  cross-examination. 
Ibid.,  §  1365;  State  v.  Abrams,  11  Or.  169,  8  Pac.  327,  supra.  If  no  presumption 
of  the  defendant's  guilt  can  be  invoked  by  reason  of  his  failiu-e  to  testify  in  his 
own  behalf,  how  can  such  a  presumption  be  created  in  his  failure  to  produce  his 
wife  as  a  witness,  when  she  cannot  be  compelled  to  testify  without  her  consent?" 

Upon  this  ground  this  decision  was  correct,  because  under  the  statute 
of  Oregon  the  right  of  the  husband  to  use  his  wife  as  a  witness  depended 
upon  her  consent.  We  have  no  such  statute.  Therefore  upon  this 
ground  the  case  cited  has  no  application.  Section  5495,  Wilson's  Rev. 
&  Ann.  St.  1903,  is  as  follows:  "  Except  as  otherwise  provided  in  chapters 
68  and  69,  of  the  statutes  of  Oklahoma,  the  rules  of  evidence  in  civil 
cases  are  applicable  also  in  criminal  cases;    provided,   however,   that 


850  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  589 

neither  husband  nor  wife  shall  in  any  case  be  a  witness  against  the  other 
except  in  a  criminal  prosecution  for  a  crime  committed  one  against 
the  other,  but  they  may  in  all  cases  be  witnesses  for  each  other, 
and  shall  be  subject  to  cross-examination  as  other  witnesses,  and  sha,ll 
in  no  event  on  a  criminal  trial  be  permitted  to  disclose  communications 
made  by  one  to  the  other  except  on  a  trial  of  an  offense  committed  by 
one  against  the  other."  From  this  it  is  seen  that  no  restriction  or 
limitations  are  placed  upon  the  right  of  the  husband  to  place  his  wife 
upon  the  stand  to  testify  in  his  behalf.  She  has  no  more  right  or  power 
to  refuse  to  testify  when  so  placed  upon  the  stand  than  any  other  witness 
would  have. 

The  other  ground  upon  which  the  decision  in  Hatcher's  Case  is  based 
is  not  supported  by  reason.  The  attempted  analogy  between  the  failure 
of  the  husband  to  call  his  wife  as  a  witness  in  his  behalf,  and  his  failure  to 
take  the  stand  as  a  witness  for  himself,  fails  because  in  the  latter  instance 
there  is  a  mandatory,  arbitrary  statute  forbidding  that  any  reference 
shall  be  made  to  such  failure  or  that  any  inference  of  guilt  shall  be  drawn 
therefrom.  There  is  no  such  provision  in  the  statute  making  the  wife  a 
competent  witness  for  her  husband.  We  decline  to  be  bound  by  a 
precedent  which  is  based  upon  an  attempted  judicial  amendment  of 
a  statute.  For  these  reasons  we  do  not  recognize  the  case  of  Hatcher 
V.  State  as  an  authority  in  point. 

The  statute  of  Texas  is  similar  to  ours.  Under  that  statute  the  Texas 
Court  of  Appeals,  in  Mercer  v.  State,  17  Tex.  App.  476,  said: 

"  We  do  not  think  the  remarks  of  the  prosecuting  attorney,  in  his  closing  argu- 
ment to  the  jury,  which  are  complained  of  by  the  defendant,  were  beyond  the 
scope  of  the  legitimate  argument.  It  was  disclosed  by  the  evidence  that  the  de- 
fendant's wife  must  have  known  important  facts  bearing  directly  upon  the  issue  in 
the  case,  and  that  she  was  within  easy  reach  of  the  process  of  the  Court.  She  could 
have  explained  fully  the  occurrence  testified  about  by  his  two  daughters  when  he 
got  his  gun  and  said  he  would  blow  his  brains  out.  She  could  have  testified, 
perhaps,  to  many  other  facts  which  would  have  shed  light  upon  this  horrible 
transaction.  It  was  not  within  the  power  of  the  prosecution  to  adduce  her 
testimony,  because,  being  the  defendant's  wife,  she  was  not  permitted  under 
the  law  to  testify  against  him  in  this  case.  He  alone  could  call  for  her  testimony, 
and  compel  its  production.  Her  knowledge  of  the  facts,  whatever  that  knowledge 
might  be,  was  at  his  command  —  was  within  his  reach;  and  without  he  pro- 
duced it,  or  consented  to  its  production,  it  was  a  sealed  book,  which  no  human 
tribunal  has  the  power  to  open  against  him.  Under  these  circumstances,  we 
think  the  prosecuting  attorney  was  justified  in  the  remarks  complained  of,  and 
that  the  Court  did  not  err  in  its  action  in  relation  thereto." 

Counsel  in  their  brief  say :  "  It  is  true  that  where  a  party  suppresses 
testimony,  induces  the  witnesses  to  leave  the  jurisdiction  of  the  Court, 
to  swear  falsely,  or  suppress  some  fact  in  his  knowledge,  or  commits  other 
acts  of  bad  faith  in  connection  with  his  cause,  the  same  may  be  considered 
as  a  circumstance  in  the  case;  but  never  can  the  reliance  of  the  defendant 


No.  589  PRIVILEGED  TOPICS  851 

upon  a  legal  right  be  impugned  as  bad  faith  or  be  distorted  into  evidence 
against  him."  The  instruction  given  simply  informed  the  jury  that  the 
defendant  had  the  legal  right  to  call  his  wife  as  a  witness  in  his  behalf, 
if  he  so  desired.  We  cannot  see  how  this  could  have  injured  the  defend- 
ant. Telling  a  jury  what  the  rights  of  a  defendant  are  cannot  deprive 
him  of  them;  but  counsel  contend  that  it  pointed  out  a  defect  in  the 
defendant's  case.  They  say :  "  Coming  from  the  bench,  a  solemn  declara- 
tion of  law  which  they  must  consider  in  their  deliberations,  it  was  partic- 
ularly harmful  to  the  defendant,  and,  while  it  came  in  the  form  of  an 
instruction  of  the  Court,  the  purpose  that  it  really  served  was  that  of  an 
argument  to  the  jury  pointing  out  a  defect  in  defendant's  case."  In  a 
number  of  States  the  husband  is  denied  the  right  to  place  his  wife  on  the 
witness  stand  in  his  behalf  in  a  criminal  case.  This  was  the  law  in  that 
part  of  the  State  which  was  known  as  Indian  Territory,  prior  to  state- 
hood. This  often  caused  juries  to  sympathize  with  a  defendant  upon 
trial,  because  he  was  deprived  of  the  testimony  of  his  wife.  It  was 
therefore  only  fair  to  the  Territory  that  the  jury  should  have  been  informed 
that  if  the  wife  of  the  defendant  was  not  placed  upon  the  witness  stand, 
or  if  no  effort  to  have  this  done  had  been  made,  it  was  not  the  fault  of  the 
Territory,  but  was  because  the  defendant  did  not  desire  it  to  be  done. 
If  inferences  might  be  drawn,  unfavorable  to  the  defendant,  from  his 
failure  to  place  his  wife  upon  the  witness  stand  or  his  failure  to  make  any 
attempt  to  secure  her  testimony,  they  would  be  justified  by  the  law. 
This  is  the  principle  upon  which  the  case  of  Mercer  v.  State,  17  Tex. 
App.  452,  hereinbefore  quoted,  was  affirmed.  In  fact,  the  principle  is 
of  universal  application.  In  Wigmore  on  Evidence,  vol.  1,  §  285,  we 
find  the  following: 

"The  nonproduction  of  evidence  that  would  naturally  have  been  produced  by 
an  honest  and  therefore  fearless  claimant  permits  the  inference  that  its  tenor  is 
unfavorable  to  the  party's  claim.  Even  since  the  case  of  the  chimney  sweeper's 
jewel,  this  has  been  a  recognized  principle  (1722,  Armory  v.  Delamirie,  1  Strange 
505):  'A  chimney  sweeper's  boy,  finding  a  jewel,  took  it  to  the  defendant,  a 
jeweler,  for  appraisal;  but  the  defendant  would  not  restore  it.  In  an  action  of 
trover,  in  proving  the  value,  the  Chief  Justice  (Pratt)  directed  the  jury  that, 
unless  the  defendant  did  produce  the  jewel  and  show  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him,  and  make  the  value  of 
the  best  jewels  the  measure  of  their  damages,  which  they  accordingly  did.'" 

Mr.  Wigmore  then  cites  an  unanswerable  array  of  authorities  to 
support  the  principle  announced.  It  would  have  been  improper,  under 
our  practice,  for  the  Court  to  have  suggested  to  the  jury  what  inferences 
they  might  draw  from  the  failure  of  the  defendant  to  place  his  wife 
upon  the  witness  stand  or  to  attempt  to  do  so.  The  duty  of  the  Court 
ended  in  stating  the  law.  Argument  upon  the  law  and  the  facts  is 
always  for  counsel. 

Counsel  for  the  defendant  make  no  objection  as  to  the  sufficiency 


852  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  589 

of  the  testimony.  It  is  therefore  not  necessary  for  us  to  discuss  the 
evidence  further  than  to  say  that  the  guilt  of  the  defendant  was  the  only 
rational  conclusion  at  which  an  intelligent  and  honest  jury  could  arrive. 
In  fact,  we  see  no  rational  escape  from  the  verdict  rendered. 

The  judgment  of  the  lower  court  is  affirmed. 

Doyle  and  Owen,  JJ.,  concur. 

590.  Statutes.     [Printed  ante,  as  No.  77] 

592.  Commissioners  of  Common  Law  Procedure.  Second  Report,  p.  13 
(1853).  A  more  difficult  question  [than  that  of  admitting  them  in  each  other's 
favor]  arises  when  we  proceed  to  consider  whether  it  should  be  made  competent 
to  an  adverse  party  to  call  a  husband  or  wife  as  witness  against  one  another. 
The  case  would  no  doubt  be  of  rare  occurrence;  when  it  did,  it  would  in  the 
greater  number  of  instances  be  where  husband  and  wife  have  separated  and  are 
on  bad  terms  with  one  another.  In  such  cases  the  mischief  apprehended  from 
the  interruption  of  domestic  happiness  becomes  out  of  the  question.  But  sup- 
pose the  husband  and  wife  living  together  on  the  usual  terms;  here  the  identity 
of  interest  between  them  will  deter  an  adverse  party  from  calling  one  against  the 
other,  except  under  very  peculiar  and  pressing  circumstances  and  when  the  fact 
to  be  proved  is  certain  in  its  character  and  clearly  within  the  knowledge  of  the 
witness.  .  .  .  But  if  there  be  such  a  fact  in  the  knowledge  of  one  of  two  married 
persons,  so  material  to  the  cause  of  the  adverse  party  as  to  make  it  worth  his 
while  to  run  the  risk  of  calHng  so  hostile  a  witness,  it  becomes  matter  of  very 
serious  consideration  whether  justice  should  be  allowed  to  be  defeated  by  the 
exclusion  of  such  evidence.  It  is  clear  that  nothing  but  an  amount  of  mischief 
outbalancing  the  evil  of  defeated  justice  can  warrant  the  exclusion  of  testimony 
necessary  to  justice.  What,  then,  is  the  mischief  here  to  be  apprehended?  The 
possibility  of  resentment  of  a  husband  against  a  wife  for  testifying  to  facts 
prejudicial  to  his  interest.  But  it  is  obvious  that  such  resentment  could  only  be 
felt  by  persons  prepared  to  commit  perjury  themselves  and  to  expect  it  to  be 
committed  in  their  behalf.  Such  instances,  we  believe,  would  be  very  rare;  and 
we  do  not  think  that  a  regard  to  the  feelings  of  individuals  of  this  class,  or  the 
amount  of  mischief  likely  to  arise  from  a  disregard  of  them,  is  sufficient  to  com- 
pensate for  the  loss  which  in  many  cases  may  result  from  the  exclusion  of  the 
evidence.  .  .  . 

The  conclusion  to  which  the  foregoing  observations  leads  us  is  that  husband 
and  uafe  should  be  competent  and  compellable  to  give  evidence  for  and  against 
one  another  on  matters  of  fact  as  to  which  either  could  now  be  examined  as  a 
party  in  the  cause. 


Topic  3.    Privilege  for  Self- Criminating  Facts 

593.  History.^  In  the  history  of  this  great  privilege,  two  distinct  and 
parallel  lines  of  development  must  be  kept  in  mind.  The  first  is  the  history  of 
the  opposition  to  the  "ex  officio"  oath  of  the  ecclesiastical  Courts;  the  second 
is  the  history  of  the  opposition  to  the  criminating  question  in  the  common-law 

^  [Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905),  Vol, 
III,  §  2250.] 


No.  593  PRIVILEGED  TOPICS  853 

Courts,  i.e.,  of  the  present  privilege  in  its  modern  shape.  The  first  part  begins 
in  the  1200s,  and  lasts  well  into  the  1600s;  the  second  part  begins  in  the  early 
1600s,  and  runs  on  for  another  century. 

I.  Under  the  Anglo-Saxon  rule,  the  bishops  had  sat  as  judges  and  enter- 
tained suits  in  the  popular  courts.  But  William  the  Conqueror,  before  1100, 
had  put  an  end  to  this.  His  enactment  required  the  bishops  to  decide  their 
causes  according  to  the  ecclesiastical  law;  whence  sprang  up  a  separate  system 
and  a  doul)le  judicature.  By  a  century  later,  the  papal  power  and  the  regal 
power  were  in  hot  conflict  over  the  delimitation  of  their  jurisdictions. 

The  opposition  had  nothing  to  do  with  any  objection  to  the  general  process 
of  putting  a  man  on  his  oath  to  declare  his  guilt  or  innocence;  they  concerned 
only  the  questions  (a)  who  should  have  the  right  to  do  this,  and  (b)  how  it  should 
be  done.  Moreover,  the  former  of  these  things  is  alone  at  first  concerned;  later, 
the  second  comes  to  dominate  in  importance.  Three  stages  are  fairly  well 
marked;  namely,  (1)  to  Elizabeth's  time,  (2)  to  Charles  I's,  (3)  and  afterwards. 

1.  («)  Who  should  have  the  rights  of  jurisdiction?  This  was  in  the  1200s 
and  1300s  the  great  question.  The  statute  "De  Articulis  Cleri"  settled  the  line 
of  ecclesiastical  jurisdiction  over  laymen  by  confining  it  to  causes  matrimonial 
and  testamentary;  and  this  in  substance  prevailed  till  the  end  of  church 
Courts  in  England.  Under  Henry  VHI  the  foreign  and  papal  domination  of 
the  church  was  repudiated.  Thenceforward  the  struggle  of  jurisdiction  is 
against  Elizabeth's  own  High  Commission  Coiu"t,  and  not  against  a  foreign  and 
papal  power. 

(6)  In  the  other  important  respect,  namely,  how  the  church  Courts  should 
proceed,  there  is,  as  yet  in  the  1200s  and  1300s,  apparently  no  hostile  feeling 
based  on  the  oath  administered  in  the  church  Courts,  —  known  as  "  jusjurandum 
de  veritate  dicenda." 

This  oath,  nevertheless  (wliich  we  may  call  the  inquisitional  oath,  as  dis- 
tinguished from  the  compiu-gation  oath),  was  then,  for  the  church,  an  innovation. 
Hitherto,  the  trial  by  compurgation,  or  formal  swearing  of  the  party  with  oath- 
helpers,  and  the  trial  by  ordeal,  had  been  the  common  methods  of  ecclesiastical 
trial  and  decision.  But  in  the  early  1200s,  under  the  organizing  influence  of 
Innocent  HI,  one  of  the  first  great  canonists  in  the  papal  chair  (119S-1216), 
new  ideas  were  rapidly  germinating  in  church  law.  The  trial  by  ordeal  was 
formally  abolished  by  the  church  in  1215.  The  trial  by  compurgation  oaths 
"was  already  becoming  little  better  than  a  farce."  Anarchy  and  violence  were 
rampant  over  Europe.  Justice  in  the  old-fashioned  mode  was  inefficient.  There 
was  a  decided  need  of  improvement  in  procedure. 

One  of  the  marked  expedients  in  this  improvement  was  the  inquisitional  or 
interrogatory  oath,  introduced  and  developed  in  the  early  1200s,  chiefly  by  the 
decretals  of  Innocent  III.  The  time-worn  compurgation  oath  had  operated  as 
a  formal  appeal  to  a  divine  and  magical  test  or  "Gottesurtheil;"  there  was  no 
interrogation  by  the  tribunal;  the  process  consisted  merely  in  daring  and  succeed- 
ing to  pronounce  a  formula  of  innocence,  usually  in  company  with  oath-helpers. 
But  the  new  oath  pledged  the  accused  to  answer  truly,  and  this  was  followed  by 
a  rational  process  of  judicial  probing  by  questions  to  the  specific  details  of  the 
aflFair,  after  the  essentially  modern  manner.  The  former  oath  operated  of  itself 
as  a  decision,  through  the  party's  own  act;  the  latter  merely  furnished  material 
for  the  judge  wath  which  to  reach  a  personal  conviction  and  decision.  This  was 
an  epochal  difference  of  method.  Indeed,  the  radical  part  played  for  the 
progress  of  English  procedure,  by  the  new  jury  trial  in  the  1200s  and  1300s,  was 


854  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  593 

paralleled,  in  a  near  degree,  not  only  for  ecclesiastical  procedure,  but  also  for 
the  secular  criminal  procedure  of  the  Continent,  by  this  inquisitional  oath  of 
the  1200s.^ 

There  was  a  distinction  of  real  consequence  (upon  which  everything  came 
later  to  turn),  regarding  the  different  preliminary  conditions  upon  which  a  party 
could  be  put  to  this  or  any  other  oath.  Inhere  must  be  some  sort  of  a  present- 
ment, to  put  any  person  to  answer.  But  must  that  come  from  accusing  witnesses 
or  private  prosecutors  or  the  like  (corresponding  to  our  notion  of  a  "qui  tarn" 
or  a  grand  jury)?  Or  might  it  be  begun  by  an  official  complaint  (somewhat  like 
our  information  "ex  relatione"  by  the  attorney-general)?  Or  might  the  judge 
"ex  officio  mero"  summon  the  accused  and  put  him  to  answer,  in  hopes  of  ex- 
tracting a  confession  which  would  suffice?  And  in  the  last  method,  must  the  charge 
at  least  be  brought  first  to  the  judge's  notice  "per  famam,"  or  "per  clamosam 
insinuationem,"  "common  report"  or  "violent  suspicion"?  Such  were  the  ques- 
tions of  procedure  which  later  formed  the  essential  subject  of  dispute.  It  is 
enough  here  to  note  that  the  third  method  of  trial  —  the  "inquisitio,"  or  pro- 
ceeding "ex  officio  mero"  —  became  a  favorite  one  for  heresy  trials;  and  that 
its  canonical  lawfulness  in  some  shape  was  supported  by  clear  authority.  About 
the  year  1600,  there  came  to  be  in  England  much  pamphleteering  anent  this; 
and  a  formal  opinion  of  nine  canonists  declared  the  lawfulness  of  putting  the 
accused  to  answer  on  these  conditions:  "Licet  nemo  tenetur  seipsum  prodere  [i.e., 
accuse],  tamen  proditus  per  famam  tenetur  seipsum  ostendere  utrum  possit  suam 
innocentiam  ostendere  et  seipsum  purgare."  Thus,  on  the  one  hand,  it  was  easily 
arguable  that,  in  ecclesiastical  law,  the  accused  could  not  be  put  to  answer  "ex 
officio  mero"  •without  some  sort  of  witnesses  or  presentment  or  bad  repute; 
and  in  this  sense  an  oath  "ex  officio"  (as  it  came  to  be  called)  might  be  claimed 
(as  it  was  claimed)  to  be  a  distinct  thing  from  the  same  oath  when  exacted  on 
proper  conditions,  and  to  be  therefore  canonically  unlawful.  But,  on  the  other 
hand,  it  is  plain  to  see,  also,  how,  in  the  headlong  pursuit  of  heretics  and  schis- 
matics under  Elizabeth  and  James,  the  "ex  officio"  proceeding,  lawful  enough 
on  Innocent  Ill's  conditions  about  "clamosainsinuatio"  arid  "fama  publica," 
would  degenerate  into  a  merely  unlawful  process  of  poking  about  in  the  specvila- 
tion  of  finding  something  chargeable.  In  short,  the  common  abuse,  in  later  days, 
of  the  "ex  officio"  proceeding  led  to  the  matter  being  argued,  in  English  Courts 
and  in  popular  discussion,  as  if  this  oath  were  either  wholly  lawful  or  wholly 
unlawful;  though,  in  truth,  by  the  theory  of  the  canon  law,  it  might  be  either, 
according  to  the  circumstances  of  presentment. 

Thus,  the  emphasis  of  controversy  now  shifted.  It  had  in  the  1300s  con- 
cerned jurisdiction;  it  now  concerned  methods.  The  Court  of  High  Commission 
of  course  followed  ecclesiastical  rules;  the  Court  of  Star  Chamber  did  likewise, 
in  what  concerned  the  procedure  of  trial. 

2.  The  Court  of  Star  Chamber  seems  to  have  raised  no  special  antagonism 
during  the  1500s,  nor  until  James'  time,  in  the  next  century.  Nor  did  the  Court 
of  High  Commission,  under  the  first  five  commissions.  But  in  1583,  the  sixth 
was  issued,  with  Archbishop  Wliitgift  at  the  head,  —  a  man  of  stern  Christian 
zeal,  determined  to  crush  heresy  wherever  its  head  was  raised.  He  proceeded 
immediately  to  examine  clergymen  and  other  suspected  persons,  upon  oath,  after 

^  A  full  account  of  its  history  is  given  in  Esmein's  Histort/  of  Continental 
Criminal  Procedure  (1913;  Continental  Legal  History  Series,  Vol.  V;  Little, 
Brown,  &  Co.).  , 


No.  593  PRIVILEGED  TOPICS  855 

the  extremes!  "ex  oflficio"  style.  From  this  time  onwards  there  is  much  concern- 
ing this  oath.  The  right  to  examine  in  this  fashion,  wherever  the  case  was  within 
its  jurisdiction,  seems  to  have  been  conceded  under  Henry  VIII  and  EHzal)eth, 
all  through  the  1500s.  But  as  James'  reign  went  on,  and  its  practices  Ijecame  arro- 
gant and  obnoxious,  so  its  use  of  the  "ex  officio"  oath  came  to  share  the  bur- 
den of  criticism  and  discontent  which  that  procedure  in  the  ecclesiasti<:al  Courts 
excited.  The  common-law  Courts  seem  to  have  found  no  handle  against  its  oath- 
procedure,  even  after  Coke's  accession  to  the  bench.  But  though  there  was  no 
explicit  judicial  condemnation,  there  was,  after  a  time,  more  than  one  formal 
questioning  of  it. 

3.  But  its  time  in  the  kingdom  was  now  drawing  to  an  end;  and  the  trial 
which  seems  to  have  precipitated  the  crisis  came  in  1637.  John  Lilburn,  an 
obstreperous  and  forward  opponent  of  the  Stuarts  (popularly  known  as  "Free- 
born John"),  constituted  somewhere  between  a  patriot  and  a  demagogue,  had 
the  obstinacy  to  force  the  issue.  Lilburn  was  whipped  and  pilloried  for  refusing 
to  take  the  oath.  But  in  1640  the  sentence  was  vacated,  by  the  House  of  Com- 
mons, and  he  was  later  granted  £3000  in  reparation.  Lilburn's  case,  together 
with  those  of  Prynne  and  Leighton  (W'hose  grievances  were  of  another  sort), 
were  sufficiently  notorious  to  focus  the  attention  of  London  and  the  whole  country. 
The  Long  Parliament  (after  eleven  years  of  no  Parliament)  met  on  November 
3,  1640.  Lilburn  was  on  the  spot  that  day  with  his  petition  for  redress.  In 
March,  1641,  a  bill  was  introduced  to  abolish  the  Court  of  Star  Chamber,  as 
well  as  (then  or  shortly  after)  a  bill  to  abolish  the  Court  of  High  Commission 
for  Ecclesiastical  Causes.  These  were  both  passed  July  2-5  of  the  same  year; 
and  in  the  latter  statute  was  inserted  a  clause  which  forever  forbade,  for  any 
ecclesiastical  Court,  the  administration  "ex  officio"  of  any  oath  requiring  answer 
as  to  matters  penal. 

II.  But  what,  in  the  mean  time,  of  the  common  law,  and  of  jury  trial?  Thus 
far  the  controversy  here  examined  had  been  purely  one  of  ecclesiastical  jurisdic- 
tion and  ecclesiastical  methods  of  presentment.  The  common-law  Courts  had 
concerned  themselves  with  it  simply  by  virtue  of  their  superior  authority  to  keep 
the  church  Courts  and  other  Courts  to  their  proper  boundaries.  There  was  no 
feature  of  objection  to  the  compulsion,  in  itself,  of  answering  on  oath;  the  objec- 
tion was  as  to  who  shall  require  it,  and  how  it  shall  be  required.  Wlierever,  in 
other  proceedings,  it  was  thought  appropriate  to  have  the  defendant's  oath, 
there  was  no  hesitation  in  requiring  it.  All  tlirough  the  1500s  the  statute-book 
records  the  sanction  of  oaths  to  accused  persons.  Most  notably,  every  accused 
felon  was  required  to  be  examined  by  the  justices  of  the  peace,  and  his  examina- 
tion to  be  preserved  for  the  judges  at  the  trial  precisely  as  was  done  on  the  Con- 
tinent at  the  same  period;  and,  so  far  as  appears,  not  a  murmur  was  ever  heard 
against  this  process  till  the  middle  of  the  1700s;  and  no  statutory  measure  was 
taken  to  caution  the  accused  that  his  answer  was  not  compellable,  until  well  on 
in  the  1800s.  The  everyday  procedure  in  the  trials  of  the  1500s  and  the  1600s, 
and  almost  the  first  step  in  the  trial,  was  to  read  to  the  jury  this  compulsory 
examination  of  the  accused.  Furthermore,  as  the  trial  goes  on,  the  accused,  in 
all  this  period  of  1500-1620,  is  questioned  freely  and  urged  by  the  judges  to 
answer;  he  is  not  allowed  to  swear,  for  the  reasons  already  noted,  but  he  is 
pressed  and  bullied  to  answer.  A  striking  example  is  found  in  the  jury  trial  of 
Udall,  in  1590,  for  seditious  libel;  and  the  significant  circumstance  is  that  L'dall, 
who  before  the  ecclesiastical  High  Commission  Court,  a  few  months  previous, 
had  plainly  based  his  refusal  on  the  illegality  of  making  a  man  accuse  himself  by 


856  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  593 

inquisition,  has  here,  before  a  common-law  jury  with  witnesses  charging  him, 
no  such  chiim  to  make: 

UdaWs  Trial.  (1590),  1  How.  St.  Tr.  1271,  1275,  1289:  Udall  pleaded 
not  guilty;  and  after  argument  made  and  witnesses  testifying.  Judge  Clarke: 
"What  say  you?  Did  you  make  the  book,  Udall,  yes  or  no?  Wliat  say  you 
to  it,  will  you  be  sworn?  Will  you  take  your  oath  that  you  made  it  not?" 
declaring  this  to  be  a  favor;  Udall  refused,  and  the  judge  finally  asked: 
"Will  you  but  say  upon  your  honesty  that  you  made  it  not?"  Udall  again 
refused;  Judge  Clarke:  "You  of  the  jury  consider  tliis.  This  argueth  that,  if 
he  were  not  guilty,  he  would  clear  himself;"  then,  to  Udall:  "Do  not  stand 
in  it;  but  confess  it." 

Finally,  however,  in  1637^1,  came  Lilburn's  notorious  agitation;  and  in 
1641,  with  a  rush,  the  Courts  of  Star  Chamber  and  of  High  Commission  were 
abolished,  and  the  "ex  officio"  oath  to  answer  criminal  charges  was  swept  away 
with  them.  With  all  this  stir  and  emotion,  a  decided  effect  was  produced,  and 
was  immediately  communicated,  naturally  enough,  to  the  common-law  Courts. 
Up  to  the  last  moment,  Lilburn  had  never  claimed  the  right  to  refuse  absolutely 
to  answer  a  criminating  question;  he  had  merely  claimed  a  proper  proceeding 
of  presentment  or  accusation.  But  now  this  once  vital  distinction  came  to  be 
ignored.  It  began  to  be  claimed,  flatly,  that  no  man  is  bound  to  incriminate 
himself,  on  any  charge  (no  matter  how  properly  instituted),  or  in  any  Court 
(not  merely  in  the  ecclesiastical  or  Star  Chamber  tribunals).  Then  this  claim 
came  to  be  conceded  by  the  judges.  By  the  end  of  Charles  H's  reign,  under  the 
Restoration,  there  was  no  longer  any  doubt,  in  any  court;  ^  and  by  this  period, 
the  extension  of  the  privilege  to  include  an  ordinary  witness,  and  not  merely  the 
party  charged,  was  for  the  first  time  made.  But  the  privilege,  until  well  on  into 
the  time  of  the  English  Revolution,  remained  not  much  more  than  a  bare  rule  of 
law,  which  the  judges  would  recognize  on  demand.  The  spirit  of  it  was  wanting 
in  them.  The  old  habit  of  questioning  and  urging  the  accused  died  hard,  —  did 
not  disappear,  indeed,  until  the  1700s  had  begun.^ 

The  privilege,  too,  creeping  in  thus  by  indirection,  appears  by  no  means  to 
have  been  regarded  as  the  constitutional  landmark  that  our  own  later  legislation 
has  made  it.  In  all  the  parliamentary  remonstrances  and  petitions  and  declara- 
tions that  preceded  the  expulsion  of  the  Stuarts,  it  does  not  anj'where  appear. 
Even  by  1689,  when  the  Courts  had  for  a  decade  ceased  to  question  it,  and  at 


1  1660,  Scroop's  Trial,  5  How.  St.  Tr.  1034,  1039  (L.  C.  B.  Bridgman:  "You 
are  not  bound  to  answer  me,  but  if  you  will  not,  we  must  prove  it ") ;  1670,  Penn's 
and  Mead's  Trial,  ib.  951,  957  (on  a  question  being  put  to  Mead,  he  refused  to 
answer:  "It  is  a  maxim  in  your  own  law,  'Nemo  tenetur  accusare  seipsuhi,' 
which,  if  it  be  not  true  Latin,  I  am  sure  it  is  true  English,  'that  no  man  is  bound  to 
accuse  himself"). 

^  While  this  was  passing  in  England,  the  precisely  contemporary  struggle, 
across  the  Channel,  is  in  marked  contrast,  with  its  fatally  opposite  results;  for 
the  Council  of  Louis  XIV,  then  upon  the  draft  of  the  great  criminal  Ordonnance 
of  1670,  was  fixing,  for  a  century  to  come,  the  French  rule  of  compulsory  self- 
crimination.  Hitherto  this  had  rested  simply  on  traditional  practice;  now  it 
was  confirmed  by  statute.  The  arguments  of  the  opposing  councillors  in  the 
debate  employ  language  identical  with  our  own  privilege:  "Nul  n'est  tenu  se 
condamner  soi-m^me  par  sa  bouche." 


No.  596  PRIVILEGED  TOPICS  857 

the  English  Revolution  the  fundamental  victories  of  the  past  two  generations' 
struggle  were  ratified  by  William  in  the  Bill  of  Rights,  this  doctrine  is  totally 
lacking.  Wliatever  it  was  worth  to  the  American  constitution-makers  of  1789, 
it  was  not  worth  mentioning  to  the  English  constitution-menders  of  1689.^ 

594.  Statutes.  United  States.  (Constitution  1787,  Amendment  V.) 
No  person  .  .  .  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself. 

California.      (Penal  Code  1872,  §  1323.)      [Printed  ante,  No.  77.] 
Illinois.      (Rev.  St.  1874,  c.  38,  §  426.)      [Printed  ante,  No.  77.] 
Massachusetts.    (Rev.  L.  1902,  c.  175,  §  20.)    [Printed  ante.  No.  77.] 
New  York.    (Code  Crim.  Proc.  1881,  §  393.)    [Printed  ante,  No.  77.] 

595.  CouNSELMAN  V.  HiTCHCOCK.  (1892.  Supreme  Court.  142  U.  S.  547.) 
Blatchford,  J.  —  It  is  contended  on  the  part  of  the  appellee  that  .  .  .  the 
constitutions  of  those  States  [of  Virginia,  Massachusetts,  and  New  Hampshire] 
give  to  the  witness  a  broader  privilege  and  exemption  than  is  granted  by  the 
Constitution  of  the  United  States,  in  that  their  language  is  that  the  witness  shall 
not  be  compelled  to  "accuse  himself,"  or  "furnish  evidence  against  himself," 
or  "give  evidence  against  himself;"  and  it  is  contended  that  the  terms  of  the 
Constitution  of  the  United  States,  and  of  the  constitutions  of  Georgia,  Califor- 
nia, and  New  York  are  more  restricted.  But  we  are  of  opinion  that,  however 
this  difference  may  have  been  commented  on  in  some  of  the  decisions,  there  is 
really,  in  spirit  and  principle,  no  distinction  arising  out  of  such  difference  of 
language. 

Sub-topic  A.     Scope  of  the  Privilege  ^'" 

596.   PAXTON  v.   DOUGLAS 

Chancery.     1809 

16  Ves.  Jr.  239,  242;   19  id.  225 

The  plaintiffs  filed  the  bill  as  creditors  of  Peter  Douglas,  deceased, 
on  behalf  of  themselves  and  all  the  other  creditors,  &c.,  an  exception 
was  taken  to  the  Master's  Certificate,  that  he  had  allowed  interrogatories 
for  the  examination  of  Charles  Christie;  claiming  as  a  bond  creditor  of 
Douglas.  The  interrogatories,  as  allowed  by  the  Master,  inquired,  1st, 
generally  as  to  the  consideration  for  the  bond  for  2600/. ;  whether  money, 
goods,  &c. :  2dly,  whether  Christie  was  not  before  and  at  the  date  of  the 
bond  entitled  to  four-sixteenths  parts  of  the  ship  Behidere,  in  the  service 

^  The  real  explanation  of  the  Colonial  conventions'  insistence  on  it  would  seem 
to  be  found  in  the  agitation  then  going  on  in  France  against  the  inquisitional 
feature  of  the  Ordonnance  of  1670.  There  appears  no  allusion,  in  Elliot's  De- 
bates on  the  Constitution,  to  the  contemporary  French  movement;  but  the  dele- 
gates who  had  been  over  there  must  have  known  of  it.  The  proposals  of  reform 
laid  before  the  French  Constitutional  Assembly  from  the  Provinces,  in  1789, 
show  how  strong  was  the  popular  agitation  in  France. 


858  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  596 

of  the  East  India  Company;  and  was  not  the  commander  of  the  said 
ship;  whether  Douglas  did  not  contract  for  the  purpose  of  such  shares 
for  2400/. :  whether  that  was  a  fair  price:  whether  it  was  paid;  as  to  the 
circumstances  of  payment,  &c. :  3d,  whether  Douglas,  or  his  nephew 
James  Peter  Fearon,  at  the  same  time  made  some  and  what  proposal  or 
offer  to  purchase  from  him  the  command  of  the  said  ship,  for  any  and 
what  sum ;  and  how  such  sum  was  to  be  paid  and  secured :  4th,  whether 
he  treated,  or  made,  or  concluded,  any  and  what  bargain  with  Douglas 
or  Fearon,  for  the  sale  of  the  command  to  Fearon  for  the  sum  of  2600/. 
or  any  other  and  what  sum:  5th,  whether,  and  when  he  (Christie,) 
resigned  the  command:  and  was  not  Fearon,  and  when,  and  by  whose 
recommendation  or  procurement,  appointed  to  the  command:  6th, 
whether  he  had,  or  not,  proved  the  bond  under  a  Commission  of  Bank- 
ruptcy against  Fearon;  and  if  not,  why? 

Christie  objected  to  answer  these  interrogatories;  on  the  ground  that 
his  answer  might  criminate  himself;  and  subject  him  to  a  forfeiture  under 
the  East  India  Company's  Bye-Laws;  declaring,  that  no  owner  or  part- 
owner  of  any  ship,  or  any  commander,  or  other  person,  shall  directly 
or  indirectly  sell,  or  take  any  gratuity  or  consideration,  nor  shall  any 
person  or  persons  buy,  pay,  or  give,  any  gratuity  or  consideration,  for 
the  command  of  any  ship  or  ships,  to  be  freighted  to  the  Company; 
and  in  case  any  such  contract,  payment,  or  gift,  shall  be  made,  the 
commander,  or  intended  commander,  concerned  therein,  shall  from 
henceforth  be  incapable  of  being  employed,  or  of  serving  the  Company 
in  any  capacity  whatsoever.  .  .  . 

\  Mr.  Richards  and  Mr.  Roiiple,  for  the  Report,  insisted  that  .  .  .  some 
of  the  interrogatories,  the  first,  for  instance,  going  to  the  consideration, 
generally,  could  not  be  objected  to. 

Eldon,  L.  C. —  If  a  series  of  questions  are  put,  all  meant  to  establish 
the  same  criminality,  you  cannot  pick  out  a  particular  question  and  say, 
if  that  alone  had  been  put,  it  might  have  been  answered.  .  .  .  He  is  at 
liberty  to  protect  himself  against  answering,  not  only  the  direct  question 
whether  he  did  what  was  illegal,  but  also  every  question  fairly  appearing 
to  be  put  with  U  view  of  drawing  from  him  an  answer  containing  nothing 
to  affect  him  except  as  it  is  one  link  in  a  chain  of  proof  that  is  to  affect 
him.  .  .  . 

As  these  interrogatories  are  framed,  this  party  can  not  be  compelled 
to  answer. 

597.   AARON  BURR'S  TRIAL 

United  States  Circuit  Court.     1807 

Roherison's  Rep.  I,  208,  244 

[Treason.  A  cipher  letter  was  placed  before  the  witness,  who  had 
been  secretary  to  the  defendant,  and  he  was  asked  by] 


No.  598  PRIVILEGED   TOPICS  859 

Mr.  McRea  (for  the  prosecution).  —  Do  you  understand  the  contents 
of  that  paper? 

Mr.  Williams  (for  the  defendant).  ^ — He  objects  to  answer.  He  says 
that,  though  that  question  may  be  an  innocent  one,  yet  the  counsel  for 
the  prosecution  might  go  on  gradually,  from  one  question  to  another, 
until  he  at  last  obtained  matter  enough  to  criminate  him.  If  a  man 
know  of  treasonable  matter,  and  do  not  disclose  it,  he  is  guilty  of  mis- 
prision of  treason.  .  .  .  The  knowledge  of  the  treason,  again,  compre- 
hends two  ideas,  —  that  he  must  have  [1]  seen  and  understood  [2]  the 
treasonable  matter.  To  one  of  these  points  Mr.  W.  is  called  upon  to 
depose;  if  this  be  established,  who  knows  but  the  other  elements  of  the 
crime  may  be  gradually  unfolded  so  as  to  implicate  him? 

Marshall,  C.  J.  (sanctioning  the  witness'  refusal).  .  .  .  According 
to  their  [the  prosecution's]  statement,  a  witness  can  never  refuse  to 
answer  any  question  unless  that  answer,  unconnected  with  other  testi- 
mony, would  be  sufficient  to  convict  him  of  a  crime.  This  would  be 
rendering  the  rule  almost  perfectly  worthless.  Many  links  frequently 
compose  that  chain  of  testimony  which  is  necessary  to  convict  any  indi-l 
vidual  of  a  crime.  It  appears  to  the  Court  to  be  the  true  sense  of  the! 
rule  that  no  witness  is  compellable  to  furnish  any  one  of  them  against 
himself.  It  is  certainly  not  only  a  possible  but  a  probable  case  that  a 
witness,  by  disclosing  a  single  fact,  may  complete  the  testimony  against 
himself,  and  to  every  effectual  purpose  accuse  himself  as  entirely  as  he 
would  by  stating  every  circumstance  which  would  be  required  for  his 
conviction.  That  fact  of  itself  might  be  unavailing;  but  all  other  facts 
without  it  would  be  insufficient.  While  that  remains  concealed  within 
his  bosom,  he  is  safe;  but  draw  it  from  thence,  and  he  is  exposed  to  a 
prosecution.  The  rule  which  declares  that  no  man  is  compellable  to 
accuse  himself  would  most  obviously  be  infringed  by  compelling  a 
witness  to  disclose  a  fact  of  this  description.  What  testimony  may  be 
possessed,  or  is  attainable,  against  any  individual,  the  Court  can  never 
know.  It  would  seem,  then,  that  the  Court  ought  never  to  compel  a 
witness  to  give  an  answer  which  discloses  a  fact  that  would  form  a 
'necessary  and  essential  part  of  a  crime  which  is  punishable  by  the  laws. 


598.   WARD  V.   STATE 
Supreme  Court  of  Missouri.     1829 
2  Mo.  120 

Error  from  the  Circuit  Court  of  St.  Louis  County. 

The  case  appeared  by  the  record  to  be,  that  at  the  late  term  of  the 
Circuit  Court  for  the  county  of  St.  Louis,  the  grand  jury  for  said  county 
caused  a  subpoena  to  be  issued  for  said  Ward,  to  appear  before  them  and 
testify  generally,  without  saying  in  what  particular  matter  or  cause  he 


860  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  598 

was  to  testify.  Ward  accordingly  appeared,  and  was  sworn  to  give 
evidence  to  the  grand  jury.  He  went  before  the  grand  jury  to  testify. 
The  first  question  asked  by  the  foreman  of  the  grand  jury  was  this: 
"  Do  you  know  of  any  person  or  persons  having  bet  at  a  faro  table  in 
this  county,  within  the  last  twelve  months?"  To  which  the  witness 
answered,  "I  do."  The  foreman  then  desired  the  witness  to  tell  what 
persons  or  person  have  so  bet,  other  than  himself,  and  not  naming  him- 
self. The  witness  declined  answering,  saying  that  he  could  not  answer 
without  implicating  himself.  Ward  was  then  directed  by  the  Court  to 
answer  the  requirements  of  the  grand  jury,  but  not  to  name  himself  as  a 
better;  which  he  refused,  alleging  that  to  answer  thus  would  implicate 
himself.  Whereupon  the  Court  committed  him  to  prison,  till  he  should 
consent  to  give  the  evidence  required,  and  till  the  further  order  of  the 
Court.     A  writ  of  error  is  sued  on,  a  supersedeas  asked  for.  .  .  . 

McGirk,  J.  (after  stating  the  case  as  above).  Was  the  witness  right 
in  refusing  to  answer  the  question  on  the  ground, that  the  answer  would 
implicate  himself? 

The  record  shows  that  the  game  of  faro  is  played  with  cards,  by  one 
person  as  banker  against  any  number  of  persons,  each  person  playing 
for  himself,  without  any  aid  from  the  others,  against  the  banker;  and 
that  there  is  no  common  interest  among  those  persons  playing  against 
the  banker.  Thus  it  appears  that  each  player  against  the  bank  is  separate 
and  independent  of  all  others.  The  inquiry  made  by  the  grand  jury  is 
"Tell  who  bet  at  the  game  of  faro,  not  naming  yourself."  The  answer  of 
the  witness  is  (supposing  him  to  be  A)  that  "if  I  tell  that  B,  C,  and  D 
played,  it  will  be  either  full  or  partial  evidence  that  I  played."  This  is 
the  whole  argument  of  the  case,  —  an  argument  which  I  think  is  totally 
untenable  in  law  and  reason. 

I  understand  the  rule  laid  down  by  Chief  Justice  Marshall,  in  Burr's 
Trial,  245  [ante,  No.  597]  to  be  the  true  rule  of  law.  It  is  this,  that  it  is 
the  province  of  the  Court  to  judge  whether  any  direct  answer  to  the  ques- 
tion that  may  be  proposed  will  furnish  evidence  against  the  witness. 
If  such  answer  may  disclose  a  fact  which  forms  a  necessary  and  essential  ^ 
link  in  the  chain  of  testimony,  which  would  be  sufficient  to  convict  him 
of  any  crime,  he  is  not  bound  to  answer  it,  so  as  to  furnish  matter  for  that 
conviction.  .  .  .  The  question  is,  "  Who  did  you  see  betting  at  faro  except 
yourself?"  It  is  believed  that  a  direct  answer  in  the  negative  to  this 
would  be,  "I  saw  no  one  bet  at  faro."  This  answer,  I  think,  all  will 
allow,  does  not  accuse  him.  But  suppose  his  answer  must  be,  that  he 
saw  B  bet  at  faro,  can  it  not  be  true  that  B  bet,  yet  he,  the  witness,  did 
not?  Does  the  mere  fact  that  one  man  saw  another  commit  crime, 
prove  in  law  or  reason  that  he  who  saw  the  crime  committed  was  a 
participator?.  .  . 

But  in  this  case  it  is  said,  if  the  witness  is  bound  to  tell  who  bet  at  the 
game,  without  naming  himself,  then  those  persons  who  are  named  will 
be  examined  as  to  the  fact,  whether  he  bet;    and  if  the  witness  is  not 


No.  599  PRIVILEGED   TOPICS  861 

compelled  to  name  who  did  bet,  then  they  will  remain  unknown  to  the 
grand  jury,  and  cannot  be  examined  whether  the  witness  bet.  J  under- 
stand this  doctrine  to  be  grounded  more  on  the  fear  of  retaliation  than 
on  any  sound  principle  of  law.  Will  the  law  permit  a  man  to  keep  offences 
and  offenders  a  secret,  lest  the  offenders  should  in  their  turn  give  evidence 
against  him? 

I  have  looked  into  the  cases  cited  at  the  bar,  and  I  am  unable  to  per- 
ceive any  principle,  in  any  of  them,  which  ought  to  vary  the  foregoing 
opinion.  .  .  . 

The  supersedeas  is  refused  in  this  case;  and  also  in  the  case  of  Kembly 
V.  The  State. 

599.   STATE  v.  FLYNN 

Supreme  Judicial  Court  of  New  Hampshire.     1858 

36  N.  H.  64 

The  respondent  was  indicted  for  keeping  for  sale  a  large  quantity 
—  to-wit,  ten  gallons  —  of  intoxicating  liquor,  not  being  an  agent  for  the 
sale  of  such  liquor,  and  the  liquor  not  being  domestic  wane,  &c.,  contrary 
to  the  statute,  &c.  Upon  the  general  issue  the  State  introduced  evidence 
tending  to  show  that  A.  P.  Colby,  an  assistant  marshal  of  the  city  of 
Manchester,  acting  under  a  warrant  issued  by  the  police  court  of  said 
city,  which  was  not  produced  or  offered  as  evidence,  went  with  assistants 
to  the  place  occupied  by  the  respondent,  on  Elm  street,  in  Manchester, 
and  there  made  search  for  spirituous  liquors.  The  respondent's  counsel 
then  objected  to  the  admission  of  any  evidence  of  the  facts  ascertained 
upon  such  search,  upon  the  ground  that  the  statute  for  the  suppression  of 
intemperance,  so  far  as  it  purports  to  authorize  a  search  for  spirituous 
liquors,  particularly  the  fourth  section  of  the  statute,  is  repugnant  to  the 
Constitution  of  the  United  States  and  of  this  State,  and  any  evidence 
obtained  under  such  unconstitutional  enactment  is  inadmissible,  because 
it  is  in  the  nature  of  admissions  made  by  the  respondent  under  duress, 
and  the  respondent  is  thus  compelled  to  furnish  evidence  against  himself; 
but  the  Court  admitted  the  evidence.  The  jury  having  found  a  verdict 
against  the  respondent,  his  counsel  move  for  a  new  trial,  by  reason  of 
said  decision. 

Morrison,  Fitch,  and  Stanley,  for  the  respondent.  ...  II.  By  the  15th 
article  of  the  bill  of  rights  of  this  State  it  is  declared  that  "no  subject 
shall  be  compelled  to  accuse  or  furnish  evidence  against  himself."  The 
effect  of  the  act  of  1855  is  to  do  this.  It  compels  the  individual  against 
whom  the  complaint  is  made  to  submit  to  a  search  of  his  premises  for 
the  purpose  of  procuring  evidence  which  is  rightfully  his,  and  subject  to 
his  sole  control,  and  which  he  is  not  to  be  compelled  to  furnish  or  yield 
to  others,  to  be  used  against  himself,  and  which  he  has  the  right  to  keep 
back  and  withhold,  or  to  resist  the  sworn  officers  of  the  law  in  the  execu- 


862  BOOK   l:     RULES   OF   .VDMISSIBILITY  No.  599 

tion  of  a  precept,  and  then  allows  the  evidence  obtained  upon  such  search 
to  be  given  against  liim.   .   .   . 

Stevens,  Solicitor,  for  the  State.  .  .  .  We  are  at  a  loss  to  see  in  what 
way  the  production  of  the  evidence,  the  facts  obtained  on  the  search,  can 
be  regarded  as  an  admission  or  confession  on  the  part  of  the  respondent, 
or  as  evidence  furnished  by  him.  The  discovery  or  production  of  the 
evidence  is  no  more  an  admission  by  the  accused  than  it  is  a  denial  of  the 
offence  charged.  .  .  .  There  is  no  restraint  upon  his  person,  and  no  con- 
trol over  his  mind.  ...  It  cannot  be  seriously  contended,  that  because 
the  accused  is  prevented  from  concealing  or  destroying  the  instruments 
or  indicia  of  his  offence,  because  he  is  so  closely  pursued  that  he  finds  no 
time  or  opportuntity  to  remove  the  strongest  evidence  of  his  guilt,  — 
the  weapon  with  which  he  struck,  the  bloody  garment,  the  spoil  of  his 
theft  or  robbery,  the  tools  or  instruments  of  counterfeiting,  —  or  that 
they  are  taken  from  him  by  force,  or  discovered  by  search,  and  produced 
in  evidence,  he  is  thereby  admitting  his  guilt,  or  furnishing  evidence 
against  himself. 

Ball,  J. — The  objection  made  in  this  case  does  not  go  so  far  as  to 
insist  that  all  evidence  obtained  under  a  search-warrant  is  incompetent. 
...  Its  ground  is,  rather,  that  information  obtained  by  means  of  a 
search-warrant,  in  a  case  not  authorized  by  the  Constitution,  is  not 
competent  to  be  given  in  evidence,  because  it  has  been  obtained  by  com- 
pulsion from  the  defendant  himself,  in  violation  of  that  clause  of  the 
Constitution  which  provides  that  no  person  shall  be  compelled  to  furnish 
evidence  against  himself.  ...  It  seems  to  us  an  unfounded  idea  that  the 
discoveries  made  by  the  officers  and  their  assistants,  in  the  execution  of 
process,  whether  legal  or  illegal,  or  where  they  intrude  upon  a  man's 
privacy  without  any  legal  warrant,  are  of  the  nature  of  admissions  made 
under  duress,  or  that  it  is  evidence  furnished  by  the  party  himself  upon 
compulsion.  The  information  thus  acquired  is  not  the  admission  of  a 
party,  nor  evidence  given  by  him,  in  any  sense.  The  part}^  has  in  his 
power  certain  mute  witnesses,  as  they  may  be  called,  which  he  endeavors 
to  keep  out  of  sight,  so  that  they  may  not  disclose  the  facts  which  he  is 
desirous  to  conceal.  By  force  or  fraud  access  is  gained  to  them,  and  they 
are  examined,  to  see  what  evidence  they  bear.  That  evadence  is  theirs, 
not  their  owner's.  ...  It  does  not  seem  to  us  possible  to  establish  a 
sound  distinction  between  that  case,  and  the  case  of  the  counterfeit  bills, 
the  forger's  implements,  the  false  keys,  or  the  like,  which  have  been 
obtained  by  similar  means.     The  evidence  is  in  no  sense  his.  ,  .  . 

The  objections  being  overruled,   there  must  be 

Judgment  on  the  verdict. 


No,  600  PRIVILEGED  TOPICS  863 

600.   UNITED   STATES  v.   CROSS 

Supreme  Court  of  the  District  of  Columbia.     1892 

20  D.  C.  365 

Motion  by  defendant  for  a  new  trial  on  a  case  stated  and  bill  of 
exceptions  combined,  on  indictment  for  murder.   Judgment  affirmed.  .  .  . 

The  defendant  was  indicted  for  murdering  his  wife  on  the  first  day  of 
October,  1889.  .  .  .  Exception  No.  42  was  to  the  admission  of  the  record 
in  the  Marshal's  office  as  to  the  height  of  the  defendant.  It  seems  that 
he  was  called  into  a  room  in  the  Marshal's  office,  and  his  measurement 
taken,  and  that  was  done  after  he  was  convicted  at  the  first  trial.  .  .  . 
It  appeared  that  Mr.  Carroll  was  the  clerk,  and  testified  that  there  is  a 
book  kept  in  the  office  of  the  Marshal  in  which  all  the  measurements  of 
convicted  persons  are  kept,  and  a  description  of  the  convicted  persons 
written  down  and  furnished  the  Department  of  Justice.  They  are 
required  to  keep  that  book  and  the  practice  was  for  somebody  to  take  the 
measurement  and  call  it  out  to  him,  and  he  reduced  it  to  writing.  He 
identified  the  book  produced  as  the  one  used,  and  then  gave  the  measure- 
ment of  the  defendant.     That  was  objected  to  on  several  grounds. 

Messrs.  C.  Maurice  Smith  and  Joseph  ShilUngton,  for  defendant.  .  .  . 
To  show  the  height  of  the  defendant  they  called  William  Carroll,  a  clerk 
in  the  Marshal's  office.  He  testified  that  it  was  customary  in  the  office 
to  take  the  measurement  of  all  prisoners  after  they  had  been  sentenced. 
He  had  before  him  the  record  in  which  all  measurements  thus  taken  is 
kept,  on  one  page  of  which  appeared  the  measurement  of  the  defendant 
in  the  witness'  own  handwriting.  He  did  not  make  the  measurement 
himself,  but  it  was  called  out  to  him  by  the  one  who  did,  and  witness  took 
down  what  was  thus  called  out.  The  admission  of  this  testimony  was 
doubly  objectionable.  .  .  .  Second,  it  was  compelling  the  defendant  to 
furnish  evidence  against  himself.  .  .  .  The  phrase,  "be  a  witness"  is 
broad  enough  without  any  unnatural  construction  to  include  the  testi- 
mony of  acts  and  facts  as  well  as  of  words.  The  true  meaning  and  intent 
certainly  are  that  no  accused  person  shall  be  compelled  to  say  or  do 
anything  tending  to  criminate  himself  in  any  criminal  prosecution  against 
him.  .  .  . 

The  United  States  Attorney,  for  the  District  of  Columbia,  and  Mr. 
Charles  A.  Armes,  Assistant  Attorney  for  the  United  States. 

Cox,  J.  (after  stating  the  case  as  above).  .  .  .  There  is  still  a  further 
objection  made  to  it  and  that  is,  that  it  is  an  effort  to  compel  the  defend- 
ant to  give  evidence  against  himself.  It  must  be  remembered  that  when 
this  measurement  was  taken,  the  defendant  was  convicted,  and,  therefore, 
it  was  not  taken  with  the  view  to  a  trial  or  for  use  upon  a  trial.  There 
does  not  seem  to  be  any  reason  why  it  could  not  be  used  after  it  had  been 
taken  under  the  circumstances  stated.     It  could  not  be  contended  that 


864  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  600 

the  knowledge  of  the  size  or  height  of  a  man  acquired  in  any  other  way, 
for  instance  by  a  tailor,  could  not  be  used  when  at  the  time  it  was  not. 
taken  for  the  purpose  of  being  used  as  testimony,  and  it  seems  to  us  that 
a  record  taken  as  this  was,  for  a  lawful  purpose  and  under  the  rules  of 
the  office,  might  be  made  use  of  afterwards.  It  does  not  seem  to  us  that 
it  is  compelling  the  defendant  to  give  evidence  against  himself,  although 
some  cases  that  have  been  cited  to  us  go  very  far  in  that  direction. 
There  was  one  case  holding  that  it  \Vas  error  for  the  prosecuting  officer 
to  compel  the  jirisoner  in  court  to  put  his  foot  into  a  vessel  filled  with 
mud  in  order  to  measure  it  and  identify  it.  That  is  well  enough.  It 
Avas  held  in  another  case  that  where  the  officer  compelled  the  defendant 
to  put  his  foot  in  certain  tracks  that  were  discovered,  in  order  to  identify 
him,  that  was  wrong,  as  it  was  compelling  him  to  give  evidence  against 
himself,  and  evidence  of  that  kind  so  secured,  could  not  be  used.  We 
think  that  is  going  very  far;  it  is  rather  too  fine.  What  would  be  the 
consequence  if  such  evidence  should  be  entirely  excluded?  You  could 
not  compel  a  person  after  his  arrest  to  empty  his  pockets  and  disclose  a 
weapon,  when  the  most  vital  evidence  on  the  part  of  the  Government,  in 
a  homicide  case,  is  the  possession  of  the  deadly  weapon.  Could  you  not 
compel  him  to  open  his  pocket-book  and  exhibit  papers  that  might  be 
conclusive  in  the  case  of  a  forgery,  or  anything  of  that  sort?  We  think 
that  officers  having  a  prisoner  in  custody  have  a  right  to  acquire  informa- 
tion about  him,  even  by  force,  and  that,  for  example,  when  his  photo- 
graph is  taken  or  his  measurement  taken,  it  is  simply  the  act  of  the 
officers  and  is  not  compelling  him  to  give  evidence  against  himself. 

Judgment  affirmed. 

601.  DoAWS  V.  SwANN.  (Maryland.  1909.  Ill  Md.  53,  73  Atl.  653.) 
ScHiiuCKER,  J.  —  The  right  of  the  police  authorities  to  employ  the  Bertillon 
process  for  the  identification  of  convicted  criminals  has  been  recognized  in  most, 
if  not  all,  of  the  jurisdictions  in  which  the  subject  has  received  consideration ; 
although  several  Courts  and  text  T\Titers  have  either  questioned  or  denied  the 
right  to  subject  to  that  process  persons  accused  of  crimes  before  their  trial  or 
conviction.  ...  In  Shaffer  v.  United  States,  24  App.  D.  C.  417,  .  .  .  Shaffer 
had  been  arrested  by  the  police  of  the  district  upon  a  charge  of  murder,  and 
upon  his  trial  the  prosecution  offered  in  evidence  his  photograph,  taken  for 
purposes  of  identification  by  the  police  officer  who  had  him  in  custody  after  his 
arrest.  The  evidence  was  objected  to  on  behalf  of  the  prisoner,  and,  in  passing 
upon  the  objection  on  appeal,  the  Court  in  their  opinion  say:  .  .  .  "This  objec- 
tion is  founded  upon  the  theory  that  the  use  of  the  photograph  so  obtained  is  in 
violation  of  the  principle  that  a  party  cannot  be  required  to  testify  against  him- 
self, or  to  furnish  evidence  to  be  so  used.  But  we  think  there  is  no  fovmdation 
for  this  objection.  In  taking  and  using  the  photographic  picture  there  was  no 
violation  of  any  constitutional  right.  We  know  that  it  is  the  daily  practice  of 
the  poHce  officers  and  detectives  of  crime  to  use  photographic  pictures  for  the 
discovery  and  identification  of  criminals,  and  without  such  means  many  crim- 
inals would  escape  identification  or  conviction.  It  is  one  of  the  usual  means 
employed  in  the  public  service  of  the  coimtry,  and  it  would  be  a  matter  of  regret 


No.  603  PRIVILEGED   TOPICS  865 

to  have  its  use  unduly  restricted  upon  any  fanciful  theory  of  constitutional  privi- 
lege. ...  It  could  as  well  be  contended  that  a  prisoner  could  lawfully  refuse  to 
allow  himself  to  be  seen  while  in  prison  by  a  witness  brought  to  identify  him, 
or  that  he  could  rightfully  refuse  to  uncover  himself,  or  to  remove  a  mark  in 
Court,  to  enable  witnesses  to  identify  him  as  the  party  accused,  as  that  he  could 
rightfully  refuse  to  allow  an  officer,  in  whose  custody  he  remained,  to  set  an 
instrument  and  take  his  likeness  for  the  purposes  of  identification."  .  .  . 

For  the  reasons  mentioned  in  this  opinion  we  will  affirm  the  order  appealed 
from;  but  we  must  not  be  understood  by  so  doing  to  countenance  the  placing 
in  the  "rogues'  gallery"  of  the  photograph  of  any  person,  not  a  habitual  crim- 
inal, who  has  been  arrested  but  not  convicted  on  a  criminal  charge,  or  the  publi- 
cation under  those  circumstances  of  his  Bertillon  record. 

602.  Holt  v.  United  States.  (1910.  Supreme  Court.  218  U.  S.  245, 
31  Sup.  6.)  Holmes,  J.  .  .  .  Another  objection  is  based  upon  an  extravagant 
extension  of  the  Fifth  Amendment.  A  question  arose  as  to  whether  a  blouse 
belonged  to  the  prisoner.  A  witness  testified  that  the  prisoner  put  it  on  and  it 
fitted  him.  It  is  objected  that  he  did  this  under  the  same  duress  that  made  his 
statements  inadmissible,  and  that  it  should  be  excluded  for  the  same  reason. 
But  the  prohibition  of  compelling  a  man  in  a  criminal  Court  to  be  witness  against 
himself  is  a  prohibition  of  the  use  of  physical  or  moral  compulsion  to  extort 
communications  from  him,  not  an  exclusion  of  liis  body  as  evidence  when  it  may 
be  material.  The  objection  in  principle  would  forbid  a  jury  to  look  at  a  prisoner 
and  compare  his  features  with  a  photograph  in  proof.  Moreover,  we  need  not 
consider  how  far  a  Court  would  go  in  compelling  a  man  to  exhibit  himself.  For 
when  he  is  exhibited,  whether  voluntarily  or  by  order,  and  even  if  the  order 
goes  too  far,  the  evidence,  if  material,  is  competent.  Adams  v.  New  York,  192 
U.  S.  585. 


603.     Ex  Parte  KNEEDLER 

Supreme  Court  of  Missouri.     1912 
243  Mo.  632;  147  S.  W.  983 

Ex  parte  petition  by  Forrest  E.  Kneedler  for  a  writ  of  habeas  corpus 
directed  to  Louis  Nolte,  Sheriff  of  the  City  of  St.  Louis.  Petition  denied, 
and  petitioner  remanded. 

Habeas  corpus  to  discharge  petitioner  from  the  custody  of  the  sheriff^ 
of  the  city  of  St.  Louis,  who  holds  petitioner  under  a  capias  issued  on  an 
information  based  upon  the  following  statute :  .  .  .  "  Any  person  operat- 
ing a  motor  vehicle  who,  knowing  that  injury  has  been  caused  to  a  person 
or  property,  due  to  the  culpability  of  the  said  operator,  or  to  accident, 
leaves  the  place  of  said  injury  or  accident,  without  stopping  and  giving 
his  name,  residence,  including  street  and  street  number,  and  operator's 
license  number  to  the  injured  party,  or  to  a  police  officer,  or  in  case  no 
police  officer  is  in  the  vicinity  of  place  of  said  injury  or  accident,  then 
reporting  the  same  to  the  nearest  police  station,  or  judicial  officer,  shall 
be  guilty  of  a  felony."  .  .  .  Laws  1911,  p.  328,  §  12.     The  information 


866  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  603 

charges  in  the  first  count  that  one  Ernest  Combs  was  in  charge  and 
control  of,  and  operating  and  managing,  an  automobile  upon  a  street  in 
the  city  of  St.  Louis,  and  then  and  there,  by  accident,  struck,  run  over, 
and  killed  one  Frank  Farrar  with  such  automobile,  and  that  he,  knowing 
that  such  injury  had  been  caused,  did  then  and  there  unlawfully  and 
feloniously  leave  the  place  of  such  accident  without  stopping  and  giving 
his  name,  residence,  and  license  number.  .  .  . 

The  only  question  involved  is  whether  or  not  the  Act  in  question  is 
constitutional.  .  .  . 

Kent  Koerner  and  Glendy  B.  Arnold,  for  petitioner.  Seebert  G.  Jones 
and  Forrest  G.  Ferris,  for  respondent. 

Ferriss,  J.  (after  stating  the  case  as  above).  The  statute  in  question 
is  section  12  of  an  act  of  the  Legislature,  approved  March  9,  1911  (Session 
Acts  1911,  p.  322),  and  comprising  in  all  16  sections,  containing  minute 
regulations  and  restrictions  upon  the  use  of  motor  vehicles  on  public 
streets  and  highways.  .  .  .  The  section  in  controversy  was  enacted  for 
the  purpose,  doubtless,  of  preventing  those  controlling  and  operating 
automobiles  from  concealing  their  identity  by  immediate  flight  from  the 
scene  of  accident,  and  also  to  secure  necessary  aid  for  the  injured.  There- 
fore it  requires  those  in  charge  of  the  vehicle  to  remain  at  the  place  of 
accident,  or  give  their  names  and  addresses  before  leaving. 

There  can  be  no  question  but  that  this  Act,  including  section  12,  is  a 
reasonable  exercise  of  the  police  power.  The  petitioner  does  not  contend 
otherwise.  His  contention  is  that,  whether  reasonable  or  not  as  a  police 
measure,  it  is  invalid,  because  it  violates  the  constitutional  provision 
that  "  no  person  shall  be  compelled  to  testify  against  himself  in  a  criminal 
cause."  The  argument  is  that  the  driver  may  be  charged  with  the  crime 
of  culpable  negligence,  and  that  the  information  exacted  by  the  statute 
in  question  may  be  used  as  evidence  to  establish  his  connection  with  the 
injury. 

The  statute  is  a  simple  police  regulation.  It  does  not  make  the 
accident  a  crime.  If  a  crime  is  involved,  it  arises  from  some  other 
statute.  It  does  not  attempt  in  terms  to  authorize  the  admission  of  the 
information  as  evidence  in  a  criminal  proceeding.  The  mere  fact  that 
the  driver  discloses  his  identity  is  no  evidence  of  guilt,  but  rather  of 
innocence.  State  v.  Davis,  108  Mo.  666.  On  the  contrary,  flight  is 
regarded  as  evidence  of  guilt.  In  the  largQ  majority  of  cases,  such 
accidents  are  free  from  culpability.  If  this  objection  to  the  statute  is 
valid,  it  may  as  well  be  urged  against  the  other  provisions,  which  require 
the  owner  and  chauffeur  to  register  their  names  and  number,  and  to  dis- 
play the  number  of  the  vehicle  in  a  conspicuous  place  thereon,  thus  giving- 
evidence  of  identity,  which  is  the  obvious  purpose  of  the  provisions. 
St.  Louis  V.  Williams,  235  Mo.  503. 

We  have  several  statutes  which  require  persons  to  give  information 
which  would  tend  to  support  possible  subsequent  criminal  charges,  if 
introduced  in  evidence.     Persons  in  charge  are  required  to  report  acci- 


No.  603  PRIVILEGED   TOPICS  867 

dents  in  mines  and  factories.  Physicians  must  report  deaths  and  their 
causes,  giving  their  own  names  and  addresses.  Druggists  must  show 
their  prescription  Hsts.  Dealers  must  deHver  for  inspection  foods 
carried  in  stock.  We  held  a  law  valid  which  required  a  pawnbroker  to 
exhibit  to  an  officer  his  book,  wherein  were  registered  articles  received 
by  him,  against  his  objection  based  on  this  same  constitutional  provision. 
We  held  this  to  be  a  mere  police  regulation,  not  invalid,  because  there 
might  be  a  possible  criminal  prosecution  in  which  it  might  be  attempted 
to  use  this  evidence  to  show  him  to  be  a  receiver  of  stolen  goods.  City 
of  St.  Joseph  V.  Levin,  128  Mo.  588.  If  the  law  which  exacts  this  informa- 
tion is  invalid,  because  such  information,  although  in  itself  no  evidence 
of  guilt,  might  possibly  lead  to  a  charge  of  crime  against  the  informant, 
then  all  regulations  which  involve  identification  may  be  questioned  on 
the  same  ground.  We  are  not  aware  of  any  constitutional  provision 
designed  to  protect  a  man's  conduct  from  judicial  inquiry,  or  aid  him  in 
fleeing  from  justice. 

But,  even  if  a  constitutional  right  be  involved,  it  is  not  necessary  to 
invalidate  the  statute  to  secure  its  protection.  If,  in  this  particular 
case,  the  constitutional  privilege  justified  the  refusal  to  give  the  informa- 
tion exacted  by  the  statute,  that  question  can  be  raised  in  the  defense  to 
the  pending  prosecution.  Whether  it  would  avail,  we  are  not  called  upon 
to  decide  in  this  proceeding. 

The  petitioner  relies  upon  State  ex  rel.  v.  Simmons  Hardware  Co., 
109  Mo.  118,  wherein  we  held  a  statute  invalid  which  required  an  officer 
of  a  corporation  to  answer,  under  oath,  whether  the  corporation  had 
violated  the  statute  concerning  trusts  and  combinations,  and  where  the 
statute  further  made  a  violation  of  such  trust  statute  a  crime.  The 
distinction  between  that  case  and  this  is  obvious.  There  the  information 
relates  directly  to  a  crime  created  by  the  same  statute,  and  is  necessarily 
incriminatory,  if  the  answer  is  in  the  affirmative.  In  re  Conrades,  112 
Mo.  App.  loc.  cit.  41.  This  distinction  was  pointed  out,  also,  in  the 
Levin  Case,  supra. 

Our  attention  is  called  to  the  case  of  People  v.  Rosenheimer,  70  Misc. 
Rep.  433,  128  N.  Y.  Supp.  1093,  wherein  the  Court  of  General  Sessions 
held  a  similar  act  invalid.  This  decision  was  affirmed  by  a  divided 
court,  three  to  two,  in  the  Appellate  Division.  146  App.  Div.  875,  130 
N.  Y.  Supp.  544.  We  regard  the  dissenting  opinion  by  Ixgraham,  P.  J., 
as  sustained  bj'  the  better  reasoning.  Similar  statutes  have  been  passed 
in  Maine,  New  Jersey,  Michigan,  Florida,  California,  and  other  States. 
Our  attention  is  called  to  no  decision  iipon  the  question  involved  here  by 
any  Court  of  last  resort.  .  .  . 

We  cannot  hold  invalid  this  statute,  imposing  a  proper  restriction, 
because  of  its  suggested  possible  relation  to  a  possible  criminal  prosecution. 

It  is  ordered  that  the  petitioner  be  remanded. 

Brown,  P.  J.,  and  Kennish,  J.,  concur. 


868  BOOK   i:     RULES    OF   ADMISSIBILITY  No.   604 

604.   HALE   V.   HENKEL 

Supreme  Court  of  the  United  States.     1906 

201  U.  S.  43;  26  Sup.  370 

This  was  an  appeal  from  a  final  order  of  the  Circuit  Court,  made 
June  18,  1905,  dismissing  a  writ  of  habeas  corpus,  and  remanding  the 
petitioner,  Hale,  to  the  custody  of  the  marshal. 

The  proceeding  originated  in  a  subpcena  duces  tecum,  issued  April 
28,  1905,  commanding  Hale  to  appear  before  the  grand  jury  at  a  time  and 
place  named,  to  "testify  and  give  evidence  in  a  certain  action  now  pend- 
ing ...  in  the  circuit  court  of  the  United  States  for  the  southern  district 
of  New  York,  between  the  United  States  of  America  and  the  American 
Tobacco  Company  and  MacAndrews  &  Forbes  Company,  on  the  part  of 
the  United  States,  and  that  you  bring  with  you  and  produce  at  the  time 
and  place  aforesaid: 

"1.  All  understandings,  agreements,  arrangements,  or  contracts, 
whether  evidenced  by  correspondence,  memoranda,  formal  agreements, 
or  other  writings,  between  MacAndrews  &  Forbes  Company  and  six 
other  firms  and  corporations  named,  from  the  date  of  the  organization 
of  the  said  MacAndrews  &  Forbes  Company.  ..." 

Petitioner  appeared  before  the  grand  jury  in  obedience  to  the  sub- 
poena, and,  before  being  .sworn,  asked  to  be  advised  of  the  nature  of  the 
investigation  in  which  he  had  been  summoned.  .  .  .  After  stating  his 
name,  residence,  and  the  fact  that  he  was  secretary  and  treasurer  of  the 
MacAndrews  &  Forbes  Company,  he  declined  to  answer  all  other  ques- 
tions in  regard  to  the  business  of  the  company,  its  officers,  the  location  of 
its  office,  or  its  agreement  or  arrangements  with  other  companies.  He 
was  thereupon  advised  by  the  assistant  district  attorney  that  this  was  a 
proceeding  under  the  Sherman  Act  to  protect  trade  and  commerce  against 
unlawful  restraint  and  monopolies.  .  .  .  The  witness  still  persisted  in 
his  refusal  to  answer  all  questions.  He  also  declined  to  produce  the 
papers  and  documents  called  for  in  the  subpcena:  .  .  .  Third.  Because 
they  might  tend  to  incriminate  him. 

Whereupon  the  grand  jury  reported  the  matter  to  the  Court,  and 
made  a  presentment  that  Hale  was  in  contempt.  .  .  .  The  circuit  judge 
held  him  to  be  in  contempt,  and  committed  him  to  the  custody  of  the 
marshal  until  he  should  answer  the  questions  and  produce  the  papers. 
A  writ  of  habeas  corpus  was  thereupon  sued  out.  .  .  . 

Mr.  De  Lancey  Nicoll,  with  whom  Mr.  Junius  Parker  and  Mr.  John 
D.  Lindsay  were  on  the  brief  for  appellant,  in  this  case  and  in  No.  341, 
argued  simultaneously  herewith.  ...  A  corporation  is  entitled  to  the 
same  immunities  as  an  individual.  It  cannot  be  compelled  to  incriminate 
itself.  Wigmore  on  Evidence,  §  2259;  Logan  v.  Penna.  R.  R.  Co.  132 
Pa.  St.  403;   Santa  Clara  County  v.  Railroad  Company,  118  U.  S.  394; 


No.  604  PRIVILEGED  TOPICS  869 

King  of  Sicilies  v.  Willcox,  7  St.  Tr.  (N.  S.)  1049.  By  the  express  pro- 
visions of  the  Sherman  Act  corporations  are  deemed  to  be  persons. 
Section  8.  A  corporation  can  only  be  examined  tlirough  its  officers, 
directors  or  agents.  In  the  present  case  the  Government  undertook 
deliberately  by  that  method  to  compel  the  corporation  to  submit  to 
examination,  not  as  a  witness,  but  by  forcing  one  of  its  officers  and  direc- 
tors to  produce  its  books  and  papers  for  the  sole  purpose  of  ascertaining 
whether  or  not  the  corporation  had  committed  a  crime  under  the  Sherman 
Act.  The  rule  that  the  protection  of  the  Fourth  and  Fifth  Amendments 
is  the  personal  privilege  of  the  witness  and  cannot  be  claimed  for  the 
benefit  of  another  has  no  possible  application  to  the  case  of  an  officer, 
director  or  agent  of  a  corporation  who  seeks  to  secure  to  the  corporation 
its  constitutional  rights  and  immunities;  for  these  rights  can  only  be 
asserted  through  its  officers,  directors  and  agents. 

In  this  view  the  witness  is  not  seeking  to  invoke  the  privilege  of 
another,  but  the  corporation  itself  invokes  its  own  privilege  in  the  only 
manner  and  by  the  only  means  it  can  employ  for  that  purpose.  .  .  . 

Mr.  Henry  W.  Taft,  Special  Assistant  to  the  Attorney-General,  with 
whom  The  Attorney-General  and  Mr.  Felix  H.  Levy,  Special  Assistant  to 
The  Attorney-General,  were  on  the  brief,  for  the  United  States.  .  .  . 

The  protection  of  the  Fourth  and  Fifth  Amendments  is  based  alone 
upon  the  personal  privilege  of  the  witness.  The  objections  urged  by  the 
witness  cannot  be  relied  upon  for  the  benefit  of  the  corporation  of  which 
he  is  an  officer.  .  .  .  While  sporadic  cases  look  in  a  different  direction, 
there  have  been  many  decisions,  both  in  this  country  and  in  England, 
in  which  the  courts  have  refused  to  permit  the  privilege  to  be  asserted 
by  an  officer  or  employee  in  behalf  of  a  corporation  of  which  he  is  the 
representative.     New  York  Life  Insurance  Co.  v.  People,  195  111.430.  .  .  . 

Mr.  Justice  Brown,  after  making  the  foregoing  statement,  delivered 
the  opinion  of  the  Court. ^  .  .  . 

1 .  Appellant  invokes  the  protection  of  the  5th  Amendment  to  the  Con- 
stitution, which  declares  that  no  person  "shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,"  and  in  reply  to  various 
questions  put  to  him  he  declined  to  answer,  on  the  ground  that  he  would 
thereby  incriminate  himself.  .  .  .  The  interdiction  of  the  5th  Amend- 
ment operates  only  where  a  witness  is  asked  to  incriminate  himself,  — 
in  other  words,  to  give  testimony  which  may  possibly  expose  him  to  a 
criminal  charge.  But  if  the  criminality  has  already  been  taken  away, 
the  amendment  ceases  to  apply.  The  criminality  provided  against  is  a 
present,  not  a  past,  criminality,  which  lingers  only  as  a  memory,  and 
involves  no  present  danger  of  prosecution.  To  put  an  extreme  case,  a 
man  in  his  boyhood  or  youth  may  have  committed  acts  which  the  law 
pronounces  criminal ;  but  it  would  never  be  asserted  that  he  would  there- 


^  [Points  2,  3,  and  4  are  the  only  ones  here  involved.     Point  1  concerns  the 
topic  of  No.  623,  post,  —  Ed.] 


870  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  604 

by  be  made  a  criminal  for  life.  It  is  here  that  the  law  steps  in  and  says 
that  if  the  offense  be  outlawed  or  pardoned,  or  its  criminality  has  been 
removed  by  statute,  the  amendment  ceases  to  apply.  The  extent  of 
this  immunity  was  fully  considered  by  this  court  in  Counselman  v. 
Hitchcock,  142  U.  S.  547,  [pod,  No.  621]  in  which  the  immunity  offered 
by  Rev.  Stat.  §  860  (U.  S.  Comp.  Stat.  1901,  p.  661)  was  declared  to  be 
insufficient.  In  consequence  of  this  decision  an  act  was  passed  applicable 
to  testimony  before  the  Interstate  Commerce  Commission  in  almost  the 
exact  language  of  the  act  of  February  25,  1903,  above  quoted.  This  act 
was  declared  by  this  Court  in  Brown  v.  Walker,  161  U.  S.  591,  [post,  No. 
622]  to  afford  absolute  immunity  against  prosecution  for  the  offense  to 
which  the  question  related,  and  deprived  the  witness  of  his  contitutional 
right  to  refuse  to  answer.  Indeed,  the  act  was  passed  apparently  to 
meet  the  declaration  in  Counselman  v.  Hitchcock,  that  "a  statutory 
enactment,  to  be  valid,  must  afford  absolute  immunity  against  future 
prosecution  for  the  offense  to  which  the  question  relates." 

We  need  not  restate  the  reasons  given  in  Brown  v.  Walker,  both  in 
the  opinion  of  the  Court,  and  in  the  dissenting  opinion,  wherein  all  the 
prior  authorities  were  reviewed,  and  a  conclusion  reached  by  a  majority 
of  the  court,  which  fully  covers  the  case  under  consideration.  .  .  . 

The  further  suggestion  that  the  statute  offers  no  immunity  from  pros- 
ecution in  the  State  courts  was  also  fully  considered  in  Brown  v.  Walker, 
and  held  to  be  no  answer.  The  converse  of  this  was  also  decided  in  Jack 
V.  Kansas,  199  U.  S.  372,  ante,  73,  26  Sup.  Ct.  Rep.  74,  —  namely,  that 
the  fact  that  an  immunity  granted  to  a  witness  under  a  State  statute 
would  not  prevent  a  prosecution  of  such  witness  for  a  violation  of  a 
Federal  statute  did  not  invalidate  such  statute  under  the  14th  Amend- 
ment. The  question  has  been  fully  considered  in  England,  and  the 
conclusion  reached  that  the  only  danger  to  be  considered  is  one  arising 
within  the  same  jurisdiction  and  under  the  same  sovereignty.  Queen  v. 
Boyes,  1  Best  &  S.  311;  King  of  Sicilies  v.  Willcox,  7  St.  Tr.  N.  S.  1049, 
1068;  State  v.  March,  46  N.C.  (1  Jones,  L.)  526;  State  ?).  Thomas,  98N.C. 
599,  2  Am.  St.  Rep.  351,  4  S.  E.  518.  The  entire  question  of  immunity 
is  also  exhaustively  treated  in  Wigmore  on  Evidence,  §§  2255-2259.  .  .  . 

2.  It  is  further  insisted  that,  while  the  immunity  statute  may  protect 
individual  witnesses,  it  would  not  protect  the  corporation  of  which  appel- 
lant was  the  agent  and  representative.  This  is  true.  But  the  answer  is 
that  it  was  not  designed  to  do  so.  The  right  of  a  person  under  the  5th 
Amendment  to  refuse  to  incriminate  himself  is  purely  a  personal  privilege 
of  the  witness.  It  was  never  intended  to  permit  him  to  plead  the  fact 
that  some  third  person  might  be  incriminated  by  his  testimony,  even 
though  he  were  the  agent  of  such  person.  A  privilege  so  extensive  might 
be  used  to  put  a  stop  to  the  examination  of  every  witness  who  was  called 
upon  to  testify  before  the  grand  jury  with  regard  to  the  doings  or  business 
of  his  principal,  whether  such  principal  were  an  individual  or  a  corpora- 
tion.    The  question  whether  a  corporation  is  a  "person"  within  the 


No.  604  PRIVILEGED   TOPICS  871 

meaning  of  this  amendment  really  does  not  arise,  except,  perhaps,  where 
a  corporation  is  called  upon  to  answer  a  bill  of  discovery,  since  it  can 
only  be  heard  by  oral  evidence  in  the  person  of  some  one  of  its  agents  or 
employees.  The  amendment  is  limited  to  a  person  who  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself;  and  if  he 
cannot  set  up  the  privilege  of  a  third  person,  he  certainly  cannot  set  up  the 
privilege  of  a  corporation.  As  the  combination  or  conspiracies  provided 
against  by  the  Sherman  anti-trust  act  can  ordinarily  be  proved  only  by 
the  testimony  of  parties  thereto,  in  the  person  of  their  agents  or  employees, 
the  privilege  claimed  would  practically  nullify  the  whole  act  of  Congress. 
Of  what  use  would  it  be  for  the  Legislature  to  declare  these  combinations 
unlawful  if  the  judicial  power  may  close  the  door  of  access  to  every 
available  source  of  information  upon  the  subject?  Indeed,  so  strict  is 
the  rule  that  the  privilege  is  a  personal  one  that  it  has  been  held  in  some 
cases  that  counsel  will  not  be  allowed  to  make  the  objection.  We  hold 
that  the  questions  should  have  been  answered. 

3.  The  second  branch  of  the  case  relates  to  the  nonproduction  by  the 
witness  of  the  books  and  papers  called  for  by  the  subpoena  duces  tecum. 
The  witness  put  his  refusal  on  the  ground,  .  .  .  finally,  because  they 
might  tend  to  incriminate  him.  .  .  . 

Having  already  held  that,  by  reason  of  the  immunity  Act  of  1903, 
the  witness  could  not  avail  himself  of  the  5th  Amendment,  it  follows  that 
he  cannot  set  up  that  amendment  as  against  the  production  of  the  books 
and  papers,  since,  in  respect  to  these,  he  would  also  be  protected  by  the 
immunity  Act.  We  think  it  quite  clear  that  the  search  and  seizure 
clause  of  the  4th  Amendment  was  not  intended  to  interfere  with  the 
power  of  courts  to  compel,  through  a  subpoena  duces  tecum,  the  produc- 
tion, upon  a  trial  in  court,  of  documentary  evidence.  As  remarked  in 
Summers  v.  Moseley,  2  Cromp.  &  M.  477,  it  would  be  "utterly  impossible 
to  carry  on  the  administration  of  justice"  without  this  writ.  The 
following  authorities  are  conclusive  upon  this  question:  Amey  v.  Long, 
9  East,  473;  Bull  v.  Loveland,  10  Pick.  9;  United  States  Exp.  Co.  v. 
Henderson,  69  Iowa  40,  28  N.  W.  426;   Greenleaf,  Evidence,  469a. 

If,  whenever  an  officer  or  employee  of  a  corporation  were  summoned 
before  a  grand  jury  as  a  witness  he  could  refuse  to  produce  the  books  and 
documents  of  such  corporation,  upon  the  ground  that  they  would  incrimi- 
nate the  corporation  itself,  it  would  result  in  the  failure  of  a  large  number 
of  cases  where  the  illegal  combination  was  determinable  only  upon  the 
examination  of  such  papers. 

Conceding  that  the  witness  was  an  officer  of  the  corporation  under 
investigation,  and  that  he  was  entitled  to  assert  the  rights  of  the  corpora- 
tion with  respect  to  the  production  of  its  books  and  papers,  we  are  of  the 
opinion  that  there  is  a  clear  distinction  in  this  particular  between  an 
individual  and  a  corporation,  and  that  the  latter  has  no  right  to  refuse  to 
submit  its  books  and  papers  for  an  examination  at  the  suit  of  the  State. 
The  individual  may  stand  upon  his  constitutional  rights  as  a  citizen.    He 


872  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  604 

is  entitled  to  carry  on  his  private  business  in  his  own  way.  His  power 
to  contract  is  unlimited.  He  owes  no  duty  to  the  State  or  to  his  neighbors 
to  divulge  his  business,  or  to  open  his  doors  to  an  investigation,  so  far  as 
it  may  tend  to  criminate  him.  He  owes  no  such  duty  to  the  State,  since 
he  receives  nothing  therefrom,  beyond  the  protection  of  his  life  and 
property.  His  rights  are  such  as  existed  by  the  law  of  the  land  long 
antecedent  to  the  organization  of  the  State,  and  can  only  be  taken  from 
him  by  due  process  of  law,  and  in  accordance  with  the  Constitution. 
Among  his  rights  are  a  refusal  to  incriminate  himself,  and  the  immunity 
of  himself  and  his  property  from  arrest  or  seizure  except  under  a  warrant 
of  the  law.  He  owes  nothing  to  the  public  so  long  as  he  does  not  trespass 
upon  their  rights.  Upon  the  other  hand,  the  corporation  is  a  creature 
of  the  State.  It  is  presumed  to  be  incorporated  for  the  benefit  of  the 
public.  It  receives  certain  special  privileges  and  franchises,  and  holds 
them  subject  to  the  laws  of  the  State  and  the  limitations  of  its  charter. 
Its  powers  are  limited  by  law.  It  can  make  no  contract  hot  authorized 
by  its  charter.  Its  rights  to  act  as  a  corporation  are  only  preserved  to 
it  so  long  as  it  obeys  the  laws  of  its  creation.  There  is  a  reserved  right 
in  the  Legislature  to  investigate  its  contracts  and  find  out  whether  it  has 
exceeded  its  powers.  It  would  be  a  strange  anomaly  to  hold  that  a 
State,  having  chartered  a  corporation  to  make  use  of  certain  franchises, 
could  not,  in  the  exercise  of  its  sovereignty,  inquire  how  these  franchises 
had  been  employed,  and  whether  they  had  been  abused,  and  demand 
the  production  of  the  corporate  books  and  papers  for  that  purpose. 

The  defense  amounts  to  this :  That  an  officer  of  a  corporation  which 
is  charged  with  a  criminal  violation  of  the  statute,  may  plead  the  crimi- 
nality of  such  corporation  as  a  refusal  to  produce  its  books.  To  state 
this  proposition  is  to  answer  it.  While  an  individual  may  lawfully 
refuse  to  answer  incriminating  questions  unless  protected  by  an  immunity 
statute,  it  does  not  follow  that  a  corporation,  vested  with  special  privileges 
and  franchises,  may  refuse  to  show  its  hand  when  charged  with  an  abuse 
of  such  privileges.  .  .  . 

4.  Although,  for  the  reasons  above  stated,  we  are  of  the  opinion  that 
an  officer  of  a  corporation  which  is  charged  with  a  violation  of  a  statute 
of  the  State  of  its  creation,  or  of  an  Act  of  Congress  passed  in  the  exercise 
of  its  constitutional  powers,  cannot  refuse  to  produce  the  books  and 
papers  of  such  corporation,  we  do  not  wish  to  be  understood  as  holding 
that  a  corporation  is  not  entitled  to  immunity,  under  the  4th  Amend- 
ment, against  vnreasonable  searches  and  seizures.  A  corporation  is, 
after  all,  but  an  association  of  individuals  under  an  assumed  name  and 
with  a  distinct  legal  entity.  In  organizing  itself  as  a  collective  body  it 
waives  no  constitutional  immunities  appropriate  to  such  body.  Its 
property  cannot  be  taken  without  compensation.  It  can  only  be  pro- 
ceeded against  by  due  process  of  law,  and  is  protected,  under  the  14th 
Amendment,  against  unlawful  discrimination.  Gulf,  C.  &  S.  F.  R.  Co. 
V.  Ellis,  165  U.  S.  150,  154,  and  cases  cited.  .  .  .  We  are  also  of  opinion 


No.  605  PRIVILEGED  TOPICS  873 

that  an  order  for  the  production  of  books  and  papers  may  constitute  an 
unreasonable  search  and  seizure  within  the  4th  Amendment.  .  .  . 

Applying  the  test  of  reasonableness  to  the  present  case,  we  think  the 
subpoena  duces  tecum  is  far  too  sweeping  in  its  terms  to  be  regarded  as 
reasonable.  .  .  . 

Of  course,  in  view  of  the  power  of  Congress  over  interstate  commerce, 
to  which  we  have  adverted,  we  do  not  wish  to  be  understood  as  holding 
that  an  examination  of  the  books  of  a  corporation,  if  duly  authorized 
by  act  of  Congress,  would  constitute  an  unreasonable  search  and  seizure 
within  the  4th  Amendment. 

But  this  objection  to  the  subpoena  does  not  go  to  the  validity  of  the 
order  remanding  the  petitioner,  which  is,  therefore,  affirmed. 

Mr.  Justice  Harlan,  concurring: 

I  concur  entirely  in  what  is  said  in  the  opinion  of  the  Court  in  reference 
to  the  powers  and  functions  of  the  grand  jury  and  as  to  the  scope  of  the 
5th  Amendment  of  the  Constitution.  I  concur  also  in  the  affirmance 
of  the  judgment;  but  must  withhold  my  assent  to  some  of  the  views 
expressed  in  the  opinion.  It  seems  to  me  that  the  witness  was  not  entitled 
to  assert,  as  a  reason  for  not  obeying  the  order  of  the  Court,  that  the 
subpoena  duces  tecum  was  an  infringement  of  the  4th  Amendment.  .  .  . 
In  my  opinion,  a  corporation  —  "  an  artificial  being,  invisible,  intangible, 
and  existing  only  in  contemplation  of  law"  —  cannot  claim  the  immunity 
given  by  the  4th  Amendment;  for  it  is  not  a  part  of  the  "  people,"  within 
the  meaning  of  that  Amendment.  Nor  is  it  embraced  by  the  word 
"persons"  in  the  Amendment.  .  .  . 

Mr.  Justice  McKenna,  concurring: 

I  concur  in  the  judgment,  but  not  in  all  the  propositions  declared  by 
the  Court.  .  .  .  There  are  certainly  strong  reasons  for  the  contention 
that,  if  corporations  cannot  plead  the  immunity  of  the  5th  Amendment, 
they  cannot  plead  the  immunity  of  the  4th  Amendment.  .  .  . 

Mr.  Justice  Brewer,  dissenting: 

.  .  .  The  corporation  of  which  the  petitioner  was  an  officer  was 
chartered  by  a  State,  and  over  it  the  general  government  has  no  more 
control  than  over  an  individual  citizen  of  that  State.  Its  power  to 
regulate  commerce  does  not  carry  with  it  a  right  to  dispense  with  the  4th 
and  5th  Amendments,  to  unreasonably  search  or  seize  the  papers  of  an 
individual  or  corporation  engaged  in  such  commerce,  or  deprive  him  or 
it  of  any  immunity  or  protection  secured  by  either  Amendment. 

I  am  authorized  to  say  that  the  Chief  Justice  concurs  in  these  views. 

605.  John  H.  Wigmore.  Note  on  Hale  v.  Hrnkrl.  (1906.  I  Illinois  Law 
Review,  43.)  The  Prwilege  of  a  Corporation  against  Self-Crimination.  —  In  the 
Tobacco  Trust  Cases,  Hale  v.  Henkel  and  McAHster  v.  Henkel,  the  Federal 
Supreme  Court,  speaking  through  Mr.  Justice  Broa\t^,  has  declared  itself  for 
the  first  time  upon  two  important  points  in  the  law  of  evidence,  and  has  at  the 
same  time  effectually  recanted,  upon  another,  an  obiter  dictum  which  has  for  two 
decades  been  disturbing  the  precedents  and  leading  a  few  State  Courts  astray. 


874  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  605 

The  latter  point  is  that  the  Fourth  Amendment  to  the  Constitution,  forbid- 
ding unreasonable  searches  and  seizures,  is  distinct  in  scope  from  the  Fifth 
Amendment,  which  grants  the  privilege  against  self-criminating  testimony  —  a 
distinction  which  was  ignored  in  Boyd  v.  U.  S.,  116  U.  S.  616,  where  documents 
obtained  by  search  were  declared  to  be  not  usable  in  evidence  under  the  Fifth 
Amendment;  and  that  therefore  when  the  privilege  under  the  Fifth  Amendment 
■has  been  destroyed  by  an  immunity  statute,  documents  obtained  from  the 
accused  whether  by  search-warrant  or  by  subpoena,  are  not  prevented  from  use 
in  evidence  by  the  Fourth  Amendment. 

Of  the  other  two  points  —  the  novel  ones  —  the  first  is  that  the  officer  of  a 
corporation  cannot  plead  the  privilege  of  the  corporation  in  refusing  to  produce 
its  documents  which  are  in  his  custody;  this,  however,  was  inevitably  the  law, 
and  merely  receives  primal  recognition  in  that  Court.  But,  secondly,  it  is  further 
declared  in  the  opinion  that  a  corporation  cannot  set  up  the  privilege  against 
self-crimination  in  refusing  to  produce  its  books,  since  "there  is  a  clear  distinction 
between  an  individual  and  a  corporation."  It  may  be  questioned  whether  this 
was  necessary  to  the  decision,  and  whether  the  grounds  stated  are  intended  to 
make  the  proposition  an  unqualified  one.  But  the  language  is  express;  and  the 
ruling  seems  to  be  the  first  one  of  its  kind  in  any  jurisdiction. 

What  does  it  teach,  as  to  the  practical  method  for  going  about  to  procure  this 
sort  of  evidence  against  corporations,  in  the  proceedings  now  so  common?  The 
prosecutor  or  investigator,  it  is  obvious,  has  his  choice  at  the  outset  between  two 
modes.  Either  he  may  call  upon  the  corporation  directly  for  its  documents,  or 
he  may  demand  them  of  an  officer  of  the  corporation.  If  he  takes  the  latter 
course,  he  must  inevitably  give  immunity  to  the  officers  personally,  supposing 
that  he  is  a  prosecuting  attorney;  and  he  runs  a  great  risk  of  producing  the  same 
effect,  if  he  is  an  investigating  commissioner,  under  the  recent  ruling  in  the 
Chicago  Packers'  Case  (noticed  elsewhere).  But  if  he  takes  the  latter  course, 
demanding  from  the  corporation  directly,  he  avoids  these  disadvantages;  for 
the  corporation  has  no  privilege  to  refuse  (under  Hale  v.  Henkel,  supra),  and  the 
officers,  not  having  been  personally  subjected  to  the  demand,  cannot  invoke 
their  privilege,  and  therefore  do  not  benefit  by  the  immunity  clause.  Thus  both 
the  corporation  and  (most  important)  the  officers  remain  liable  to  prosecution. 
Is  not  this  the  practical  lesson  to  be  drawn  from  these  decisions? 

Yet  it  remains  to  ask  whether  the  Court's  opinion  has  not  left  a  \'ital  point 
still  unnoticed.  That  point  is  this:  The  privilege  began,  continued,  and  now 
exists  at  common  law,  independently  of  statute;  the  Constitution  merely  guaran- 
tees it  against  legislative  alteration;  did  the  Supreme  Court,  then,  mean  to  say 
that  a  corporation  was  and  is  not  within  the  privilege  at  common  law?  or  did  they 
mean  to  say  merely  that  the  Constitutional  guarantee  of  it  to  all  "persons" 
does  not  include  corporations?  If  they  meant  the  former,  then  no  immunity  needs 
to  be  given  to,  nor  can  be  claimed,  by  a  corporation;  and  Courts  are  free  to  exact 
everything  from  a  corporation.  But  if  they  meant  the  latter,  then  the  privilege 
stands,  for  corporations,  until  abolished  by  the  Legislature;  hence,  if  the  Legis- 
lature has  not  abolished  it,  the  corporation  may  still  claim  it;  and  hence  also, 
if  the  Legislature  in  abolishing  it  has  chosen  (unnecessarily,  to  be  sure)  to  grant 
immunity  as  an  inseparable  gift  annexed  therewith,  the  corporation  will  get 
the  immunity  when  forced  to  relinquish  the  privilege.  The  importance  of  this 
distinction  in  the  current  attempts  to  investigate  corporate  conduct  is  obvious. 
But  we  doubt  whether  any  certain  light  upon  it  is  to  be  found  in  Hale  v. 
Henkel. 


No.  609  PRIVILEGED   TOPICS 


Sub-topic  B.     Claim  of  the  Pkivilege 

607.  Bembridge's  Trial.  (1783.  22  How.  St.  Tr.  143.)  Mr.  Bearcroft 
(arguing  for  the  defence).  It  is  true  he  was  examined  in  a  mode  of  inquiry  in 
which  it  was  not  improper,  perhaps,  to  examine  him;  but  it  cannot  be  doubted 
that  tlie  persons  who  did  examine  him  saw  that  the  questions  that  they  put  upon 
that  occasion  tended  to  criminate  the  person  under  that  examination.  What 
does  your  lordship  do  in  that  situation?  What  does  every  judge  do,  even  down  to 
the  lowest  justice  of  the  peace,  even  to  committee-men  upon  elections,  whenever 
a  question  of  that  sort  is  asked  of  a  witness?  "Stop;  understand  that  you  are 
at  your  own  discretion  whether  yovi  will  answer  that  question  or  not;  you  need 
not  accuse  yourself."  The  law  of  England  is  that  no  man  is  bound  to  accuse 
himself;  and  the  man  who  administers  that  law  best  always  takes  care  to  give 
that  caution. 

608.  Mayo  v.  Mayo.  (1876.  Massachusetts.  119  Mass.  290,  292.)  It  is 
within  the  discretion  of  the  Court,  and  the  usual  practice,  to  advise  a  witness 
that  he  is  not  bound  to  criminate  himself,  where  it  appears  necessary  to  protect 
the  rights  of  the  witness. 


609.   CLOYES  v.  THAYER 

Supreme  Court  of  New  York.     1842 

3  Hill  564,  566 

Action  on  a  promissory  note  bearing  date  November  27th,  1835, 
payable  to  bearer,  made  by  the  defendants  and  transferred  to  the  plaintiff 
by  Isaac  Hovey,  the  payee.  The  defendants  pleaded  the  general  issue, 
and  gave  notice,  in  general  terms,  that  they  would  prove  the  note  to 
have  been  given  to  Hovey  upon  a  usurious  consideration.  .  .  .  The 
defendants'  counsel  called  Isaac  Hovey  as  a  witness,  and  asked  him  if 
he  was  the  original  holder  of  the  note.  The  witness  declined  answering 
the  question,  for  fear,  as  he  said,  that  his  reply  might  form  a  link  in  the 
chain  of  evidence  to  convict  him  of  a  criminal  offence.  The  circuit 
judge  required  the  witness  to  answer  the  question  and  to  testify  in  relation 
to  the  receipt  by  him  of  the  alleged  usury;  giving  as  the  reason  for  his 
decision  that  it  was  not  an  offence  to  take  usury  when  the  note  in  question 
was  executed.  The  plaintiff's  counsel  excepted.  The  jury  rendered  a 
verdict  in  favor  of  the  defendants;  and  the  plaintiff  now  moved  for  a 
new  trial  on  a  bill  of  exceptions. 

T.  Jenkins,  for  the  plaintiff.     B.  D.  A^oxon,  for  the  defendants. 

Nelson,  C.  J.  — The  Court  erred  in  compelling  the  payee  of  the  note 
to  answer  questions  tending  to  criminate  himself.  It  was  expressly  held 
in  Burns  v.  Kempshall  (24  Wend.  360),  that  the  answer  in  a  like  case 
might  tend  to  subject  him  either  to  a  penalty  or  to  an  indictment  for  a 
misdemeanor. 


876  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  609 

But  the  error  is  not  available  to  the  plaintiff.  The  privilege  belongs 
exclusively,  to  the  witness,  who  may  take  advantage  of  it  or  not  at  his 
pleasure.  The  party  to  the  suit  cannot  object.  He  has  no  right  to 
insist  upon  the  privilege  and  require  the  Court  to  exclude  the  evidence  on 
that  ground.  The  witness  may  waive  it  and  testify,  in  spite  of  any 
objection  coming  from  the  party  or  his  counsel.  If  ordered  to  testify  in 
a  case  where  he  is  privileged,  it  is  a  matter  exclusively  between  the  Court 
and  the  witness.  The  latter  may  stand  out  and  be  committed  for  con- 
tempt, or  he  may  submit;  but  the  party  has  no  right  to  interfere  or  com- 
plain of  the  error.  It  would  be  otherwise  if  the  Court  allowed  the 
privilege  in  a  case  where  the  witness  had  not  brought  himself  within  the 
rule,  as  the  [cross-examining]  party  would  then  be  improperly  deprived 
of  his  testimony. 

Upon  the  other  ground,  however,  viz.,  that  the  notice  given  with  the 
plea  was  defective  under  the  statute  of  1837,  a  new  trial  must  be  granted 
for  the  error  in  compelling  the  plaintiff  to  be  sworn  and  give  evidence 
on  the  question  of  usury.  .  .  .  New  trial  granted. 

610.  State  v.  Kent,  alias  Pancoast.  (1896.  5  N.  D.  516,  67  N.  W.  1052.) 
Bartholomew,  J.  —  With  respect  to  an  ordinary  witness,  counsel  in  the  case 
have  no  legal  interest  in  the  matter  of  his  protection.  It  is  purely  a  question 
between  the  witness  and  the  Court.  Cloyes  v.  Thayer,  3  Hill,  564  [ante,  No.  609]; 
Southard  v.  Rexford,  6  Cow.  254.  Not  only  must  the  witness  claim  the  pri\alege 
in  person,  but  he  must  state  under  oath  that  the  answer  will  tend  to  criminate 
him.     See  1  Roscoe,  Criminal  Evidence,  232  et  seq.  .  .  . 

This  case,  however,  presents  a  still  further  complication,  in  that  the  witness 
was  also  a  party,  and  a  party  most  vitally  interested.  Generally  speaking,  a 
party  to  an  action  in  Coiu"t  speaks  through  his  counsel.  It  is  the  right  and  duty 
of  counsel  to  protect  his  client  at  every  point.  These  considerations  led  the 
Court  of  Appeals  in  New  York,  in  People  i\  Brown,  72  N.  Y.  571,  and  in  the 
Supreme  Court  of  Iowa,  in  Clifton  v.  Granger,  86  Iowa  573,  to  hold  that  this 
privilege  could  be  claimed  by  counsel  when  the  witness  was  also  a  party.  But 
there  is  a  practical  difficulty  in  such  a  holding  that  was  not  discussed  in  either  of 
these  cases.  The  claim  of  privilege,  when  made  by  counsel  alone,  even  when, 
as  in  this  case,  counsel  says,  "The  privilege  is  claimed  by  both  counsel  and  the 
defendant,"  is  not,  and  cannot  be,  supported  by  the  oath  of  the  witness.  This, 
as  we  have  seen,  is  demanded  both  by  authority  and  reason,  and  we  can  conceive 
of  no  sufficient  ground  to  support  an  exception  in  favor  of  a  party.  State  v. 
Wentworth,  65  Me.  234.  No  doubt,  counsel  have  the  right,  in  protecting  their 
clients,  to  raise  the  point,  and  call  the  attention  of  the  Court  to  the  matter,  and 
demand  that  the  witness  be  apprised  of  his  rights,  and  given  an  opportunity  to 
make  the  claim  under  oath,  if  he  so  elect.  We  think  this  would  be  the  proper 
method  of  raising  the  point  in  these  cases.  Of  course,  the  witness  might  do  it 
without  the  intervention  of  counsel. 


No.  611  PRIVILEGED   TOPICS  877 

611.   REGINA  V.   GARBETT 

Crown  Cases  Reserved.     1847 

2  C.  (i-  K.  474,-492;  2  Cox  Cr.  448;  1  Den.  Cr.  C.  276 

Forgery.  The  first  count  of  the  indictment  charged  the  prisoner 
with  forging  a  bill  of  exchange  for  £50,  with  intent  to  defraud  William 
Booth.  .  .  . 

In  the  course  of  the  trial,  S.  Martin,  for  the  prosecution,  proposed  to 
give  in  evidence  the  examination  of  the  prisoner  on  the  trial  of  the  civil 
action  of  Blagden  v.  Booth,  at  the  Kingston  Spring  Assizes,  1847.  .  .  . 
On  that  trial,  the  prisoner  was  called  as  a  witness  for  the  defendant; 
and,  in  his  examination  in  chief,  he  had  said:  "This  is  my  signature  to 
the  bill  as  drawer.  The  bill  is  made  payable  to  my  order.  The  accept- 
ance was  on  it  when  I  handed  it  to  Mr.  Phillips  (the  second  endorser)." 
His  cross-examination  was  as  follows,  as  was  proved  by  Mr.  Corfield, 
the  short-hand  writer,  by  his  short-hand  notes :  — 

The  stamp  was  never  out  "of  my  possession  till  it  was  handed  to  Mr.  Phillips. 

Had  you  Mr.  Booth's  authority  to  accept  it?  —  I  had  not. 

Where  did  you  get  the  stamp?  —  I  purchased  it  at  a  shop  in  London,  and  from 
that  time  the  stamp  has  never  been  out  of  my  possession.  1  never  received  a 
penny  for  it. 

Never  mind  what  you  received  for  it,  —  when  was  the  "William  Booth" 
put  upon  it  ?  —  Between  the  Friday  and  the  Sunday. 

What  Friday  and  Sunday?  • —  1  believe  it  was  between  the  last  Friday  and 
the  last  Sunday  in  November. 

After  the  21st?  —  Certainly  after  the  21st. 

After  the  21st  of  November,  46?  —  Certainly. 

Did  you  communicate  with  Mr.  Booth  on  the  subject?  —  Not  in  any  way. 

Have  you  never  done  so?  —  Yes,  I  believe  last  Saturday  week  I  saw  Mr. 
Booth. 

Lord  Dexmax.  —  Was  that  the  first  time?  —  The  first  time,  my  Lord. 

Mr.  Chambers.  —  \Miy!  did  he  not  write  you  a  letter?  —  Never,  I  never 
heard  of  his  writing  me  a  letter  until  I  came  into  this  Court  by  accident. 

Until  you  came  by  accident,  —  what  do  you  mean?  —  I  came  into  Court 
in  pursuance  of  a  subpoena  served  tlu-ee  hours  ago. 

Who  served  you  three  hoiu-s  ago?  —  A  gentleman. 

Where  were  you  three  hours  ago?  —  At  my  oflRce  in  King  William  Street, 
in  the  City. 

Who  is  the  man,  —  do  you  know  him?  —  I  do  not,  but  I  believe  he  is  a  clerk 
to  Mr.  Stuart. 

Where  is  your  office  do  you  say?  —  My  place  of  business  is  in  King  William 
Street. 

Wliat  are  you?  —  An  attorney  and  solicitor. 

Did  you  know  what  you  came  here  to  prove?  —  I  did  not  until  I  came  into 
the  box. 

Do  you  know  what  you  are  attempting  to  prove?  —  1  do. 


878  BOOK  i:     RULES  OF  ADMISSIBILITY  No.  611 

Do  you  mean  to  say  it  is  a  forgery?  —  It  is  not  his  handwriting. 

Not  in  his  handwTiting.  Who  accepted  it  then?  —  I  am  in  the  hands  of 
the  Court. 

Lord  Denmax.  —  It  must  be  answered. 

The  Witness.  —  I  state,  my  Lord,  that  I  filled  the  bill  up  at  Mr.  Phillips's 
request  in  his  own  drawing-room,  and  handed  it  to  him,  and  have  never  received 
a  penny  for  it. 

jNIr.  Chambers.  —  I  ask  you  who  did  that?  (pointing  to  the  bill.)  —  Not  Mr. 
Booth. 

Did  Mr.  Phillips?  —  No. 

Who  was  present  when  the  bill  Avas  filled  up?  —  Mr.  PliiUips  alone. 

Were  there  only  you  two  present?  —  Mr.  Booth  was  not  present  when 
"William  Booth"  was  wTitten.  William  Booth  had  been  written  before  I  filled 
it  up  in  Mr.  Phillips's  drawing-room. 

Who  was  present  when  "William  Booth"  was  wTitten?  —  I  won't  say  — 
only  myself. 

Was  any  one  else?  —  I  cannot  say. 

I  ask  you  to  tell  me  whether  any  other  person  was  present  when  "William 
Booth"  was  written  besides  yourself?  —  I  beUeve  a  clerk. 

What  clerk?  —  That  I  decline  to  say. 

Mr.  Chambers.  —  My  Lord,  I  press  the  question. 

Lord  DEXiiAX.  (To  the  witness.)  — That  other  person  or  you  must  have 
WTitten  it?  —  Precisely  so. 

You 'knew  that  when  you  uttered  it?  —  WTien  I  handed  it  to  Mr.  PhiUips 
'  I  did  know  it  and  Mr.  Phillips  knew  it  too. 

By  Mr.  Chambers.  —  Who  was  the  other  person?  I  ask  the  question,  and 
I  submit,  my  Lord,  it  is  a  proper  question. 

Lord  Den.man.  —  It  must  be  answered. 

Montagu  Chambers,  for  the  prisoner,  objected  to  those  parts  of 
the  cross-examination  being  given  in  evidence  which  followed  the 
prisoner's  declining  to  answer,  and  applying  to  the  Court  for  pro- 
tection, and  the  decision  of  Lord  Denman,  C.  J.,  that  he  must  answer 
the  question. 

Montagu  Chambers  (for  the  prisoner).  I  submit  that  the  prisoner, 
when  he  was  a  witness  on  the  trial  of  the  case  in  Blagden  v.  Booth,  was 
not  bound  to  answer  the  question  then  put,  which  he  demurred  to  answer- 
ing, and  was  illegally  compelled  to  answer. 

Willrs  (for  the  prosecution) .  When  a  witness,  in  giving  this  evidence, 
even  inadvertently  states  a  part  of  a  transaction,  and  it  is  essential  to 
truth  and  justice  that  he  should  answer  the  whole,  he  must  do  so.  Here 
the  witness  knew  what  he  came  to  prove;  he  does  not  take  advantage 
of  his  privilege,  but  makes  certain  statements  to  the  advantage  of  one 
party,  and  then  wishes  to  say  no  more,  and  insist  on  his  privilege,  which 
he  cannot  be  allowed  to  do,  as  the  plaintiff  has  a  right  to  the  whole 
truth. 

(RoLFE,  B.  —  If  the  witness  says,  on  his  oath,  that  he  believes  the 
answer  will  criminate  him,  can  you  compel  him  to  give  the  answer  after 
that?     Wilde,  C.J.  —  I  have  known  judges  over  and  over  again  tell  the 


No.  612  PRIVILEGED  TOPICS  879 

witness  he  must  answer.     Parke,  B.  —  It  must  appear  to  the  judge  that 
the  answer  really  has  some  tendency  to  criminate  the  witness.) 
S.  Martin.  —  I  submit  that  the  judge  has  a  discretion. 

1.  The  case  was  afterwards  considered  by  the  judges,  when  a  majority 
of  their  Lordships  held  the  conviction  wrong,  being  of  opinion,  that,  if 
a  witness  claims  the  protection  of  the  Court  on  the  ground  that  his  answer 
would  tend  to  criminate  himself,  and  there  appears  reasonable  ground 
to  believe  that  it  would  do  so,  he  is  not  compellable  to  answer;  and  if 
obliged  to  answer  notwithstanding,  what  he  says  must  be  considered  to 
have  been  obtained  by  compulsion,  and  cannot  afterwards  be  given  in 
evidence  against  him.  Their  Lordships  did  not  decide  (as  the  case  did 
not  call  for  it)  whether  the  mere  declaration  of  a  witness  on  oath,  that  he 
believed  that  the  answer  would  tend  to  criminate  him,  would  or  would 
not  be  sufficient  to  protect  him  from  answering,  where  sufficient  other 
circumstances  did  not  appear  in  the  case  to  induce  the  judges  to  believe 
that  the  answer  would  tend  to  criminate  the  witness. 

2.  Their  Lordships,  also  held,  that  it  made  no  difference  in  the  right 
of  the  witness  to  protection  that  he  had  before  answered  in  part;  —  their 
Lordships  being  of  opinion  that  he  was  entitled  to  claim  the  privilege  at 
any  stage  of  the  inquiry,  and  that  no  answer  forced  from  him  by  the 
presiding  judge  (after  such  a  claim)  could  be  afterwards  given  in  evidence 
against  him. 

612.   STATE   V.   THADEN 

Supreme  Court  of  Minnesota.     1890 

43  Minn.  253,  255;  45  A'.  W.  447 

Mitchell,  J.  —  The  defendant  was  jointly  indicted  with  two  others 
(Partello  and  Tall)  for  forgery  in  the  second  degree,  by  putting  ofi"  as 
true  upon  one  Christiansen  a  false  and  forged  promissory  note  purporting 
to  have  been  executed  by  one  Linstad.  He  demanded  and  was  granted 
a  separate  trial,  and  the  State  called,  as  a  witness  in  its  behalf,  Linstad, 
the  person  whose  name  was  alleged  to  have  been  forged. 

The  first  error  assigned  is  the  ruling  of  the  trial  Court  in  compelling 
this  witness  to  answer  certain  questions,  he  having  previously  declined 
to  do  so,  claiming  that  the  same  might  tend  to  criminate  himself.  While 
no  principle  of  the  common  law  is  more  firmly  established  than  that 
which  affords  a  witness  the  privilege  of  refusing  to  answer  any  question 
which  will  criminate  himself,  yet  its  application  is  attended  with  practical 
difficulties.  .  .  .  The  problem  is  how  to  administer  the  rule  so  as  to  afford 
full  protection  to  the  witness  and  at  the  same  time  prevent  simulated 
excuses.  All  the  authorities  agree  to  the  general  proposition  that  the 
statement  of  the  witness  that  the  answer  will  tend  to  criminate  himself 
is  not  necessarily  conclusive,  but  that  this  is  a  question  which  the  Court 
will  determine  from  all  the  circumstances  of  the  particular  case,  and  the 


880  BOOK  l:     RULES  OF  ADMISSIBILITY  No.  612 

nature  of  the  evidence  which  the  witness  is  called  upon  to  give.i  But  the 
question  on  which  the  cases  seem  to  differ  is  as  to  what  we  may  call 
the  burden  of  proof ;  some  holding  that  the  statement  of  the  witness  must 
be  accepted  as  true,  unless  it  affirmatively  appears  from  the  circumstances 
of  the  particular  case  that  he  is  mistaken,  or  acts  in  bad  faith,  while 
other  cases  hold  that,  to  entitle  a  witness  to  the  privilege  of  silence,  the 
Court  must  be  able  to  see  from  the  circumstances  of  the  case  and  the 
nature  of  the  evidence  called  for,  that  there  is  reasonable  ground  to 
apprehend  danger  to  the  witness,  if  he  is  compelled  to  answer.  .  .  .  The 
difference  is  theoretical,  rather  than  practical;  for  it  would  be  difficult 
to  conceive  of  an  instance  where  the  circumstances  of  the  case,  and  the 
nature  of  the  evidence  called  for,  would  be  entirely  neutral  in  their 
probative  force  upon  the  question  whether  or  not  there  was  reasonable 
ground  to  apprehend  that  the  answer  might  tend  to  criminate  the  witness. 
After  consideration  of  the  question  and  an  examination  of  the  authorities, 
our  conclusion  is  that  the  best  practical  rule  is  that  laid'  down  in  some  of 
the  English  cases,  and  adopted  and  followed  by  Chief  Justice  Cockburn,  in 
Reg.  V.  Boyes.  .  .  .  To  this  we  would  add  that,  when  such  reasonable 
apprehension  of  danger  appears,  then,  inasmuch  as  the  witness  alone 
knows  the  nature  of  the  answer  he  would  give,  he  alone  must  decide 
whether  it  would  criminate  him.  This,  we  think,  is  substantially  what 
Chief  Justice  Marshall  meant  by  his  statement  of  the  rule  in  the  Burr 
trial  (Robertson's  Rep.  I,  243) : 

It  is  alleged  that  he  [the  witness]  is  and  from  the  nature  of  things  must  be 
the  sole  judge  of  the  effect  of  his  answer;  that  he  is  consequently  at  Hberty  to 
refuse  to  answer  any  question,  if  he  will  say  upon  his  oath  that  his  answer  to 
that  question  might  criminate  himself.  .  .  .  [But]  there  is  no  distinction  which 
takes  from  the  Court  the  right  to  consider  and  decide  whether  any  direct  answer 
to  the  particular  question  propounded  could  be  reasonably  supposed  to  affect 
the  witness.  There  may  be  questions  no  direct  answer  to  which  could  in  any 
degree  affect  him;  and  there  is  no  case  which  goes  so  far  as  to  say  that  he  is 
not  bound  to  answer  such  questions.  .  .  .  When  two  principles  come  in  conflict 
with  each  other,  the  Court  must  give  them  both  a  reasonable  construction  so 
as  to  preserve  them  both  to  a  reasonable  extent.  The  principle  which  entitles 
the  United  States  to  the  testimony  of  every  citizen,  and  the  principle  by  which 
every  witness  is  privileged  not  to  accuse  himself,  can  neither  of  them  be  entirely 
disregarded.  They  are  believed  both  to  be  preserved  to  a  reasonable  extent, 
and  according  to  the  true  intention  of  the  rule  and  of  the  exception  to  that  rule, 
by  observing  that  course  which,  it  is  conceived,  Courts  have  generally  observed; 
it  is  this:  When  a  question  is  propounded,  it  belongs  to  the  Court  to  consider  and 
decide  whether  any  direct  answer  to  it  can  implicate  the  witness;  if  this  be  decided 
in  the  negative,  then  he  may  answer  it  without  violating  tlie  privilege  which  is 
secured  to  him  by  law.  If  a  direct  answer  to  it  viay  criminate  himself,  then  he 
must  be  the  sole  judge  what  his  answer  would  be;  the  Court  cannot  participate 
with  him  in  this  judgment,  because  they  cannot  decide  on  the  effect  of  his  answer 
without  kno\\nng  what  it  would  be,  and  a  disclosure  of  that  fact  to  the  judges 
would  strip  him  of  the  privilege  which  the  law  allows  and  which  he  claims. 


No.  613  PRIVILEGED   TOPICS  881 

Applying  this  rule  to  the  case  at  bar,  it  is  very  clear  that  no  error  was 
committed  in  compelling  the  witness  Linstad  to  answer  the  questions. 
The  sole  object  of  the  evidence  sought  to  he  elicited  from  him  was  to 
prove  that  his  signature  to  the  note  was  forged,  and  not  genuine.  For 
the  purpose  of  proving  this,  counsel  for  the  state  exhibited  the  note  to  him, 
and  asked  if  the  name  affixed  was  his  signature.  This  the  witness  declined 
to  answer,  on  the  ground  that  it  might  criminate  himself,  and  the  Court 
held  that  he  need  not  answer  the  question.  Counsel  then,  with  the 
evident  purpose  of  proving  the  same  fact  indirectly',  asked  the  following 
questions :  "  Have  you  ever  seen  this  note  before?  "  The  witness  replied, 
"I  refuse  to  answer  that  question,  because  it  may  criminate  myself;" 
or,  as  subsequently  expressed,  "it  might  have  a  tendency  to  criminate 
myself."  The  Court  having  ruled  that  he  must  answer,  the  witness 
replied,  "Yes."  Counsel  then  asked  him,  "When?"  to  which  the 
witness  interposed  a  claim  of  privilege  in  the  same  form  as  before,  and, 
the  Court  having  again  ruled  that  he  must  answer,  he  replied,  fixing  the 
time  he  had  first  seen  the  note  at  a  date  subsequent  to  the  date  of  the 
alleged  uttering  by  the  defendant. 

Whether  the  rulings  of  the  Court  were  consistent  in  sustaining  the 
witness'  claim  of  privilege  as  to  the  first  question,  and  overruling  it  as  to 
the  other  two,  is  immaterial.  There  was  not  a  thing,  either  in  the  cir- 
cumstances of  the  case  as  then  presented  to  the  Court,  or  in  the  nature 
of  the  questions,  to  suggest  any  reasonable  apprehension  of  danger  to 
the  witness  from  being  compelled  to  answer.  The  ver}'  nature  of  the 
offence  charged  against  defendant  negatived  the  idea  of  the  witness  being 
a  party  to  it,  and  there  was  nothing  in  the  character  of  the  evidence  sought 
to  be  elicited  from  him  that  would  reasonably  suggest  any  real  or  appre- 
ciable danger  that  it  would  or  could  tend  to  inculpate  him  in  any  other 
offence.  The  answers  themselves,  when  given,  show  that  they  had  no 
such  effect.  .  .  .  Order  affirmed. 


613.   PEOPLE  V.   TYLER 

Supreme  Court  of  California,     1869 

36  Cal.  522,  530 

At  the  trial  the  defendant  did  not  avail  himself  of  the  right  conferred 
by  this  Act  to  offer  himself  as  a  witness  on  his  own  behalf.  During  the 
argument  of  the  case,  the  District  Attorney  called  the  attention  of  the 
jury  to  the  fact  that  the  defendant  had  not  testified  in  his  own  behalf, 
and  argued  and  insisted  before  said  jury  that  the  silence  of  the  defendant 
was  a  circumstance  strongly  indicative  of  defendant's  guilt.  Defendant's 
"counsel  objected  to  this  course  of  argument,  and  requested  the  Court 
to  require  the  District  Attorney  to  refrain  from  urging  such  inference, 
but  the  Court  declined  to  interfere,  and  intimated  that  the  law  justified 


882  BOOK   i:     RULES  OF   ADMISSIBILITY  No.  613 

the  counsel  in  the  course  pursued.  Counsel  thereupon  continued  to 
urge  before  the  jury  that  the  silence  of  the  defendant  was  a  circumstance 
tending  strongly  to  prove  his  guilt,  and  the  counsel  for  the  prisoner 
excepted.  At  the  close  of  the  argument  of  the  case  to  the  jury,  the 
defendant's  counsel  asked  the  Court  to  give  to  the  jury  the  following 
instruction :  "  The  jury  should  not  draw  any  inference  to  the  prejudice 
of  the  defendant  from  the  fact  that  he  did  not  offer  himself  as  a  witness 
in  his  own  behalf.  It  is  optional  with  a  defendant  to  do  so  or  not,  and 
the  law  does  not  intend  that  the  jury  should  put  any  construction  upon 
his  silence  unfavorable  to  him."  The  Court  refused  to  give  the  instruc- 
tion, and  defendant  excepted.  The  action  of  the  Court  in  the  premises 
is  claimed  to  be  erroneous.  .  .  . 

Sawyer,  C.  J.  (after  stating  the  case  as  above).  If,  at  the  trial,  when, 
for  all  the  purposes  of  the  trial,  the  burden  is  on  the  People  to  prove  the 
offense  charged  by  affirmative  evidence,  and  the  defendant  is  entitled  to 
rest  upon  his  plea  of  not  guilty,  an  inference  of  guilt  could  legally  be 
drawn  from  his  declining  to  go  upon  the  stand  as  a  witness,  and  again 
deny  the  charge  against  him  in  the  form  of  testimony,  he  would  practi- 
cally, if  not  theoretically,  by  his  act  declining  to  exercise  his  privilege, 
furnish  evidence  of  his  guilt  that  might  turn  the  scale  and  convict  him. 
In  this  mode  he  would  indirectly  and  practically  be  deprived  of  the  option 
which  the  law  gives  him,  and  of  the  benefit  of  the  provision  of  the  law 
and  the  Constitution,  which  say,  in  substance,  that  he  shall  not  be 
compelled  to  criminate  himself.  If  the  inference  in  question  could  be 
legally  drawn,  the  very  act  of  exercising  his  option  as  to  going  upon  the 
stand  as  a  witness,  which  he  is  necessarily  compelled  by  the  adoption  of 
the  statute  to  exercise  one  way  or  the  other,  would  be,  at  least  to  the 
extent  of  the  weight  given  by  the  jury  to  the  inference  arising  from  his 
declining  to  testify,  a  crimination  of  himself. 

Whatever  the  ordinary  rule  of  evidence  with  reference  to  inferences 
to  be  drawn  from  the  failure  of  parties  to  produce  testimony  that  must 
be  in  their  power  to  give,  we  are  satisfied  that  the  defendant,  with  respect 
to  exercising  his  privilege  under  the  provisions  of  the  Act  in  question,  is 
entitled  to  rest  in  silence  and  security  upon  his  plea  of  not  guilty,  and 
that  no  inference  of  guilt  can  be  properly  drawn  against  him  from  his 
declining  to  avail  himself  of  the  privilege  conferred  upon  him  to  testify 
on  his  own  behalf;  that  to  permit  such  an  inference  would  be  to  xdolate 
the  principles  and  the  spirit  of  the  Constitution  and  the  statute,  and 
defeat  rather  than  promote  the  object  designed  to  be  accomplished  by 
the  innovation  in  question. 

614.  Commonwealth  v.  Webster.  (1850.  Massachusetts.  5  Gush.  295, 
316.)  Shaw,  C.  J.  —  Where  probable  proof  is  brought  of  a  state  of  facts  tending 
to  criminate  the  accused,  the  absence  of  evidence  tending  to  a  contrary  conclu- 
sion is  to  be  considered,  —  though  not  alone  entitled  to  much  weight;  because 
the  burden  of  proof  lies  on  the  accuser  to  make  out  the  whole  case  by  substantive 


No.  616  .  PRIVILEGED  TOPICS  883 

evidence.  But  when  a  pretty  stringent  proof  of  circumstances  is  produced,  tend- 
ing to  support  the  charge,  and  it  is  apparent  that  the  accused  is  so  situated 
that  he  could  offer  evidence  of  all  the  facts  and  circumstances  as  they  existed,  and 
show,  if  such  was  the  truth,  that  the  suspicious  circumstances  can  be  accounted 
for  consistently  with  innocence,  and  he  fails  to  offer  such  proof,  the  natural  con- 
clusion is  that  the  proof,  if  produced,  instead  of  rebutting  would  tend  to  sustain 
the  charge.  But  this  is  to  be  cautiously  applied,  and  only  in  cases  where  it  is 
manifest  that  proofs  are  in  the  power  of  the  accused  not  accessible  to  the 
prosecution. 


615.   BROCK  V.   STATE 

Supreme  Court  of  Alabama.     1898 

123  Ala.  24;  26  So.  329 

[Printed  ante,  as  No.  270.] 

616.   COMMONWEALTH  v.   RICHMOND 

Supreme  Judicial  Court  of  Massachusetts.     1911 

207  il/rm.  240;  93  N.  E.815 

Exceptions  from  Superior  Court,  Middlesex  County;  John  C. 
Crosby  and  Wm.  F.  Dana,  Judges. 

Elizabeth  Richmond  was  convicted  of  murder,  and  excepts.  Excep- 
tions overruled. 

./.  J.  Higgins,  District  Attorney,  for  the  Commonwealth.  R.  W. 
Gloag,  for  defendant. 

RuGG,  J.  —  The  defendant  was  indicted  for  murder.  .  .  . 

...  10.  A  number  of  people  were  in  the  house  of  the  defendant  during 
the  period  of  time  within  which  the  decedent  might  have  met  his  death. 
It  was  claimed  that  all  of  these  persons  had  been  called  as  witnesses. 
Commenting  on  this  in  the  course  of  his  argument,  the  district  attorney 
used  this  language:  "Is  there  anybody  in  this  case  whose  presence  or 
absence  is  imaccounted  for  except  the  one  party  charged  with  the  crime? 
My  brother  .  .  .  urges  upon  you  the  utter  futility  of  our  putting  these 
people  on  the  stand  and  asking  them  the  pregnant  question :  '  Did  you 
kill  Stewart  MacTavish?'  .  .  .  He  utterly  failed  to  apprehend  the 
significance  of  that  question,  for  every  person  that  was  in  that  house  that 
we  could  find  —  and  he  candidly  and  frankly  says  we  have  brought 
them  all  before  you  —  every  person  but  one  has  told  you  under  oath  that 
they  did  not  kill  Stewart  MacTavish.  This  is  significant."  Objection 
was  made  to  this  argument  by  counsel  for  the  defendant,  and  the  Court 
stated:  "That  will  be  taken  care  of  in  the  charge."  Thereupon  the 
district  attorney  proceeded :   "  You  have  been  told  that  the  defendant  is 


884  BOOK   i:     RULES    OF   .ADMISSIBILITY  No.  616 

not  to  be  prejudiced  because  she  did  not  take  the  stand.  .  .  .  That  is 
the  last  thing  in  the  world  I  shall  ask  of  you  —  to  infer  anything  from  the 
fact  that  she  did  not  take  the  stand.  And  what  I  have  just  said  has  no 
relation  to  that  except  the  bare  fact  that  everybody  but  she  has  testified 
under  oath  that  they  did  not  kill  MacTavish."  Defendant's  counsel 
again  addressed  the  Court,  asking  that  the  argument  be  stopped.  The 
district  attorney  proceeded:  "If  she  has  in  her  power  or  control  any 
evidence  which  will  explain  where  she  was  on  Thursday  night,  if  she  has 
any  friends  that  could  come  here  and  tell  you  where  she  was  and  what 
she  was  doing,  if  she  has  any  means  whatever  of  putting  before  you  any 
evidence  showing  where  she  was  and  she  fails  to  do  it,  we  are  entitled  to 
call  your  attention  to  that  failure,  and  you  are  entitled  to  use  it  as  you 
see  fit.  ...  I  am  not  asking  you  to  infer  anything  from  the  fact  that  she 
did  not  take  the  stand.  You  have  no  right  to  do  that.  .  .  .  But  if  she 
has  within  her  possession  or  control  any  evidence  to  show  that  she  is 
innocent,  if  she  has  such  evidence  that  an  innocent  person  would  produce 
I  am  authorized  to  call  your  attention  to  her  failure  to  do  so,  and  you  are 
entitled  to  consider  it  in  this  case."  In  the  charge,  the  jury  were  in- 
structed that  although  the  defendant  was  permitted  to  testify  in  her 
own  behalf,  at  her  own  request,  she  was  not  obliged  to  do  so,  and  her 
failure  to  do  so  did  not  create  any  presumption  against  her  and  should 
not  prejudice  her  in  any  way.  Accurate  instructions  were  given  as 
to  inferences  which  might  be  drawn  from  the  defendant's  failure  to 
call  other  witnesses  whose  evidence  might  tend  to  exonerate  her.  At  the 
close  of  the  charge,  the  defendant's  counsel  asked  a  specific  ruling  that 
the  district  attorney  had  no  right  to  make  the  argument  above  quoted, 
but  the  Court  refused  to  give  it. 

Under  the  Federal  Constitution  and  that  of  this  Commonwealth, 
no  person  can  be  compelled  in  a  criminal  case  to  be  a  witness  or  furnish 
evidence  against  himself.  Const.  U.  S.  Amend.,  art.  5;  Const.  Mass. 
pt.  I,  art.  12.  Rev.  Laws,  c.  175,  §  20,  cl.  3,  provides  that  a  defendant 
in  any  "  criminal  proceeding  shall,  at  his  own  request,  but  not  otherwise, 
be  allowed  to  testify;  but  his  neglect  or  refusal  to  testify  shall  not  create 
any  presumption  against  him." 

The  fact  that  any  defendant  declines  to  avail  himself  of  the  privilege 
of  testifying  conferred  by  the  statute  cannot  be  permitted  to  create  any 
presumption  against  him.  Courts  guard  sedulously  the  constitutional 
and  statutory  rights  of  defendants  in  this  respect.  Attempts  to  infringe 
upon  the  privilege  of  silence  thus  secured  to  persons  charged  with  crime 
are  carefully  checked.  Com.  ?'.  Harlow,  110  Mass.  411 ;  Com.  v.  Maloney, 
113  Mass.  211 ;  Com.  v.  Costley,  118  Mass.  1-27;  Com.  v.  Scott,  123  Mass. 
238;  Com.  v.  Finnerty,  148  Mass.  162;  Com.  v.  Smith,  163  Mass.  41 1-433; 
Com.  V.  Johnson,  175  Mass.  152.  Two  different  courses  of  dealing  with 
cases,  where  there  has  been  any  infraction  of  this  rule,  appear  to  be 
followed  by  the  Courts  of  the  several  States.  Some  hold  that  any  refer- 
ence to  the  subject  in  argument  must  be  presumed  to  do  irreparable 


No.  616  PRIVILEGED  TOPICS  885 

harm  to  the  defendant,  and  that  there  must  be  a  new  trial  granted  unlesi 
by  conduct  or  consent  there  has  been  a  waiver  of  the  right.  The  industry 
of  the  counsel  for  defendant  has  collected  a  large  number  of  such  cases. 
...  It  will  be  found  on  examination  that  most  of  these  decisions  rest 
on  a  statute  which  in  express  terms  forbids  any  comment  or  reference 
to  the  fact  in  argument  by  either  counsel.  Some  Courts,  which  have 
adopted  this  rule,  seem  to  be  breaking  away  from  it  and  following  a 
less  stringent  one.  Blume  v.  State,  154  Ind.  343-354,  and  cases  cited. 
Other  Courts  hold  that,  where  such  reference  has  been  made  and  is 
either  withdrawn  or  is  corrected  by  the  charge  of  the  Court,  then  it 
does  not  constitute  reversible  error. 

It  is  the  general  rule  in  trials  of  both  criminal  and  civil  causes  that 
where  an  improper  argument  is  addressed  to  a  jury  the  attention  of  the 
Court  should  be  called  to  it  at  once.  Unless  it  is  a  plain  breach  of.  pro- 
priety, the  Court  may  in  his  discretion  either  direct  the  objectionable 
argument  to  end  forthwith  or  permit  it  to  proceed,  but  in  any  event  the 
subject  must  be  adequately  covered  in  the  charge  with  such  emphasis  as 
will  correct  any  erroneous  effect.  .  .  .  No  sound  reason  appears  why 
this  rule  of  practice  should  not  apply  to  unwarranted  arguments  by  a 
defendant  to  take  the  stand  in  his  own  behalf.  It  is  a  common  knowledge 
that  defendants  may  testify  if  they  desire.  Where  they  do  not  take 
advantage  of  this  privilege,  frequently  counsel  for  defendants  refer  to 
the  statute  and  to  the  constitutional  provisions,  in  order  to  explain 
conduct  which  might  otherwise  seem  strange  to  the  jurors.  While  this 
does  not  open  the  door  to  the  district  attorney  to  reply,  it  shows  that 
the  subject  itself  is  one  which  does  not  have  inherent  tendency  to  harm 
a  defendant.  The  fact  that  a  defendant  has  not  testified  cannot  be 
banished  from  the  observation  of  the  jury,  and  it  is  proper  that  his 
counsel  may  suggest  the  reason  for  it.  It  is  always  the  duty  of  the 
Court  to  state  the  law  touching  the  matter. 

It  is  possible  that  the  argument  of  the  district  attorney  inferentially 
called  attention  to  the  fact  that  the  defendant  had  not  testified;  but  it 
was  a  pertinent  proposition  for  him  to  discuss  that  every  person,  so  far 
as  known,  save  her,  had  testified,  who  had  been  in  such  relation  to  the 
premises  where  the  remains  of  the  murdered  man  were  found  as  to  have 
had  opportunity  to  commit  the  crime.  This  Avas  germane,  not  for  the 
purpose  of  creating  a  presumption  against  the  defendant  by  reason  of 
her  failure  to  testify,  but  to  the  end  that  the  jury  might  consider  the 
circumstance  that  everybody  else,  who  could  have  done  the  deed,  was 
accounted  for,  if  the  testimony  was  believed.  The  immediate  disclaimer 
of  the  district  attorney  of  intent  to  urge  any  inferences  from  her  failure 
to  testify,  coupled  with  the  plain  instruction  of  the  Court  in  the  charge  in 
accordance  with  the  statute  and  decisions  abundantly  protected  the  rights 
of  the  defendant.  It  must  be  assumed  that  the  jury  understood  and  acted 
upon  the  directions  given  by  the  Court.  Com.  v.  Cunningham,  104 
Mass.  545.  Exceptions  overruled. 


BOOK   i:     RULES   OF  ADMISSIBILITY  No.  617 

617.  Arthur  C.  Train.  "  The  Prisoner  at  the  Bar."  (1908.  2d  ed.  p.  159.) 
What  naturally  interests  "O.  C."  ^  and  his  fellow  jurors  most  of  all  is  the  defend- 
ant's own  story  of  how  he  came  to  be  involved  in  the  transaction  out  of  which 
the  charge  against  him  arises.  For  the  first  few  days  he  very  probably  gives  such 
explanations  rather  more  credit  than  they  deserve,  for  he  is  sympathetically 
inchned  to  believe  that  the  prisoner  is  more  Hkely  to  be  the  victim  of  circum- 
stances than  guilty  of  an  act  of  moral  turpitude.  The  eager  attitude  of  some  of 
the  complainants  likewise  gives  him  an  excuse  for  believing  them  to  be  actuated 
by  more  than  a  mere  desire  to  see  justice  done  and  to  have  the  truth  prevail. 
He  is  inclined  to  look  for  hidden  motives  for  every  prosecution. 

This  gradually  wears  off  and  his  attention  becomes  centred  on  the  defendant 
himself.  Will  he  put  in  a  defence?  Will  he  testify  in  his  own  behalf?  What 
will  he  say?  Little  by  little  "O.  C."  gets  to  inventing  defences  to  fit  the  facts 
established  against  the  prisoner  by  the  People's  case.  Meantime  he  is  learning 
a  little  law.  That  "the  People  must  prove  the  defendant's  guilt  beyond  every 
reasonable  doubt,"  and  "that  no  unfavorable  inference  must  be  drawn  as  against 
the  defendant  from  his  failure  to  testify  in  his  own  behalf."  "O.  C."  has  some 
difficulty  with  the  "reasonable  doubt."  .  .  .  But  that  he  shall  not  permit  him- 
self to  be  prejudiced  against  a  defendant  by  the  latter's  refusal  to  testify  is  a 
much  more  difficult  matter.  He  knows  it  to  be  the  law,  and  he  tries  hard  to  obey 
it,  but  in  a  majority  of  cases  he  cannot  escape  the  subconscious  deduction  that 
if  the  defendant  were  innocent  he  would  not  hesitate  to  offer  an  explanation. 

As  time  goes  on  and  he  gains  in  experience,  it  becomes  even  harder  to  follow 
the  instructions  of  the  judge  in  this  respect.  He  discovers  that  the  district 
attorney  cannot  prove  the  prison  record  or  bad  character  of  the  defendant  unless 
the  latter  subjects  himself  to  cross-examination  by  taking  the  witness  stand,  and 
hence  is  likely  to  suspect  that  any  defendant  who  does  not  testify  is  an  ex-convict. 
Three  jurors  out  of  five  will  convict  any  man  who  is  unwilling  to  offer  an  explana- 
tion of  the  charge  against  him.  How  they  reconcile  this  with  their  oath  it  would 
be  hard  to  understand,  if  they  were  accustomed  to  obey  it  literally  in  other 
respects.  The  WTiter  has  heard  more  than  one  talesman  say,  in  discussing  a 
verdict,  "Of  course  we  couldn't  take  it  against  him,  but  we  knew  he  was  guilty 
Jbecause  he  was  afraid  to  testify."  ...  • 

Now  to  any  fair-minded  American  it  must  seem  almost  rudimentary  justice 
that  the  accused  should  have  a  chance  to  tell  his  own  story.  That  in  itself  is  a 
sufficient  reason  for  the  rule  [permitting  him  to  testify].  Just  why,  theoretically, 
if  a  defendant  does  not  see  fit  to  give  an  explanation  and  subject  himself  to  cross- 
examination,  the  jury  should  not  be  permitted  to  draw  an  unfavorable  inference 
is  not  so  clear. 

Experience  has  demonstrated  that  an  innocent  man  need  have  no  fear  about 
taking  the  stand.  Jurors  sympathize  with  a  defendant  who  is  subjected  to  a 
withering  fire  of  questions,  and  do  not  expect  him  to  be  able  to  give  a  lucid  account 
of  himself  since  the  day  of  his  birth,  or  to  explain  \^^thout  the  minutest  contra- 
diction every  detail  in  the  evidence  against  him.  But  they  do  want  him  to  deny 
his  guilt,  and  to  give  them  an  opportunity  to  "size  him  up."  On  the  other 
hand,  the  slightest  word  of  explanation  may  suffice  to  change  the  whole  complexion 
of  a  case.  In  the  old  days,  the  guiltiest  of  criminals  could,  almost  with  impunity, 
shield  himself  behind  his  lawyer's  eloquent  assertion  that  his  client  had  a  "perfect 
defence,"  but  that  the  law  "had  sealed  his  lips."     Today  in  the  vast  majority  of 

^  [Ordinary  Citizen.  —  Ed.] 


No.  620  PRIVILEGED   TOPICS  887 

cases  the  prisoner  who  does  not  take  the  stand  is  doomed.  Out  of  three  hundred 
defendants  tried  by  the  writer's  associate,  Mr.  C.  C.  Nott,  twenty-three  failed 
to  take  the  stand  in  cases  submitted  to  the  jury;  of  these  twenty-one  were 
convicted,  one  was  acquitted,  and  as  to  one  the  jury  disagreed. 


Sub-topic  C.    Waiver  of  the  Privilege 

618.  East  India  Co.  v.  Atkins.  (1719.  Chancery.  1  Stra.  168,  176.) 
Lord  Chancellor  Parker  (holding  valid  a  covenant  to  give  discovery).  It  is 
a  negative  privilege  that  is  allowed  by  the  law,  that  a  man  may,  if  he  please, 
refuse  to  discover  a  matter  that  will  subject  him  to  penalties.  It  is  only  a  priv- 
ilege, not  a  natural  right,  for  then  he  would  shake  that  natural  right  whenever 
he  saw  fit  to  make  such  discovery.  If  a  man  will  waive  such  a  pri\ilege,  surely 
he  may;  it  is  not  a  thing  prohibited  by  the  law.  The  reason  why  he  is  not  obliged 
to  discover  is  a  want  of  right  in  the  other  party  to  oblige  him  to  it;  but  if  he  will 
make  a  discovery,  he  may,  nor  is  any  rule  of  justice  or  natural  right  broken  by  it. 
Is  it  unjust  that  the  whole  case  should  be  laid  before  the  Court?  If  the  p^rty 
has  not  done  anything  contrary  to  his  duty,  an  answer  can  do  him  no  harm. 
And  why  should  not  this  Court  carry  it  so  far,  when  there  can  be  no  prejudice 
unless  the  party  is  a  knave?  And  if  he  be  one,  shall  a  Court  of  equity  protect 
him? 


619.   REGINA  v.   GARBETT 

Crown  Cases  Reserved.     1847 

2  C.  &  K.  474,  492 

[Printed  ante,  as  No.  611;   Point  2  of  the  opinion.] 

620.  •  FITZPATRICK  v.   UNITED   STATES 

Supreme  Court  of  the  United  States.     1899 

178  U.  S.  304;  20  Snp.  944 

This  was  a  vn-'it  of  error  to  review  the  conviction  of  Fitzpatrick,  who 
was  jointly  indicted  with  Henry  Brooks  and  William  Corbett  for  the 
murder  of  Samuel  Roberts,  on  March  13,  1898,  at  Dyea,  in  the  Territory 
of  Alaska.  .  .  .  The  Court  thereupon  proceeded  to  the  trial  of  Fitz- 
patrick. .  .  . 

A  WTit  of  error  was  sued  in  forma  pauperis. 

Mr.  A.  B.  Brown,  Mr.  Julius  Kahn  and  Mr.  Alexander  Britton,  for 
plaintiff  in  error.     Mr.  Solicitor  General,  for  the  United  States. 

Mr.  Justice  Brown,  delivered  the  opinion  of  the  Court.  .  .  . 

The  murder  took  place  at  Dyea,  Alaska,  just  outside  the  cabin  of 
Roberts.  .  .  .  Defendant  himself  was  the  only  witness  put  upon  the 
stand  by  the  defence,  who  was  connected  with  the  transaction;   and  he 


888  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  620 

was  asked  but  a  single  question,  and  that  related  to  his  whereabouts  upon 
the  night  of  the  murder.  To  this  he  answered:  "I  was  up  between 
Clancy's  and  Kennedy's.  I  had  been  in  Clancy's  up  to  about  half-past 
twelve  or  one  o'clock  —  about  one  o'clock,  I  guess.  I  went  up  to 
Kennedy's  and  had  a  few  drinks  with  Captain  Wallace  and  Billy  Kennedy, 
and  I  told  them  I  was  getting  kind  of  full  and  I  was  going  home,  and 
along  about  quarter  past  one  Wallace  brought  me  down  about  as  far  as 
Clancy's,  and  then  he  took  me  down  to  the  cabin  and  left  me  in  the 
cabin,  and  we  wound  the  alarm  clock  and  set  it  to  go  off  at  six  o'clock, 
and  I  took  off  my  shoes  and  lay  down  on  the  bunk  and  woke  up  at  six 
o'clock  in  the  morning,  and  went  up  the  street." 

On  cross-examination  the  government  was  permitted,  over  the  objec- 
tion of  defendant's  counsel,  to  ask  questions  relating  to  the  witness's 
attire  on  the  night  of  the  shooting,  to  his  acquaintance  with  Corbett, 
whether  Corbett  had  shoes  of  a  certain  kind,  whether  witness  saw  Corbett 
on  the  evening  of  March  12,  the  night  preceding  the  shooting,  whether 
Corbett  roomed  with  Fitzpatrick  in  the  latter's  cabin,  and  whether 
witness  saw  any  one  else  in  the  cabin  besides  Brooks  and  Corbett.  The 
Court  permitted  this  upon  the  theory  that  it  was  competent  for  the  prose- 
cution to  show  every  movement  of  the  prisoner  during  the  night,  the 
character  of  his  dress,  the  places  he  had  visited  and  the  company  he  had 
kept. 

Where  an  accused  party  waives  his  constitutional  privilege  of  silence, 
takes  the  stand  in  his  own  behalf  and  makes  his  own  statement,  it  is 
clear  that  the  prosecution  has  a  right  to  cross-examine  him  upon  such 
statement  with  the  same  latitude  as  would  be  exercised  in  the  case  of 
an  ordinary  witness,  as  to  the  circumstances  connecting  him  with  the 
alleged  crime.  While  no  inference  of  guilt  can  be  drawn  from  his  refusal 
to  avail  himself  of  the  privilege  of  testifying,  he  has  no  right  to  set  forth 
to  the  jury  all  the  facts  which  tend  in  his  favor  without  laying  himself 
open  to  a  cross-examination  upon  these  facts.  The  witness  having 
sworn  to  an  alibi,  it  was  perfectly  competent  for  the  government  to  cross- 
examine  him  as  to  every  fact  which  had  a  bearing  upon  his  whereabouts 
upon  the  night  of  the  murder,  and  as  to  what  he  did  and  the  persons  with 
whom  he  associated  that  night. 

Indeed,  we  know  of  no  reason  why  an  accused  person,  who  takes  the 
stand  as  a  witness,  should  not  be  subject  to  cross-examination  as  other 
witnesses  are.  Had  another  witness  been  placed  upon  the  stand  by  the 
defence,  and  sworn  that  he  was  with  the  prisoner  at  Clancy's  and  Ken- 
nedy's that  night,  it  would  clearly  have  been  competent  to  ask  what  the 
prisoner  wore,  and  whether  the  witness  saw  Corbett  the  same  night  or 
the  night  before,  and  whether  they  were  fellow  occupants  of  the  same 
room.  W^hile  the  Court  would  probably  have  no  power  of  compelling 
an  answer  to  any  question,  a  refusal  to  answer  a  proper  question  put  upon 
cross-examination  has  been  held  to  be  a  proper  subject  of  comment  to 
the  jury.  State  v.  Ober,  52  N.  H.  459;  and  it  is  also  held  in  a  large  number 


No.  G21  PRIVILEGED  TOPICS  889 

of  cases  that  when  an  accused  person  takes  the  stand  in  his  own  behalf, 
he  is  subject  to  impeachment  hke  other  witnesses. 

If  the  prosecution  should  go  farther  and  compel  the  defendant,  on 
cross-examination,  to  write  his  own  name  or  that  of  another  person, 
when  he  had  not  testified  in  reference  thereto  in  his  direct  examination, 
the  case  of  State  v.  Lurch,  12  Oregon  99,  is  authority  for  saying  that  this 
would  be  error.  It  would  be  a  clear  case  of  the  defendant  being  compelled 
to  furnish  original  evidence  against  himself.  State  v.  Saunders,  14 
Oregon  300,  is  also  authority  for  the  proposition  that  he  cannot  be 
compelled  to  answer  as  to  any  facts  not  relevant  to  his  direct  examina- 
tion. .  .  . 

There  was  no  error  committed  upon  the  trial  prejudicial  to  the  defend- 
ant, and  the  judgment  of  the  District  Court  is  therefore         Affirmed. 

Sub-topic  D.     Removal  of  the  Privilege  by  Grant  of  Immunity 

621.   COUNSELMAN  v.  HITCHCOCK 

Supreme  Court  of  the  United  States.     1892 

142  U.  S.  547;   12  Sup.  195 

On  the  21st  of  November,  1890,  while  the  grand  jury  in  attendance 
upon  the  District  Court  of  the  United  States  for  the  Northern  District  of 
Illinois  was  engaged  in  investigating  and  inquiring  into  certain  alleged 
violations,  in  that  district,  of  an  act  of  Congress  entitled  "An  Act  to 
regulate  commerce,"  approved  February  4,  1887,  c.  103,  24  Stat.  379, 
and  the  amendments  thereto,  approved  March  2,  1889,  c.  382,  25  Stat. 
855,  by  the  officers  and  agents  of  the  Chicago,  Rock  Island  &  Pacific 
Railway  Co.,  and  by  the  officers  and  agents  of  the  Chicago,  St.  Paul  & 
Kansas  City  Railway  Co.,  and  by  the  officers  and  agents  of  the  Chicago, 
Burlington  &  Quincy  Railroad  Co.,  and  the  officers  and  agents  of  various 
other  railroad  companies  having  lines  of  road  in  that  district,  one  Charles 
Counselman  appeared  before  the  grand  jury,  in  response  to  a  subpcena 
served  upon  him,  and  after  having  been  duly  sworn,  testified  as  follows: 

"Q.  —  Your  name  is  Charles  Counselman? 

'M.— Yes,  sir. 

" Q.  —  You  are  the  sole  member  of  Charles  Counselman  &  Co.? 

"A.  — Yes,  sir. 

"  Q.  —  Engaged  in  the  grain  and  commission  business  in  the  city  of 
Chicago? 

"A.  —  Yes,  sir. 

"  Q.  —  Have  you  been  a  receiver  of  grain  from  the  West  during  the 
past  two  years? 

"A.  —  Yes,  sir. 

"  Q.  —  Over  what  roads  did  you  ship  grain  received  by  you  during 
the  present  summer  of  1890? 


890  BOOK    l:     RULES   OF   ADMISSIBILITY  No.  621 

"A.  —  The  Rock  Island  and  Burlington,  principally. 

"  Q.  —  From  what  States  was  most  of  the  grain  shipped? 

"A.  —  From  Kansas  and  Nebraska,  1  think.  .  .  . 

"  Q.  —  Have  you  during  the  past  year,  Mr.  Counselman,  obtained  a 
rate  for  the  transportation  of  your  grain  on  any  of  the  railroads'  coming  to 
Chicago,  from  points  outside  of  this  State,  less  than  the  tariff  or  open 
rate? 

"A.  —  That  I  decline  to  answer,  Mr.  Milchrist,  on  the  ground  that 
it  might  tend  to  criminate  me. 

"  Q.  —  During  the  past  year  have  you  received  rates  upon  the  Chicago, 
Rock  Island  &  Pacific  from  points  outside  of  the  State  to  the  city  of 
Chicago,  at  less  than  the. tariff  rates? 

"A.  —  That  I  decline  to  answer  on  the  same  ground. 

"  Q.  —  I  will  ask  you  the  same  question  with  reference  to  the  Burling- 
ton. 

"A.  —  I  answer  in  the  same  way."  ... 

Thereupon,  after  a  hearing,  the  Court  on  November  25,1890,  adjudged 
Counselman  to  be  in  contempt  of  court,  and  made  an  order  fining  him 
$500  and  the  costs  of  the  proceeding.  .  .  .  On  December  18,  the  Circuit 
Court,  held  by  Judge  Gresham,  delivered  an  opinion  (44  Fed.  Rep.  268), 
and  made  an  order  adjudging  that  the  District  Court  was  in  the  exercise 
of  its  rightful  authority  in  doing  what  it  had  done,  .  .  .  discharging  the 
writ  of  habeas  corpus,  and  adjudging  against  Counselman  the  costs  of 
the  proceedings.  He  excepted  to  the  order  and  appealed  to  this  Court, 
and  an  order  was  made  admitting  him  to  bail  pending  the  appeal.  .  .  . 

The  statutes  upon  which  the  right  to  compel  answers  was  rested  were 
as  follows:  U.  S.  Rev.  St.  1878,  §  860,  re-enacting  St.  Feb.  25,  1868,  c. 
13:  "No  pleading  of  a  party,  nor  any  discovery  or  evidence  obtained 
from  a  party  or  witness  by  means  of  a  judicial  proceeding  in  this  or  any 
foreign  country,  shall  be  given  in  evidence,  or  in  any  manner  used  against 
him  or  his  property  or  estate,  in  any  court  of  the  United  States,  in  any 
criminal  proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeiture, 
except  for  perjury  committed  in  discovering  or  testifying  as  aforesaid; 
St.  1887,  Feb.  1,  c.  104,  §  9,  24  Stat.  379:  In  any  action  against  a  common 
carrier  for  damage  under  this  statute,  the  privilege  is  not  to  excuse  from 
testimony;  "but  such  evidence  or  testimony  shall  not  be  used  against 
such  person  on  the  trial  of  any  criminal  proceeding;"  lb.  §  12  (similar, 
for  investigations  by  the  Interstate  Commerce  Commission);  St.  1891, 
Feb.  10,  c.  128,  amending  St.  1887,  Feb.  1,  c.  104,  §  12:  Upon  investiga- 
tions by  the  Interstate  Commerce  Commission,  where  the  aid  of  the 
Circuit  Court  is  required  to  obtain  testimony,  "  the  claim  that  any  such 
testimony  or  evidence  may  tend  to  criminate  the  person  giving  such 
evidence  shall  not  excuse  such  witness  from  testifying;  but  such  evidence 
or  testimony  shall  not  be  used  against  such  person  on  the  trial  of  any 
criminal  proceeding." 

Mr.  Johri  N.  Jewett  and  Mr.  James  C.  Carter,  for  appellant. 


No.  621  PRIVILEGED  TOPICS  891 

Mr.  Assistant  Attorney-General  Parker  and  Mr.  G.  M.  Lamhertson,  for 
appellee.  .  .  .  Section  860  of  the  Revised  Statutes  takes  away  from  the 
witness  the  right  to  refuse  to  answer  on  the  ground  that  such  answer 
might  tend  to  criminate  him.  ...  In  several  cases  in  the  Federal  courts 
this  statute  has  been  construed  as  holding  that  the  witness  is  not  pro- 
tected by  the  Constitution  from  being  compelled  to  give  testimony  called 
for,  though  it  might  implicate  him  in  a  crime,  as  he  is  fully  protected 
by  statute  against  the  use  of  such  testimony  on  his  trial.  .  .  . 

Mr.  Justice  Blatchford,  after  stating  the  case,  delivered  the  opinion 
of  the  Court.  ...  It  is  an  ancient  principle  of  the  law  of  evidence,  that 
a  witness  shall  not  be  compelled,  in  any  proceeding,  to  make  disclosures 
or  to  give  testimony  which  will  tend  to  criminate  him  or  subject  him  to 
fines,  penalties,  or  forfeitures.  ...  It  remains  to  consider  whether  §  860 
of  the  Revised  Statutes  removes  the  protection  of  the  constitutional 
privilege  of  Counselman.  .  .  . 

Any  evidence  which  might  have  been  obtained  from  Counselman  by 
means  of  his  examination  before  the  grand  jury  could  not  be  given  in 
evidence  or  used  against  him  or  his  property  in  any  Court  of  the  United 
States,  in  any  criminal  proceeding,  or  for  the  enforcement  of  any  penalty 
or  forfeiture.  This,  of  course,  protected  him  against  the  use  of  his  testi- 
mony against  him  or  his  property  in  any  prosecution  against  him  or  his 
property,  in  any  criminal  proceeding,  in  a  court  of  the  United  States. 
But  it  had  only  that  effect.  It  could  not,  and  would  not,  prevent  the 
use  of  his  testimony  to  search  out  other  testimony  to  be  used  in  evidence 
against  him  or  his  property,  in  a  criminal  proceeding  in  such  court.  It 
could  not  prevent  the  obtaining  and  the  use  of  witnesses  and  evidence 
which  should  be  attributable  directly  to  the  testimony  he  might  give 
under  compulsion,  and  on  which  he  might  be  convicted,  when  otherwise, 
and  if  he  had  refused  to  answer,  he  could  not  possibly  have  been  con- 
victed. The  constitutional  provision  distinctly  declares  that  a  person 
shall  not  "be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself;"  and  the  protection  of  §  860  is  not  coextensive  with  the  constitu- 
tional provision.  Legislation  cannot  detract  from  the  privilege  afforded 
by  the  Constitution.  We  are  clearly  of  opinion  that  no  statute  which 
leaves  the  party  or  witness  subject  to  prosecution  after  he  answers  the 
criminating  question  put  to  him,  can  have  the  effect  of  supplanting  the 
privilege  conferred  by  the  Constitution  of  the  United  States.  Section 
860  of  the  Revised  Statutes  does  not  supply  a  complete  protection  from 
all  the  perils  against  which  the  constitutional  prohibition  was  designed 
to  guard,  and  is  not  a  full  substitute  for  that  prohibition.  In  view  of  the 
•  constitutional  provision,  a  statutory  enactment,  to  be  valid,  must  afford 
absolute  immunity  against  future  prosecution  for  the  offence  to  which  the 
question  relates.  .  .  .  Section  860,  moreover,  affords  no  protection 
against  that  use  of  compelled  testimony  which  consists  in  gaining  there- 
from a  knowledge  of  the  details  of  a  crime,  and  of  sources  of  information 
which  may  supply  other  means  of  convicting  the  witness  or  party.  .  .  . 


892  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  621 

From  a  consideration  of  the  language  of  the  constitutional  provision, 
and  of  all  the  authorities  referred  to,  we  are  clearly  of  opinion  that  the 
appellant  was  entitled  to  refuse,  as  he  did,  to  answer.  The  judgment  of 
the  Circuit  Court  must,  therefore,  be 

Reversed,  and  the  case  remanded  to  that  Court,  with  a  direction  to 
discharge  the  appellant  from  custody,  on  the  writ  of  habeas  corpus. 


622.   BROWN  v.   WALKER 

Supreme  Court  of  the  United  States.     1896 

161  U.  S.  591 ;   16  Sup.  644 

The  petitioner  had  been  subpoenaed  as  a  witness  before  the  grand 
jury,  at  a  term  of  the  District  Court  for  the  Western  District  of  Penn- 
sylvania, to  testify  in  relation  to  a  charge  then  under  investigation  by 
that  body  against  certain  officers  and  agents  of  the  Allegheny  Valley 
Railway  Company,  for  an  alleged  violation  of  the  Interstate  Commerce 
Act.  Brown,  the  appellant,  appeared  for  examination,  in  response  to  the 
subpoena,  and  was  sworn.  After  testifying  that  he  was  auditor  of  the 
railway  company,  and  that  it  was  his  duty  to  audit  the  accounts  of 
the  various  officers  of  the  company,  as  well  as  the  accounts  of  the  freight 
department  of  such  company  during  the  years  1894  and  1895,  he  was 
asked  the  question :  "  Do  you  know  whether  or  not  the  Allegheny  Valley 
Railway  Company  transported  for  the  Union  Coal  Company,  during  the 
months  of  July,  August  and  September,  1894,  coal  from  any  point  on  the 
Low  Grade  division  of  said  railroad  company  to  Buffalo  at  a  less  rate 
than  the  established  rates  in  force  between  the  terminal  points  at  the 
time  of  such  transportation?"  To  this  question  he  answered:  "That 
question,  with  all  respect  to  the  grand  jury  and  yourself,  I  must  decline 
to  answer  for  the  reason  that  my  answer  would  tend  to  accuse  and 
incriminate  myself."  The  grand  jury  reported  these  questions  and 
answers  to  the  Court  (Buffington,  District  Judge)  and  prayed  for  such 
order  as  to  the  Court  might  seem  meet  and  proper.  LTpon  the  presenta- 
tion of  this  report.  Brown  was  ordered  to  appear  and  show  cause  why  he 
should  not  answer  the  said  questions  or  be  adjudged  in  contempt;  and 
upon  the  hearing  of  the  rule  to  show  cause,  it  was  found  that  his  excuses 
were  insufficient,  and  he  was  directed  to  appear  and  answer  the  questions, 
which  he  declined  to  do.  Whereupon  he  was  adjudged  to  be  in  contempt 
and  ordered  to  pay  a  fine  of  five  dollars,  and  to  be  taken  into  custody 
until  he  should  have  answered  the  questions. 

The  following  statute  had  been  passed  in  consequence  of  the  decision 
in  Counselman  v.  Hitchcock  [ante,  No.  621]:  St.  1893,  Feb.  11,  c.  83,  27 
Stat.  443:  "No  person  shall  be  excused  from  attending  and  testifying 
or  from  producing  books,  papers,  tariffs,  contracts,  agreements  and  docu- 
ments before  the  Interstate  Commerce  Commission,  or  in  obedience  to 


No.  622  PRIVILEGED  TOPICS  893 

the  subpoena  of  the  commission,  whether  such  subpoena  be  signed  or 
issued  by  one  or  more  commissioners  or  in  any  cause  or  proceeding, 
criminal  or  otherwise,  based  upon  or  growing  out  of  any  alleged  violation 
of  the  act  of  Congress,  entitled  'an  act  to  regulate  commerce,'  approved 
Feb.  4,  1887,  or  of  any  amendment  thereof,  on  the  ground  or  for  the 
reason  that  the  testimony  or  evidence,  documentary  or  otherwise,  required 
of  him  may  tend  to  criminate  him  or  subject  him  to  a  penalty  or  forfeiture. 
But  no  person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for  or  on  account  of  any  transaction,  matter  or  thing  concerning  which 
he  may  testify  or  produce  evidence,  documentary  or  otherwise,  before 
said  commission,  or  in  obediejice  to  its  subpoena,  or  the  subpoena  of  either 
of  them,  or  in  any  such  case  or  proceeding:  Provided,  that  no  person  so 
testifying  shall  be  exempt  from  prosecution  and  punishment  for  perjury 
committed  in  so  testifying."  .  .  . 

The  petitioner  appealed  from  the  order.  .  .  . 

Mr.  James  C.  Carter,  for  appellant.  Mr.  George  F.  Edmunds,  for 
appellee. 

[The  testimony  was  held  to  be  compellable,  and  the  ruling  below 
affirmed,  by  a  majority  of  the  Court,  Fuller,  C.  J.,  Harlan,  Brewer, 
Peckham,  and  Brown,  JJ.;  dissenting  opinions  being  filed  by  Field, 
J.,  and  by  Shiras,  J.,  for  Gray  and  White,  JJ.,  also.  The  following 
extracts  exhibit  the  various  reasonings  accepted.] 

Brown,  J.  ...  If  the  object  of  the  provision  be  to  secure  the  witness 
against  a  criminal  prosecution,  which  might  be  aided  directly  or  indirectly 
by  his  disclosure,  then,  if  no  such  prosecution  be  possible,  —  in  other 
words,  if  his  testimony  operate  as  a  complete  pardon  for  the  offense  to 
which  it  relates,  —  a  statute  absolutely  securing  to  him  such  immunity 
from  prosecution  would  satisfy  the  demands  of  the  clause  in  question.  .  .  . 

It  can  only  be  said,  in  general,  that  the  clause  should  be  construed, 
as  it  was  doubtless  designed,  to  effect  a  practical  and  beneficent  purpose, 
—  not  necessarily  to  protect  witnesses  against  every  possible  detriment 
which  might  happen  to  them  from  their  testimony,  nor  to  unduly  impede, 
hinder,  or  obstruct  the  administration  of  criminal  justice.  .  .  .  The 
same  answer  may  be  made  to  the  suggestion  that  the  witness  is  imper- 
fectly protected  by  reason  of  the  fact  that  he  may  still  be  prosecuted  and 
put  to  the  annoyance  and  expense  of  pleading  his  immunity  by  way  of 
confession  and  avoidance.  This  is  a  detriment  which  the  law  does  not 
recognize.  There  is  a  possibility  that  any  citizen,  however  innocent, 
may  be  subjected  to  a  civil  or  criminal  prosecution,  and  put  to  the 
expense  of  defending  himself;  but,  unless  such  prosecution  be  malicious, 
he  is  remediless,  except  so  far  as  a  recovery  of  costs  may  partially  indem- 
nify him.  He  may  even  be  convicted  of  a  crime,  and  suffer  imprison- 
ment or  other  punishment  before  his  innocence  is  discovered;  but  that 
gives  him  no  claim  to  indemnity  against  the  State,  or  even  against  the 
prosecutor,  if  the  action  of  the  latter  was  taken  in  good  faith,  and  in  a 
reasonable  belief  that  he  was  justified  in  so  doing.  .  .  . 


894  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  622 

[After  noting  that  Congress  has  power  to  enact  such  a  statutory 
amnesty  to  apply  in  State  courts,  and  that  the  statute  in  question  was 
intended  as  a  general  one:]  But,  even  granting  that  there  were  still  a 
bare  possibility  that,  by  disclosure,  he  might  be  subjected  to  the  criminal 
laws  of  some  other  sovereignty,  that,  as  Chief  Justice  Cockburn  said  in 
Queen  v.  Boyes,  1  B.  &  S.  311,  in  reply  to  the  argument  that  the  witness 
was  not  protected  by  his  pardon  against  an  impeachment  by  the  House 
of  Commons,  is  not  a  real  and  probable  danger,  with  reference  to  the 
ordinary  operations  of  the  law  in  the  ordinary  courts,  but  "  a  danger  of 
an  imaginary  and  unsubstantial  character,  having  reference  to  some 
extraordinary  and  barely  possible  contingency,  so  improbable  that  no 
reasonable  man  would  suffer  it  to  influence  his  conduct."  Such  dangers 
it  was  never  the  object  of  the  provision  to  obviate.  .  .  . 

The  fact  that  the  testimony  may  tend  to  degrade  the  witness  in  public 
estimation  does  not  exempt  him  from  the  duty  of  disclosure.  A  person 
who  commits  a  criminal  act  is  bound  to  contemplate  the  consequences 
of  exposure  to  his  good  name  and  reputation,  and  ought  not  to  call  upon 
the  courts  to  protect  that  which  he  has  himself  esteemed  to  be  of  such 
little  value.  The  safety  and  welfare  of  an  entire  community  should  not  be 
put  into  the  scale  against  the  reputation  of  a  self-confessed  criminal,  who 
ought  not,  either  in  justice  or  in  good  morals,  to  refuse  to  disclose  that 
which  may  be  of  great  public  utility,  in  order  that  his  neighbors  may 
think  well  of  him.  The  design  of  the  constitutional  privilege  is  not  to 
aid  the  witness  in  vindicating  his  character,  but  to  protect  him  against 
being  compelled  to  furnish  evidence  to  convict  him  of  a  criminal  charge. 
If  he  secure  legal  immunity  from  prosecution,  the  possible  impairment  of 
his  good  name  is  a  penalty  which  it  is  reasonable  he  should  be  compelled 
to  pay  for  the  common  good.  If  it  be  once  conceded  that  the  fact  that 
his  testimony  may  tend  to  bring  the  witness  into  disrepute,  though  not 
to  incriminate  him,  does  not  entitle  him  to  the  privilege  of  silence,  it 
necessarily  follows  that,  if  it  also  tends  to  incriminate,  but  at  the  same 
time  operates  as  a  pardon  for  the  offense,  the  fact  that  the  disgrace 
remains  no  more  entitles  him  to  immunity  in  this  case  than  in  the 
other.  .  .  . 

The  danger  of  extending  the  principle  announced  in  Counselman  v. 
Hitchcock  is  that  the  privilege  may  be  put  forward  for  a  sentimental 
reason,  or  for  a  purely  fanciful  protection  of  the  witness  against  an 
imaginary  danger,  and  for  the  real  purpose  of  securing  immunity  to 
some  third  person,  who  is  interested  in  concealing  the  facts  to  which  he 
would  testify.  Every  good  citizen  is  bound  to  aid  in  the  enforcement  of 
the  law,  and  has  no  right  to  permit  himself,  under  the  pretext  of  shielding 
his  own  good  name,  to  be  made  the  tool  of  others,  who  are  desirous  of 
seeking  shelter  behind  his  privilege. 

While  the  constitutional  provision  in  question  is  justly  regarded  as 
one  of  the  most  valuable  prerogatives  of  the  citizen,  its  object  is  fully 
accomplished  by  the  statutory  immunity,   and  we  are,   therefore,   of 


No.  622  PRIVILEGED  TOPICS  895 

opinion  that  the  witness  was  compellable  to  answer,  and  that  the  judg- 
ment of  the  Court  below  must  be  Affirmed. 

Shiras,  J.  (dissenting).  .  .  .  AH  that  can  be  said  is  that  the  witness 
is  not  protected  by  the  provision  in  question  from  being  prosecuted,  but 
that  he  has  been  furnished  with  a  good  plea  to  the  indictment,  which 
will  secure  his  acquittal.  But  is  that  true?  Not  unless  the  plea  is 
sustained  by  competent  evidence.  His  condition,  then,  is  that  he  has 
been  prosecuted,  been  compelled  presumably,  to  furnish  bail,  and  put  to 
the  trouble  and  expense  of  employing  counsel  and  furnishing  the  evidence 
to  make  good  his  plea.  .  .  . 

Nor  is  it  a  matter  of  perfect  assurance  that  a  person  who  has  com- 
pulsorily  testified,  before  the  commission,  grand  jury,  or  court,  will  be 
able,  if  subsequently  indicted  for  some  matter  or  thing  concerning  which 
he  testified,  to  procure. the  e\'idence  that  will  be  necessary  to  maintain 
his  plea.  No  provision  is  made  in  the  law  itself  for  the  preservation  of 
the  evidence.  Witnesses  may  die  or  become  insane,  and  papers  and 
records  may  be  destroyed  by  accident  or  design.  .  .  . 

Another  danger  to  which  the  witness  is  subjected  by  the  withdrawal 
of  the  constitutional  safeguard  is  that  of  a  prosecution  in  the  State  courts. 
The  same  act  or  transaction  which  may  be  a  violation  of  the  interstate 
commerce  act  may  also  be  an  offense  against  a  State  law.  Thus,  in  the 
present  case,  the  incjuiry  was  as  to  supposed  rebates  on  freight  charges. 
Such  payments  would  have  been  in  disregard  of  the  Federal  statute ;  but 
a  full  disclosure  of  all  the  attendant  facts  (and,  if  he  testify  at  all,  he 
must  answer  fully)  might  disclose  that  the  witness  had  been  guilty  of 
embezzling  the  moneys  intrusted  to  him  for  that  purpose,  or  it  might 
have  been  disclosed  that  he  had  made  false  entries  in  the  books  of  the 
State  corporation  in  whose  employ  he  was  acting.  These  acts  would  be 
crimes  against  the  State,  for  which  he  might  be  indicted  and  punished, 
and  he  may  have  furnished,  by  his  testimony  in  the  Federal  court  or 
before  the  commission,  the  very  facts,  or,  at  least,  clues  thereto,  which 
led  to  his  prosecution. 

Field,  J  (dissenting).  ...  It  is  contended,  indeed,  that  it  was  not 
the  object  of  the  constitutional  safeguard  to  protect  the  witness  against 
infamy  and  disgrace.  It  is  urged  that  its  sole  purpose  was  to  protect  him 
against  incriminating  testimony  with  reference  to  the  offense  under 
prosecution.  But  we  do  not  agree  that  such  limited  protection  was  all 
that  was  secured.  As  stated  by  counsel  of  the  appellant,  "  it  is  entirely 
possible,  and  certainly  not  impossible,  that  the  framers  of  the  Constitu- 
tion reasoned  that,  in  bestowing  upon  witnesses  in  criminal  cases  the 
privilege  of  silence  when  in  danger  of  self-incrimination,  they  would  at 
the  same  time  save  him  in  all  such  cases  from  the  shame  and  infamy  of 
confessing  disgraceful  crimes,  and  thus  preserve  to  him  some  measure  of 
self-respect."  ...  It  is  true,  as  counsel  observes,  that  "both  the  safe- 
guard of  the  Constitution  and  the  common-law  rule  spring  alike  from  that 
sentiment  of  personal  self-respect,  liberty,  independence,  and  dignity 


896  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  622 

which  has  inhabited  the  breasts  of  Enghsh-speaking  peoples  for  centuries, 
and  to  save  which  they  have  always  been  ready  to  sacrifice  many  govern- 
mental facilities  and  conveniences.  In  scarcely  anything  has  that 
sentiment  been  more  manifest  than  in  the  abhorrence  felt  at  the  legal 
compulsion  upon  witnesses  to  make  concessions  which  must  cover  the 
witness  with  lasting  shame,  and  leave  him  degraded  both  in  his  own  eyes 
and  those  of  others.  What  can  be  more  abhorrent  .  .  .  than  to  compel 
a  man  who  has  fought  his  way  from  obscurity  to  dignity  and  honor  to 
reveal  crimes  of  which  he  had  repented,  and  of  which  the  world  was 
ignorant?"  The  essential  and  inherent  cruelty  of  compelling  a  man  to 
expose  his  own  guilt  is  obvious  to  everyone, and  needs  no  illustration.  .  .  . 
The  counsel  for  the  appellant  justly  observes  that  "the  proud  sense  of 
personal  independence  which  is  the  basis  of  the  most  valued  qualities  of 
a  free  citizen  is  sustained  and  cultivated  by  the  consciousness  that  there 
are  limits  which  even  the  State  cannot  pass  in  tearing  open  the  secrets  of 
his  bosom." 

623.  HALE  v.  HENKEL 
Supreme  Court  of  the  United  States.     1906 

201  U.  S.  43;  26  Sup.  370 
[Printed  ante,  as  No.  604;  Point  1  of  the  opinion.] 

624.   STATE  v.   MURPHY 

Supreme  Court  of  Wisconsin.     1906 

128  Wis.  202;   107  A^  TU.  470 

Appeal  from  Circuit  Court,  Milwaukee  County;  Orren  T.  Williams, 
Judge. 

W' illiam  Murphy  was  convicted  of  bribery,  and  the  trial  Court  certified 
certain  questions  to  the  Supreme  Court.     Questions  answered. 

On  February  1,  1904,  an  information  was  filed  against  the  defendant 
charging  that  on  the  17th  day  of  June,  1899,  he  then  being  an  alderman  of 
the  city  of  Milwaukee,  Wis.,  solicited  and  received  from  Pscar  F.  Davis 
S80  for  the  purpose  of  inducing  accused  to  vote  in  favor  of  a  then  pending 
ordinance  allowing  said  Davis's  firm  to  lay  a  side  track  across  certain 
streets  in  said  city  of  Milwaukee.  After  reversal  of  the  first  conviction 
(124  Wis.  635)  the  action  was  again  brought  to  trial,  the  defendant  having 
interposed  both  a  plea  of  not  guilty  and  a  plea  in  bar,  for  that,  before  a 
grand  jury  sitting  on  the  9th  day  of  January,  1902,  charged  with  the  duty 
of  investigating  such  offenses,  defendant  attended  and  gave  testimony 
as  to  the  transactions,  matters,  and  things  alleged  in  the  information, 
by  reason  whereof  the  defendant  claimed  he  could  not  be  prosecuted  or 
subjected  to  any  penalty  or  forfeiture  therefor. 


No.  024  PRIVILEGED  TOPICS  897 

The  case  being  reached  for  trial,  defendant's  attorney's  .  .  .  called 
the  clerk  of  the  grand  jury  and  produced  his  minutes,  showing  that 
defendant  was  produced  as  a  witness,  sworn,  and  was  asked  and  answered 
questions ;  that  the  minutes  of  testimony  read  thus :  "  Aid.  \^'m.  Murphy, 
alderman  Third  Ward,  serving  second  term,  sworn:  Know  Fred  Schultz, 
J.  M.  Clarke,  Mr.  Walker.  Know  of  no  alderman  or  public  official 
demanding  or  receiving  money  to  support  any  contract,  special  privilege, 
or  franchise.  Never  had  conversation  with  Schultz,  or  any  other  news- 
paper man,  about  special  privilege  for  electric  signs."  .  .  .  Thereupon 
defendant  testified  that  he  was  subpoenaed,  sworn,  and  examined  by 
the  district  attorney;  .  .  .  "  I  answered  these  questions  under  oath.  .  .  . 
I  answered  fully  all  questions  asked  me  while  a  witness  before  the  grand 
jury."  .  .  .  On  cross-examination  he  stated  that  ...  he  did  not  volun- 
teer any  evidence,  only  answered  what  he  was  asked  and  gave  his  testi- 
mony because  he  was  subpoenaed  to  go  before  them  and  was  asked 
questions  by  the  prosecuting  attorney,  but  freely  and  voluntarily.  .  .  . 

Thereupon,  on  motion  of  the  district  attorney,  the  Court  directed  the 
jury  to  find  a  verdict  in  favor  of  the  State,  which  they  accordingly  did, 
and  to  which  action  defendant  duly  excepted.  Then  the  trial  upon  the 
plea  of  not  guilty  proceeded  and  defendant  was  convicted  of  the  charge 
set  forth  in  the  information. 

Thereupon  the  Court,  deeming  that  certain  questions  were  doubtful 
and  important,  certified  the  following  for  answer,  viz.:  "(1)  Was  the 
evidence,  all  of  which  is  herewith  certified  sufficient  to  immune  the  defend- 
ant under  the  provisions  of  section  4078,  Rev.  St.  1898,  as  amended  by 
chapter  85,  p.  106,  Laws  of  1901?  ^  (2)  Did  the  Court  err  in  directing  a 
verdict  against  the  defendant  and  in  favor  of  the  State  on  the  special  plea 
in  bar  herein,  under  the  evidence?  ..." 

L.  M.  Shirdevant,  Attorney  General,  ^4.  C.  Titus,  Assistant  Attorney 
General  (Francis  E.  McGovern,  District  Attorney,  and  Guy  D.  Goff, 
Assistant  District  Attorney,  of  counsel),  for  the  State.  J.  M.  Clarke 
and  Hoyt,  Umbreit  &  OJwell,  for  defendant. 

Dodge,  J.  (after  stating  the  facts).     In  presenting  the  first  question 


1  Wisconsin  Sec.  4078,  Stats.  1898,  as  amended  by  ch.  85,  Laws  of  1901, 
is  as  follows:  "No  witness  or  party  in  an  action  brought  upon  the  bond  of 
a  public  officer,  or  in  an  action  by  the  state  or  any  municipality  to  recover 
public  money  received  or  deposited  with  the  defendant,  or  in  any  action,  pro- 
ceeding or  examination,  instituted  by  or  in  behalf  of  the  state  or  any 
municipality,  involving  the  official  conduct  of  any  officer  thereof,  shall  be 
excused  from  testifying  on  the  ground  that  his  testimony  may  expose  him  to 
prosecution  for  any  crime,  misdemeanor  or  forfeiture.  But  no  person  shall 
be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or  on  account 
of  any  transaction,  matter  or  thing  concerning  which  he  may  testify,  or 
produce  evidence,  documentary  or  otherwise,  in  such  action,  proceeding  or 
examination,  except  a  prosecution  for  perjury  committed  in  giving  such 
testimony." 


898  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  624 

certified,  counsel  have  discussed  many  general  considerations  bearing 
upon  the  purpose  and  scope  of  this  immunity  statute  which,  in  its  exact 
form  and  words,  originated  with  Congress  in  Act  Feb.  11,  1893,  c.  83, 
27  Stat.  443,  U.  S.  Comp.  St.  1901,  p.  3173. 

1.  The  counsel  for  the  State  insists  that  its  only  purpose  is  to  enable 
the  obtaining  of  evidence  which  by  the  fourth  and  fifth  Amendments  to 
the  Constitution  of  the  United  States  a  witness  is  privileged  to  withhold 
but  for  such  a  statute,  hence  that  it  must  be  construed  as  intending  to 
grant  immunity  only  broad  enough  to  accomplish  that  result;  only  such 
as  must  be  granted  in  order  to  evade  the  constitutional  privilege  of  silence 
as  to  self-criminatory  facts. 

But  must  we  assume  that  the  statutory  immunity  is  no  broader  than 
the  constitutional  privilege  of  a  witness  to  withhold  evidence  which  may 
be  used  against  him  in  a  criminal  case?  .  .  . 

In  the  Packers'  Case  (U.  S.  District  Court  N.  D.  111.,  March  21,  1906) 
142  Fed.  822,  the  Court  expressed  its  views  upon  the  relative  scope  of  the 
constitutional  privilege  and  the  statutory  immunity  thus:  "Now,  in 
my  judgment,  the  immunity  law  is  broader  than  the  privilege  given  by 
the  Fifth  Amendment,  which  the  act  was  intended  to  substitute.  The 
privilege  of  the  Amendment  permits  a  refusal  to  answer.  The  act  wipes 
out  the  offense  about  which  the  witnesses  might  have  refused  to  answer. 
The  privilege  permits  a  refusal  only  as  to  incriminating  evidence.  The 
act  gives  immunity  for  evidence  of  or  concerning  the  matter  covered  by 
the  indictment  [testimony]  and  the  evidence  need  not  be  self-incriminat- 
ing. The  privilege  must  be  personally  claimed  by  the  witness  at  the  time. 
The  immunity  flows  to  the  witness  by  action  of  law  and  without  any 
claim  on  his  part."  .  .  . 

It  is  upon  a  presumption  in  favor  of  a  strictly  limited  intent  in  this 
legislation  that  counsel  for  the  State  bases  a  contention  that  unless  a 
witness  resists  ansioering  a  question,  at  least  to  the  extent  of  asserting 
that  the  answer  may  tend  to  criminate  him  and  that  he  claims  his  con- 
stitutional privilege  to  refuse  answer,  no  immunity  from  prosecution  is 
earned  by  him.  To  this  position  there  are  two  answers :  First,  that  the 
statute  in  terms  imposes  no  such  limitation  upon  the  immunity,  for  it 
assures  it  to  any  person  who  "may  testify,"  not  who  may  be  compelled 
to  testify  or  who  may  testify  after  first  refusing  or  protesting  and 
asserting  his  constitutional  right.  Doubtless  no  criminal  can  immune 
himself  by  volunteering  evidence  without  lawful  demand.  But  a  more 
obvious  answer  is  that  the  law,  giving  the  prosecuting  oflScers  and 
the  investigating  tribunal  the  power  and  right  to  demand  the  answer; 
the  subpoena  commanding  attendance;  the  administering  the  oath, 
and  the  putting  the  question,  deprive  the  witness  of  any  privilege 
to  withhold  the  information,  or  to  effectively  protest,  and  notify 
him  that  the  tribunal  absolutely  demands  the  testimony.  A  decla- 
ration that  he  would  like  to  assert  that  privilege  if  he  had  it  when 
by  the  very  proceeding  he  is  warned,  that  he  has  it  not,  would  be  so 


No.  624  PRIVILEGED   TOPICS  899 

entirely  futile  as  to  be  puerile.  What  sense  in  his  asking  whether  the 
information  is  insisted  on  when  all  the  steps  taken  constitute  most 
unambiguous  insistence?  Why  assert  a  privilege  when  he  has  none? 
That  he  has  none  is  certain,  if  this  statute  be  given  effect  according  to 
its  terms,  for  it  precludes  the  possibility  of  any  "criminal  case"  in  which 
his  testimony  can  be  "against"  him  in  the  sense  forbidden  by  the  Fifth 
Amendment  to  the  Federal  Constitution  and,  in  identical  words,  by 
section  8,  art.  1,  Wis.  Const.  Walker  v.  Brown,  supra;  Hale  v.  Henkel 
(decided  March  6,  1906)  [a?itc,  No.  623].  .  .  .  We  are  satisfied  that  the 
circumstances  under  which  defendant  was  called  on  to  give  his  testimony 
were  such  as  to  entitle  him  to  invoke  such  immunity  from  prosecution  and 
punishment  as  the  statute  confers,  and  need  not  discuss  the  question 
whether  one  can  by  his  own  initiative  and  volition,  without  demand  by 
any  authorized  person  or  tribunal,  seek  shelter  under  this  law. 

2.  Another  position  founded  on  the  same  premise  is  that,  because  the 
constitutional  privilege  is  to  refrain  merely  from  giving  evidence  against 
himself,  a  witness  is  immune  from  prosecution  only  when  he  gives  evi- 
dence ichich  is  adverse  to  him.  The  difficulty  with  this  position  is,  again, 
that  the  statute  makes  no  such  limitation;  it  in  terms  confers  immunity 
when  he  testifies  at  all  "  concerning  a  transaction,  matter  or  thing  for,  or 
on  account  of,  which  "  prosecution  may  be  attempted.  Indeed,  if  limited 
as  counsel  contends,  the  immunity  would  not  be  as  broad  as  the  constitu- 
tional privilege,  for  the  latter  is  to  refuse  to  answer  a  question  at  all  if 
any  answer  the  witness  might  give  to  such  question  might  tend  to  crimi- 
nate him.  That  is  by  no  means  satisfied  by  immunity  only  when  the 
answer  given  does  tend  to  charge  him  with  the  particular  crime  to  which 
he  pleads  it. 

3.  Another  suggestion  is  made  to  the  effect  that,  unless  the  witness 
tells  the  truth,  he  cannot  be  said  to  testify  concerning  that  of  which  he 
speaks.  This  would  involve  a  highly  technical  and  unusual  meaning  for 
the  word  "testify,"  which  ordinarily  means  the  making  of  any  statement 
under  oath  in  a  judicial  proceeding.  8  Words  &  Phrases,  pp.  6932,  6933. 
The  statute  itself,  however,  refutes  any  such  meaning,  for  it  expressly 
reserves  the  right  to  prosecute  for  perjury  "in  giving  such  testimony," 
thus  recognizing  that  the  word  "testimony"  is  used  in  a  sense  broad 
enough  to  include  statements  which  are  false.  Whatever  general  rules 
of  •construction  should  apply  to  this  statute,  whenever  immunity  is 
claimed  under  it,  the  question  arises  whether  defendant  did,  in  any 
reasonable  sense,  testify  concerning  the  transaction,  matter,  or  thing  for 
or  concerning  which  he  is  prosecuted.  The  strongest  evidence  is  defend- 
ant's own  testimony  that  he  was  asked  "  if  I  received  any  money  for  my 
vote  on  special  privileges,  bay  windows,  side  tracks,  electric  light,  street 
railway  extensions  —  I,  or  any  of  the  aldermen  or  city  officials."  This 
he  answered  in  the  negative.  The  charge  in  the  information  is  that  he 
did,  on  June  17,  1899,  ask,  solicit,  demand,  and  receive  from  one  Davis 
$80  in  money  for  the  purpose  of  influencing  the  action  of  the  common 


900  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  624 

council  and  of  himself  to  grant,  and  vote  in  favor  of  granting  privilege 
to  lay  railroad  track  over  and  across  a  certain  public  street.  Did  he 
testify  concerning  that  transaction,  matter,  or  thing?  The  very  state- 
ment of  the  situation  seems  to  suggest  a  negative  answer.  .  .  . 

When  that  answer  "No"  was  given,  the  progress  of  investigation  to 
discover  from  this  witness  anything  concerning  the  transaction  now 
charged  was  checked  at  the  very  threshold,  unless,  indeed,  the  grand 
jury  had  some  other  information  of  it,  so  as  to  enable  specific  inquiry 
of  the  witness.  We  are  persuaded  that  we  should  but  travesty  the  statute 
should  we  hold  that  a  declaration  that  he  could  give  no  evidence  of  any 
transactions  within  a  general  class  constituted  testimony  concerning  one. 

.  .  .  For  the  reasons  stated  we  are  satisfied  that  there  was  absolutely 
no  evidence  that  defendant  did,  before  the  grand  jury,  testify  or  produce 
any  evidence  of  or  concerning  any  transaction,  matter  or  thing  for  which 
he  is  prosecuted  in  this  case;  hence  that  the  evidence  was  not  sufficient 
to  immune  him,  and  the  first  question  certified  must  be  answered  in  the 
negative.  .  .  . 

We  answer  the  first  question:  No.  We  answer  the  second  question: 
No.  .  .  . 

Marshall,  J.  ...  I  concur  in  the  answers  to  the  questions  certified 
for  decision,  but  dissent,  most  emphatically,  from  the  general  exposition 
of  the  immunity  statute  which  precedes  the  treatment  of  the  particular 
points  involved. 

In  view  of  the  fact  that  in  recent  years  there  has  been  apparently 
great  need  for  a  vigorous  prosecution  and  certain  punishment  of  offenders 
and  a  significant  awakening  of  appreciation  in  that  regard,  we  must 
assume  that  the  Legislature  had  no  other  purpose  in  passing  the  immunity 
statute  than  to  give  aid  in  that  respect.  In  that  light,  the  law,  as  con- 
strued in  the  opinion  by  my  Brother  Dodge,  seems  to  be  a  most  absurd 
enactment.  If  the  Legislature  had  devoted  the  most  careful  study  to  the 
subject  of  how  best  to  furnish  offenders  an  easy  method  of  escaping  the 
consequences  of  their  wrongdoing:  of  practically,  in  great  measure,  para- 
lyzing the  administration  of  justice  in  criminal  matters,  it  could  hardly 
have  been  more  successful,  if  the  intent  embodied  in  the  immunity  law  is 
as  suggested  in  the  opinion  on  file.  .  .  .  The  purpose  of  the  immunity 
statute  was  to  take  the  place  of  the  constitutional  privilege  against  self- 
incriminatory  evidence.  It  was  designed  to  open  the  doors  in  just*  so 
far  as  such  privilege  would  otherwise  hold  them  closed  by  the  right  of 
silence.  Its  scope,  therefore,  coincides  with  such  privilege,  stopping 
not  short  of  it,  nor  going  beyond  it. 

The  exposition  of  the  federal  statute  by  Justice  Humphrey  in  the 
Packers'  Cases,  quoted  from  by  my  Brother  Dodge,  viewed  as  applicable 
to  statutes  of  which  ours  is  a  type,  I  believe,  goes  altogether  too  far,  and 
will  not  stand  the  test  which  will  be  applied  to  it. 

(1)  The  statute  does  not  wipe  out  the  offense  about  which  the  witness 
might  have  refused  to  answer .    It  creates  a  bar  to  a  prosecution  for  the 


No.  624  PRIVILEGED   TOPICS  '         901 

offense.     The  offense  with  its  attendant  moral  turpitude  is  k^ft  just  the 
same,  but  by  force  of  the  statute  the  pubHc  is  remediless. 

(2)  The  statute  is  not  broader  than  the  constitutional  guaranty  for 
which  it  was  intended  to  be  a  "  substitute."  The  very  idea  of  a  substitute 
suggests  the  limitation  of  one  as  that  of  the  other.  In  other  words,  that 
they  are  equivalents,  one  being  exchanged,  by  force  of  the  law,  for  the 
other. 

(3)  The  statute  does  not  immune  because  of  evidence  given  other 
than  that  of  a  self -incriminatory  character;  such  as  without  the  statute 
would  be  obscured  by  the  constitutional  privilege  of  silence. 

(4)  For  the  statute  to  operate  there  must  be  evidence  under  real 
compulsion,  not  mere  right  of  compulsion.  That  is,  there  must  be 
coercion  to  the  extent  of  the  witness  being  called  to  testify  under  such 
circumstances  that  he  would  be  liable  to  punishment  as  standing  in 
defiance  of  the  Court  if  he  refused  to  do  so.  In  that  situation  only  does 
the  law  relieve  him  from  the  necessity  of  expressly  claiming  his  privilege. 
Until  the  law  then  lays  its  hand  on  the  party  so  that  resistance  would 
be  a  defiance  of  the  Court,  the  statute  does  not  intervene.  .  .  . 

Kerwin,  J.  —  I  concur  in  the  foregoing  opinion  of  Mr.  Justice 
Marshall,  in  so  far  as  it  expresses  dissent  from  the  view  that  our  own 
immunity  statute  is  broader  than  the  constitutional  privilege  of  silence 
as  to  self-incrimination ;  and  I  concur  in  the  view  that  the  statute  operates 
only  in  cases  where  evidence  is  given  under  real  compulsion  and  con- 
cerns, in  some  respect,  an  event  giving  rise  to  a  criminal  prosecution, 
against  the  witness. 

WiNSLOW,  J.  (concurring).  I  agree  fully  with  the  conclusions  reached, 
but  not  with  some  of  the  reasoning.  .  .  . 

In  my  judgment  the  immunity  statute  is  as  broad  as  the  privilege 
which  it  was  passed  to  obviate,  and  no  broader.  In  order  to  gain  the 
immunity  the  witness  must,  in  my  opinion,  be  compelled  to  testify.  He 
could  waive  his  constitutional  privilege  by  testifying  voluntarily,  he  can 
likewise  waive  his  statutory  immunity  by  doing  the  same  thing.  I  do 
not  think  that  compelling  a  person  to  appear  by  subpoena  can  properly 
be  considered  as  compelling  him  to  testify.  It  was  not  so  considered 
with  regard  to  the  constitutional  guaranty.  A  person  might  be  com- 
pelled by  subpoena  to  attend,  but  might  testify  voluntarily  when  so  in 
attendance,  and  thus  waive  his  privilege.  In  like  manner  I  think  he 
may  waive  his  immunity.  Otherwise  the  statute  becomes  a  snare  to  the 
prosecution  and  a  means  of  avoiding  the  just  consequences  of  crime.  I 
do  not  mean  by  this  that  it  is  necessary  for  the  witness  to  refuse  to 
answer,  but  simply  that  he  should  make  known  the  fact  that  he  does  not 
testify  voluntarily  but  only  in  obedience  to  the  command  of  the  law  and 
the  Court.  When  this  has  been  done  he  gains  immunity  from  prosecu- 
tion on  account  of  the  transaction  or  matter  concerning  which  he  testifies, 
and  not  before. 

In  this  c^se,  therefore,  I  think  there  was  no  immunity  on  two  grounds: 


902         •  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  624 

First,  because  the  defendant  testified  voluntarily  before  the  grand  jury. 
He  was  not  compelled  to  testify.  Second,  because  he  did  not  give  any 
testimony  concerning  the  transaction  or  thing  for  which  he  is  now  being 
prosecuted. 

625.  Heikej).  United  States.  (1912.  Supreme  Court.  227  U.S.,  — 33 
Sup.  226.)  Holmes,  J.  ...  In  favor  of  the  broadest  construction  of  the 
immunity  act,  it  is  argued  that  when  it  was  passed  there  was  an  imperious 
popular  demand  that  the  inside  working  of  the  trusts  should  be  investigated, 
and  that  the  people  and  Congress  cared  so  much  to  secure  the  necessary 
evidence  that  they  were  willing  that  some  guilty  persons  should  escape,  as  that 
reward  was  necessary  to  the  end.  The  Government  on  the  other  hand  maintains 
that  the  statute  should  be  limited  as  nearly  as  may  be  by  the  boundaries  of  the 
constitutional  privilege  of  which  it  takes  the  place. 

Of  course  there  is  a  clear  distinction  between  an  amnesty  and  the  constitu- 
tional protection  of  a  party  from  being  compelled  in  a  criminal  case  to  be  a  witness 
against  himself.  Amendment  V.  But  the  obvious  purpose  of  the  statute  is  to 
make  evidence  available  and  compulsory  that  otherwise  could  not  be  got.  We 
see  no  reason  for  supposing  that  the  act  offered  a  gratuity  to  crime.  It  should 
be  construed,  so  far  as  its  words  fairly  allow  the  construction,  as  coterminous  with 
what  otherwise  would  have  been  the  privilege  of  the  person  concerned.  We 
believe  its  policy  to  be  the  same  as  that  of  the  earlier  act  of  February  11, 1893, 
c.  83,  27  Stat.  443,  which  read:  "No  person  shall  be  excused  from  attending  and 
testifying,"  etc.  "But  no  person  shall  be  prosecuted,"  etc.,  as  now,  thus  show- 
ing the  correlation  between  constitutional  right  and  immunity  by  the  form. 
That  statute  was  passed  because  an  earlier  one,  in  the  language  of  a  late  case, 
"was not  coextensive  with  the  constitutional  privilege."  American  Lithographic 
Co.  V.  Werckmeister,  221  U.  S.  603,  611.  Compare  Act  of  February  19,  1903, 
c.  708,  §  3,  32  Stat.  848.  To  illustrate,  we  think  it  plain  that  merely  testifying 
to  his  own  name,  although  the  fact  is  relevant  to  the  present  indictment  as  well 
as  to  the  previous  investigation,  was  not  enough  to  give  the  petitioner  the  benefit 
of  the  act.     See  3  Wigmore,  Evidence,  §  2261. 


Sub-topic  E.     Policy  of  the  Privilege 

627.  Marquis  of  Nayve's  Trial.  (Bourgcs,  1895.  Albert  Batailles. 
"Causes  Criminelles  et  Mondaines  de  1895,"  p.  8.)  [Murder  of  the  accused's 
child.  The  accused  was  a  man  of  the  best  family  and  breeding,  living  at  Grenoble. 
He  was  born  before  his  parents'  marriage.  In  1875  he  had  made  a  rich  marriage 
with  jNIlle.  de  Baudreuille.  This  lady  had  already  in  1871  an  illegitimate  child, 
the  fruit  of  a  rape;  the  sum  of  60,000  francs  had  been  settled  on  this  boy  —  named 
Menaldo  —  by  his  grandfather.  By  the  marriage  there  were  two  sons.  The 
wife's  boy  was  brought  up  alone  and  privately,  at  Orleans.  As  time  went  on, 
he  learned  (apparently)  of  his  parentage,  grew  discontented,  and  wished  to 
rejoin  his  mother.  In  September,  1883,  the  boy  was  placed  in  a  private  school 
at  Chambery,  near  Grenoble;  but  he  was  still  discontented  and  kept  running 
away.  On  October,  1885,  the  Marquis  went  to  Chambery  and  took  the  boy  away. 
About  November  1,  he  started  with  him  on  a  hurried  journey  into  Italy,  but 
without  revealing  to  any  one  his  ilestination.     On  November  9,  he  took  the  boy 


No.  627  PRIVILEGED  TOPICS  903 

from  Naples  to  Castellamare  (along  the  coast  of  the  bay),  and  they  started  to 
walk  that  evening  from  Castellamare  to  Sorrento,  along  the  diff  road. 

The  boy  was  never  again  seen  alive.  The  next  day  his  mangled  body  was 
discovered  at  the  foot  of  the  rocks,  by  some  fishermen.  A  few  days  later  the 
Marquis  notified  his  wife,  from  Marseilles,  that  the  boy  had  strayed  over  the 
cliff  and  been  drowned.  An  inquest  had  been  held  on  the  body,  by  the  Naples 
authorities;  but  no  clue  to  its  identity  was  found,  and  the  Marquis  had  left 
Italy  without  notifying  the  police. 

For  some  ten  years  nothing  further  transpired.  But  in  1S95,  domestic 
dissensions  broke  out.  The  wife  of  the  Marquis  wTote  to  a  magistrate,  request- 
ing his  protection  against  her  husband's  violence,  and  charging  that  he  had  in 
1885  killed  her  boy  at  Naples.       The  present  trial  then  ensued,  in  October,  1895. 

The  accused  was  first  put  on  the  stand.  Presiding  Judge  Lauvehjat  con- 
ducted the  examination.  The  following  passage  deals  with  the  Marquis'  story 
of  the  supposed  accident.] 

J.  —  The  road  from  Castellamare  to  Sorrento  abuts  on  the  sea,  passing 
Torella,  Serodio,  Vico  Equense,  and  Meta,  and  then  strikes  Sorrento,  17f  kilo- 
meters distant.     You  met  several  hackmen  on  the  way? 

N.  —  Oh,  I  must  have  met  3000  or  4000  persons.  There  is  not  a  road  more 
frequented  by  excursionists. 

J.  —  Why  did  you  go  on  foot? 

N.  — Because  that  is  some  of  the  most  wonderful  scenery  in  Italy.  .  .  .  We 
walked  slowly,  stopping  now  and  then  to  admire  the  views. 

J.  —  Especially  the  view  near  Fusarella?  Don't  deny  it,  for  two  policemen 
saw  you.     (Sensation.) 

N.  —  Oh,  that  was  a  spot  400  meters  from  the  precipice. 

J.  —  Excuse  me,  it  was  exactly  above  the  precipice.     (Sensation.) 

N.  —  At  1.30  P.M.  we  arrived  at  Sorrento,  where  we  lunched  and  visited  the 
harbor.  Then  we  went  3  kilometers  further,  to  get  a  view  of  the  island  of  Capri. 
Then,  about  4  p.m.  we  took  a  carriage  for  Sorrento,  and  went  on  back  to  Meta. 

J.  —  That  is  entirely  controverted  by  the  witnesses.  You  were  on  foot  when 
you  passed  Meta.  On  the  way  back  you  were  offered  a  carriage  there,  and  you 
refused  it. 

N.  —  It  was  not  till  we  got  to  Meta  that  we  started  to  walk  again.  After 
resting,  we  started  about  4.30  p.m.  towards  the  Scutari  headland.  There  we 
admired  the  view.     It  was  growing  dark,  but  we  could  still  see  our  way. 

J.  —  Some  hackmen,  who  passed  you,  were  surprised  to  see  you  on  foot  at 
such  an  hour  with  a  child,  who  looked  tired.  Why  did  you  refuse  the  carriage 
offered  you?    It  would  have  cost  only  2  or  3  francs. 

N.  —  I  wanted  to  enjoy  the  view. 

J. —What  view?     It  was  dark. 

N.  —  Excuse  me.  Vesuvius  was  in  full  eruption.  The  sight  was  one  of 
incomparable  beauty.  .  .  . 

J.  —  From  Meta  to  Vico  Equense  is  about  8  kilometers? 

N.  —  At  Vico  Equense  we  had  coffee.  It  was  not  quite  dark;  ZarilH,  the 
man  at  the  cafe,  had  not  yet  lit  up. 

J. — ^^This  cafe-keeper  also  observed  that  the  boy  was  very  tired.  And  no 
wonder;  since  morning  you  had  dragged  the  poor  fellow  along  with  you.  Zarilli 
was  astonished  to  hear  you  refuse  the  carriage.  What  time  was  it  when  you 
reached  the  Fusarella  precipice? 

N.  —  About  6.30  p.m. 


904  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  627 

J.  —  The  precipice  is  a  frightful  one.  The  road  runs  at  the  top  more  than 
60  meters  from  the  bottom. 

N.  —  Oh,  the  whole  road  from  Castellamare  to  Sorrento  is  like  that.  You 
can  see  the  path  very  plainly. 

J.  —  What  time  did  you  reach  Vico  Equense? 

N.  —  About  5.30  or  6  p.m. 

J.  —  Then  how  was  it  that  the  witness  Periaro,  who  was  walking  on  that 
road  with  Romano,  met  you  and  the  boy  about  8?  They  say  that  Menaldo  [the 
boy]  was  two  or  three  paces  behind  you,  and  seemed  exhausted.  ...  A  third 
hackman,  Savarese,  met  you  and  the  boy,  about  8;  also  a  fourth,  Balsamo,  a 
hundred  meters  from  the  precipice;  he  offered  to  drive  you  to  Castellamare. 
Why  did  you  refuse? 

N.  —  I  did  not  want  to  ride;  I  wanted  to  see  the  view.  .  .  . 

J.  —  What  happened  then?  Did  you  put  the  boy  up  on  a  ridge  of  rocks  to 
have  him  admire  the  view,  and  then  let  him  fall  over?  Or  did  you  just  give  him 
a  push?    Whichever  way  you  did  it,  it  would  sustain  a  charge  of  murder. 

N.  (quietly).  —  I  will  tell  you  just  how  it  happened.  ...  I  stepped  off  the 
road  for  a  few  moments,  and  then  came  back.  The  boy  was  no  longer  there. 
My  first  thought  was  that  he  had  run  away.  I  called  out,  I  ran  after  him  for 
about  2  kilometers.  I  met  a  workman,  and  asked  him  if  he  had  seen  a  little 
boy.  He  said  he  had  not.  In  my  running  I  had  nearly  got  to  Castellamare. 
My  heart  was  beating  fit  to  break.  I  went  back  over  the  road  to  where  I  had 
missed  the  child,  but  I  could  hear  nothing,  except  the  sound  of  the  waves  and  the 
distant  calls  of  the  fishermen. 

I  spent  an  hour  and  a  half  thus,  searching  in  vain.  Then  I  resumed  my  route 
to  Castellamare,  with  a  sad  heart.  What  could  I  do?  Inform  the  magistrate? 
I  thought  of  that.  But  the  publicity  would  disgrace  my  wife  before  our  boys. 
Every  father  will  understand  my  feelings.  There  was  nothing  for  me  to  do  but 
to  flee.  ...  So  I  returned  to  Castellamare,  and  went  directly  on  to  Naples  and 
Marseilles.  I  had  at  least  saved  my  wife's  honor.  .  .  .  And  so  here  I  am  in 
the  dock,  simply  because  I  left  Italy  without  telling  of  the  affair. 

J.  —  What  was  your  first  thought  about  the  boy? 

N.  —  That  he  must  have  fallen  over  the  cliff. 

J.  —  But  in  yoiu*  examination  before  the  magistrate,  you  added:  "I  looked 
over,  and  could  see  nothing  below."  Are  you  sure  that  you  saw  nothing?  Wasn't 
it  true  that  you  did  see  something?  (Sensation.)  The  child  had  not  fallen  into 
the  sea,  as  you  hoped;  his  corpse  was  down  there  on  the  rocks.  You  hadn't 
known  about  the  rocks.  That  was  the  terrible  proof  of  your  crime,  and  when 
you  saw  it,  that  was  why  you  ran  away!    (Sensation.) 

N.  —  I  fled  to  save  the  honor  of  my  wife. 

J.  —  There  were  boats  down  in  the  water  at  the  foot.  You  heard  the  voices 
of  the  fishermen,  you  yourself  said.     Why  did  you  not  call  out  to  them? 

N.  —  It  was  too  far  for  them  to  hear  me. 

J.  —  You  claim  to  have  looked  for  the  child  along  the  road  for  some  two 
hours.  Well,  the  boy  fell  over  about  8  p.m.,  and  about  8.30  a  hackman,  Vollano, 
met  you  alone,  hurrying  towards  Castellamare,  and  evading  the  lights  of  his 
carriage.  .  .  .  Yovi  took  the  first  train  for  France.  You  were  well  rid  of  a  child 
who  was  a  burden  to  you,  and  the  60,000  francs  in  trust  for  him  reverted  to  your 
wife  and  thus  became  your  community  property,  to  go  afterwards  to  your 
children.  Now,  there  was  a  French  vice-consul  at  Castellamare;  why  did  you 
not  seek  his  help? 


No.  627  PRIVILEGED  TOPICS  905 

N.  —  I  should  have  had  to  reveal  my  wife's  disgrace. 

J.  —  But  it  is  not  necessarily  a  shameful  thing  to  have  a  natural  child,  — 
certainly  not  a  life-long  shame.  Besides,  you  are  a  natural  child  yourself,  and 
you  haven't  ever  shown  any  shame  over  it!     (Sensation.) 

N.  —  My  case  was  not  the  same  at  all;  I  had  been  legitimized  l}y  my  parents* 
subsequent  marriage.  .  .  . 

[This  examination  of  the  accused  on  the  stand  continued  for  three  days. 

On  the  third  day,  the  bailiff  produced  and  exhibited  to  the  jurors  the  articles 
found  on  the  dead  boy's  person  —  a  little  black  hat,  white  stockings,  black 
breeches,  shoes,  a  bloody  shirt  in  tatters.  The  Marquis  sat  reading  documents, 
after  making  the  following  statement.] 

N.  —  I  do  not  know  what  inferences  you  are  going  to  make  from  my  behavior 
here.  If  I  show  indifference,  you  will  say  that  I  am  hard-hearted.  If  I  weep, 
you  will  say  that  I  am  acting  a  part.     I  do  not  know  what  to  do. 

J.  —  Do  just  as  you  wish,  only  be  sincere  about  it. 

[The  assistant  judge  then  read  the  Naples  report  of  the  expert  testimony 
about  the  rocks  at  the  foot  of  the  precipice.  The  testimony  showed  that  they 
could  not  be  seen,  and  that  a  person  leaning  over  the  heavy  parapet  would  believe 
that  there  was  a  direct  drop  into  the  sea  from  the  edge.] 

J.  —  Now,  if  the  child  had  fallen  or  thrown  himself  over  the  edge,  he  could 
not  have  been  killed  instantly.  Yet  you  abandoned  him  to  possible  death, 
without  trying  to  rescue  him.  That  is  the  sort  of  heart  you  have!  It  was 
abominable! 

N.  —  Yes,  in  any  other  circumstances,  it  would  have  been  abominable  to 
act  thus.  But  at  that  time  I  had  only  a  single  thought,  —  to  escape  and  keep 
silence,  for  the  honor  of  my  children.  .  .  . 

J.  —  Wliy  did  you  wait  till  reaching  Marseilles  to  telegraph  to  your  wife? 
Why  did  you  not  telegraph  to  her  the  very  night  of  the  boy's  disappearance? 

N.  —  Well,  he  wasn't  my  child!     (Sensation  and  much  excitement.) 

J.  —  He  was  Madame  de  Nayve's  child! 

N.  —  She  had  never  asked  me  to  keep  her  advised  of  what  was  happening  to 
him.      (Extreme  excitement  in  Court.) 

J.  —  So  I  suppose  that  you  expected  her  to  write  to  you  before  you  would 
condescend  to  let  her  know  that  her  child  had  disappeared,  —  run  away  in  the 
uttermost  part  of  Italy,  with  a  few  coppers  in  his  pocket,  when  he  found  that 
you  were  going  to  take  him  back  to  France.  Disappeared,  you  call  it.  Why 
should  he  run  away? 

N.  —  Twice  already  he  had  run  away  from  the  academy. 

J.  —  But  he  was  then  in  France,  where  the  people  spoke  his  language  and  he 
could  manage  to  get  along.  .  .  .  Did  you  not  later  admit  to  your  wife  that, 
to  get  rid  of  little  Menaldo,  you  had  pushed  him  over  the  cliff  and  then  escaped? 

N.^ —  No.  And  she  never  invented  that  lie  either.  It  was  the  priest. 
Abbe  Rosselot,  who  invented  it. 

J.  —  Well,  your  wife  is  no  fool,  is  she? 

N.  —  No,  but  she  is  under  that  priest's  influence. 

[At  this  moment,  the  defendant  was  overcome  by  emotion,  and  sank  to 
his  seat,  sobbing  aloud,  clasping  his  hands  to  his  head,  and  weeping  copiously.] 

Albert  Danet  (counsel  for  defence).  The  defendant  is  quite  at  the  end 
of  his  endurance.  For  the  last  three  days  he  has  been  grilled  here,  and  his 
most  tender  sentiments  have  been  wTung  at  every  moment  by  your 
examination. 


906  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  627 

J.  ^  But  I  consider  that  I  have  not  exceeded  the  hmits  of  propriety.  .  .  . 
[On  November  fjth  the  jury  retired,  and  after  a  few  minutes  of  deliberation 
returned  with  a  verdict  of  Not  (iuilty.] 

628.  Sir  James  Fitzjames  Stephen.  History  of  the  Criminal  Law.  (1883. 
I,  342,  441,  535,  542,  565.)  In  the  old  ecclesiastical  Courts  and  in  the  Star 
Chamber  [the  "ex  officio"  oath]  was  understood  to  be  and  was  used  as  an  oath 
to  speak  the  truth  on  the  matters  objected  against  the  defendant  —  an  oath,  in 
short,  to  accuse  oneself.  It  was  vehemently  contended  by  those  who  found 
themselves  pressed  by  this  oath  that  it  was  against  the  law  of  God,  and  the  law 
of  nature,  and  that  the  maxim  "nemo  tenetur  prodere  seipsum"  was  agreeable 
to  the  law  of  God,  and  part  of  the  law  of  nature.  In  this,  I  think,  as  in  most 
other  discussions  of  the  kind,  the  real  truth  was  that  those  who  disliked  the  oath 
had  usually  done  the  things  of  which  they  were  accused,  and  which  they  regarded 
as  meritorious  actions,  though  their  judges  regarded  them  as  crimes.  People 
always  protest  with  passionate  eagerness  against  being  deprived  of  technical 
defences  against  what  they  regard  as  bad  law,  and  such  complaints  often  give  a 
spurious  value  to  technicalities  when  the  cruelty  of  the  laws  against  which  they 
have  offered  protection  has  come  to  be  commonly  admitted.  .  .  . 

Our  privilege  against  self-crimination  is  one  of  the  most  characteristic  features 
of  English  criminal  procedure,  and  it  presents  a  marked  contrast  to  that  which  is 
common  to,  I  believe,  all  continental  countries.  It  is,  I  think,  highly  advan- 
tageous to  the  guilty.  It  contributes  greatly  to  the  dignity  and  apparent  human- 
ity of  a  criminal  trial.  It  effectually  avoids  the  appearance  of  harshness,  not  to 
say  cruelty,  which  often  shocks  an  English  spectator  in  a  French  court  of  justice; 
and  I  think  that  the  fact  that  the  prisoner  cannot  be  questioned  stimulates  the 
search  for  independent  evidence.  During  the  discussions  which  took  place  on 
the  Indian  Code  of  Criminal  Procedure  in  1872,  some  observations  were  made 
on  the  reasons  which  occasionally  lead  native  police  officers  to  apply  torture  to 
prisoners.  An  experienced  civil  officer  observed,  "There  is  a  great  deal  of  laziness 
in  it.  It  is  far  pleasanter  to  sit  comfortably  in  the  shade  rubbing  red  pepper  into 
a  poor  devil's  eyes  than  to  go  about  in  the  sun  hunting  up  evidence."  This  was 
a  new  view  to  me,  but  I  have  no  doubt  of  its  truth.  The  evidence  in  an  English 
trial  is,  I  think,  usually  much  fuller  and  more  satisfactory  than  the  evidence  in 
such  French  trials  as  I  have  been  able  to  study.  .  .  . 

The  following  account  of  the  French  practice  is  given  by  M.  Helie:  "The 
magistrate  who  puts  questions  to  the  accused  and  asks  explanations  from  him 
has  the  right  to  interrogate  him  for  the  purpose  of  extracting  his  excuse  or  his 
confession  of  guilt.  He  should,  without  harassing  or  confusing  him,  but  at  the 
same  time  while  requiring  a  disclosure,  encourage  his  freedom  of  utterance.  He 
should,  in  short,  with  the  most  complete  impartiality,  seek  solely  to  get  at  the 
truth.  The  interrogatory  must  be  neither  an  argument  nor  a  combat;  that  is 
by  means  of  the  issue.  The  main  object  is  to  ascertain  the  theory  of  the  defence, 
and  thus  to  determine  the  details  of  the  issue  and  the  points  therein  which  are  to 
be  established."  He  adds,  that  though  the  interrogatory  is  not  essential,  yet  the 
President  can  interrogate  the  accused  either  before  or  after  the  witnesses  are 
heard,  the  former  being  the  common  course.  .  .  . 

WTiatever  may  be  the  law  on  the  subject,  the  fact  unquestionably  is  that  the 
interrogation  of  the  accused  by  the  President  is  not  only  the  first,  but  is  also  the 
most  prominent,  conspicuous,  and  important  part  of  the  whole  trial.  Moreover, 
all  the  reports  of  French  trials  which  I  have  seen,  and  I  have  read  very  many, 


No.  629  PRIVILEGED  TOPICS  907 

suggest  that  the  views  taken  by  M.  Hehe  as  to  the  proper  o})ject  of  the  interroga- 
tory, and  the  proper  method  of  carrying  it  on,  are  not  shared  by  the  great  majority 
of  French  Presidents  of  Cours  d 'Assises.  The  accused  is  cross-examined  with 
the  utmost  severity,  and  with  continual  rebuke,  sarcasms,  and  exhortations, 
which  no  counsel  in  an  English  court  would  be  permitted  by  any  judge  who  knew 
and  did  his  duty  to  address  to  any  witness.  This  appears  to  me  to  be  the  weakest 
and  most  objectionable  part  of  the  whole  system  of  French  criminal  procedure 
(except  parts  of  the  law  as  to  the  functions  of  the  jury).  It  cannot  but  make  the 
judge  a  party  —  and  what  is  more,  a  party  adverse  to  the  prisoner;  and  it  api)ears 
to  me,  apart  from  this,  to  place  him  in  a  position  essentially  undignified  and 
inconsistent  with  his  other  functions.  ... 

This  comparison  of  French  and  English  criminal  procedure  naturally  suggests 
the  question,  Which  of  the  two  is  the  best?  To  a  person  accustomed  to  the 
English  system  and  to  English  ways  of  thinking  and  feeling  there  can  be  no  com- 
parison at  all  between  them.  However  well  fitted  it  may  be  for  France,  the  French 
system  would  be  utterly  intolerable  in  England.  .  .  .  The  whole  temper  and 
spirit  of  the  French  and  the  English  differs  so  widely,  that  it  would  be  rash  for 
an  Enghshman  to  speak  of  trials  in  France  as  they  actually  are.  We  can  think 
of  the  system  only  as  it  would  work  if  transplanted  into  England.  It  may  well 
be  that  it  not  only  looks,  but  is,  a  very  different  thing  in  France.  .  .  .  The  best 
way  of  comparing  the  working  of  the  two  systems  is  by  comparing  trials  which 
have  taken  place  under  them.  For  this  purpose  I  have  given  at  the  end  of  this 
work  detailed  accounts  of  seven  celebrated  trials,  four  English  and  three  French, 
which  afford  strong  illustrations  of  the  results  of  the  two  systems.  It  seems  to 
me  that  a  comparison  between  them  shows  a  superiority  of  the  English  system 
even  more  remarkably  than  any  general  observations  which  may  be  made  on  the 
subject.  In  every  one  of  the  English  cases,  the  evidence  is  fuller,  clearer,  and 
infinitely  more  cogent  than  it  is  in  any  one  of  the  French  cases,  —  notwith- 
standing which,  far  less  time  was  occupied  by  the  English  trials  than  by  the 
French  ones,  and  not  a  word  was  said  or  a  step  taken  which  any  one  can 
represent  as  cruel  or  undignified. 

629.  Wisconsin  Branch,  American  Institute  of  Criminal  Law  and 
Criminology.  Report  of  the  Committee  on  Trial  Procedure.  1910.  A  majority 
of  our  committee  believe  that  the  provision  in  §  8,  Art.  I  of  our  Constitution  that 
"No  person  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self" has  outlived  its  usefulness,  and  should  be  abolished,  and  that  thereby  one 
hiding-place  of  crime  would  be  destroyed.  We  have  obtained  the  views  of  many 
active  lawyers  and  judges  on  this  ciuestion;  and  a  large  majority  of  those  consulted 
have  expressed  the  opinion  that  no  innocent  person  would  suffer  and  that 
more  guilty  ones  would  be  detected  and  convicted  if  this  provision  could  be 
repealed.  .  .  . 

The  Constitutional  provision  does  not  so  much  stand  in  the  way  of  the  detec- 
tion and  punishment  of  crime  of  the  lower  orders  (for  the  lower  criminals  no 
doubt  would  cunningly  add  perjury  to  their  other  crimes),  as  it  prevents  the 
obtaining  of  evidence  to  convict  those  guilty  of  offences  such  as  bribery,  grafting, 
rebating,  violation  of  laws  against  combinations  and  similar  offences,  that  threaten 
even  more  than  the  grosser  crimes  the  foundations  of  good  government  and 
good  order;  nor  so  much  even  as  it  interferes  at  times  with  the  obtaining  of 
evidence  in  civil  cases  necessary  to  the  redress  of  civil  wrongs  which  may  also 
involve  some  of  the  participants  in  liability  to  criminal  prosecution.     To  over- 


908  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  629 

come  such  interferences,  we  are  fast  acquiring  immunity  statutes,  such  as  §  4078 
granting  immunity  to  witnesses  testifying  in  actions  brought  on  bonds  of  public 
officers  or  by  the  State  or  municipahty  to  recover  pubHc  money  or  property  or 
involving  official  conduct,  and  §  4078b  relating  to  witnesses  in  actions  by  the 
State  to  recover  fees,  taxes,  penalties,  forfeitiu-es,  etc.,  from  the  railroads,  and 
§  4078d  relating  to  miscarriages,  etc.,  and  other  similar  statutes.  Cases  in  which 
such  immunity  is  claimed  have  become  somewhat  frequent  in  this  State.  A 
case  of  national  importance  involving  the  same  claim  was  the  Packers'  Case, 
U.  S.  V.  Armour,  142  Fed.  808.  The  term  "  immunity  bath"  has  become  some- 
thing of  a  reproach  to  our  criminal  procediu-e. 

We  recommend  that  this  Institute  iu"ge  upon  the  Legislature  an  amendment 
of  the  Constitution  striking  out  the  provision  that  "No  person  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself;"  and  at  the  same 
time  urge  the  enactment  of  legislation  such  as  is  suggested  by  "Exhibit  F" 
hereto  annexed. 

We  believe  that  a  resolution  to  so  amend  the  Constitution  would  fare  better 
when  submitted  to  a  vote  of  the  people  if  it  also  provided  for  legislation  for 
protection  of  the  accused  about  as  follows:  "Resolved  that  §  8,  Art.  I  of  the 
Constitution  of  Wisconsin  be  amended  by  striking  out  the  words  'nor  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself  and  inserting  in 
lieu  thereof  the  words  'Nor  shall  any  person  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself  until  he  shall  first  have  the  benefit  of  legal,  counsel 
to  be  provided  as  the  Legislature  may  enact.'  " 

Exhibit  F.  A  bill  to  amend  section  4786,  Wisconsin  Statutes.  "Section  L 
Section  4786,  Wisconsin  Statutes,  is  hereby  amended  to  read :  Section  4786.  The 
magistrate  before  whom  any.  person  is  brought  upon  a  charge  of  having  com- 
mitted an  offence  shall,  as  soon  as  may  be,  examine  the  complainant  and  the 
witnesses  to  support  the  prosecution,  on  oath,  in  the  presence  of  the  party  charged, 
in  relation  to  any  matters  connected  with  such  charge  which  may  be  deemed 
pertinent.  He  may  also  examine  the  accused  and  any  one  suspected  of  com- 
plicity in  the  offence  charged;  but  in  such  case  and  in  case  any  witness  shall 
claim  that  his  testimony  may  tend  to  incriminate  himself,  the  accused  and  any 
witness  so  claiming  shall  have  opportunity  to  prociu-e  counsel  in  attendance 
before  giving  testimony,  and  if  destitute  of  means  to  do  so,  the  magistrate  shall 
appoint  and  secure  the  attendance  of  counsel  at  the  expense  of  the  county  before 
proceeding  with  the  testimony." 

630.  Arthur  C.  Train.  Courts,  Criminals,  and  the  Camorra.  (1912.  p.  19.) 
One  of  the  most  sacred  rights  guaranteed  to  those  of  us  who  can  afford  to  pay  for 
it  under  the  law  is  that  of  not  being  compelled  to  give  evidence  against  ourselves 
or  to  testify  to  anything  which  might  degrade  or  incriminate  us.  .  .  .  Now,  this 
is  all  very  fine  for  the  chap  who  has  his  lawyer  at  his  elbow  or  has  had  some 
similar  previous  experience.  He  may  wisely  shut  up  like  a  clam  and  set  at 
defiance  the  tortures  of  the  third  degree.  But  how  about  the  poor  fellow  arrested 
on  suspicion  of  having  committed  a  murder,  who  has  never  heard  of  the  legal 
provision  in  question,  or,  if  he  has,  is  cajoled  or  threatened  into  "answering  one 
or  two  questions"?  Few  police  officers  take  the  trouble  to  warn  those  whom 
they  arrest  that  what  they  say  may  be  used  against  them.  \Miat  is  the  use?  .  .  . 
As  his  oath,  that  such  a  statement  was  voluntary,  makes  it  ipso  facto  admissible 
as  evidence,  the  statutes  providing  that  a  defendant  cannot  be  compelled  to 
give  evidence  against  himself  are  practically  nullified.  .  .  . 


No.  631  PRIVILEGED  TOPICS  909 

The  struggle  to  keep  the  peace  and  put  down  crime  is  a  hard  one  anywhere. 
It  recjuires  a  strong  arm  that  cannot  show  too  punctihous  a  regard  for  theoretical 
rights  when  prompt  decisions  have  to  he  made  and  ecjually  prompt  action  taken. 
.  .  .  From  the  time  a  man  is  arrested  until  arraignment  he  is  quizzed  and  interro- 
gated, with  a  view  to  inducing  him  to  admit  his  offence  or  give  some  evidence 
that  may  help  convict  him.  Logically,  why  should  not  a  person  charged  with  a 
crime  be  obliged  to  give  what  explanation  he  can  of  the  affair?  Why  should  he 
have  the  privilege  of  silence?  Doesn't  he  owe  a  duty  to  the  public  the  same  as 
any  other  witness?  If  he  is  innocent  he  has  nothing  to  fear;  if  he  is  guilty  — 
away  with  him!  The  French  have  no  false  ideas  about  such  things,  and  at  the 
same  time  they  have  a  high  regard  for  liberty.  They  merely  recognize  the  fact 
that  there  is  a  point  at  which  the  interest  of  the  public  and  its  liberty  is  bound 
to  conflict  with  the  interest  of  the  individual  and  his  freedom  to  do  as  he  likes. 
And  we  instinctively  recognize  this,  too,  just  as  everybody  does.  We  merely 
cheat  ourselves  into  thinking  that  our  liberty  is  something  different  from' French 
liberty  because  we  have  a  lot  of  laws  upon  our  statute  books  that  are  there  only 
to  be  disregarded  and  would  have  to  be  repealed  instantly  if  enforced. 

Take,  for  instance,  the  celebrated  provision  of  the  penal  laws  that  the  failure 
of  an  accused  to  testify  in  his  own  behalf  shall  not  be  taken  against  him.  Such 
a  doctrine  flies  in  the  face  of  human  nature.  'If  a  man  sits  silent  when  witnesses 
under  oath  accuse  him  of  a  crime,  it  is  an  inevitable  inference  that  he  has  nothing 
to  say  —  that  no  explanation  of  his  would  explain.  The  records  show  that  the 
vast  majority  of  accused  persons  who  do  not  avail  themselves  of  the  opportunity 
to  testify  are  coniicted.  Thus,  the  law  which  perviits  a  defendant  to  testify  in 
reality  compels  him  to  testify,  and  a  much  invoked  doctrine  of  liberty  turns  out 
to  be  a  privilege  in  name  only.  In  France  or  America  alike  a  man  accused  of 
ci^ime  sooner  or  later  has  to  tell  what  he  knows  —  or  take  his  medicine.  It  makes 
little  difference  whether  he  does  so  under  the  legalized  examination  of  a  "juge 
d 'instruction"  in  Paris  or  under  the  quasi-volimtary  interrogations  of  an  assistant 
district  attorney  or  police  inspector  in  New  York. 

631.  John  H.  Wig.more.  A  Treatise  on  the  System  of  Evidence  in  Trials 
at  Common  Law.  (1905.  Vol.  Ill,  §  22.51.)  Is  the  fundamental  policy  of  the 
privilege  against  self-crimination  a  sound  one?  It  has  been  over-worshipped  and 
too  liberally  applied  liy  the  Courts.  But,  assuming  these  excesses  to  be  corrected, 
is  its  fundamental  policy  correct?  It  represents  one  of  two  opposing  systems 
which  divide  the  world's  practice;  and  its  claims  cannot  be  disposed  of  by  super- 
ficial views  or  by  experiences  temporarily  unfavorable.   .   .   . 

(1)  For  the  preliminary  inquisition  of  one  not  yet  charged  with  an  offence, 
the  claims  of  the  privilege  seem  valid.  This  aspect  of  it  seems  to  have  been 
ignored  l)y  Bentham.  Yet  it  was  historically  this  situation  which  gave  rise 
to  the  privilege.  The  system  of  "inquisition,"  properly  so  called,  signifies  an 
examination  on  mere  suspicion,  without  prior  presentment,  indictment,  or  other 
formal  accusation;  and  the  contest  for  one  hundred  years  centred  solely  on  the 
abuse  of  such  a  system.  In  the  hands  of  petty  bureaucrats,  whether  vmder  James 
th§  First,  or  under  Philip  the  Second,  or  in  the  twentieth  century  under  an 
American  republic,  such  a  system  is  always  certain  to  be  abused.^     The  whole 


^  That  these  abuses  are  the  creature  of  no  one  country  or  time  may  be  seen 
from  the  extent  to  which  the  moral  instincts  of  certain  American  officers  were 
sapped  by  the  insidious  example,  set  before  them  in  the  Philippine  Islands,  of 


910  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  631 

principle  of  the  grand  jury  presupposes  a  formal  and  deliberate  accusation, 
based  on  probable  cause,  before  any  person  is  called  to  answer  for  a  crime.  No 
doubt  a  guilty  person  may  justly  be  called  upon  at  any  time,  for  guilt  deserves 
no  immunity.  But  it  is  the  innocent  that  need  protection.  Under  any  system 
which  permits  John  Doe  to  be  forced  to  answer  on  the  mere  suspicion  of  an  officer 
of  the  law,  or  on  ])ublic  rumor,  or  on  secret  betrayal,  two  abuses  have  always 
prevailed  and  inevitably  will  prevail;  first,  the  petty  judicial  officer  becomes  a 
local  tyrant  and  misuses  his  discretion  for  political  or  mercenary  or  malicious 
ends;  secondly,  a  blackmail  is  practiced  by  those  unscrupulous  members  of  the 
community  who  through  threats  of  inspiring  a  prosecution  are  able  to  prey  upon 
the  fears  of  the  weak  or  the  timid.  The  modern  system  of  formal  indictment 
needs  no  defence.  In  this  aspect  the  privilege  against  self-crimination  is,  in 
history  and  in  policy,  its  just  complement,  in  so  far  as  it  exempts  all  persons  from 
being  compelled  to  disclose  their  supposed  offences  before  formal  process  of  charge 
is  had. 

(2)  When  we  come  to  the  case  of  an  accused  duly  charged  by  indictment  and 
now  placed  on  trial,  we  reach  a  somewhat  different  set  of  considerations.  Here 
the  question  is  merely  whether  he  shall  be  required  to  disclose  all  that  he  knows 
of  the  crime  already  charged  against  him.  None  of  the  considerations  applicable 
to  the  foregoing  situations  have  hefe  any  bearing.  What  is  there  to  exempt  the 
accused  from  simple  and  straightforward  answers  of  denial,  confession,  or  explana- 
tion? There  are,  to  be  sure,  what  the  great  jurist  so  plainly  and  truly  stigma- 
tized as  the  "old  woman's  reason"  and  the  "fox-hunter's  reason;"  and  there  are 
also  the  false  shibboleths  of  torture  and  the  like,  but  these  can  only  succeed  in 
affecting  us  through  the  old  rhetorical  device  of  calling  a  thing  by  epithets  which 
do  not  belong  to  it.  So  far  as  Bentham's  argument  goes,  i.e.,  for  the  individual 
case,  it  is  irrefutable.  Assuming  this  man  to  be  guilty,  there  is  no  good  reason 
to  exempt  him. 

There  is  no  escape  from  this  fundamental  truth,  so  long  as  we  confine  ourselves 
to  the  assumption  on  which  it  rests.  That  assumption  is  that  the  person  charged 
is  guilty.  But  assume  him  innocent,  and  a  different  problem  is  presented,  —  a 
problem  to  which  Bentham's  arguments  did  not  do  justice.  The  truth  is  that  the 
privilege  exists  for  the  sake  of  the  innocent,  —  or  at  least  for  reasons  irrespective 
of  the  guilt  of  the  accused.  The  real  objection  is  that  any  system  which  permits  the 
■prosecution  to  trust  habitually  to  compidsory  self -disclosure  as  a  source  of  proof  mu.st 
itself  suffer  morally  thereby.  The  inclination  develops  to  rely  mainly  upon  such 
evidence,  and  to  be  satisfied  with  an  incomplete  investigation  of  the  other  sources. 
"It  is  far  pleasanter, "  said  the  officer  in  India  to  Sir  J.  Stephen  (quoted  above) 
"to  sit  comfortably  in  the  shade,  rubbing  red  pepper  into  a  poor  devil's  eyes, 
than  to  go  about  in  the  sun  hunting  up  evidence."  The  exercise  of  the  power  to 
extract  answers  begets  a  forgetfulness  of  the  just  limitations  of  that  power. 
The  simple  and  peaceful  process  of  questioning  breeds  a  readiness  to  resort  to 
bullying  and  to  physical  force  and  torture.  If  there  is  a  right  to  an  answer,  there 
soon  seems  to  be  a  right  to  the  expected  answer,  —  that  is,  to  a  confession  of  guilt. 
Thus  the  legitimate  use  grows  into  the  unjust  abuse;  ultimately,  the  innocent 


the  so-called  "water-cure"  for  extracting  information.  Of  deplorable  degen- 
eracies, the  most  remarkable  instance  is  that  sons  of  the  American  Commonwealth 
should  have  attempted  publicly  to  defend  this  cowardly  practice,  which  made 
martyrs  of  its  victims  and  degraded  its  practitioners  to  the  brutal  level  of  Alva 
and  his  cohorts. 


No.  631  PRIVILEGED  TOPICS  911 

are  jeopardized  by  the  encroachments  of  a  bad  system.  Such  seems  to  have 
been  the  course  of  experience  in  those  legal  systems  where  the  privilege  was  not 
recognized. 

The  insidious  effects  of  the  practice  in  this  respect  may  be  seen  in  the  Iiistory 
of  the  Holy  Inquisition.  Although  the  rules  of  the  ordinary  penal  law  of  the 
church,  even  in  "ex  officio"  incjuisitions,  declared  a  confession  insufficient  per  se 
for  condemnation,  and  hedged  it  about  with  rules,  yet  as  soon  as  these  rules  were 
relaxed  in  the  special  procedure  of  the  Holy  Inquisition,  the  whole  effort  degener- 
ated into  the  procurement  of  a  confession.^  "A  confession  dispensed  with  all 
other  investigation  and  all  further  proceedings  either  by  the  party-accuser  (when 
the  cause  was  begun  by  complaint)  or  by  the  judge  (when  it  was  "  ex  officio  "). 
One  can  thus  understand  with  what  zeal  it  was  sought  for  in  inciuisitional 
proceedings."  ^ 

It  may  be  conceded  that  the  Continental  practice  is  efficacious  in  detecting 
guilt.  But  it  must  also  be  conceded  that  it  leads  to  or  is  found  unitejl  with  a 
spirit  of  petty  judicial  license  and  browbeating,  dangerous  to  innocence,  and 
capable  of  great  abuses  in  our  own  community,  if  it  once  obtained  a  sanction. 
For  the  sake,  then,  not  of  the  guilty,  but  of  the  innocent  accused,  and  of  conserva- 
tive and  healthy  principles  of  judicial  conduct,  the  privilege  should  be  preserved. 


^  Esmein,  History  of  Continental  Criminal  Procedure,  passim  (1913,  transl. 
Simpson;  Continental  Legal  History  Series,  Vol.  V,  Little,  BrowTi,  &  Co.). 
^  Tanon,  Histoire  dps  tribunaux  de  Vinquisition  en  France,  p.  358. 


912  BOOK   i:     RULES    OF   .U)MISSIBILITY  No.  633 


SUB-TITLE   III.     PRIVILEGED    RELATIONS 

633.  Introductoky.  In  general  the  mere  fact  that  a  couimunication  was 
made  in  express  confidence,  or  in  the  imphed  confidence  of  a  confidential  relation, 
does  not  create  a  privilege.  This  rule  is  not  questioned  today.  No  pledge  of 
privacy,  nor  oath  of  secrecy,  can  avail  against  demand  for  the  truth  in  a  court 
of  justice.  Accordingly,  a  confidential  communication  to  a  clerk,  to  a  trustee, 
to  a  commercial  agency,  to  a  banker,  to  a  journalist,  or  to  any  other  person  not 
holding  one  of  the  specific  relations  hereafter  considered,  is  not  privileged  from 
disclosure. 

But  this  was  not  always  so.  In  the  trials  of  the  1600s,  the  obligations  of 
honor  among  gentlemen  (and  the  English  bench  and  bar  were  peculiarly  domi- 
nated by  that  standard)  were  often  put  forward  as  a  sufficient  ground  for  main- 
taining silence.  By  the  middle  of  the  1700s  it  seemed  as  though  this  notion  would 
prevail,  at  any  rate  in  certain  worthy  cases.  The  same  point  of  view  is  also  plain 
at  that  time  in  the  treatment  of  the  privilege  for  attorney  and  client,  which  was 
then  supposed  to  rest  upon  the  honorable  obligations  of  the  attorney,  rather 
than  upon  objective  considerations  of  policy.  But  a  stricter  view  of  justice  finally 
dominated,  and  in  the  notorious  Duchess  of  Kingston's  Case  ^  the  older  point  of 
view  was  definitely  abandoned  and  the  new  one  thoroughly  promulgated. 

Since  any  privilege  is  an  exception  to  the  general  liability  of  every  person  to 
give  testimony  to  all  facts  inquired  of  in  a  court  of  justice,  and  since  preponderance 
of  extrinsic  policy  alone  can  justify  the  recognition  of  any  such  exception,  four 
fundamental  conditions  may  be  predicated  as  necessary  to  the  establishment  of  a 
privilege  against  the  disclosure  of  communications  between  persons  standing  in  a 
given  relation.  (1)  The  communications  must  originate  in  a  confidence  that  they 
will  not  be  disclosed;  (2)  This  element  of  confidentiality  must  be  essential  to  the 
full  and  satisfactory  maintenance  of  the  relation  between  the  parties;  (3)  The 
relation  must  be  one  which  in  the  opinion  of  the  community  ought  to  be  sedulously 
fostered;  and  (4)  The  injury  that  would  inure  to  the  relation  by  the  disclosure  of 
the  communications  must  be  greater  than  the  benefit  thereby  gained  for  the  correct 
disposal  of  litigation. 

These  four  conditions  being  present,  a  privilege  may  be  recognized;  and  not 
otherwise.  That  they  are  present  in  most  of  the  recognized  privileges  is  plain 
enough;  and  the  absence  of  one  or  more  of  them  serves  to  explain  why  certain 
privileges  have  failed  to  obtain  the  recognition  sometimes  demanded  for  them. 
In  the  privilege  for  communications  between  Attorney  and  Client,  for  example, 
all  four  are  present;  and  the  doubt  which  Bentham  has  raised  as  to  the  policy  of 
that  privilege  fixes  upon  the  only  condition  therein  open  to  dispute,  namely,  the 
fourth.  In  the  privilege  for  communications  between  Husband  and  Wife,  all 
four  conditions  are  again  present;  and  the  chief  variance  of  judicial  opinion  in 
defining  the  privilege  {i.e.,  in  holding,  as  some  do,  that  the  protection  extends 
to  all  communications,  or,  as  others  do,  to  confidential  communications  only) 
is  due  to  a  question  as  to  the  fulfilment  of  the  first  condition.  In  the  privileges 
for  communications  between  Jurors  and  between  Informer  and  Government,  the 
four  conditions  are  clearly  present.  In  the  privilege  (denied  at  common  law)  for 
communications  between  Physician  and  Patient,  the  fallacy  of  recognizing  it  lies 

^  1776;  20  How.  St.  Tr.  586. 


No.  637  PRIVILEGED    RELATIONS  913 

in  the  incorrect  assumption  tliat  the  second  condition  is  generally  present.  In 
the  privilege  (doubted  at  common  law)  for  communications  between  Priest  and 
Penitent,  the  objection  to  its  recognition  has  probably  lain  in  a  tacit  denial  (in 
England)  of  the  third  condition.  In  the  privilege  (sometimes  urged)  for  commu- 
nications sent  by  telegraph,  the  reluctance  to  recognize  it  has  apparently  been 
due  to  a  perception  that  no  one  of  the  four  conditions  is  thoroughly  fulfilled. 

These  four  conditions  must  serve  as  the  foimdation  of  policy  for  determining 
all  such  privileges,  whether  claimed  or  established. 


Topic  1.    Attorney  and  Client 

635.  Greenough  v.  Gaskell.  (1833.  Chancery.  1  Myl.  &  K.  98,  103.) 
Brougham,  L.  C.  —  The  foundation  of  this  rule  is  not  difficult  to  discover.  It 
is  not  (as  has  sometimes  been  said)  on  account  of  any  particular  importance  which 
the  law  attributes  to  the  business  of  legal  professors,  or  any  particular  disposition 
to  afford  them  protection  (though  certainly  it  may  not  be  very  easy  to  discover 
why  a  like  privilege  has  been  refused  to  others,  and  especially  to  medical  advisers). 
But  it  is  out  of  regard  to  the  interests  of  justice,  which  cannot  be  upholden,  and 
to  the  administration  of  justice,  which  cannot  go  on  without  the  aid  of  men  skilled 
in  jurisprudence,  in  the  practice  of  the  Courts,  and  in  those  matters  affecting 
rights  and  obligations  which  form  the  subject  of  all  judicial  proceedings.  If  the 
privilege  did  not  exist  at  all,  every  one  would  be  thrown  upon  his  own  legal 
resources.  Deprived  of  all  professional  assistance,  a  man  would  not  venture  to 
consult  any  skillful  person,  or  would  only  dare  to  tell  his  counsellor  half  his 
case.  ... 

636.  Anderson  i\  Bank.  (1876.  Chancery.  L.R.2Ch.D.644,649.)  Jessel, 
M.  II.  —  The  object  and  meaning  of  the  rule  is  this :  That  as,  by  reason  of  the 
complexity  and  difficulty  of  our  law,  litigation  can  only  be  properly  conducted 
by  professional  men,  it  is  absolutely  necessary  that  a  man,  in  order  to  prosecute 
his  rights  or  defend  himself  from  an  improper  claim,  should  have  recourse  to 
the  assistance  of  professional  lawyers,  and  it  being  so  absolutely  necessary,  it  is 
equally  necessary,  to  use  a  vulgar  phrase,  that  he  should  be  able  to  make  a  clean 
breast  of  it  to  the  gentleman  whom  he  consults  with  a  view  to  the  prosecution  of 
his  claim,  or  the  substantiating  his  defence  against  the  claim  of  others;  that  he 
should  be  able  to  place  unrestricted  and  imbounded  confidence  in  the  professional 
agent,  and  that  the  communications  he  so  makes  to  him  should  be  kept  secret, 
unless  with  his  consent  (for  it  is  his  privilege,  and  not  the  privilege  of  the  con- 
fidential agent),  that  he  should  be  enabled  properly  to  conduct  his  litigation. 
That  is  the  meaning  of  the  rule. 

637.  Statutes.  California  (C.  C.  P.  1872,  §  1881).  There  are  particular 
relations  in  which  it  is  the  policy  of  the  law  to  encourage  confidence  and  to  pre- 
serve it  inviolate;  therefore  a  person  cannot  be  examined  as  a  witness  in  the 
following  cases:  ...  2.  An  attorney  cannot,  without  the  consent  of  his  client, 
be  examined  as  to  any  communication  made  by  the  client  to  him,  or  his  advice 
given  thereon  in  the  course  of  professional  employment;  [amended  by  the  Com- 
missioners in  1901  by  adding]:  nor  can  an  attorney's  secretary,  stenographer,  or 
clerk,  be  examined,  without  the  consent  of  his  employer,  concerning  any  fact  the 
knowledge  of  which  has  been  acquired  in  such  capacity;   but  no  communication 


914  BOOK  i:     RULES   OF   .U)MISSIBILITY  No.  637 

is  privileged  under  this  subdivision  when  the  same  was  made  with  the  intention 
that  it  should  be  communicated  to  any  person  having  an  interest  adverse  to  the 
client,  or  when  the  same  was  made  in  furtherance  of  a  crime  or  fraud  then  being 
perpetrated  or  in  contemplation. 

Ibid.,  §  1882  [added  by  amendment  of  the  Commissioners  in  1901] :  Consent  to 
the  giving  of  such  testimony  as  is  mentioned  in  section  1881  is  conclusively  implied 
in  the  following  cases:  1.  When  the  person  who  made  any  communication  men- 
tioned in  that  section  testifies,  without  objection  on  his  part,  as  to  such  com- 
munication or  any  part  thereof,  the  person  to  whom  such  communication  was 
made  may  be  examined  fully,  in  the  same  action  or  proceeding,  as  to  such  com- 
munication; 2.  When  a  person  employs  an  attorney  to  prepare  his  will,  the 
attorney  may,  in  any  proceeding  for  the  p'  obate  or  revocation  of  probate  of  such 
will,  testify,  as  to  the  contents  of  such  will  if  lost  or  destroyed,  and  as  to  all 
information  and  instructions  received  by  him  from  the  testator,  in  the  course 
of  the  preparation  or  execution  of  such  will,  and  relating  thereto. 


638.    CRAIG  dem.  ANNESLEY  v.   ANGLESEA 

Exchequer,  Ireland.     1743 

17  Howell's  State  Trials,  1139,  1225,  1229 

[The  preliminary  facts  of  this  case  are  stated  ante,  No.  267.  It  was 
proposed  to  show  that  the  defendant.  Marquis  of  Anglesea,  by  support- 
ing the  criminal  prosecution  for  murder  against  the  plaintiff,  James 
Annesley,  had  tried  to  put  the  plaintiff  out  of  the  way,  and  had  expressed 
such  plans  in  an  interview  with  Mr.  Giffard,  a  solicitor.  This  solicitor 
had  often  been  employed  by  the  defendant,  but  for  six  months  had  had 
no  affairs  of  his  in  hand,  and  did  not  expect  to  be  employed  again.  On 
May  1  the  plaintiff  had  killed  a  person,  —  by  accident,  as  he  claimed. 
On  May  2,  the  defendant,  hearing  of  it,  sent  for  Mr.  Giffard,  and  told 
him  to  go  and  conduct  the  prosecution,  not  disclosing  the  defendant's 
name,  and  incidentally  made  certain  remarks,  now  offered  in 
evidence.] 

Mr.  Harward  (of  counsel  for  the  plaintiff).  My  lord,  the  conversa- 
tion Mr.  Giffard  had  with  lord  Anglesea  was  to  this  purpose;  Mr.  Gif- 
fard is  an  attorney  of  reputation  in  England,  and  as  such  has  been  twenty 
years  or  thereabouts  employed  by  this  noble  earl  in  his  business,  as  he 
had  occasion  for  him.  When  my  unfortunate  client  w^as  to  be  tried  at 
the  Old  Bailey,  that  was  the  time  lord  Anglesea  had  greatest  occasion 
for  this  Mr.  Giffard ;  and  it  will  appear  to  your  lordship  that  lord  Angle- 
sea disclosed  his  intentions  to  him  in  this  manner:  "I  am  advised  that 
it  is  not  prudent  for  me  to  appear  publicly  in  the  prosecution,  but  I 
would  give  10,000/.  to  have  him  hanged.  Mr.  Jans  my  agent  shall 
always  attend  you.  I  am  in  great  distress;  I  am  worried  by  my  wife 
in  Ireland;  Mr.  Charles  Annesley  is  at  law  with  me  for  part  of  my 
estate,  and,"  says  he,  "  If  I  cannot  hang  James  Annesley,  it  is  better  for 


No.  638  PRIVILEGED   RELATIONS  915 

me  to  quit  this  kingdom  and  go  to  France,  and  let  Jemmy  have  his 
right,  if  he  will  remit  me  into  France  3,000/.  a  year;  I  will  learn  French 
before  I  go." 

Mr.  Daly  (of  counsel  for  the  defendant)  objects  to  Mr.  Giffard's 
being  examined,  since  as  an  attorney  he  was  to  keep  the  secrets  of  his 
client,  and  if  he  is  a  gentleman  of  character,  he  will  not,  and  as  an  attor- 
ney he  ought  not  to  disclose  them. 

Mr.  Recorder  (for  the  defendant).  My  lord,  formerly  persons  appeared 
in  court  themselves;  but  as  business  multiplied  and  became  more  intri- 
cate and  titles  more  perplexed,  both  the  distance  of  places  and  the 
multiplicity  of  business  made  it  absolutely  necessary  that  there  should 
be  a  set  of  people  who  should  stand  in  the  place  of  suitors,  and  these  per- 
sons are  called  attornies.  Since  this  has  been  thought  necessary,  all 
people  and  all  courts  have  looked  upon  that  confidence  between  the 
party  and  attorney  to  be  so  great  that  it  would  be  destructive  to  all 
business  if  attornies  were  to  disclose  the  business  of  their  clients.  In 
many  cases  men  hold  their  estates  without  titles;  in  others,  by  such 
titles,  if  their  deeds  could  be  got  out  of  their  hands,  they  must  lose  their 
fortunes.  When  persons  become  purchasers  for  valuable  considerations, 
and  get  a  deed  that  makes  against  them,  they  are  not  obliged  to  dis- 
close whether  they  have  that  deed.  Now,  if  an  attorney  has  to  be  exam- 
ined in  every  case,  what  man  would  trust  an  attorney  with  the  secret  of 
his  estate,  if  he  should  be  permitted  to  offer  himself  as  a  witness?  If 
an  attorney  had  it  in  his  option  to  be  examined,  there  would  be  an 
entire  stop  to  business;  nobody  would  trust  an  attorney  with  the  state 
of  his  affairs.  The  reason  why  attornies  are  not  to  be  examined  to 
anything  relating  to  their  clients  or  their  affairs  is  because  they  would 
destroy  the  confidence  that  is  necessary  to  be  preserved  between  them. 
This  confidence  between  the  employer  and  the  person  employed,  is  so  sa- 
cred a  thing,  that  if  they  were  at  liberty,  when  the  present  cause  was  over 
that  they  were  employed  in,  to  give  testimony  in  favour  of  any  other 
person,  it  would  not  answer  the  end  for  which  it  was  instituted.  The 
end  is,  that  persons  with  safety  may  substitute  others  in  their  room; 
and  therefore  if  you  cannot  ask  me,  you  cannot  ask  that  man;  for 
everything  said  to  him,  is  as  if  I  had  said  it  to  myself,  and  he  is  not  to 
answer  it. 

Mr.  Prime  Sergeant  Malone  (for  the  defendant):  The  mutual  con- 
fidence between  client  and  attorney  require  the  preservation  of  secrecy; 
and  as  the  client  cannot  be  supposed  to  be  qualified  to  distinguish  what 
is,  or  is  not  necessary  to  his  cause,  if  he  should  be  mistaken,  and  entrust 
his  attorney  with  what  the  attorney  should  be  of  opinion  was  unneces- 
sary, yet  surely  his  attorney  ought  not  to  reveal  it.  As  clients  are  not 
versed  in  law  affair^,  they  must  be  informed  by  their  attorney,  for 
which  purpose  they  must  tell  them  their  whole  case,  and  this  necessity 
creates  a  confidence  between  them.  .  .  .  There  seems  to  be  no  differ- 
ence whether  the  conversation  relates  to  the  principal  cause  in  which 


916  BOOK   l:     RULES   OF  ADMISSIBILITY  No.  638 

the  attorney  is  concerned,  or  to  a  collateral  action,  in  which  he  is  not; 
it  is  in  either  case  grounded  on  the  confidence  that  arises  from  the  attor- 
ney's being  employed,  and  therefore  ought  not  to  be  disclosed. 

Mr.  Serjeant  Tisdall  (for  the  plaintiff).  If  he  is  employed  as  an 
attorney  in  any  unlawful  or  wicked  act,  his  duty  to  the  public  obliges 
him  to  disclose  it;  no  private  obligations  can  dispense  with  that  univer- 
sal one,  which  lies  on  every  member  of  the  society,  to  discover  every 
design  which  may  be  formed,  contrary  to  the  laws  of  the  society,  to 
destroy  the  public  welfare.  For  this  reason  I  apprehend,  that  if  a  se- 
cret, which  is  contrary  to  the  public  good,  such  as  a  design  to  commit 
treason,  murder,  or  perjury,  comes  to  the  knowledge  of  an  attorney 
even  in  a  cause  wherein  he  is  concerned,  the  obligation  to  the  public 
must  dispense  with  the  private  obligation  to  the  client. 

Mr.  Harward  (for  the  plaintiff).  I  take  the  distinction  to  be,  that 
w^here  an  attorney  comes  to  the  knowledge  of  a  thing  that  is  "  malum  in 
se,"  against  the  common  rules  of  morality  and  honesty,  though  from  his 
client,  and  necessary  to  procure  success  in  the  cause,  yet  it  is  no  breach 
of  trust  in  him  to  disclose  it,  as  it  can't  be  presumed  an  honest  man 
would  engage  in  a  trust  that  by  law  prevented  him  from  discharging 
that  moral  duty  all  are  bound  to,  nor  can  private  obligation  cancel  the 
justice  owing  by  us  to  the  public. 

Bowes,  L.  C.  B.  .  .  .  Admitting  the  policy  of  the  law  in  protect- 
ing secrets  disclosed  by  the  client  to  his  attorney,  to  be,  as  has  been 
said,  in  favour  of  the  client,  and  principally  for  his  service,  and  that 
the  attorney  is  "in  loco"  of  the  client,  and  therefore  his  trustee,  does 
it  follow  from  thence,  that  ever\i;hing  said  by  a  client  to  his  attorney 
falls  under  the  same  reason?  I  own,  I  think  not;  because  there  is  not 
the  same  necessity  upon  the  client  to  trust  him  in  one  case  as  in  the 
other;  and  of  this  the  Court  may  judge,  from  the  particulars  of  the  con- 
versation. Nor  do  I  see  any  propriety  in  supposing  the  same  person 
to  be  trusted  in  one  case  as  an  attorney  or  agent,  and  in  another  as  a 
common  acquaintance.  .  .  .  But  where  the  client  talks  to  him  at  large 
as  a  friend,  and  not  in  the  way  of  his  profession,  I  think  the  Court  is 
not  under  the  same  obligations  to  guard  such  secrets,  though  in  the 
breast  of  an  attorney. 

MouNTENEY,  B. — Mi*.  Recorder  hath  very  properly  mentioned  the 
foundation  [of  the  privileges]  .  .  .  that  an  increase  of  legal  business, 
and  the  inabilities  of  parties  to  transact  that  business  themselves,  made 
it  necessary  for  them  to  employ  (and  as  the  law  properly  expresses  it, 
"ponere  in  loco  suo")  other  persons  who  might  transact  that  business 
for  them;  that  this  necessity  introduced  with  it  the  necessity  of  what 
the  law  hath  very  justly  established,  an  inviolable  secrecy  to  be  observed 
by  attornies,  in  order  to  render  it  safe  for  clients  to  communicate  to  their 
attornies  all  proper  instructions  for  the  carrying  on  those  causes  which 
they  found  themselves  under  a  necessity  of  intrusting  to  their  care. 

If  this  original  principle  be  kept  constantly  in  view,  I  think  it  cannot 


No.  638  PRIVILEGED    RELATIONS  9^7 

be  difficult  to  determine  either  the  present  question  or  any  other  which 
may  arise  upon  this  head;  for  upon  this  principle,  whatever  either  is, 
or  b}'  the  party  concerned  can  naturally  be  supposed,  yieccssary  to  be  com- 
municated to  the  attorney  in  order  to  the  carrying  on  any  suit  or  prose- 
cution in  which  he  is  retained,  —  that  the  attorney  shall  inviolably  keep 
secret.  On  the  other  hand,  whatever  is  not,  nor  can  possibly  by  any 
man  living  be  supposed  to  be,  necessary  for  that  purpose,  that  the  attor- 
ney is  at  liberty,  and  in  many  cases  —  as  particularly,  I  think,  in  the 
present  case  —  the  attorney  ought  to  disclose.  .  .  . 

For  God's  sake,  then,  let  us  consider,  what  will  be  the  consequence 
of  the  doctrine  now  laid  down  [by  the  defendant]  and  so  earnestly  con- 
tended for,  that  such  a  declaration  made  by  any  person  to  his  attorney, 
ought  not  by  that  attorney  to  be  proved?  A  man  (without  any  natural 
call  to  it)  promotes  a  prosecution  against  another  for  a  capital  offence; 
he  is  desirous  and  determined,  at  all  events,  to  get  him  hanged;  he 
retains  an  attorney  to  carry  on  the  prosecution,  and  makes  such  a 
declaration  to  him  as  I  have  before  mentioned  (the  meaning  and  inten- 
tion of  which,  if  the  attorney  hath  common  understanding  about  him, 
it  is  impossible  he  should  mistake);  he  happens  to  be  too  honest  a  man 
to  engage  in  such  an  affair;  he  declines  the  prosecution;  but  he  must 
never  discover  this  declaration,  because  he  was  retained  as  an  attorney. 
This  prosecutor  applies  in  the  same  manner  to  a  second,  a  third,  and  so 
on,  who  still  refuse,  but  are  still  to  keep  this  inviolably  secret.  At  last, 
he  finds  an  attorney  wicked  enough  to  carry  this  iniquitous  scheme  into 
execution.  And  after  all,  none  of  these  persons  are  to  be  admitted  to 
prove  this,  in  order  either  to  bring  the  guilty  party  to  condign  punish- 
ment, or  to  prevent  the  evil  consequences  of  his  crime  with  regard  to 
civil  property.  Is  this  law?  Is  this  reason?  I  think  it  is  absolutely 
contrary  to  both.  .  .  .  The  declaration  now  offered  to  be  proved  is  of 
that  nature,  and  so  highly  criminal,  that,  in  my  opinion,  mankind  is 
interested  in  the  discovery;  and  whoever  it  was  made  to,  attorney  or 
not  attorney,  lies  under  an  obligation  to  society  in  general,  prior  and 
superior  to  any  obligation  he  can  lie  under  to  a  particular  individual, 
to  make  it  known. 

Dawson,  B.  .  .  .  Nothing  that  came  properly  to  the  knowledge  of 
the  attorney  in  defence  of  his  client's  cause  ought  to  be  revealed.  I 
will  suppose  an  unknowing  man  to  have  twenty  deeds  by  him,  and  he 
delivers  them  all  to  his  attorney  to  see  which  were  relative  to  the  suit; 
he  looks  them  over,  and  finds  not  half  of  them  to  be  relative  thereto. 
I  apprehend  the  attorney  is  not  compellable  to  disclose  the  contents  of 
any  one  of  those  deeds.  .  .  . 

And  I  think,  the  Court  must,  in  this  case  be  satisfied,  first,  that  what 
came  to  this  man's  knowledge  was  not  necessary  to  his  client's  affairs; 
and  in  the  next  place,  that  the  client  could  not  think  it  necessary.  .  .  . 
The  motive  for  carrying  on  the  prosecution  against  the  plaintiff  is  said 
to  be,  because  he  has  a  right  to  the  estate  the  defendant  was  in  pos- 


91^  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  638 

session,  of.  Can  any  man  think  that  this  was  necessary  to  tell  the 
attorney,  or  that  the  defendant  could  have  thought  it  so?  What  was 
necessary,  or  what'  a  man  might  have  thought  necessary,  ought  not  to  be 
disclosed.  But  if  the  defendant  in  this  case  had  done  anything  further, 
he  has  trusted  him,  not  as  an  attorney,  but  as  an  acquaintance. 

Evidence  admitted. 


639.     HATTON  v.   ROBINSON 

Supreme  Judicial  Court  of  Massachusetts.     1833. 

14  Pick.  416 

Trespass  for  taking  two  mares,  a  chaise  and  chaise  harness.  The 
defendant  pleaded  the  general  issue,  and  filed  a  brief  statement  alleg- 
ing that  he  attached  them  as  the  property  of  David  Winch.  At  the 
trial,  before  Wilde,  J.,  it  appeared,  that  the  plaintiff  claimed  the  prop- 
erty under  a  bill  of  sale  from  Winch.  The  defendant  to  prove  the  bill 
of  sale  fraudulent,  offered  in  evidence  the  deposition  of  Samuel  Ames, 
Esq.,  a  counsellor  at  law  in  Providence.  The  plaintiff  objected  to  the 
admission  of  the  deposition,  on  the  ground  that  Mr.  Ames  was  em- 
ployed in  the  transaction  testified  to  by  him,  as  the  attorney  of  Winch 
and  the^  plaintiff ,  and  that  all  he  knew  in  relation  to  it,  was  communi- 
cated to  him  in  that  capacity.  The  only  evidence  that  Mr.  Ames  was  so 
employed,  was  the  deposition  in  question.  Mr.  Ames,  in  his  deposi- 
tion, testified  that  on  April  6,  1831,  Winch  desired  him  to  draw  a  con- 
veyance of  certain  property  attached  to  the  Fenner  tavern  stand  in 
Providence,  to  the  plaintiff,  to  whom  he  had  contracted  to  sell  it;  that 
he  accordingly  drew  the  conveyance;  that  his  impression  was,  that  a 
small  portion  of  the  consideration  was  to  be  paid  very  soon,  but  that  the 
residue,  amounting  to  the  sum  of  S400  or  $500,  was  secured  to  Winch 
by  the  plaintiff's  negotiable  note  indorsed  by  one  Wesson,  which  note 
also  the  deponent  drew.  The  deponent  further  testified,  that  on  April 
30,  1831,  Winch  again  called  upon  him,  and  informed  him,  that  he  was 
about  to  leave  Providence  with  the  purpose  of  residing  in  the  State  of 
New  York;  that  he  owed  old  debts  in  Massachusetts  to  a  much  larger 
amount  than  the  value  of  his  property;  that  he  also  owed  a  consider- 
able sum  in  Providence,  for  which  he  was  recently  indebted;  that  his 
intention  was,  to  convert  what  salable  property  he  had,  particularly  a 
pair  of  horses  and  a  carriage  or  carriages,  into  money,  as  soon  as  he 
could  obtain  a  fair  price  for  them,  and  with  the  proceeds  to  pay  his 
Providence  creditors;  and  that  in  the  meantime  his  Massachusetts 
creditors  pressed  him,  and  as  soon  as  he  left  Rhode  Island  for  New 
York,  would  imdoubtedly  attach  and  sacrifice  his  horses  and  carriage  or 
carriages.  The  deponent  further  testified,  that  he  understood  Winch, 
that  he  had  left  them  with  the  plaintiff  for  sale,  with  the  intention  from 


No.  639  PRIVILEGED    RELATIONS  919 

the  proceeds  from  the  sale,  to  give  preference  to,  and  pay  his  Providence 
creditors,  and  that  he  wished  to  cover  them,  as  far  as  possible,  from 
attachment  by  his  Massachusetts  creditors;  that,  on  the  whole,  as  Winch 
had  come  from  Massachusetts  poor,  and  the  credits  he  had  obtained  in 
Providence  had  been  the  means  of  his  acquiring  what  little  property 
he  had,  the  deponent  thought  his  preference  of  his  Providence  credi- 
tors would  not  be  unfair,  and  accordingly  informed  him,  that  he  was  will- 
ing to  draw  a  mortgage  deed  from  him  of  the  horses,  carriage  or  carriages, 
to  any  person  he  might  select;  that  Winch  said,  that  he  had  perfect  con- 
fidence in  the  plaintiff,  and  that  the  deponent  accordingly  drew  such  a 
mortgage  deed.  .  .  . 

The  objection  to  the  admission  of  this  deposition  was  overruled,  and 
the  plaintiff  thereupon  became  nonsuit.  If  this  ruling  was  wrong,  the 
nonsuit  was  to  be  taken  off,  and  a  new  trial  granted;  otherwise,  judg- 
ment was  to  be  rendered  on  the  nonsuit. 

The  cause  was  argued  in  writing. 

Merrick  and  Bottom  for  the  plaintiff.  .  .  .  Where  counsel  are  con- 
sulted as  to  what  will  the  be  legal  effect  and  consequences  of  any  par- 
ticular instrument  of  conveyance,  they  are  as  much  guarding  the  rights 
of  their  clients  and  protecting  their  property,  as  when  litigation  is  actu- 
ally in  progress;  and  communications  made  by  clients,  in  both  cases, 
are  entitled  to  the  same  privileges.  The  current  of  the  decisions,  and 
all  the  elementary  treatises,  put  the  rule  strictly  on  the  ground  of  pro- 
fessional consultation.  They  do  not  limit  it  to  consultations  on  ques- 
tions in  actual  or  immediately  contemplated  litigation.  It  is  the 
character  of  the  communication  which  is  to  be  considered.  .  .  . 

Neivton,  Lincoln  and  Child  for  the  defendants.  ...  It  is  a  forced 
construction  of  this  deposition  to  infer  from  it,  that  any  application 
was  made  by  Winch  for  legal  advice  in  the  defence  of  any  suit.  None 
w^as  then  pending,  and  it  was  only  among  the  events  which  were  pos- 
sible, that  any  suits  would  be  instituted.  Winch  certainly  could  not 
have  asked  legal  advice,  whether  his  creditors  could  commence  suits. 
It  was  not  his  purpose  to  defend,  if  they  were  commenced.  The  con- 
veyance of  property  would  not  affect,  in  any  manner,  the  right  of  any 
creditor  to  recover  judgment  for  his  debt,  although  it  might  defeat  the 
collection  of  it.  It  does  not  appear,  that  Winch  asked  legal  advice  of 
Mr.  Ames,  on  any  subject,  or  that  the  latter  gave  any  legal  advice;  and 
the  burden  of  proof  is  on  the  plaintiff,  to  show  that  Mr.  Ames  acted  in  a 
professional  capacity.  The  business  could  have  been  done  as  well  by 
any  other  person  as  by  an  attorney  at  law.  .  .  . 

Shaw,  C.  J.  — The  only  question  for  the  Court  in  the  present  case, 
is,  whether  the  deposition  of  Mr.  Ames  was  properly  admitted  in  evi- 
dence; and  this  depends  upon  the  further  question,  whether  the  matters 
testified  to  by  him  were  to  be  considered  as  within  the  rule  of  privi- 
leged communications.  .  .  .  There  are  many  cases,  in  which  an  attor- 
ney is  employed  in  transacting  business,  not  properly  professional,  and 


920  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  639 

where  the  same  might  have  been  transacted  by  another  agent.  In 
such  case  the  fact  that  the  agent  sustains  the  character  of  an  attorney, 
does  not  render  the  communications  attending  it,  privileged;  and  they 
may  be  testified  to  by  him,  as  by  any  other  agent. 

We  cannot  perceive  that  the  communications  were  made  to  [the 
attorney,  Mr.  Ames,]  by  Winch  with  the  purpose  of  instructing  him  in 
any  cause,  or  engaging  him  in  the  conchict  of  any  professional  business, 
or  of  obtaining  any  legal  advice  or  opinion.  If  the  disclosure  of  his  views 
and  purposes,  in  the  conveyance  of  property  proposed  to  be  drawn, 
was  not,  as  stated  in  some  of  the  books,  a  mere  "  gratis  dictum,"  the  only 
purpose  seems  to  have  been  to  satisfy  Mr.  Ames'  mind,  and  remove  any 
scruple  that  he  might  entertain,  as  to  the  character  of  the  transaction, 
and  to  convince  him,  that  whatever  might  be  the  legal  character  of  the 
act,  it  was  not  intended  with  moral  turpitude.  It  did  satisfy  him,  that 
he  was  not  to  be  engaged  in  a  conspiracy  to  cheat,  and  induced  him  to 
consent  to  draw  the  deed.  Here  was  no  legal  advice  asked,  no  opinion 
requested  as  to  the  effect  and  operation  of  such  a  conveyance  in  point 
of  law,  and  none  given.  We  are  therefore  necessarily  brought  to  the 
conclusion,  that  either  these  disclosures  were  made  without  any  par- 
ticular motive,  pr  if  there  was  a  purpose,  connected  with  the  proposed 
draft,  it  was  to  satisfy  Mr.  Ames'  mind,  upon  a  point  of  fact,  not  for 
the  information  of  his  own  in  point  of  law,  and  in  either  event  they 
are  not  to  be  deemed  privileged  communications,  which  the  witness  was 
prohibited  from  disclosing. 

The  whole  deposition  therefore  was  rightly  admitted,  and  conform- 
ably to  the  case  agreed,  the  nonsuit  must  stand. 


640.     BARNES  v.   HARRIS 
Supreme  Judicial  Court  of  Massachusetts.     1851 

7  Cush.  576 

Action  of  assumpsit  on  an  account  annexed  to  the  ^Tit. 

At  the  trial  in  the  court  of  common  pleas,  before  Hoar,  J.,  the  defend- 
ant called  Stephen  Holman,  as  a  witness,  and  proposed  to  inquire  of  him 
as  to  a  conversation  between  him  and  the  plaintiff,  which  took  place  in 
the  office  of  Milton  W^hitney,  Esq.,  an  attorney  of  this  court.,  before  the 
commencement  of  the  suit.  The  witness  having  stated  that  at  the  time 
of  the  conversation,  he  was  a  student  at  law  in  Whitney's  office;  that 
the  plaintiff  called  there  for  professional  advice;  that  he  did  not  know 
but  the  plaintiff  supposed  him  to  be  Mr.  Whitney;  and  that  the  con- 
versation was  relative  to  the  plaintiff's  claims  against  the  defendant,  as 
to  which  the  plaintiff  consulted  the  witness;  the  judge  ruled,  that  it  was 
not  competent  for  the  witness  to  testify  as  to  any  statements  then  made 
to  him  by  the  plaintiff,  for  the  purpose  of  obtaining  professional  advice. 


No.  641  PRIVILEGED   RELATIONS  921 

Whitney  was  not  present  at  the  conversation;  he  was  not  the  attorney 
for  the  plaintiff  in  this  suit;  and  it  did  not  appear  that  the  plaintiff  had 
ever  before  consulted  him.  The  jury  found  a  verdict  for  the  plaintiff, 
and  the  defendant  alleged  exceptions.  .  .  . 

Metcalf,  J.  —  The  testimony  of  the  witness  was  excluded,  prob- 
ably, either  on  the  ground  that  he  was  a  student  in  an  attorney's  office, 
and  therefore  the  communication  made  to  him  by  the  plaintiff  was 
privileged,  as  if  made  to  the  attorney  himself,  or  on  the  ground  that 
the  plaintiff  supposed  that  the  witness  was  an  attorney  at  law.  But, 
in  our  judgment,  the  testimony  ought  not  to  have  been  excluded  on 
any  ground.  .  .  .  Lord  Brougham  says,  (I  Mylne  &  Keen  103,) 
"the  rule  is  established  out  of  regard  to  the  interests  of  justice,  which 
cannot  be  upholden,  and  to  the  administration  of  justice,  which  cannot 
go  on,  without  the  aid  of  men  skilled  in  jurisprudence,  in  the  practice  of 
the  courts,  and  in  those  matters  affecting  rights  and  obligations,  which 
form  the  subject  of  all  judicial  proceedings.  If  the  privilege  did  not 
exist  at  all,  every  one  would  be  thrown  upon  his  own  legal  resources." 
Such  being  the  reason  of  the  rule  which  protects  communications  made 
to  attorneys  and  counsel,  the  Court  should  apply  the  rule  to  those  cases 
only  which  fall  within  that  reason.  And  it  is  truly  said,  in  Harrison  on 
Evidence,  36,  that  as  the  rule  operates  to  the  exclusion  of  evidence,  the 
Courts  have  always  felt  inclined  to  construe  it  strictly  and  narrow  its 
effect.  We  believe  the  rule  is  correctly  stated  in  Foster  v.  Hall,  12 
Pick.  93;  viz.  that  it  "is  confined  strictly  to  communications  to  mem- 
bers of  the  legal  profession,  as  barristers  and  counsellors,  attorneys  and 
solicitors,  and  those  whose  intervention  is  necessary  to  secure  and  facil- 
itate the  communication  between  attorney  and  client;  as  interpreters, 
agents,  and  attorneys'  clerks." 

The  witness,  in  this  case,  was  not  of  the  legal  profession,  and  though 
he  was  a  student  in  an  attorney's  office,  yet  it  does  not  appear  that  he 
was  either  the  attorney's  agent  or  clerk  for  any  purpose.  Many  stu- 
dents at  law  are  never  either  the  one  or  the  other.  Some  of  the  members 
of  this  Court  never  were.  If  the  plaintiff's  communication  was  made 
to  the  witness  in  his  capacity  as  a  student  in  Mr.  Whitney's  office,  it  is 
not  privileged;  Andrews  v.  Solomon  (Peters  C.  C.  356);  nor  if  it  was 
made  on  the  supposition  that  the  witness  was  Mr.  Whitney  or  some 
other  attorney  at  law  (Fountain  v.  Young,  6  Esp.  R.  113). 


641.    MITCHELL'S  CASE 

Common  Pleas,  New  York.     1861 

12  Abb.  Pr.  249 

Appeal  from  an  order  of  commitment  for  contempt.     Mr.  Mitchell 
was  an  attorney  and  counsellor-at-law,  and  was,  as  such,  retained  by. 


922  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  641 

and  acting  for,  one  McKechnie,  who  was  the  defendant  in  an  action 
brought  by  J.  H.  McCunn  and  J.  Moncrief,  in  the  Court  of  Common 
Pleas  for  the  city  and  county  of  New  York,  to  recover  from  McKechnie 
the  possession  of  a  certain  lot  of  land  in  that  city. 

Upon  the  trial  of  that  action  before  his  honor,  Judge  Brady,  one 
Bettz  was  examined  as  a  witness  for  the  defendant,  and  upon  examina- 
tion testified  that  he,  Bettz,  claimed  the  title  to  the  land,  that  the  defend- 
ant, McKechnie  was  his  tenant,  and  that  he,  Bettz,  was  defending  the 
action  as  landlord  of  the  defendant;  and  being  asked  whether  he  had 
in  his  possession  any  old  deeds,  leases,  or  assignments  relating  to  the 
land,  he  answered  that  he  had  received  from  his  grantors  a  certain  old 
lease  and  other  papers,  which  he  had  kept  in  his  possession  until  a  few 
days  before  the  trial,  when  he  had  delivered  them  to  John  W.  Mitchell, 
his  attorney,  and  the  attorney  of  the  defendant  in  the  action;  and  being 
asked  to  produce  the  said  old  lease  and  other  papers,  he  answered  that 
he  was  unable  to  do  so,  because  they  were  in  Mr.  Mitchell's  possession. 
Mr.  Mitchell  was  then  in  court,  acting  as  the  attorney  and  counsel  of 
the  defendant  on  the  trial.  He  was  thereupon  called  as  a  witness  by 
the  plaintiffs,  and  on  his  examination,  being  asked :  "  Have  you  in  your 
possession  any  old  leases  or  deeds  relating  to  this  property,  placed  there 
by  Mr.  Bettz?"  replied,  that  he  had  some  papers  of  Mr.  Bettz's,  but  that 
he  did  not  know  what  they  were;  and  on  being  requested  by  the  Court 
to  examine  the  papers  and  see,  he  declined  to  do  so,  objecting  on  the 
grounds  that  he  was  privileged  from  testifying  as  to  such  matters,  they 
having  come  to  his  knowledge  from  his  client,  that  he  had  not  been  sub- 
poenaed, and  that  he  had  had  no  notice  to  produce  the  papers.  During 
a  brief  siispension  of  the  proceedings  pending  this  examination,  Mr. 
Mitchell  delivered  the  bundle  of  papers  to  Mr.  Bettz,  with  a  suggestion 
that  he  carry  them  to  the  office  of  his  counsel.  After  the  proceedings 
were  resumed,  this  fact  appearing  upon  the  continued  examination  of 
Mr.  Mitchell,  the  plaintiffs  applied  for  an  attachment  for  contempt 
against  him;  but  it  was  finally  arranged  that  the  application  should  be 
suspended,  and  the  case  adjourned,  upon  a  stipulation  that  Mr.  Mitch- 
ell should  appear  on  the  adjourned  day  with  the  papers  in  the  same. 
On  the  same  day  Mr.  Mitchell  was  served  by  the  plaintiffs  with  sub- 
poena duces  tecum,  requiring  him  to  produce  the  papers  on  the  adjourned 
day.  After  the  adjournment,  the  parties  appeared  on  the  27th  of  May, 
and  Mr.  Mitchell,  being  called  to  the  stand  and  asked  if  he  had  brought 
with  him  the  bundle  of  papers  in  question,  replied  that  he  had.  Being 
requested  to  look  at  them,  and  inform  the  Court  whether  they  had 
related  to  the  lands  in  suit,  he  refused  to  do  so.  The  Court  thereupon 
ordered  the  witness  to  be  committed  for  ten  days  to  the  county  jail,  for 
contempt  of  court.     From  this  order  the  present  appeal  was  taken.  .  .  . 

Daly,  F.  J.  —  Before  the  important  change  in  the  law  requiring  a 
party  to  an  action  to  be  examined  as  a  witness  at  the  instance  of  the 
adverse  party,  the  general  principle  was  recognized,  that  no  one  in  a 


No.  641  PRIVILEGED    RELATIONS  923 

court  of  law  could  be  compelled  to  give  evidence  against  himself.  .  .  . 
The  principle  of  exemption  was  applied  in  its  broadest  extent  to  parties 
to  actions  at  law,  who  could  not  be  compelled  to  give  evidence;  and  in 
respect  to  the  production  of  documentary  testimony,  as  a  party  to  an 
action  was  not  bound  to  give  evidence,  he  could  not  be  required  to 
produce  papers  to  be  used  against  him  as  evidence;  and  if  a  paper  had 
been  deposited  by  him  with  his  attorney,  the  attorney's  possession  was 
deemed  the  possession  of  the  party,  and  the  attorney  could  not  be  re- 
quired to  produce  it,  nor  even  any  other  person  having  the  temporary 
possession  of  it  in  right  of  the  party.  If  a  document  was  in  the  pos- 
session of  the  party  to  an  action  at  law,  or  in  the  possession  of  his  attor- 
ney, all  that  could  be  done  was  to  give  him  notice  to  produce  it;  and  if  he 
failed  to  do  so,  the  other  party  was  at  liberty  to  give  secondary  evidence 
of  its  contents;  or  if  the  production  of  the  document  itself  was  essen- 
tial, and  he  would  not  .produce  it,  the  Court  would,  if  he  was  a  defendant, 
strike  out  his  answer,  or  if  a  plaintiff,  nonsuit  him  —  a  practice  intro- 
duced into  courts  of  law  from  the  Court  of  Chancery.  But  the  attor- 
ney might  be  called,  and  was  bound  to  answer  whether  or  not  he  had 
the  paper  in  his  possession,  that  the  other  party  might  be  enabled  to  give 
secondary  evidence  of  its  contents,  which  he  could  not  do  until  he  had 
first  shown  that  he  was  unable  to  produce  it;  and  though  the  attorney 
could  not  be  required  to  disclose  the  contents  of  the  paper,  his  examina- 
tion might  be  carried  at  least  so  far  as  to  show,  with  reasonable  certainty, 
that  the  document  in  his  possession  was  the  one  respecting  which  the 
other  party  proposed  to  give  evidence.  .  .  .  The  rule  was  also  well 
established,  that  neither  a  party  nor  his  legal  adviser  would  be  compelled 
in  a  court  of  justice  to  disclose  the  confidential  communication  which 
had  passed  between  them  in  respect  to  the  matter  upon  which  the  party 
had  sought  professional  advice.  The  principle  which  appears  to  have 
been  recognized  as  far  back  as  the  days  of  Elizabeth  (Cary's  R.,  127,  88, 
89),  was  not  confined  to  courts  of  law,  but  was  equally  acted  upon  by 
the  Court  of  Chancery,  where  the  aid  of  that  court  was  sought  to  compel 
a  discovery  of  evidence.  On  an  application  for  a  discovery,  a  Court  of 
equity  would  neither  compel  nor  permit  a  solicitor  to  disclose  what  his 
client  had  communicated  to  him  in  professional  confidence,  nor  compel 
the  production  of  letters  which  had  passed  between  them,  or  through 
intermediate  agents  upon  the  business,  containing  or  asking  legal  advice 
or  opinions,  nor  cases  prepared  at  the  instance  of  the  client  for  the  opin- 
ion of  the  counsel.   .   .   . 

Such  was  the  state  of  the  law  before  the  enactment  of  the  provision 
compelling  parties  to  action  to  be  examined  as  witnesses  at  the  instance 
of  an  adverse  party.  The  provision  has  brought  about  a  very  material 
change. 

1.  But  before  proceeding  to  inquire  into  the  effect  of  the  enactment 
upon  the  question  of  privilege,  it  is  very  plain,  that  by  the  law,  as  it 
stood  before  this  change  was  made,  the  conduct  of  Mr.  Mitchell  amounted 


924  BOOK    i:     RULES    OF   ADMISSIBILITY  No.  641 

to  a  contempt.  His  refusing  to  produce  papers  acknowledged  to  be  in 
his  possession,  for  the  reason  that  it  would  be  a  breach  of  his  privilege 
as  attorney  for  tlie  defendant,  was  assuming  the  right  of  determining  for 
himself  the  question  of  privilege,  which  was  not  his  province,  but  that  of 
the  Court;  and  his  disobedience  of  the  order  of  the  judge  to  produce 
them,  was  a  very  plain  case  of  contempt,  upon  the  authority  of  the  cases 
that  have  been  cited.  It  was  a  contempt  to  wilfully  deprive  the  Court  of 
the  means  of  determining  whether  the  principle  of  protection  extended 
to  the  papers  in  his  possession  or  not,  and  it  would  not  be  the  less  a  case 
of  contempt,  even  assuming  that,  upon  what  was  stated  to  the  Court,  a 
case  of  privilege  was  shown;  for  though  a  judge  should  decide  erro- 
neously upon  the  question  of  privilege,  the  order  he  makes  is  neverthe- 
less to  be  obeyed.  If  it  were  otherwise,  it  would  always  be  in  the  power 
of  a  witness  to  witlihold  evidence  whenever  he  thought  fit  to  consider 
himself  privileged. 

2.  But  Mr.  Mitchell  was  mistaken,  since  the  enactment  above 
referred  to,  in  supposing  that  he  had  any  privilege  at  all.  The  exemp- 
tion of  the  attorney  was  never  regarded  as  his  personal  privilege,  but  as 
existing  purely  for  the  protection  of  his  client.  .  .  .  He  was,  in  this 
respect,  in  the  language  of  Chief  Baron  Gilbert,  "  considered  as  one  and 
the  same  person  with  his  client"  (Gilbert  on  Evidence,  138);  and  if,  by 
a  change  in  the  law,  a  party  to  an  action  has  no  longer  any  privilege,  it 
follows  as  a  matter  of  course,  that  his  attorney  can  have  none.  The 
provision  in  question  declares,  that  "  a  party  to  an  action  may  be  exam- 
ined as  a  witness,  at  the  instance  of  the  adverse  party,  and  for  that  pur- 
pose may  be  compelled  to  testify  in  the  same  manner,  and  subject  to  the 
same  rules  of  examination,  as  any  other  witness."  This  sweeps  away 
the  rule  of  the  common  law,  that  parties  to  actions  should  not  be  com- 
pelled to  give  evidence  against  themselves;  and  every  privilege,  either 
of  the  party  of  or  his  attorney,  that  was  founded  upon  it,  is  gone.  I 
suppose  that  the  protection  that  was  extended  to  the  confidential  com- 
munications between  attorney  and  client  remains  unaffected,  as  the 
reason  upon  which  that  rule  was  founded  is  as  applicable  now  as  it  was 
before;  but  with  this  exception,  a  party  to  an  action,  or  his  attorney, 
are  no  longer  privileged  to  withhold  testimony.  A  party  to  an  action 
may  be  compelled,  by  a  subpoena  duces  tecum,  to  produce  papers  and 
documents,  upon  the  trial,  to  be  read  in  evidence.  .  .  .  When  the  Code, 
therefore,  declares  that  a  party  to  an  action  may  be  compelled  to  tes- 
tify in  the  same  manner,  and  subject  to  the  same  rules  of  examination, 
as  other  witnesses,  it  is  obvious  that  the  meaning  is,  that  whatever  may 
be  required  of  other  witnesses  may  be  required  of  him.  If  they  must 
produce  books  and  papers,  so  must  he;  and  if  he  has  placed  them  in  the 
possession  of  his  attorney,  agent,  or  any  other  person,  the  one  who  has 
them  in  actual  custody  may  be  compelled  to  bring  them  before  the 
court,  to  be  used  as  evidence.  .  .  .  The  general  rule  of  courts  of  equity 
that  wherever  the  client  may  be  called  upon  to  produce  papers,  the 


No.  642  PRIVILEGED    RELATIONS  925 

attorney,  if  they  are  in  his  possession,  may  be  required  to  produce  them, 
is  the  proper  rule,  no,w  that  parties  to  actions  are  made  witnesses. 

There  may  possibly  be  cases  in  which  the  deposit  of  a  document  with 
an  attorney  for  advice  and  counsel,  may  bring  it  within  the  rule  of  pro- 
tection; though  I  can  conceive  of  none,  if  the  client  would  himself  be 
bound,  if  he  had  it  in  his  possession,  to  produce  it  as  a  witness.  In 
this  case,  however,  there  could  be  no  pretence  that  the  papers  in  question 
were  left  by  the  witness  Bettz  with  Mitchell  for  professional  advice  and 
counsel,  as  Mitchell  declared  that  he  could  not  tell  what  they  were 
without  examining  them;  nor,  when  first  interrogated  respecting  them, 
whether  he  had  them  in  his  possession  or  not,  without  looking  into  a 
bundle  of  papers  which  he  had  with  him  in  court.  He  was,  therefore, 
either  ignorant  of  their  nature  and  contents,  or  else  he  stated  what  was 
untrue.  We  are  bound  to  presume  the  former;  and  if  he  did  not  there- 
fore know  what  they  were,  the  fact  that  they  were  left  with  him  in  pro- 
fessional confidence  would  not  protect  them.  .  .  .  Mr.  Mitchell  did 
not  declare  that  the  papers  had  been  left  with  him  by  Bettz  for  profes- 
sional advice  or  assistance,  but  he  put  his  objection  on  the  ground  that 
to  produce  them  would  be  a  breach  of  his  privilege  as  attorney  for  the 
defendant.  They  were  not  placed  in  his  hands  by  the  defendant,  but 
by  the  witness  Bettz ;  and  if  any  privilege  could  exist,  it  must  have  been 
as  the  attorney  of  Bettz,  who,  as  the  owner  of  the  land,  was  defending 
the  suit  against  his  tenant;  but  he  had  no  privilege  either  as  the  legal 
adviser  of  Bettz,  or  as  the  attorney  of  the  defendant.  Either  of  them 
could  have  been  examined  as  witnesses,  and  required,  if  they  had  the 
papers  in  their  possession,  to  produce  them;  and  he  could  have  no 
privilege  where  they  had  none. 

Upon  both  grounds,  therefore,  it  was  a  case  of  contempt:  first,  be- 
cause it  was  right  of  the  judge  to  determine  whether  there  was  any  priv- 
ilege or  not,  and  the  duty  of  the  witness  to  be  governed  by  his  decision; 
and  secondly,  because  he  had  no  privilege  entitling  him  to  withhold  the 
papers  in  his  possession  from  being  given  in  evidence. 


642.   SKINNER  v.   GREAT  NORTHERN  R.   CO. 

Exchequer.     1874 

L.  R.  9  Exch.  298 

Rule  to  vary  an  order  for  inspection,  made  at  Chambers  by  Keat- 
ing, J.,  in  an  action  brought  to  recover  damages  for  personal  injuries 
alleged  to  have  been  sustained  by  the  plaintiff  through  the  defendants' 
negligence,  whilst  he  was  traveling  as  a  passenger  on  their  line.  The 
docvmient  of  which  inspection  was  ordered  comprised,  amongst  others, 
two  reports,  dated  respectively  the  15th  of  December,  1873,  and  the 
4th  of  February,  1874,  made  to  the  defendants  by  Mr.  Jackson,  their 


926  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  G42 

medical  officer,  after  examining  the  plaintiff.  The  examinations  to  which 
the  reports  referred  were  held,  and  the  reports  were  made,  before  any 
action  had  been  commenced  or  any  communication  made  by  the  plain- 
tiff's attorney,  but  after  a  claim  for  compensation  had  been  made  by  the 
plaintiff  and  in  consequence  of  that  claim.  The  rule  was  to  vary  the 
order  by  excluding  these  reports. 

Pritchard  shewed  cause.  The  decisions  in  the  Courts  of  Queen's 
Bench  and  the  Common  Pleas,  with  respect  to  this  class  of  documents, 
are  not  altogether  consistent;  in  this  Court  there  is  no  reported  decision. 

(Bramwell,  B.  — The  distinction  is  this;  where  an  accident  happens, 
and  the  officials  of  the  company  in  the  course  of  their  ordinary  duty, 
whether  before  or  after  action  brought,  make  a  report  to  the  company 
that  report  is  subject  to  inspection;  but  where  a  claim  has  been  made, 
and  the  company  seek  to  inform  themselves  by  a  medical  examination 
as  to  the  condition  of  the  person  making  the  claim,  inspection  of  that 
report  is  not  granted;  that  practice  has  been  constantly  followed  in  this 
Court.) 

Pritchard.  —  In  Fenner  v.  London  &  South  Eastern  Ry.  Co.  (post), 
which  was  a  considered  judgment,  and  is  the  latest  case  on  the  subject,  a 
wider  rule  was  adopted,  and  it  was  laid  down  that  a  document  of  this 
nature  is  not  privileged  unless  it  is  in  the  nature  of  instructions  for  the 
l)rief,  which  the  judge  will  ascertain  by  examination  of  the  document 
itself.  That  rule  was  acted  upon  in  the  present  case  by  Keating,  J., 
who  perused  the  reports  before  he  made  the  order  for  their  inspection. 
That  rule  is  not  inconsistent  with  Woolley  v.  North  London  Ry.  Co., 
Law  Rep.  4  C.  P.  602.  It  must  be  admitted  that  the  rule  acted  on  in 
the  later  case  of  Cossey  v.  London,  Brighton  &  South  Coast  Ry.  Co.,  Law 
Rep.  5.  C.  P.  146,  would  exclude  these  reports;  but  Fenner  v.  London  & 
South  Eastern  Ry.  Co.,  Law  Rep.  7.  Q.  B.  767,  is  later  than  both  of  these 
cases,  and  was  decided  after  a  full  consideration  and  review  of  them  and 
of  numerous  other  authorities. 

F.  M.  White  was  not  called  on  to  support  the  rule. 

Bramwell,  B.  —  We  have  to  choose  between  the  decision  of  the 
Queen's  Bench  and  that  of  the  Common  Pleas,  and  we  follow  the  latter, 
which  is  in  conformity  with  the  practice  of  this  Court.  The  rule  must 
be  made  absolute. 

PiGOTT,  B.  -;-  The  case  of  Cossey  v.  London,  Brighton  &  South  Coast 
Ry.  Co.  lays  down  a  clear,  broad,  and  intelligible  principle,  which  there 
is  no  difficulty  in  acting  upon;  but  if  that  is  departed  from,  and  the  mat- 
ter is  made  to  turn  upon  the  discretion  of  the  judge,  there  can  be  no 
certainty  in  the  practice. 

Cleasby  and  Amphlett,  BB.,  concurred. 

Rule  absolute. 

Note.  —  (1).  Fenner  v.  London  and  South  Eastern  R.  Co.  Black- 
burn, J.  —  This  was  a  rule  obtained  by  Mr.  Willis,  to  vary  an  order 


No.  642  PRIVILEGED    RELATIONS  927 

made  by  me  at  chambers,  for  the  inspection  of  certain  documents, 
scheduled  by  the  officer  of  the  defendants.  Before  me  at  chambers, 
the  only  affidavit  used  was  that  of  Mr.  Noden,  the  goods  manager  of 
the  defendants.      The  material  part  of  this  affidavit  was  as  follows:  — 

"That  the  company  have  in  their  possession,  or  under  their 
control,  the  following  letters  or  documents,  relating  to  the  matters 
interrogated  to,  or  the  matters  in  dispute  in  the  action:  A  way- book 
kept  at  Battle  station;  telegram  from  Fenner  to  Breach,  dated  the 
21st  of  October:  letter  from  Neek  and  Donaldson  (Neek  and  Donald- 
son were  the  plaintiff's  attorneys)  to  defendant's  general  manager; 
25th,  letter  from  E.  B.  Noden,  defendants'  goods  manager,  to  Breach, 
station-master.  .  .  .  With  the  exception  of  the  letters  received  from 
the  plaintiff  or  his  attorney,  the  way-bill,  guard's  report,  and  the 
telegrams  from  the  plaintiff,  I  object  to  procedure,  or  allow  inspection 
of,  any  of  the  foregoing  documents,  writings,  or  letters,  on  the  ground 
that  they  were  not  written  or  made  in  the  ordinary  course  of  the  duty 
of  the  person  or  persons  writing  or  making  them,  but  were  made 
confidentially  for  the  purpose  of,  or  with  a  view  to,  litigation,  and 
resisting  the  plaintiff's  claim."  .  .  . 

The  view  which  I  took  of  the  matter  at  chambers  was  that  the 
general  rule  is,  that  a  litigant  is  entitled  to  a  discovery  of  all  the  docu- 
ments in  his  adversary's  possession  which  are  relevant  to  his  case,  sub- 
ject to  some  exceptions.  ...  I  am  still  of  the  opinion  which  I  formed 
at  chambers,  that  the  inspection  should  be  granted.  .  .  .  The  principle, 
however,  I  think,  to  be  derived  from  all  the  cases  is  that,  where  it  appears 
that  the  documents  are  substantially  rough  notes  for  the  case,  to  be 
laid  before  the  legal  adviser,  or  to  supply  the  proof  to  be  inserted  in  the 
brief,  the  discretion  of  the  Court  should,  as  a  general  rule,  be  to  refuse 
the  inspection.  Where  the  documents  fall  short  of  that,  it  should,  as  a 
general  rule,  be  granted. 

Woolley  V.  North  London  Ry.  Co.  (L.  R.  4  C.  P.  602)  is  an  authority 
that  a  report  sent  by  the  subordinate  to  his  superior,  in  consequence  of 
a  general  order  to  report,  is  not  privileged,  whether  it  was  made  before 
or  after  the  litigation  began;  and  I  cannot  think  that  such  a  report 
would  be  the  more  privileged  because  it  was  specially  asked  for.  .  .  . 

Hannen,  J.  —  I  agree  in  the  principles  explained  by  my  Brother 
Blackburn,  and  by  which  he  intended  to  be  guided  in  the  exercise  of  his 
discretion.  And  it  does  not  follow  that  his  discretion  should  be  over- 
ruled because  I,  in  the  exercise  of  my  discretion,  should  have  acted 
differently.  I  should  have  drawn  the  inference  that  the  great  bulk  of 
the  letters  written  by  the  servants  of  the  company,  after  the  inquiry, 
must  be  privileged.  .  .  .  Rule  discharged. 


92S  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  843 

643.   Ex  Parte   SCHOEPF 

Supreme  Court  of  Ohio.     1906 

74  Oh.  1;  77  A^  E.  276 

[Printed  ante,  as  No.  500;  Point  3  of  the  opinion.] 

644.     SHEEHAN  v.   ALLEN 
Supreme  Court  of  Kansas.     1903 
67  Kan.  712;  74  Pac.  245 

Error  from  District  Court,  Miami  County;  Jno.  T.  Burris,  Judge. 

Action  by  Bridget  Allen  and  Mary  Cunningham  against  John  Sheehan 
and  others.  Judgment  for  plaintiffs,  and  defendant  Sheehan  brings 
error.     Reversed. 

The  defendants  in  error,  Bridget  Allen  and  Mary  Cunningham,  com- 
menced an  action  against  John  Sheehan,  the  plaintiff  in  error,  and 
their  codefendants  in  error,  to  partition  real  estate  which  had  been 
the  property  of  Richard  Collins,  then  deceased.  It  was  alleged  that 
all  the  parties  to  the  suit  were  tenants  in  common  of  the  land  by 
virtue  of  being  heirs  of  the  former  owner.  John  Sheehan  answered, 
claiming  sole  ownership  and  possession  of  one  tract  described  in  the 
petition,  under  a  deed  from  Richard  Collins,  executed  and  delivered 
in  consideration  of  board  and  washing  to  be  furnished,  and  stated  sums 
of  money  to  be  paid  to  him,  during  the  remainder  of  his  lifetime.  The 
plaintiffs  replied  that  the  deed  mentioned  was  invalid  because  at  the  time 
of  its  execution  the  grantor  was  of  unsound  mind,  and  charged  John 
Sheehan  with  fraud  and  undue  influence  in  procuring  it.  After  a  trial, 
judgment  was  rendered  for  the  plaintiffs,  the  court  holding  the  deed  to 
John  Sheehan  being  null  and  void.  .  .  .  This  proceeding  in  error  was 
commenced  to  reverse  the  judgment  of  the  District  Court.  .  .  . 

Frank  M.  Sheridan,  for  plaintiff  in  error.  N'.  W.  Wells  and  E.  J. 
Sheldon,  for  defendants  in  error. 

BuRCH,  J.  —  On  the  trial  a  number  of  nonexpert  witnesses  were  per- 
mitted to  express  opinions  concerning  the  mental  capacity  of  Richard 
Collins  to  execute  the  Sheehan  deed.  Two  of  these  were  attorneys  at 
law,  and,  upon  examination  as  to  the  basis  of  their  opinions,  disclosed 
fully  the  details  of  transactions  and  conversations  in  which  Richard 
Collins  had  consulted  them  as  attorneys.  One  of  these  attorneys  jus- 
tified his  disclosure  as  follows: 

"Q.  —  He  consulted  you  as  an  attorney,  did  he  not?  That  is  your  business? 
A.  — Yes,  sir;  that  was  my  business.  Q.  — And  he  employed  you  to  ascertain 
about  the  patents  on  his  lands,  did  he  not?     A.  —  Yes,  sir;  he  did.     Q.  —  And 


No.  644  PRIVILEGED    RELATIONS  929 

you  consulted  with  him  about  his  plan  of  having  Sheriff  Butts  take  charge  of  his 
land?  A.  —  Well,  I  didn't  consult  with  him  nor  advise  with  him  about  that. 
He  simply  came  and  talked  to  me  about  it,  and  told  me  about  it.  The  fact  is 
that,  after  I  discovered  the  condition  he  was  in,  I  never  accepted  any  fee  from 
him  for  what  1  had  done  in  getting  the  patent  or  the  writing  of  letters,  or  the 
investigation  in  regard  to  the  lands  he  claimed  from  his  wife;  and  I  did  not 
consider  that  the  relation  of  attorney  and  client  existed  at  all,  for  I  didn't  consider 
that  he  was  capable  or  competent  to  make  that  sort  of  a  contract.  Q.  —  Well, 
if  he  had  been,  and  had  these  talks  with  you,  you  would  have  considered  the 
relation  of  attorney  and  client  to  have  subsisted,  wouldn't  you?     A.  —  Possibly. 

The  other  attorney,  who  had  at  one  time  conducted  some  litigation 
for  Richard  Collins,  and  who,  about  the  time  of  some  of  the  transactions 
revealed,  was  in  the  receipt  of  fees  from  him  for  legal  services,  made  the 
following  explanation: 

"Q.  —  He  came  to  your  law  office,  did  he?  A.  —  Yes,  sir.  Oh,  I  would  occa- 
sionally meet  him  here.  I  remember  of  meeting  him  twice  on  the  road,  but 
generally  at  my  law  office.  Q.  —  And  he  came  there  to  consult  you  as  an  attor- 
ney? A.  —  No,  sir;  he  never  paid  me  any  attorney  fee,  nor  I  never  asked  him 
for  any,  and  never  intended  to  charge  him  any.  Q.  —  He  came  there,  I  presume, 
with  the  idea  that  he  was  counselling  with  you?  A.  —  I  think  so;  yes,  sir;  I 
think  that  was  his  idea.  Q.  —  And  you  had  these  talks  and  conversations 
throughout  that  time  about  these  matters?     A.  —  Yes." 

The  statute  relating  to  the  competency  of  witnesses  in  cases  of  this 
character  is  as  follows:  "The  following  persons  shall  be  incompetent  to 
testify:  .  .  .  Fourth.  An  attorney,  concerning  any  communication  made 
to  him  by  his  client  in  that  relation,  or  his  advice  thereon,  without  the 
client's  consent."  Gen.  St.  1901,  §  4771.  Under  this  statute  the  rela- 
tion of  attorney  and  client  must  exist,  to  make  the  communication 
privileged. 

But  the  payment  of  a  fee  is  not  the  test  of  that  relation.  In  the 
case  of  State  v.  Herbert,  63  Kan.  516,  519,  it  is  said: 

"While  the  payment  of  a  retainer  or  fee  is  the  best  evidence  that  the  relation 
of  attorney  and  client  exists,  such  payment  is  not  absolutely  essential.  If  an 
attorney  is  consulted  in  his  professional  capacity,  and  he  allows  the  consultation 
to  proceed,  and  act  as  adviser,  the  fact  that  no  compensation  was  paid,  or  that 
the  consultation  was  ended  and  the  relation  broken,  would  not  remove  the  seal 
of  secrecy  from  the  communications  made."  .  .  . 

In  this  case  Richard  Collins  twice  sought  out  an  attorney  for  the  pur- 
pose of  obtaining  legal  advice  and  assistance  upon  matters  he  deemed 
of  importance.  In  each  case  the  attorney  consulted  accepted  his  confi- 
dences as  an  attorney  at  law  engaged  in  the  practice  of  his  profession, 
and  obtained  from  him  information  imparted  upon  the  faith  of  that  rela- 
tion. One  of  these  attorneys  conceded  that  Richard  Collins  acted 
upon  a  belief  in  the  existence  of  such  relation.  The  other  conceded  that 
he  himself  at  the  time  acted  in  good  faith  upon  such  a  belief  to  the  extent 
of  procuring  a  patent,  wTiting  letters,  and  investigating  a  title.     There- 


930  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  644 

fore  neither  one  will  be  allowed  to  profane  the  relation  after  his  client's 
death.  .  .  . 

If  the  witnesses  had  founded  their  opinions  upon  observations  made 
in  common  with  others  in  a  nonprofessional  capacity,  or  upon  facts 
which  did  not  come  to  their  peculiar  knowledge  because  their  profes- 
sional opinions  and  guidance  had  been  sought,  they  might  have  shown 
themselves  to  be  competent  to  testify.  ...  In  State  v.  Fitzgerald,  68 
Vt.  125,  34  Atl.  429,  it  was  determined  that  under  certain  circumstances 
a  lawyer  could  testify  regarding  his  client's  intoxication.  The  following 
is  from  the  opinion :  "  Counsel  on  both  sides,  in  their  briefs,  have  treated 
the  knowledge  that  the  attorney  obtained  in  respect  to  the  respondent's 
condition  as  privileged.  We  think,  however,  it  cannot  be  so  held.  It 
does  not  appear  that  Mr.  Cushman  learned,  or  had  an  opportunity  to 
learn,  any  fact  in  respect  to  the  respondent's  condition  that  was  not 
observable  by  Buckley  and  by  all  other  persons  who  saw  him  during  the 
time  of  his  alleged  intoxication.  No  fact  came  peculiarly  within  his 
knowledge  on  account  of  his  relation  to  the  respondent  as  his  counsel. 
This  being  the  case,  he  was  not  privileged  from  testifying  to  what  he  ob- 
served of  the  respondent's  condition."  In  this  case,  however,  it  is  quite 
clear  the  witnesses  would  not  have  learned  the  major  portion  of  the  facts 
which  they  disclosed,  or  held  the  most  important  conversations  which 
they  repeated  on  the  witness  stand,  had  they  not  undertaken  to  consult 
with  and  act  for  Richard  Collins  as  his  attorneys.  This  being  true, 
they  were  incompetent  to  testify  as  to  such  facts  and  conversations.  .  .  . 

The  judgment  of  the  District  Court  is  reversed,  and  the  cause 
remanded  for  a  new  trial.     All  the  Justices  concurring. 


645.   CHAMPION  v.  McCARTHY 
Supreme  Court  of  Illinois.     1907 

228  ///.  87;  81  N.  E.  808 

Appeal  from  Circuit  Court,  Ogle  County;  O.  E.  Heard,  Judge. 
Suit  by  Henry  McCarthy  against  Edgar  D.  Champion  and  others. 
From  a  decree  for  complainant,  defendants  appeal.      Affirmed. 

This  suit  was  begun  by  appellee,  Henry  McCarthy,  filing  a  bill  for 
the  partition  of  certain  lands  of  John  Earl,  deceased.  The  bill  alleged 
that  Earl  was  the  owner  of  certain  lands  therein  described.  That  he 
died  November  13,  1905,  leaving  no  children  nor  descendants  of  a  child 
or  children,  no  widow,  and  no  father  nor  mother  surviving  him.  .  .  . 
The  bill  alleges  that  John  Earl  and  Lydia  Cheshire,  and  the  deceased 
brother  and  the  deceased  sister  of  John  Earl,  and  the  complainant, 
were  all  sons  and  daughters  of  Susan  Champion,  who  died  March  3, 
1893,  leaving  no  other  heirs  than  her  sons  and  daughters  and  the  children 
of  a  deceased  son  and  daughter.     Complainant  claimed  in  his  bill  that 


No.  645  PRIVILEGED    RELATIONS  931 

by  the  death  of  John  Earl  lie  became  seised  of  an  undivided  one-fourth 
of  his  lands,  Lydia  Cheshire  of  an  undivided  one-fourth,  the  children 
of  the  deceased  brother  one-fourth,  and  the  children  of  the  deceased 
sister  one-fourth,  and  prayed  for  partition.  The  children  of  the  de- 
ceased brother  and  sister  of  John  Earl  answered  the  bill,  den;}'ing  that 
complainant  was  the  son  of  Susan  Champion  and  a  brother  of  John 
Earl,  and  denying  that  he  had  any  interest  in  the  lands  described  in  the 
bill.  .  .  .  x'V  decree  was  entered  for  partition  in  accordance  with  the 
master's  report  and  the  prayer  of  the  original  bill.  To  reverse  that 
decree  this  appeal  is  prosecuted. 

The  controversy  is  as  to  whether  the  complainant,  Henry  McCarthy, 
is  an  heir  of  John  Earl,  deceased,  and  entitled  to  an  interest  in  the  lands 
of  which  he  died  seised.  .  .  .  Susan  Champion  died  in  1893,  leaving  a 
will,  in  and  by  which  she  devised  to  John  Earl  the  real  estate  in  contro- 
versy. Complainant  claimed  to  be  an  illegitimate  son  of  said  Susan 
Champion,  born  to  her  in  Canada  in  1826,  before  her  marriage  to  Elias 
Champion.  This  would  make  him  a  half-brother  to  John  Earl,  and  as 
such,  an  heir  entitled  to  a  one-fourth  interest  in  the  real  estate  of  which 
John  Earl  died  seised.  ...     • 

Delos  W.  Baxter  testified  he  was  a  practicing  lawyer  and  had 
practiced  about  twenty-five  years.  He  had  held  the  office  of  State's 
Attorney  and  State  Senator.  He  had  known  Susan  Champion  from  his 
boyhood,  and  also  members  of  her  family,  including  John  Earl.  He  had 
been  employed  by  Susan  Champion  in  a  lawsuit  in  the  early  part  of  his 
professional  career.  He  testified  that  in  1886  Susan  Champion  came  to 
his  office  with  William  Stocking,  who  w^as  the  conservator  of  John  Earl, 
to  get  him  to  draw  her  w^ill;  that  in  transacting  the  business  she  talked 
of  her  family,  and  said  Henry  McCarthy,  John  Earl,  Lydia  Cheshire, 
and  Daniel  Champion  were  her  children,  and  also  mentioned  a  child  or 
children  of  a  deceased  daughter.  Some  time  after  this  talk,  the  wit- 
ness drew  the  will,  and'  went  with  Mr.  Stocking  to  the  home  of  Mrs. 
Champion  to  have  it  executed.  On  this  occasion  the  witness  said 
Mrs.  Champion  again  told  him  Henry  McCarthy  was  her  son,  but  that 
it  was  not  generally  known  in  the  neighborhood,  and  for  that  reason  she 
did  not  want  his  name  mentioned  in  the  will.  .  .  . 

Sears  &  Smith  and  ,/.  C.  Scyster,  for  appellants. 

S.  W.  Crowcll  and  W.  J .  Emerson,  for  appellee. 

Farmer,  J.  (after  stating  the  case  as  above). 

It  is  insisted  that  the  statements  Bax-ter  testified  Susan  Champion 
made  to  him  in  connection  with  the  preparation  and  execution  of  her 
will  were  privileged  communications,  and  that  he  should  not  have  been 
permitted,  over  the  objection  of  counsel  for  the  grandchildren  of  Susan 
Chamoion,  to  testify  to  them.  It  does  not  appear  from  his  testimony 
that  the  information  given  by  Susan  Champion  as  to  who  her  children 
were  was  necessary  to  be  communicated  to  Baxter  to  enable  him  to  pre- 
pare the  will  in  accordance  with  her  desires.     According  to  his  testi- 


932  BOOK    l:     RULES    OF   ADMISSIBILITY  No.  645 

mony,  she  knew  how  she  wanted  to  dispose  of  her  property,  and  how  she 
wanted  her  will  made.  Her  statements  appear  to  have  been  more  in 
the  nature  of  an  explanation  of  her  reasons  for  giving  practically  the 
whole  of  her  estate  to  one  of  her  children.  The  fact,  also,  that  the 
communication  was  made  in  the  presence  of  another  party,  would  seem 
to  indicate  that  it  was  not  intended  as  a  confidential  communication  to 
her  attorney. 

In  order  to  render  a  communication  between  attorney  and  client  priv- 
ileged, it  must  relate  to  some  matter  about  which  the  client  is  seeking 
advice,  or  be  made  in  order  to  put  the  attorney  in  possession  of  informa- 
tion supposed  to  be  necessary  to  enable  him  to  properly  and  intelligently 
serve  his  client.  Where  the  transaction  between  the  attorney  and  client 
is  the  preparation  of  a  deed  or  a  contract  in  accordance  with  the  direc- 
tions of  a  client,  and  no  legal  advice  is  asked  or  required,  the  reasons  or 
motives  moving  the  client  to  make  the  deed  or  contract,  if  stated  to  the 
attorney,  are  not  privileged.  De  Wolf  v.  Strader,  26  111.  225,  79  Am. 
Dec.  371;  Smith  v.  Long,  106  111.  486;  Hatton  v.  Robinson,  14  Pick. 
(Mass.)  416,  [ante.  No.  639]. 

In  Wigmore  on  Evidence  (Volume  4,  §  2314)  will  be  found  a  discussion 
of  the  subject  of  privileged  communications  relating  to  the  preparations 
of  wills,  and  the  author  there  announces  the  rule  to  be  that  the  fact  of 
the  execution  of  a  will,  and  its  contents,  are  within  the  rule  during  the 
life  of  the  testator,  but  the  rule  ceases  at  his  death,  and  the  attorney 
may  then  disclose  all  that  affects  the  execution  and  tenor  of  the  will. 
The  only  exception  to  this  rule,  it  is  said,  is  the  disclosure  of  facts  that 
would  tend  to  invalidate  the  will.  A  large  number  of  cases  are  cited  in 
the  notes  to  the  text  in  support  of  the  rule  announced.  .  .  . 

The  decree  of  the  Circuit  Court  is  affirmed.  Decree  affirmed. 


646.   In  Re  CUNNION'S  WILL 

Court  of  Appeals  of  New  York.     1911 

201  N.   Y.  123;  94  N.  E.  648 

Appeal  from  Supreme  Court,  Appellate  Division,  Second  Depart- 
ment. 

Proceedings  for  the  probate  of  the  will  of  John  Cunnion,  deceased, 
contested  by  a  daughter  of  testator.  From  a  decree  of  the  Appellate 
Division  (135  App.  Div.  864,  120  N.  Y.  Supp.  266),  affirming  a  decree 
admitting  the  M-ill  to  probate,  the  party  aggrieved  appeals.     Affirmed. 

See,  also,  138  App.  Div.  922,  123  N.  Y.  Supp.  1113. 

John  Cunnion,  on  September  9,  1907,  executed  a  will.  On  June  6, 
1908,  he  executed  another  will.  He  died  on  the  16th  day  of  August, 
1908.  After  his  death  the  will  of  September  9,  1907,  was  found,  but  the 
will  of  June  6,  1908,  could  not  be  found.     This  proceeding  was  com- 


No.  646  PRIVILEGED   RELATIONS  933 

menced  by  a  legatee  under  the  will  of  September  9,  1907,  to  have  the 
same  probated.  The  probate  was  contested  by  a  daughter  of  the  tes- 
tator, and  it  appeared  that  the  will  of  September  9,  1907,  was  duly  signed 
and  executed,  and  that  the  will  of  June  6,  1908,  was  also  duly  signed  and 
executed,  but  the  contestant  was  unable  to  prove  the  contents  of  the 
will  of  June  6,  1908.  Both  of  the  wills  were  drawn  by  Francis  L.  Maher, 
the  attorney  of  John  Cunnion,  and  he  was  present  when  each  of  them 
was  executed.  When  the  will  of  June  6,  1908,  was  executed,  it  was 
signed  in  the  presence  of  the  subscribing  witnesses  and  Maher  read  to 
such  witnesses  in  the  presence  of  the  testator  an  attestation  clause 
in  the  usual  form,  and  such  attestation  clause  which  followed  the 
signature  of  the  testator  was  then  signed  by  the  witnesses  in  the 
presence  of  the  testator.  The  subscribing  witnesses  did  not  know 
the  contents  of  the  will.  Maher  as  a  witness  in  this  proceeding  was 
asked:  "Q.  I  ask  you  to  state  the  contents,  all  that  you  can  remember." 
The  attorney  for  the  proponent  then  objected  to  the  witness  answering 
the  question  on  the  grounds  that  it  is  not  "  the  best  evidence  of  the  con- 
tents of  a  written  paper;  the  paper  should  be  produced;  and  also,  as 
privileged  under  section  835  of  the  Code."  .  .  . 

John  J.  Curtin,  for  appellant.     Michael  F.  McGoldrick,  for  respondent. 

Chase,  J.  (after  stating  the  facts  as  above).  There  was  no  effort  in 
this  proceeding  to  prove  the  will  of  June  6,  1908,  as  a  lost  will.  It  is 
not  even  claimed  before  us  that  the  will  was  inadvertently  lost  or  mis- 
laid, but  the  contestant  seeks  to  show  the  contents  of  that  will  that  she 
may  claim  therefrom  an  express  revocation  of  all  former  wills  or  provi- 
sions so  antagonistic  and  inconsistent  with  the  former  will  as  to  amount 
to  a  revocation.  .  .  .  The  contents  of  the  will  of  June  6,  1908,  were 
not  shown,  and  the  surrogate  was  right  upon  the  evidence  before  him  in 
admitting  the  will  of  September  9,  1907,  to  probate. 

The  only  question  now  remaining  for  our  consideration  is  whether 
the  surrogate  erred  in  refusing  to  allow  the  testimony  of  Maher  as  to 
the  contents  of  the  will  of  June  6,  1908,  because  of  the  prohibition  con- 
tained in  section  835  of  the  Code  of  Civil  Procedure. 

1.  Prof.  Wigraore,  in  his  work  on  Evidence,  gives  an  extended  state- 
ment of  the  rules  relating  to  privileged  communications.  He  states 
the  rule  of  the  common  law  excluding  communications  between  attor- 
ney and  client  when  legal  advice  of  any  kind  is  sought  and  given,  and 
in  connection  therewith  discusses  the  history  and  policy  of  such  rule, 
and  in  referring  to  wills  and  testamentary  dispositions  he  says: 

"But  for  wills  a  special  consideration  comes  into  play.  Here  it  can  hardly 
be  doubted  that  the  execution  and  especially  the  contents  are  impliedly  desired 
by  the  client  to  be  kept  secret  durinjf  his  lifetime,  and  are  accordingly  a  part  of 
his  confidential  communication.  It  must  be  assumed  that  during  that  period 
the  attorney  ought  not  to  be  called  upon  to  disclose  even  the  fact  of  a  will's 
execution,  much  less  its  tenor.  But,  on  the  other  hand,  this  confidence  is  intended 
to  be  temporary  only.     That  there  may  be  such  a  qualification  to  the  privilege 


934  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  646 

is  plain.  That  it  appropriately  explains  the  client's  relation  with  an  attorney 
drafting  a  will  seems  almost  equally  clear.  It  follows,  therefore,  that,  after  the 
testator's  death,  the  attorney  is  at  liberty  to  disclose  all  that  affects  the  execution 
and  tenor  of  the  will.  The  only  question  could  be  as  to  communications  tending 
to  show  the  invalidity  of  the  will;  i.e.,  from  which  a  circumstantial  inference 
could  be  drawn  that  the  testator  was  insane  or  was  unduly  influenced.  ...  As 
to  the  tenor  and  execution  of  the  will,  it  seems  hardly  open  to  dispute  that  they 
are  the  very  facts  which  the  testator  expected  and  intended  to  be  disclosed  after 
his  death;  and  witli  this  general  intention  covering  the  whole  transaction  it  is 
impossible  to  select  a  circumstance  here  or  there  (such  as  the  absence  of  one 
witness  in  another  room)  and  argue  that  the  testator  would  have  wanted  it  kept 
secret  if  he  had  known  that  it  would  tend  to  defeat  his  intended  act."  4  Wigmore 
on  Evidence,  §  2314. 

The  reasoning  is  quite  satisfactory,  and  the  rule  as  stated  relating 
to  testamentary  dispositions  has  been  substantially  adopted  in  many 
states  as  the  common-law  rule.  Doherty  v.  O'Callaghan,  157  Mass. 
90;  Graham  v.  O'Fallon,  4  Mo.  338;  Scott  v.  Harris,  113  111.  447;  .  .  . 
Blackburn  v.  Crawfords,  70  U.  S.  175;  Glover  v.  Patten,  165  U.  S.  394; 
Stewart  v.  Walker,  6  Ont.  L.  594. 

2.  In  reading  the  decisions  of  the  Courts  of  this  State,  it  is  necessary 
to  remember  that  prior  to  September  1,  1877,  the  common  law  relating 
to  disclosures  of  communications  and  transactions  between  attorneys 
and  clients  prevailed  in  this  State,  but  from  and  after  that  date  we  have 
had  not  only  a  statute  (section  835,  Code  of  Remedial  Justice,  now  Code 
of  Civil  Procedure)  relating  to  such  disclosures,  but  also  a  statute  (sec- 
tion 836  of  said  Code)  defining  when  the  statute  relating  to  such  dis- 
closures shall  apply.  The  latter  statute  has  been  frequently  amended 
so  as  to  extend  from  time  to  time  the  application  of  the  prohibition  and 
to  make  more  clear  when  and  how  its  provisions  can  be  expressly  waived. 
We  are  not  without  authority  in  this  State,  in  accordance  with  the  rule 
stated  by  Wigmore,  but  the  decisions  constituting  such  authority  were 
made  in  cases  where  the  evidence  was  offered  before  the  enactment  of 
said  sections  835  and  836,  or  at  least  before  the  more  recent  amendments 
to  said  section  836.  ...  It  is  provided  by  said  section  835  as  follows: 
"  An  attorney  or  counselor  at  law  shall  not  be  allowed  to  disclose  a  com- 
munication, made  by  his  client  to  him,  or  his  advice  given  thereon,  in 
the  course  of  his  professional  employment,  nor  shall  any  clerk,  stenog- 
rapher or  other  person  employed  by  such  attorney  or  counselor  be  allowed 
to  disclose  any  such  communication  or  advice  given  thereon."  .  .  .  Sec- 
tion 836  as  then  enacted  read  as  follows:  "The  last  three  sections 
apply  to  every  examination  of  a  person  as  a  witness  unless  the  .  .  . 
provisions  thereof  are  expressly  waived  by  the  person  confessing,  the 
patient,  or  the  client."  .  .  .  By  chapter  514  of  the  Laws  of  1892, 
passed  May  12,  1892,  .  .  .  there  was  also  added  thereto  the  clause 
relating  to  an  attorney  as  follows:  "But  nothing  herein  contained  shall 
be  construed  to  disqualify  an  attorney  on  the  probate  of  a  will  heretofore 


No.  646  PRIVILEGED   RELATIONS  93£ 

executed  or  offered  for  probate,  from  becoming  a  witness  as  to  its  prep- 
aration and  execution  in  case  such  attorney  is  one  of  the  subscribing 
witnesses  thereto."  In  1899  by  chapter  53  there  was  added  to  the  sec- 
tion the  words:  "The  waivers  herein  provided  for  nmst  be  made  in  open 
court,  on  the  trial  of  the  action,  or  proceeding,  and  a  paper  executed  by 
a  party  prior  to  the  trial,  providing  for  such  waiver  shall  be  insufficient 
as  such  a  wai\'er.  But  the  attorne\s  for  the  respectixe  parties,  may 
prior  to  the  trial,  stipulate  for  such  waiver,  and  the  same  shall  be  suffi- 
cient therefor."  Other  amendments  not  important  on  this  appeal  were 
passed  in  1893  and  1904.  It  is  still  open  to  the  Courts,  when  not  other- 
wise provided,  to  determine  what  is  a  communication  made  by  a  client 
to  an  attorney  or  counselor  or  advice  given  by  such  attorney  or  coun- 
selor in  the  course  of  his  professional  employment;  but,  when  it  is  de- 
termined that  certain  testimony  is  within  the  provisions  of  the  statute, 
its  application  to  an  examination  of  a  person  as  a  witness  is  stated  in 
section  836,  and  a  waiver  must  be  made  in  accordance  with  the  terms 
of  that  section,  otherwise  it  cannot  be  considered  by  the  Courts.  It 
has  been  held  that  the  prohibition  under  the  common-law  rule  and  also  as 
defined  by  statute  does  not  apply  to  a  case  where  two  or  more  persons 
consult  an  attorney  for  their  mutual  benefit  in  any  litigation  which  may 
hereafter  arise  between  them,  but  that  it  does  apply? 

Prior  to  the  amendment  of  section  836  in  1892,  relating  to  an  attor- 
ney, this  Court  in  Loder  v.  Whelpley,  111  N.  Y.  239,  248,  ...  and  in 
Matter  of  Coleman,  111  N.  Y.  220,  226,  73,  referring  to  the  evidence  of 
witnesses  who  were  employed  by  the  testator  in  their  professional  capac- 
ity to  draw  a  will  for  him,  and  to  conversations  had  M'ith  them  for  the 
purpose  of  enabling  them  to  execute  the  instructions  of  the  testator, 
said:  "That  these  interviews  were  had  in  pursuance  of  and  under  the 
sanction  of  a  professional  employment,  and  that  communications  made 
by  a  client  under  such  circumstances  to  his  attorneys  were  clearly  within 
the  protection  of  the  statute,  we  hax'e  no  doubt."  It  was  there  also 
held  that  "  the  act  of  the  testator  in  requesting  his  attorneys  to  become 
witnesses  to  his  will  leaves  no  doubt  as  to  his  intention  thereby  to  exempt 
them  from  the  operation  of  the  statute,  and  leave  them  free  to  perform 
the  duties  of  the  office  assigned  them,  unrestrained  by  any  objection 
which  he  had  power  to  remove." 

This  Court  has  never  modified  or  changed  the  letter  or  spirit  of  the 
two  last  decisions  from  which  we  have  quoted.  A  short  time  after  such 
decisions  were  reported,  the  amendment  to  said  section  836  in  1892  was 
passed.  ...  It  cannot  reasonably  be  doubted  that  this  amendment 
to  section  836  was  passed  to  conform  to  the  decisions  from  which  we 
have  quoted,  and  to  make  it  clear  beyond  controversy  that  when  an  attor- 
ney or  counselor  becomes  a  subscribing  witness  to  a  will  the  prohibition 
of  section  835  does  not  apply  to  him,  and  that  in  case  he  does  not  become 
a  subscribing  witness  to  a  will  the  provisions  of  section  835  are  appli- 
cable, and  that  the  common-law  rule  as  stated  by  Wigmore  relating  to 


936  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  646 

testamentary  dispositions  is  overcome  and  made  of  no  effect  by  our 
statutes.  ...  It  was  held  in  the  federal  Circuit  Court  in  Fayerweather 
V.  Rich,  90  Fed.  13,  that  sections  835  and  836  of  oiu"  Code  do  not  pre- 
vent an  attorney  who  drew  the  testator's  will  and  a  codicil  thereto  from 
giving  testimony  as  to  the  contents  of  the  codicil,  and  this  decision 
is  called  to  our  attention  by  the  appellants.  But  that  decision  was 
expressly  overruled  and  reversed  by  the  Circuit  Court  of  Appeals, 
reported  as  Butler  r.  Fayerweather,  91  Fed.  458,  33  C.  C.  A.  625,  in  which 
Wallace,  J.,  says:  .  .  .  "As  the  statute  now  reads,  no  act  of  the  client 
except  a  waiver  upon  the  trial  can  be  treated  as  a  waiver  of  the  prohibi- 
tion of  disclosure ;  and,  except  he  is  an  attesting  witness  to  a  will,  in  no 
case  is  an  attorney  permitted  to  make  disclosure  in  respect  to  the  con- 
tents of  any  documents  or  other  information  communicated  to  him  in 
the  course  of  his  professional  employment  by  his  client." 

If  it  is  the  intention  of  the  Legislature  that  section  835  shall  not 
apply  to  testimony  relating  to  testamentary  dispositions  after  the  death 
of  the  testator,  it  should  be  so  stated  in  an  amendment  to  such  section 
or  to  section  836. 

The  testimony  of  Maher  was  properly  rejected  and  the  judgment 
should  be  affirmed,  with  costs. 

CuLLEN,  C.  J.,  and  Werner,  Willard  Bartlett,  and  Hiscock, 
JJ.,  concur.     Vann  and  Collin,  JJ.,  dissent.       Judgment  affirmed. 


Topic  2.    Husband  and  Wife 

648.  Introductory.  The  privilege  for  communications  between  husband 
and  wife  is  apparently,  in  time  of  origin,  the  second  of  such  privileges  to  be 
enforced  at  common  law,  and  yet  the  last  to  be  definitely  recognized  and  distin- 
guished. In  the  second  half  of  the  1600s  an  instance  of  its  application  is  found; 
and  yet  the  explicit  statement  of  the  privilege,  as  a  distinct  one  from  any  other 
rule,  did  not  come  in  England  until  the  statutory  reforms  of  the  Common  Law 
Procedure  Act,  just  as  the  second  half  of  the  ISOOs  was  beginning.  The  explana- 
tion of  the  paradox  is  that  until  that  time  the  present  privilege  for  communications 
Ijetween  husband  and  wife  had  not  been  plainly  separated  from  the  other  priv- 
ilege of  husband  or  wife  not  to  testify  to  any  facts  against  the  other.  This  latter 
privilege  was  fully  established  by  the  end  of  the  1600s.  But  among  the  various 
reasons  advanced  for  its  support  was  the  policy  of  protecting  domestic  confidence 
by  prohibiting  their  mutual  disclosures.  In  other  words,  the  true  policy  of  the 
present  privilege  was  perceived,  and  yet  it  was  not  enforced  in  the  shape  of  any 
rule  distinct  from  the  old-established  privilege  of  each  not  to  testify  against  the 
other  as  a  party  or  interested  in  the  suit.  That  the  two  are  distinct  is  plain;  for 
the  privilege  not  to  testify  against  the  other  is  broader,  in  the  respect  that  it 
excludes  testimony  to  any  adverse  facts  even  though  they  have  been  learned 
wholly  apart  from  marital  confidence,  and  is  narrower,  in  the  respect  that  it 
applies  only  to  testimony  adverse  in  its  tenor  and  adverse  to  a  party  to  the  cause 
or  to  one  in  an  equivalent  position.  Nevertheless,  the  privilege  against  adverse 
testimony  remained  for  a  long  time  alone  in  its  recognition.     Not  until  the 


No.  649  PRIVILEGED   RELATIONS  937 

marital  disqualification  and  the  marital  privilege  against  adverse  testimony  were 
proposed  to  be  abolished  or  modified  did  the  existence  of  this  third  aspect  of  the 
subject  begin  to  be  perceived.  Accordingly,  when  the  legislators  in  the  various 
jurisdictions  took  the  first  steps,  in  the  period  from  1840  to  1870,  to  reform  the 
other  two  rules,  by  abolishing  or  restricting  the  discjualification  and  the  other 
privilege,  they  invarial:)ly  preserved  by  express  enactment  the  present  privilege 
for  communications.  So  this  privilege,  hitherto  existing  rather  in  principle  than 
in  rule,  practically  begins  its  existence  and  is  defined  in  its  terms  by  the  legislation 
of  that  period. 

649.   MERCER  v.   STATE 

Supreme  Court  of  Florida.     1898 

40  Fla.  216;  24  So.  144 

Writ  of  error  to  the  Circuit  Court  for  Jackson  county. 

The  plaintiffs  in  error  were  on  the  10th  day  of  June,  1897,  indicted, 
jointly  with  one  Westley  Bush,  in  the  circuit  court  of  Jackson  county, 
for  willfully  driving  an  ox  upon  a  railroad  track.  .  .  .  Upon  the  cross- 
examination  of  J.  E.  Brock,  one  of  the  State's  witnesses,  a  letter  written 
by  him  to  his  wife  was  exhibited  to  him  by  the  attorneys  for  the  defend- 
ants ;  and  he  was  asked  if  he  had  written  such  letter,  to  which  he  replied, 
in  substance,  that  he  had  written  the  letter,  but  the  following  words, 
"that  I  never  saw  the  boys  that  night  that  the  ox  was  put  upon  the 
road,"  then  contained  in  it,  were  not  put  into  the  letter  by  him,  and  were 
not  in  it  when  he  sent  it  to  his  wife.  .  .  .  With  this  identification  of  the 
letter,  and  by  consent  of  the  State  attorney  as  to  the  time  and  order  of 
its  introduction,  it  was  offered  in  evidence  on  behalf  of  the  defendants 
in  rebuttal  of  the  evidence  of  the  witness  who  wrote  the  letter;  but  its 
admission  in  evidence  was  objected  to,  both  by  the  State  and  by  the 
witness  whose  letter  it  purported  to  be,  upon  the  ground  that,  being  a 
letter  from  the  witness  to  his  wife,  it  was  a  confidential  communication, 
as  between  husband  and  wife,  and  therefore  privileged.  This  objection 
was  sustained,  and  the  exclusion  of  the  letter  is  assigned  as  the  ninth 
error. 

John  M.  Calhoun,  for  plaintiffs  in  error. 

The  Attorney-General  and  John  H.  Carter,  for  defendant  in  error. 

Taylor,  C.  J.  (after  stating  the  case  as  above).  Chapter  4029 
laws,  approved  June  4th,  1891,  .  .  .  provides:  "That  in  the  trial  of 
civil  actions  in  this  State  neither  the  husband  nor  the  wife  shall  be 
excluded  as  witnesses"  .  .  .  against  each  other  in  all  cases,  civil  or 
criminal,  where  either  of  them  is  an  interested  party.  In  neither  of 
these  cases  decided  here,  nor  in  any  other  State  having  similar  enabling 
statutes,  have  we  been  able  to  find  any  declaration  that  the  removal 
from  husband  and  wife  of  their  incompetency  as  witnesses  because  of 
interest  in  the  cause  has  the  effect  of  empowering  either  of  them,  when 
they  become  witnesses,  to  give   illegal  or   incompetent  testimony,  by 


938  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  649 

detailing  or  exposing  those  transactions  or  communications  that  have 
passed  between  them  in  the  sacred  confidence  and  trust  that  should 
exist  between  husband  and  wife,  or  that  the  removal  of  the  incompetency 
of  husband  and  wife  as  witnesses  on  the  ground  of  interest  removes  the 
inhibition  of  the  law  against  the  exposure  in  evidence  of  confidential 
communications  between  them. 

Such  confidential  communications  between  husband  and  wife  have 
always  been  regarded  as  privileged.     As  Mr.  Greenleaf  puts  it: 

"The  great  object  of  the  rule  is  to  secure  domestic  happiness  by  placing  the 
protecting  seal  of  the  law  upon  all  confidential  communications  between  husband 
and  wife;  and  whatever  has  come  to  the  knowledge  of  either  by  means  of  the 
hallowed  confidence  which  that  relation  inspires  cannot  be  afterwards  divulged 
in  testimony,  even  though  the  other  party  be  no  longer  living."  1  Greenleaf  on 
Evidence  (loth  ed.),  §§  337,  334;  254. 

Society  has  a  deeply-rooted  interest  in  the  preservation  of  the  peace  of 
families,  and  in  the  maintenance  of  the  sacred  institution  of  marriage; 
and  its  strongest  safeguard  is  to  preserve  with  jealous  care  any  viola- 
tion of  those  hallowed  confidences  inherent  in,  and  inseparable  from,  the 
marital  status.  Therefore  the  law  placed  the  ban  of  its  prohibition 
upon  any  breach  of  the  confidence  between  husband  and  wife,  by  declar- 
ing all  confidential  communications  between  them  to  be  incompetent 
matter  for  either  of  them  to  expose  as  witnesses.  The  reason  of  the 
old  rule  for  rendering  interested  witnesses  incompetent  to  testif}'  at  all 
in  any  case  to  which  they  were  parties  was  because  their  interest  was 
supposed  to  be  such  a  strong  incentive  to  perjury,  and,  where  husband 
and  wife  were  interested  in  a  cause,  both  of  them  were  excluded  as  incom- 
petent witnesses  for  any  purpose,  because  of  their  unity  of  interest;  they, 
in  the  eye  of  the  law,  being  regarded  as  one  person,  and  whenever  either 
was  interested  both  were  considered  to  be  equally  interested;  and  the 
incentive  to  perjury  from  such  interest  was  considered  to  be  as  strongly 
operative  upon  the  one  as  upon  the  other.  But  the  reason  of  the  rule 
excluding  the  confidences  between  husband  and  wife  as  incompetent 
matter  to  be  deposed  by  either  of  them,  though  they  may  be  competent 
witnesses  to  testify  to  other  facts,  is  found  to  rest  in  that  public  policy 
that  seeks  to  preserve  inviolate  the  peace,  good  order,  and  limitless  con- 
fidence between  the  heads  of  the  family  circle  so  necessary  to  every  well- 
ordered  civilized  society. 

The  matter  that  the  law  prohibits  either  the  husband  or  wife  from 
testifying  to  as  witnesses  includes  any  information  obtained  by  either 
during  the  marriage,  and  by  reason  of  its  existence.  It  should  not  be 
confined  to  mere  statements  by  one  to  the  other,  but  embraces  all  knowl- 
edge upon  the  part  of  either  obtained  by  reason  of  the  marriage  relation, 
and  which,  but  for  the  confidence  growing  out  of  it,  would  not  have 
been  known.  And  the  same  rule  prevails  in  full  force  after  the  marital 
relation  has  been  dissolved  by  death  or  divorce,  ^^^lere  the  incompe- 
tency as  witnesses  of  husband  and  wife  on  the  ground  of  interest  has 


No.  650  PRIVILEGED   RELATIONS  939 

been  removed  by  statute,  as  is  the  ease  here,  either  of  them  may  testify, 
for  or  against  the  other,  to  any  fact,  the  knowledge  of  which  was  acquired 
by  them  independently  of  their  marriage  relation,  in  any  manner  not 
involving  the  confidence  growing  out  of  the  marriage  relation.  To  this 
effect,  see  1  Greenleaf  on  Evidence,  §  254a  and  the  cases  there  cited ; 
also  the  cases  cited  in  the  notes  to  Commonwealth  v.  Sapp,  29  Am.  St. 
Rep.  415  et  seq. 

The  letter  from  the  husband  to  the  wife  here  excluded,  however, 
was  not  sought  to  be  introduced  directly  through  the  wife  as  a  witness 
to  whom  it  had  been  written,  but,  in  some  manner  not  disclosed  by  the 
record,  had  found  its  way  to  the  possession  of  the  attorneys  for  the 
defendants,  and  its  offer  in  evidence  was  from  their  immediate  custody. 
There  is  a  considerable  array  of  authorities  to  the  effect  that  when 
confidential  communications  between  husband  and  wife,  or  between 
attorney  and  client,  get  out  of  the  possession  and  control  of  the  parties 
to  the  confidence,  and  that  of  their  agents  and  attorneys,  and  find  their 
way  into  the  possession  and  control  of  third  persons,  regardless  of  the 
manner  in  which  the  possession  thereof  may  be  obtained  by  such  third 
persons,  then  such  communications  lose  the  protected  privilege  of  the 
law,  and  become  competent  and  admissible  evidence.  We  cannot  agree 
to  the  correctness  of  this  rule  thus  broadly  laid  down  by  these  and  other 
authorities,  but  think  the  policy  of  the  law,  that  forms  the  foundation 
of  the  general  rule,  is  far  more  strongly  upheld  and  subserved  by  those 
authorities  that  recognize  and  declare  certain  classes  of  communica- 
tions to  be  privileged  from  the  inherent  character  of  the  communication 
itself,  and  that  in  such  cases  the  privilege  attaches  to  the  communica- 
tion itself,  and  protects  it  from  exposure  in  evidence,  wheresoever  or 
in  whosesoever  hands  it  may  be.  .  .  .  We  think  the  letter  offered  in 
evidence  here  from  the  witness  Brock  to  his  wife  was  inherently  a  con- 
fidential communication,  and  that  it  was  privileged  from  exposure  in 
evidence,  in  and  of  itself,  regardless  of  the  custody  from  which  it  was 
produced  at  the  trial,  and  that  its  admission  in  evidence  was  properly 
refused.  .  .  . 

But,  for  the  error  found  in  the  admission  of  proof  as  to  the  charac- 
ter for  honesty  of  the  State's  witnesses,  the  judgment  of  the  Court  below 
is  reversed  and  a  new  trial  ordered. 


650.   SEXTON  v.   SEXTON 

Supreme  Court  of  Iowa.     1905 

129  la.  487;  105  A^.  IT'.  314 

Appeal  from  District  Court,  Ida  County;  Z.  A.  Church,  Judge.  — 
Action  at  law  by  plaintiff  to  recover  damages  from  defendant,  her 
father-in-law.  for  alienating  the  affections  of  her  husband.     There  was 


940  BOOK    i:     RULES   OF   ADMISSIBILITY  No.  650 

a  verdict  and  judgment  in  favor  of  plaintiff,  and  defendant  appeals. 
Affirmed. 

Plaintiff  and  James  Sexton,  Jr.,  were  married  in  November,  1899, 
and  for  some  time  thereafter  continued  to  live  together.  One  child 
was  born  to  them,  at  the  time  of  the  commencement  of  this  action  three 
years  old.  Before  the  action  said  James,  Jr.,  had  abandoned  plaintiff 
and  their  child,  and  was  making  his  home  with  the  defendant,  his  father. 
During  the  trial  plaintiff  was  called  as  a  witness  on  her  own  behalf,  and 
to  prove  that  her  husband  regarded  her  with  affection  at  and  for  some 
time  after  the  marriage,  and,  further,  to  prove  the  subsequent  loss  or 
withdrawal  of  such  affection  by  him,  she  was  allowed  to  testify  to  acts, 
statements,  and  declarations  on  his  part,  addressed  to  her.  To  the 
same  end,  several  letters,  written  to  plaintiff  by  her  husband  while  absent 
from  home,  and  produced  by  her  in  court,  were  also  allowed  to  be  intro- 
duced and  read  to  the  jury.  To  all  such  evidence  the  defendant  made 
timely  objection,  basing  the  same  upon  the  statute  (Code,  §  4607),  which 
reads  as  follows:  "Neither  husband  nor  wife  can  be  examined  in  any 
case  as  to  any  communication  made  by  the  one  to  the  other  while  mar- 
ried," etc.  The  objections  were  overruled,  and  upon  such  rulings  is 
predicted  the  only  contention  for  error  as  presented  in  argument  by 
counsel  for  appellant.  .  .  . 

F.  E.  Gill  and  W.  E.  Johnston,  for  appellant.  P.  W.  Harding,  for 
appellee. 

Bishop,  J.  (after  stating  the  case  as  above).  The  literal  reading  of 
the  statute  would  seem  to  be  quite  conclusive  against  the  right  to  call 
either  the  husband  or  wife  to  speak  from  the  witness  stand  respecting 
communications  had  between  them,  no  matter  what  the  character  thereof 
or  the  occasion  or  purpose.  But  we  are  not  always  restricted  to  the  pre- 
cise words  employed,  in  getting  at  the  meaning  of  a  statute.  And  it  is 
the  real  purpose  and  intent  of  the  Legislature,  as  meant  to  be  expressed, 
to  which  we  are  to  give  force  of  operation.  .  .  .  The  privilege  of  com- 
munications between  husband  and  wife,  was  secured  at  common  law. 
The  rule  was  not  designed  to  suppress  truth,  but  had  its  origin  in  the 
fact,  made  clear  by  experience,  that  greater  mischiefs  resulted  from  the 
admission  of  such  evidence  than  were  likely  to  arise  from  its  exclusion. 
In  common,  therefore,  with  other  privileges,  analogous  in  character,  it 
was  grounded  on  public  policy.  .  .  .  That  the  common-law  Courts 
were  not  all  agreed  as  to  the  measure  or  extent  of  the  privilege  must  be 
confessed,  and  that  such  lack  of  imiformity  in  decision  has  continued, 
notwithstanding  the  principle  involved  has  generally  found  its  way  into 
the  statute  law  of  the  land,  is  equally  true.  Without  doubt,  however, 
the  latter  fact  is  due  in  some  measure  to  the  difference  in  phrasing  to  be 
found  in  the  enactments  as  adopted  in  the  various  states;  some  provid- 
ing for  the  exclusion  of  so-called  confidential  communications  only, 
and  others,  as  in  this  State,  providing  in  terms  that  any  communica- 
tion is  within  the  privilege.  ... 


No.  G50  PRIVILEGED    RELATIONS  941 

We  come,  then,  to  the  question,  what  is  meant  by  the  expression 
"any  communication"  as  used  in  the  statute?  As  we  have  seen,  the 
privilege  is  bottomed  upon  considerations  of  public  policy.  Accordingly 
it  would  seem  that,  whatever  the  form  of  expression  adopted,  no  more 
is  required  than  that  the  confidences  inherent  in  the  marital  relation,  or 
incident  thereto,  should  be  fully  protected.  Says  Mr.  Wigmore,  in  his 
recent  work  on  Evidence  (§  2336) :  "  The  essence  of  the  privilege  is  to 
protect  confidences  only."  And  this  must  be  true,  because  there  can 
be  no  reason  arising  out  of  public  policy,  or  otherwise,  requiring  that 
every  word  spoken  between  husband  and  wife  shall  be  privileged,  irre- 
spective of  the  presence  in  which  spoken  or  the  subject  or  occasion 
thereof.  And,  within  our  observation,  no  Court  has  ever  gone  so  far 
as  to  so  hold.  The  spirit  of  the  rule  as  enforced  at  common  law,  and, 
within  our  understanding,  the  meaning  to  be  gathered  from  the  stat- 
ute, is  that  the  privilege  shall  be  construed  to  embrace  only  the  knowl- 
edge which  the  husband  or  wife  obtains  from  the  other,  which,  but  for 
the  marriage  relation  and  the  confidence  growing  out  of  it,  would  not  have 
been  communicated,  or  which  is  of  such  nature  or  character  as  that,  to 
repeat  the  same,  would  tend  to  unduly  embarrass  or  disturb  the  parties 
in  their  marital  relations.  It  is  the  marital  communication,  then,  that 
is  sought  to  be  protected.  .  .  .  Thus  it  cannot  be  that  words  spoken 
by  husband  to  wife,  or  vice  versa,  in  the  presence  and  hearing  of  one  or 
more  third  persons,  and  hence  in  the  very  nature  of  things  not  to  be 
construed  as  in  any  marital  sense  private  or  confidential,  must  be  held 
within  the  protection  of  the  privilege,  although  clearly  within  the  letter 
of  the  statute.  .  .  . 

So,  too,  it  cannot  be  that  the  rule  of  privilege  must  be  held  to  extend 
so  far  as  to  exclude  all  communications  between  husband  and  wife  hav- 
ing reference  to  business  relations  existing  either  as  between  them 
directly,  or  as  between  them  —  one  or  both  —  and  others.  Certainly 
as  to  business  relations  existing  between  husband  and  wife  directly, 
there  can  be  no  adverse  consideration  of  public  policy  Quite  to  the 
contrary,  public  policy,  as  reflected  by  statute  and  by  our  decisions, 
permits  of  such  relations  to  the  fullest  extent.  And  it  would  be  shock- 
ing to  say  that  a  contract  thus  made,  or  rights  or  liabilities  thus  accruing, 
could  not  be  enforced  because,  forsooth,  a  communication  between  the 
parties  having  relation  thereto,  and  essential  to  proof,  was  privileged. 
The  cases  are  almost  unanimously  against  such  a  conclusion.  Wigmore, 
§  2336. 

To  the  general  proposition  thus  advanced  it  is  no  answer  to  say 
that  by  Code,  §  460,  husband  and  wife  are  made  competent  witnesses 
for  and  against  each  other  in  ajl  such  cases.  That  statute  goes  no 
farther  than  to  authorize  the  husband  and  wife  to  testify  to  facts 
within  his  or  her  knowledge,  and  material  or  relevant  to  the  issue.  It 
has  no  relation  to  the  subject  of  communications  made  by  the  one  to 
the  other. 


942  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  650 

"At  common  law  neither  husband  nor  wife  could  testify  in  favor  of  or  against 
the  other.  General  enabling  statutes  have  been  passed  in  many  jurisdictions,  but 
these  statutes  do  not  affect  the  rule  as  to  the  so-called  privileged  communications 
between  husband  and  wife."     Elliott  on  Evidence,  §  628.  .  .  . 

The  distinction  between  the  competency  of  the  husband  or  wife, 
when  called  as  witnesses,  and  the  privilege  incident  to  such  relation, 
and  the  privilege  of  either  against  the  other's  disclosure  of  communica- 
tions, is  said  by  Mr.  Wigmore  to  be  plain  enough: 

"And,  when  the  legislators  in  the  various  jurisdictions  took  the  first  steps  .  .  . 
by  abolishing  or  restricting  the  disqualification  [as  witnesses],  they  invariably 
preserved  by  express  enactment  the  present  privilege  for  communications." 
Wigmore  on  Evidence,  §§  2333,  2334. 

And  again,  in  §  2228,  the  same  author  says : 

"So,  too,  the  privilege  for  confidential  communications  is  not  only  quite 
different  in  scope  [from  the  qualification  of  husband  and  wife  as  witnesses],  but 
stands  upon  its  own  sufficient  grounds." 

Moreover,  and  for  kindred  reasons,  a  literal  interpretation  of  the  stat- 
ute would  in  many  cases  forbid  an  inquiry  into  the  personal  wrongs 
committed  by  one  spouse  against  the  other,  and  especially  where  such 
consisted  of  a  verbal  act,  or  where  the  statements  or  declarations  accom- 
panying a  physical  act  were  necessary  to  establish  the  true  character  of 
such  act.  To  hold  for  exclusion  in  such  cases  would  not  only  be  sub- 
versive of  the  principle  of  public  policy  under  which  the  rule  of  the  stat- 
ute came  into  existence  —  that  is,  the  promotion  of  the  interests  of  the 
marital  relation  —  but  it  would  he  to  hold  for  the  equal  effectiveness  of 
the  privilege  as  an  engine  for  the  suppression  of  the  evidence  of  wrong, 
possibly  crime.  .  .  . 

What  has  been  said  foregoing  will  be  sufficient  to  make  clear  the  rea- 
sons for  our  conclusion  that  the  statute  was  intended  to  protect  only 
marital  communications.  ...  It  may  be  confessed  that  what  are  mar- 
ital communications  cannot  be  answered  according  to  any  fixed  rule. 
The  varying  circumstances  of  married  life  are  such  that  the  question 
must  be  made  to  depend  for  its  answer  upon  the  peculiar  circumstances 
of  the  case  out  of  which  it  arises.  Perhaps  no  better  guide  for  general 
observance  can  be  found  than  to  say  that  impliedly  all  communications 
between  husband  and  wife  are  confidential  in  character,  and  hence 
privileged,  and  that  the  party  asserting  the  contrary  in  any  given 
instance  must  satisfy  the  Court  by  the  circumstances  of  the  case  that 
grounds  for  exclusion  do  not  exist. 

It  being  made  clear  that  the  rule  of  privilege  is  not  a  rigid  one  admit- 
ting of  no  exceptions,  we  have,  then,  to  consider  whether,  in  view  of  the 
issue  here  presented,  the  testimony  of  plaintiff,  in  character  as  herein- 
before stated,  may  fairly  be  said  to  have  been  within  the  rule  of  exclusion 
because  of  marital  communications.  Looking  first  to  the  issue,  it  is 
clear  that  the  burden  was  upon  plaintiff  to  establish,  among  other  things. 


No.  650  PRIVILEGED   RELATIONS  943 

first,  that  at  the  beginning  of  their  married  Hfe  she  possessed  the  affec- 
tion of  her  husband;  second,  that  such  affection  had  been  lost  to  or 
withdrawn  from  her.  .  .  .  Now,  marital  affection,  or  the  want  of  it, 
is  manifested  alone  by  acts,  either  physical  or  verbal,  and  it  can  be  fully 
proven  in  no  other  way  than  by  presenting  to  the  court  or  jury  the  rel- 
evant doings  and  sayings  of  the  spouse  in  question.  That  physical  acts 
do  not  come  within  the  rule  of  exclusion  is  the  declaration  of  many  of 
the  cases.  See  those  collected  by  Mr.  Wigmore  in  note  to  §  2337. 
But  this  should  be  accepted  with  qualification.  Knowledge  may  be 
as  effectively  communicated  in  many  cases  by  physical  acts  as  by  words 
spoken,  and,  if  the  knowledge  imparted  is  such  in  character  as  to  come 
within  the  spirit  of  the  rule,  no  good  reason  appears  for  withholding 
the  privilege  because  of  the  means  of  communication  adopted.  What- 
ever may  be  said  in  respect  of  this,  it  is  doubtful,  to  say  the  least,  if 
testimony  of  the  character  in  question,  whether  of  physical  or  verbal 
acts,  and  limited  to  such,  should  be  regarded  as  communications  in  any 
sense  employed  in  the  statute.  The  words  spoken  or  the  acts  com- 
mitted have  no  testimonial  value  in  and  of  themselves.  They  are 
important  only  as  the  expression  of  countenance,  the  caress,  the  term 
of  endearment,  the  word  of  hope  for  the  marital  future  —  or,  on  the 
other  hand,  the  withholding  of  society,  the  blow,  the  curse  —  may  serve 
to  make  evident  the  material  fact,  from  the  standpoint  of  testimonial 
value,  of  affection  or  the  want  thereof.  .  .  . 

But  aside  from  this,  and  speaking  first  of  testimony  intended  to  estab- 
lish affection,  there  can  be  nothing  in  the  rule  of  privilege  to  justify  the 
exclusion  of  testimony  by  a  spouse  bearing  upon  the  existence  of  such 
fact ;  and  this,  whether  the  evidence  offered  be  of  physical  acts  or  verbal 
acts.  Affection  between  husband  and  wife  is  the  rule,  and,  as  we  have 
seen,  the  law  presumes  it.  Indeed,  it  is  published  to  the  world  with  the 
fact  of  marriage.  Accordingly  in  no  sense  can  it  be  a  matter  of  marital 
confidence,  and  as  such  subject  to  be  violated  by  the  one  testifying  to 
the  acts,  physical  or  verbal,  commonly  understood  to  be  declaratory 
thereof,  in  proof  of  the  fact.  ...  As  applied  to  a  case  such  as  we  have 
before  us,  it  has  become  a  question  simply  whether  there  shall  be  vindi- 
cated another  principle  of  public  policy  by  so  ordering  that  that  which 
has  been  lost  may  be  compensated  for.  Surely  it  does  not  lie  in 
the  mouth  of  one  who  has  entered  a  family  circle  to  despoil  it  to  plead 
the  privilege  of  the  statute  to  the  sole  end  that  he  may  escape  the 
consequence  of  his  own  unlawful  act.  It  was  not  intended  for  his 
benefit,  and  every  consideration  of  public  policy  that  enters  into  it 
forbids  him  from  making  of  it  a  cloak  to  shield  him  from  being  penal- 
ized for  the  mischief  he  has  wrought.  .  .  . 

There  was  no  error  in  admitting  the  testimony  complained  of,  and 
the  judgment  is  affirmed. 


944  BOOK  i:     RULES  OF  .\DMISSIBILITY  No.  652 


Topic  3.    Jurors 

652.  Earl  of  Shaftesbury's  Trial.  (1681.  8  How.  St.  Tr.  759,  771.) 
[Sir  F.  Withins  moved,  after  the  charge  to  the  grand  jury,  that  the  evidence  be 
heard  in  Court;  and  L.  C.  J.  Pemberton  declared  that  he  would  grant  the  motion. 
The  jury  then  desired  to  have  a  copy  of  their  oath,"*  which  was  given  them,  and 
they  withdrew.     On  returning  shortly,  the  following  colloquy  ensued:] 

Foreman.  My  lord  Chief  Justice,  it  is  the  opinion  of  the  jury  that  they  ought 
to  examine  the  witnesses  in  private,  and  it  hath  been  the  constant  practice  of 
our  ancestors  and  predecessors  to  do  it;  and  they  insist  upon  it  as  their  right  to 
examine  in  private,  because  they  are  bound  to  keep  the  king's  secrets,  which 
they  cannot  do  if  it  be  done  in  Court.   .   .   . 

Mr.  Papillon  [a  juror]:  If  it  be  the  ancient  custom  of  the  kingdom  to  examine 
in  private,  then  there  is  something  maybe  very  prejudicial  to  the  king  in  this 
public  examination;  for  sometimes  in  examining  witnesses  in  private,  there  come 
to  be  discovered  some  persons  guilty  of  treason,  and  misprision  of  treason,  that 
were  not  known,  nor  thought  on  before.  Then  the  jury  sends  down  to  the  Court, 
and  gives  them  intimation,  and  these  men  are  presently  secured;  whereas,  my 
lord,  in  case  they  be  examined  in  open  Court  publicly,  then  presently  there  is  no 
intimation  given  and  these  men  are  gone  away.  Another  thing  that  may  be 
prejudicial  to  the  king,  is,  that  all  the  evidences  here,  will  be  foreknown  before 
they  come  to  the  main  trial  upon  issue  by  the  petty  jury;  then  if  there  be  not  a 
very  great  deal  of  care,  these  witnesses  may  be  confronted  by  raising  up  witnesses 
to  prejudice  them,  as  in  some  cases  it  has  been.  Then  besides,  the  jury  do 
apprehend,  that  in  private  they  are  more  free  to  examine  things  in  particular,  for 
the  satisfying  their  own  consciences,  and  that  without  favor  or  affection;  and  we 
hope  we  shall  do  our  duty. 

L.  C.  J.  Pemberton.  —  The  king's  counsel  have  examined  whether  he  hath 
cause  to  accuse  these  persons,  or  not;  and,  gentlemen,  they  understand  very  well, 
that  it  will  be  no  prejudice  to  the  king  to  have  the  evidence  heard  openly  in  Court; 
or  else  the  king  would  never  desire  it. 

Foreman.  —  My  lord,  the  gentlemen  of  the  jury  desire  that  it  may  be  recorded, 
that  we  insisted  upon  it  as  our  right,  but  if  the  Court  overrule,  we  must  submit 
to  it. 


*  The  form  of  oath  administered  to  grand  jurors  was  as  follows : 
The  foreman,  by  himself,  lays  his  hand  on  the  book,  and  the  marshal  admin- 
isters to  him  the  following  oath :  "My  lord,  or  sir  (as  the  foreman's  name  may  be), 
you,  as  the  foreman  of  this  grand  inquest  for  the  body  of  the  county  of  A,  shall 
diligently  inquire  and  true  presentment  make  of  all  such  matters  and  things  as 
shall  be  given  you  in  charge;  the  king's  counsel,  your  fellows',  and  your  own, 
you  shall  keep  secret;  You  shall  present  no  one  for  envy,  hatred,  or  malice;  but 
you  shall  present  all  things  truly  as  they  come  to  your  knowledge,  according  to 
the  best  of  your  understanding:  So  help  you  God."  The  rest  of  the  grand  jury, 
by  three  at  a  time,  in  order,  are  sworn  in  the  following  manner:  "The  same  oath 
which  your  foreman  hath  taken  on  his  part,  you  and  every  of  you,  shall  well  and 
truly  observe  and  keep  on  your  part:  So  help  you  God." 


No.  654  PRIVILEGED   RELATIONS  945 

653.   PHILLIPS  V.   MARBLEHEAD 
Supreme  Judicial  Court  of  Massachusetts.     1889 
148  Mass.  326;    19  N.  E.  547 

Petition  to  the  Superior  Court  for  a  jury  to  assess  the  damages 
caused  by  the  taking  by  the  respondent  of  land  of  the  petitioners,  in 
July,  1886,  for  the  laying  out  of  Atlantic  Avenue  in  Marblehead.  The 
respondent  called  as  a  witness  one  Martin,  a  member  of  the  board  of 
selectmen  of  Marblehead  in  1886,  who  testified  as  an  expert  to  the  value 
of  the  petitioners'  land.  Upon  cross-examination  he  testified  that  the 
petitioners  had  in  his  judgment  sustained  damage  to  the  amount  of 
three  hundred  dollars,  and  no  more.  The  petitioners  then  offered  in 
evidence,  solely  for  the  purpose  of  contradicting  the  witness  Martin, 
the  record  of  the  board  of  selectmen  of  Marblehead  made  July  27,  1886, 
showing  the  laying  out  of  Atlantic  Avenue,  and  the  amount  of  damage 
therefor,  signed  by  Martin  together  with  the  other  members  of  the 
board.  The  record  contained  the  statement  that  the  petitioners  had  sus- 
tained damage  by  the  taking  of  their  land  to  the  amount  of  five  hundred 
and  fifty-three  dollars,  and  that  that  sum  was  awarded  the  petitioners. 
The  judge  ruled  that  the  record  was  not  admissible  in  evidence  for  the 
purpose  named,  and  the  petitioners  excepted 

Field,  J.  .  .  .  While  the  deliberations  of  legislative  bodies  are  usually 
public,  the  deliberations  of  judicial  or  quasi  judicial  bodies  are  private, 
and  there  are  reasons  of  public  policy  why  they  should  not  be  made 
public,  particularly  when  the  purpose  to  be  served  is  comparatively  un- 
important. Grand  and  petit  jurors  are  not  permitted  to  testify  to  opin- 
ions concerning  the  case  expressed  in  their  consultations  with  one 
another,  and  arbitrators  are  not  permitted  to  testify  to  the  grounds  on 
which  they  reached  the  conclusions  declared  in  the  award.  For  the 
purpose  of  contradicting  a  witness,  we  think  that  evidence  ought  not  to 
be  received  of  the  deliberations  of  selectmen  acting  in  a  quasi  judicial 
capacity,  and  that  the  certificate  of  the  doings  of  the  board  of  select- 
men was  rightly  excluded. 

654.   STATE  v.   CAMPBELL 
Supreme  Court  of  Kansas.     1906 
73  Kan.  688;  85  Pac.  784 

Appeal  from  District  Court,  Wyandotte  County;  J.  McCabe  Moore, 
Judge. 

Frank  M.  Campbell  was  convicted  of  bribery,  and  appeals. 
Affirmed. 

At  the  June  Term  of  the  District  Court  of  Wyandotte  County,  appel- 


946  BOOK  i:     RULES   OF   ADMISSIBILITY  No.  654 

lant  was  convicted  of  the  crime  of  accepting  a  bribe  to  influence  his  offi- 
cial action  as  a  member  of  the  board  of  education  of  Kansas  City.  He 
was  sentenced  to  confinement  in  the  State  penitentiary  for  a  period  of 
not  less  than  one  or  more  than  seven  years.  From  the  judgment  he 
appeals.  ... 

Hale  &  Maker,  for  appellant. 

C.  C.  Coleman,  Attorney -General,  for  the  State. 

Porter,  J.  (after  stating  the  facts).  The  appellant  contends  .  .  , 
2.  that  the  Court  erred  in  allowing  members  of  the  grand  jury  which 
indicted  appellant  to  testify  to  statements  made  by  him  while  a  witness 
before  the  grand  jury;  .  .  .  that  members  of  a  grand  jury  are  prohibited 
by  statute  from  testifying  as  to  what  a  witness  before  that  body  has 
sworn  to,  except  for  the  purpose  of  impeaching  his  statements  made  in 
court  or  in  a  case  where  a  witness  is  being  prosecuted  for  perjury. 

In  its  testimony  in  chief,  the  State  introduced  four  members  of  the 
grand  jury  which  returned  the  indictment,  and  proved  by  them  certain 
statements  made  by  appellant  while  a  witness  before  the  grand  jury. 
.  .  .  When  this  evidence  was  offered,  counsel  for  appellant  objected, 
and  the  following  took  place:  "Q.  What  did  Mr.  Campbell  say  in  his 
examination  before  the  grand  jury  as  to  who  had  employed  Mr.  Gil- 
haus?  By  IVIr.  Wooley:  I  object  to  that  as  incompetent.  Testimony 
taken  before  the  grand  jury  cannot  be  reiterated  by  the  grand  jury. 
.  .  .  Mr.  Coleman:  It  is  competent  as  an  admission,  if  it  amounts  to 
one.  The  Court:  It  may  have  been  voluntarily  made,  and  competent, 
if  shown  they  are  not  made  under  compulsion.     He  may  answer."  .  .  . 

The  second  ground  upon  which  it  is  contended  that  this  testimony 
was  incompetent  is  that  the  statutory  as  well  as  the  common-law  rules 
prohibit  a  grand  juror  from  disclosing  the  testimony  of  a  witness  before 
that  body,  except  for  two  purposes:  (1)  To  prove  whether  the  testi- 
mony of  such  witness  before  the  grand  jury  is  consistent  with  or  differ- 
ent from  his  testimony  before  the  court;  (2)  upon  a  complaint  against 
such  person  for  perjury,  or  upon  his  trial  for  that  offense.  Section  91, 
Code  Cr.  Proc.  (Gen.  St.  1901,  §5533),  read  as  follows: 

"Members  of  the  grand  jury  may  be  required  by  any  Court  to  testify  whether 
the  testimony  of  a  witness  examined  before  such  grand  jury  is  consistent  with  or 
different  from  the  evidence  given  by  such  witness  before  such  Court;  and  they 
may  also  be  required  to  disclose  the  testimony  given  before  them  by  any  person 
upon  a  complaint  against  such  person  for  perjury,  or  upon  his  trial  for  such 
offence." 

Section  93,  Code  Cr.  Proc.  (Gen.  St.  1901,  §  5535),  is  as  follows: 

"No  grand  juror  shall  disclose  any  evidence  given  before  the  grand  jury,  nor 
the  name  of  any  witness  who  appeared  before  them,  except  when  lawfully  required 
to  testify  as  a  witness  in  relation  thereto;  nor  shall  he  disclose  the  fact  of  any 
indictment  having  been  found  against  any  person  for  felony,  not  in  actual  con- 
finement, until  the  defendant  shall  have  been  arrested  thereon.  Any  juror 
violating  the  provisions  of  this  section  shall  be  deemed  guilty  of  a  misdemeanor." 


No.  654  PIIIVILEGED    RELATIONS  947 

These  sections  first  appear  in  our  statutes  in  the  laws  of  1855,  and  have 
been  subsequently  re-enacted  without  change.  It  is  historical  that  the 
territorial  Legislature  of  1855,  often  referred  to  as  the  "  bogus  Legisla- 
ture," adopted  the  entire  statutes  of  Missouri,  substituting  the  word 
"Territory"  for  "State,"  and  making  some  other  slight  changes  where 
it  was  found  necessary. 

These  sections  had  been  construed  by  the  Supreme  Court  of  Mis- 
souri in  the  case  of  Tindle  v.  Nichols,  20  Mo.  326,  decided  in  January, 
1855,  and  it  is  now  contended  that  we  are  bound  by  the  judicial  construc- 
tion placed  thereon.  In  the  Tindle  Case,  supra,  which  was  an  action 
for  slander,  defendant  justified  and  answered  that  plaintiff  had  sworn 
falsely  in  a  certain  matter  before  the  grand  jury.  On  the  trial  defendant 
sought  to  prove  by  members  of  the  grand  jury  what  the  witness  had 
testified.  The  Court  held  that,  inasmuch  as  section  91  specified  two 
classes  of  cases  in  which  a  grand  juror  may  be  required  to  disclose  such 
testimony,  it  follow^ed  that  all  other  cases  not  enumerated  were  excluded, 
and  that  the  words  of  section  93  "when  lawfully  required  to  testif}' 
as  a  witness  in  relation  thereto"  had  reference  only  to  those  two 
exceptions.  We  recognize  the  force  of  the  rule  that,  where  one  state 
adopts  a  statute  from  another  State,  it  adopts  the  construction  placed 
thereon  by  the  Courts  of  that  State.  But  this  is  a  general  rule  to  which 
there  are  numerous  exceptions.  .  .  . 

The  question  before  us,  however,  is  not  whether  this  statute  was  in 
fact  adopted  from  Missouri,  about  which  there  can  be  no  dispute,  but 
whether  we  should  be  bound  by  it  absolutely.  ...  In  many  of  the  States 
the  sul)ject  is  controlled  by  statute,  and  provisions  almost  identical  with 
our  statutes  are  in  force.  The  various  statutory  provisions  of  the 
several  States  are  set  forth  in  a  note  to  §  2360  in  Wigmore  on  Evidence, 
Vol.  4,  p.  3316.  From  the  time  the  grand  jury  was  first  established,  the 
law  has  surrounded  its  deliberations  and  all  that  transpired  before  it 
with  secrecy.  By  the  common  law,  a  grand  jury  was  not  permitted  to 
disclose  how  any  witness  testified  before  that  body  or  how  any  member 
voted.  12  Viner's  Abr.  20,  tit.  Evidence,  H,  I.  The  grand  juror's 
oath  required  him  to  keep  "  the  State's  covmsel,  his  own  and  his  fellows' 
secret."  The  purpose  of  this  requirement  has  been,  manifestly:  First, 
to  protect  the  interests  of  the  State,  by  preventing  information  reaching 
the  accused  which  might  enable  him  to  escape  or  induce  him  to  suborn 
witnesses  to  prove  the  contrary  of  the  charges;  second,  to  protect  the 
members  of  the  grand  jury,  and  leave  them  free  to  act  without  fear  of 
consequences  to  themselves;  and,  third,  to  protect  witnesses  in  the  same 
way.  Gradually,  exceptions  to  these  rules  have  been  allowed ;  and  the 
first  naturally  to  suggest  themselves  were  those  permitting  a  grand  juror 
to  testify  what  a  witness  swore  to  before  the  grand  jury  in  a  prosecution 
of  the  witness  for  perjury,  and,  again,  for  the  purpose  of  impeaching  the 
testimony  of  the  witness  on  a  trial  of  an  indictment  or  in  another  action. 
The  tendency  of  modern  authorities  has  been  to  hold  that,  when  the 


948  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  654 

reasons  for  secrecy  no  longer  exist,  the  ancient  rules  with  reference  thereto 
do  not  apply,  and,  in  all  cases  where  justice  or  the  rights  of  the  public 
require  it,  the  facts  should  be  disclosed.  ...  In  Commonwealth  v. 
Mead,  12  Gray  167,  it  was  said:  "But,  when  these  purposes  are  accom- 
plished, the  necessity  and  expediency  of  retaining  the  seal  of  secrecy  are 
at  an  end."  Mr.  Wigmore,  in  his  work  on  Evidence  (§  2362)  says: 
"But  what  are  the  limits  of  this  temporary  secrecy?  The  answer  is, 
on  principle,  that  it  ceases  when  the  grand  jury  has  finished  its  duties 
and  has  either  indicted  or  discharged  the  person  accused."  In  a  note  to 
Xhe  same  section,  in  referring  to  Tindle  v.  Nichols,  supra,  the  author 
characterizes  the  decision  as  "clearly  unsound  and  unjust."  The 
Florida  Supreme  Court,  in  a  well-considered  case  (Jenkins  v.  State,  35 
Fla.  737),  decided  in  1895,  construed  a  statute  which  is  in  the  same 
language  as  ours  so  far  as  section  93  is  concerned.  .  .  .  They  say: 
"  But,  independent  of  statutory  regulation,  it  has  long  been  established 
that  it  is  discretionary  with  the  trial  court  to  permit  a  grand  juror  to  be 
examined  as  to  what  a  witness  testified  to  before  the  grand  jury,  when 
competent  and  the  ends  of  justice  require  it,  and  we  do  not  see  that  our 
statutes  have  changed  this  rule."  .  .  . 

Mr.  Wigmore,  after  referring  to  and  criticising  the  Missouri  and 
Connecticut  cases,  says : 

"There  remain,  therefore,  on  principle,  no  cases  at  all  in  which,  after  the 
grand  jury's  functions  are  ended,  the  privilege  of  the  witnesses  not  to  have  their 
testimony  disclosed  should  be  deemed  to  continue.  This  is,  in  effect,  the  law  as 
generally  accepted  today.  It  is,  however,  not  usually  stated  in  such  a  broad 
form.  The  common  phrase  is  that  disclosure  may  be  required  'whenever  it 
becomes  necessary  in  the  course  of  justice.'  Disregarding  a  few  local  exceptions, 
this  is  in  practice  no  narrower  a  rule  than  the  one  above  deducible  from  prin- 
ciple."    Vol.  4,  §  2362. 

The  same  author  disposes  of  the  motion  that  the  two  exceptions  con- 
tained in  many  statutes  should  be  held  to  exclude  all  others.    He  says: 

"It  is  now  universally  conceded  that  a  witness  may  be  impeached,  in  any 
subsequent  trial  civil  or  criminal,  by  self-contradictory  testimony  given  by  him 
before  the  grand  jury.  In  the  same  way,  a  party  to  the  cause,  not  taking  the 
stand  as  a  witness,  may  be  impeached  by  his  admissions  made  in  testifying  before 
the  grand  jury.  The  occasional  statutory  sanction  for  the  former  of  these  uses 
cannot  be  construed  to  prohibit  the  latter,  which  goes  upon  the  same  reasoning. 
Nor  should  any  of  the  ensuing  legitimate  purposes  of  disclosure  be  considered 
to  be  obstructed  by  the  statutory  omission  to  mention  them,  else  the  integrity 
of  common-law  principles  would  tend  to  be  diminished  in  direct  ratio  to  the 
ignorance  or  unskillfulness  of  the  legislature  which  attempted  in  any  respect  to 
make  a  declaratory  statute."     Vol.  4,  §  2363. 

Appellant,  in  addition  to  the  Missouri  cases,  relies  upon  the  old  case 
of  State  V.  Fasset,  16  Conn.  457,  which  is  a  leading  authority  in  support 
of  the  rule  excluding  such  testimony.  This  case  was  decided  in  1884, 
and  has  been  to  some  extent  discredited  bv  that  Court  in  the  case  of 


No.  654  PRIVILEGED    RELATIONS  949 

State  V.  Coffee,  supra,  decided  in  1888.     In  the  latter  case  the  Court  use 
this  language: 

"Some  of  the  reasons  given  for  keeping  the  testimony  secret  are  temporary  in 
their  nature,  and  some  do  not  exist,  under  our  practice,  where  the  prisoner  is  before 
the  grand  jury.  Nevertheless  the  oath  and  the  policy  of  the  law  have  ever 
regarded  the  testimony  as  among  the  secrets  of  the  grand  jury  room,  not,  however, 
inflexibly  so.  In  State  v.  Fasset,  16  Conn.  457,  the  Court  notices  two  exceptions 
—  in  prosecutions  for  perjury,  and  in  case  witnesses  testify  differently  on  the  trial. 
Perhaps  it  would  be  proper  to  say  that  the  oath  has  this  implied  qualification: 
that  the  testimony  is  to  be  kept  secret  unless  a  disclosure  is  required  in  some 
legal  proceeding.  It  does  not  seem  that  the  policy  of  the  law  should  require  it 
to  be  kept  secret  at  the  expense  of  justice.  And  so  the  weight  of  authority  out- 
side of  this  State  seems  to  be  that,  where  public  justice  or  the  rights  of  parties 
require  it,  the  testimony  before  the  grand  jury  may  be  shown.  .  .  .  We  make 
these  quotations,  not  for  the  purpose  of  showing  what  the  law  is  in  this  State,  but 
for  the  purpose  of  showing  the  principles  which  prevail  in  other  jurisdictions. 
The  case  of  State  i:  Fasset,  stipra,  may  be  regarded  as  somewhat  inconsistent 
with  the  broad  principles  elsewhere  enunciated.  It  is  doubtful  whether  the 
Court  intended  to  go  further  than  the  two  exceptions  there  noticed."  .  .  . 

It  appears  beyond  question,  we  think,  that  the  doctrine  of  the  Tindle 
Case  is  opposed  to  the  w^eight  of  modern  authority,  and  as  its  reasoning 
does  not  accord  with  our  views,  we  must  decline  to  be  bound  by  it.  The 
oath  provided  for  grand  jurors  by  our  State  imposes  none  of  the  common- 
law'  restrictions  of  secrecy,  required  by  the  statutes  of  many  of  the  States. 
While  the  obligations  of  the  oath  are  by  many  of  the  Courts  considered 
indicative  of  the  policy  of  the  law  in  those  States,  the  absence  of  any  such 
requirements  in  the  oath  provided  by  our  statute  is  perhaps  of  little 
importance  in  view"  of  the  other  obligations  as  to  secrecy  imposed  by  the 
sections  which  we  are  considering.  In  principle  we  see  no  good  reason 
w^hy  the  statements,  admissions  or  declarations  made  by  a  witness 
before  a  grand  jury  should  not  be  disclosed  by  a  member  of  the  grand 
jury  whenever  lawfully  required  to  do  so,  and  that  a  member  of  the  grand 
jury  may  be  law-fully  required  to  testify  "in  relation  thereto,"  when 
after  the  purpose  of  secrecy  has  been  effected,  it  becomes  necessary  in 
furtherance  of  justice  or  for  the  protection  of  public  or  individual 
rights.   .  .  . 

The  judgment  will  be  affirmed.     All  the  justices  concurring. 


950  BOOK   i:     RULES   OF   .ADMISSIBILITY  No.  655 

Topic  4.    Official  Secrets 

655.   HARDY'S  TRIAL 

King's  Bench.      1794 

24  How.  St.  Tr.  199 

[Treason.  The  witness  had  reported  the  existence  and  doings  of 
secret  poHtical  societies]. 

WitJicss.  —  I  did  not  do  it  of  myself,  but  by  advice ;  a  gentleman 
recommended  me  by  all  means  to  make  a  report.  It  was  not  to  a  magis- 
trate. 

Mr.  Erskine. — Then  to  whom  was  it?  (Objection  was  made). 
I  submit  he  must  state  the  name  of  the  person  to  whom  he  communicated 
it;  then  have  I  not  a  right  to  subpoena  that  person?  I  will  then  ask 
[this  witness],  When  did  you  tell  it  him?  At  what  place?  Who  were 
present?  Then  I  ask  that  person,  Is  it  true?  .  .  .  And  if  he  were  to  say, 
I  never  saw  his  face  [the  witness']  till  I  saw  him  in  court,  would  not  that 
shake  the  credit  of  the  witness  with  any  man  of  understanding?  I 
apprehend  it  would. 

Mr.  Attofney-General  (opposing)  —  What  is  the  principle  upon 
which  the  Court  says.  You  shall  never  ask  where  he  got  that  information? 
...  A  court  of  justice  does  not  sit  to  catch  the  little  whispers  or  the 
huzzas  of  popularity ;  it  proceeds  upon  great  principles  of  general  justice. 
It  says  that  individuals  must  suffer  inconveniences  rather  than  great 
public  mischief  should  be  incurred;  and  it  say  that  if  men's  names  are  to 
be  mentioned  who  interpose  in  situations  of  this  kind,  the  consequence 
must  be  that  great  crimes  will  be  passed  over  without  any  information 
being  offered  about  them,  or  without  persons  taking  that  part  which  is 
always  a  disagreeable  part  to  take  but  which  at  the  same  time  it  is 
necessary  should  be  taken  for  the  interest  of  the  public.  .  .  .  Nobody 
will  deny  but  that  it  is  a  hard  case;  but  it  has  become  a  settled  rule, 
because  private  mischief  gives  way  to  public  convenience. 

Eyre,  L.  C.  J.  —  It  is  perfectly  right  that  all  opportunities  should 
be  given  to  discuss  the  truth  of  the  evidence  given  against  a  prisoner; 
but  there  is  a  rule  which  has  universally  obtained  on  account  of  its 
importance  to  the  public  for  the  detection  of  crimes,  that  those  persons 
who  are  the  channel  by  means  of  which  that  detection  is  made  should 
not  unnecessarily  be  disclosed.    .   .   . 

[As  to  (1)  the  person  reported  to,]  I  cannot  satisfy  myself  that  there 
is  any  substantial  distinction  between  the  case  of  this  man's  going  to  a 
justice  of  the  peace  or  going  to  a  magistrate  superior  to  a  justice  of  the 
peace.  .  .  . 

[As  to  (2)  the  person  above,  advising  a  report,]  I  am  of  opinion  the 
principle  extends  to  that  question,  because  the  disclosing  who  the  friend 
was  that  advised  him  to  go  to  a  magistrate  is  a  thing  which  puts  that 


No.  657  PRIVILEGED   RELATIONS  951 

friend  in  a  situation  into  which  he  ought  not  to  be  put,  and  into  which  it 
is  inconvenient  to  general  justice  that  he  should  be  put.  .  .  .  My  appre- 
hension is  that,  among  those  questions  which  are  not  permitted  to  be 
asked,  are  all  those  questions  which  tend  to  the  discovery  of  the  channels 
by  whom  the  disclosure  was  made  to  the  officers  of  justice;  that  it  is 
upon  the  general  principle  of  the  convenience  of  public  justice  not  to  be 
disclosed;  that  all  persons  in  that  situation  are  protected  from  the  dis- 
covery; and  that,  if  it  is  olijected  to,  it  is  no  more  competent  for  the 
defendant  to  ask  who  the  person  was  that  advised  him  to  make  a 
disclosure  than  it  is  to  whom  he  made  the  disclosure  in  consequence  of 
that  advice,  [or]  than  it  is  to  ask  any  other  question  respecting  the 
channel  of  communication  or  all  that  was  done  under  it.  .  .  . 

Duller,  J.  —  My  lord  Chief  Justice  and  my  lord  Chief  Baron  both 
say  the  principle  is  that  the  discovery  is  necessary  for  the  purpose  of 
obtaining  public  justice;  and  if  you  call  for  the  name  of  informer  in  such 
cases,  no  man  will  make  a  discovery,  and  public  justice  will  be  defeated. 
Upon  that  ground,  therefore,  it  is  that  the  informer  for  the  purpose  of  a 
public  prosecution  shall  not  be  disclosed. 

656.  Michael  v.  Matson.  (Szipreme  Court  of  Kansas.  1909.  105  Pac. 
537.)  Mason,  J.  —  The  county  attorney  was  called  as  a  witness  by  the  plaintiff, 
and  was  permitted  to  relate  a  conversation  between  Matson  and  himself  relating 
to  the  liquor  prosecution,  before  it  was  dismissed.  The  defendant  objected  to 
this  on  the  ground  that  his  statements  to  the  county  attorney,  under  the  cir- 
cumstances, were  privileged.  We  think  the  objection  should  have  been  sustained, 
not  on  the  theory  that  the  relation  of  attorney  and  client  existed,  thus  rendering 
the  communication  incompetent  under  the  statute  (Gen.  St.  1901,  §  4771,  subd. 
4),  but  for  the  reason  that  the  evidence  was  inadmissible  on  the  grounds  of  public 
policy.  .  .  .  The  interest  of  the  public  in  protecting  the  privacy  of  a  communica- 
tion seems,  indeed,  greater  when  it  is  made  to  a  prosecuting  officer  in  that  capacity 
than  when  it  is  made  by  a  client  to  his  attorney.  Persons  having  knowledge 
regarding  the  commission  of  a  crime  ought  to  be  encouraged  to  reveal  to  the 
prosecuting  attorney  fully,  freely,  and  unreservedly  the  source  and  extent  of  their 
information.  The  possibility  that  what  they  say,  under  such  circumstances, 
will  be  used  against  them,  tends  to  impose  a  natural  restraint  upon  their  conduct 
and  to  deprive  the  officer  of  the  benefit  of  their  services.  It  is  said  that  the 
privilege  based  upon  this  principle  applies  only  to  the  identity  of  the  informant 
(4  Wigmore  on  Evidence,  §  2374,  p.  3333),  and  such  appears  to  be  the  English 
rule;  but  in  this  country  it  has  been  treated  as  covering  the  communication 
itself. 


657.   AARON  BURR'S  TRIAL 

United  States  Circuit  Court.     1807 

Robertson's  Rep.,  I,  121,  127,  136,  181,  255;   II,  536 

[Treason.     The  accused  moved  for  a  subpoena  duces  tecum  to  the 
President  of  the  United  States  to  attend  and  bring  certain  correspondence 


952  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  657 

with  General  Wilkinson,  material  to  aid  the  defence.  The  counsel  for 
the  prosecution  did  not  deny  that  the  President  was  "as  amenable  to 
that  process  as  any  other  citizen,"  but  claimed  that  "if  his  public  func- 
tions disable  him  from  obeying  the  process,  that  would  be  a  satisfactory 
excuse,  'pro  hac  vice,'"  and  that  the  papers  here  asked  for  were  State 
secrets  and  u-relevant.] 

Mr.  Botts  (arguing  for  the  accused).  I  can  never  express,  in  terms 
sufficiently  strong,  the  detestation  and  abhorrence  which  every  American 
should  feel  towards  a  system  of  State  secrecy.  It  never  can  conduce  to 
public  utility,  though  it  may  furnish  pretexts  to  men  in  power  to  shelter 
themselves  and  their  friends  and  agents  from  the  just  animadversion  of 
the  law,  —  to  direct  their  malignant  plots  to  the  destruction  of  other 
men  while  they  are  themselves  secure  from  punishment.  In  a  govern- 
ment of  responsibility  like  ours,  where  all  the  agents  of  the  piiblic  must 
be  responsible  for  their  conduct,  there  can  be  but  few  secrets.  The 
people  of  the  United  States  have  a  right  to  know  every  public  act,  every 
thing  that  is  done  in  a  public  way  by  their  public  functionaries.  They 
ought  to  know  the  particulars  of  public  transactions  in  all  their  bearings 
and  relations,  so  as  to  be  able  to  distinguish  whether  and  how  far  they  are 
conducted  with  fidelity  and  ability;  and  with  the  exception  of  what 
relates  to  negotiations  with  foreign  nations,  or  what  is  called  the  diplo- 
matic department,  there  ought  to  be  nothing  suppressed  or  concealed.  .  .  . 
I  will  again  predict  that,  if  a  secret  inquisitorial  tribunal  be  established 
by  your  decision  now,  ...  if  you  determine  that  we  be  deprived  of  the 
benefit  of  important  written  or  oral  evidence  by  the  introduction  of  this 
State  secrecy,  you  lay,  without  intending  it,  the  foundation  for  a  system 
of  oppression.  If  these  things  be  established,  to  go  down  to  posterity  as 
precedents,  the  inevitable  consequences  will  be  that,  whenever  any  man 
in  the  United  States  becomes  an  object  of  the  vengeance  or  jealousy  of 
those  in  poAver,  he  may  easily  be  ruined.  A  wicked  executive  power  will 
have  nothing  to  do  to  effect  his  destruction  but  to  foment  divisions  in 
this  country,  to  encourage  and  excite  accusations  by  its  officers,  to  deny 
the  use  of  all  public  documents  that  may  tend  to  the  justification  of  the 
accused,  or  to  render  the  attainment  of  exculpatory  evidence  dependent 
on  the  arbitrary  whim  of  its  prosecuting  officers,  and  he  will  be  con- 
demned to  sink  without  the  smallest  eff'ectual  resistance.  ... 

Marshall,  C.J.  (granting  the  motion).  .  .  .  The  exceptions  [to  the 
accused's  right  to  process]  furnished  by  the  law  of  evidence,  with  one 
reservation,  so  far  as  they  are  personal,  are  of  those  [persons]  only  whose 
testimony  could  not  be  received.  The  single  reservation  alluded  to  is 
the  case  of  the  King.  Although  he  may,  perhaps,  give  testimony,  it  is 
said  to  be  incompatible  with  his  dignity  to  appear  under  the  process  of 
the  Court.  Of  the  many  points  of  difi^erence  which  exist  between  the 
First  Magistrate  in  England  and  the  First  Magistrate  in  the  United 
States,  in  respect  to  the  personal  dignity  conferred  on  them  by  the  con- 
stitutions of  their  respective  nations,  the  Court  will  only  mention  two. 


No.  657  PRIVILEGED   RELATIONS  953 

(1)  It  is  a  principle  of  the  English  constitution  that  the  King  can  do  no 
wrong,  that  no  blame  can  be  imputed  to  him,  that  he  cannot  be  named  in 
debate.  By  the  constitution  of  the  United  States,  the  President,  as  well 
as  every  other  officer  of  the  government,  may  be  impeached,  and  may  be 
removed  from  office  on  high  crimes  and  misdemeanors.  (2)  By  the 
constitution  of  Great  Britain  the  crown  is  hereditary,  and  the  monarch 
can  never  be  a  subject.  By  that  of  the  United  States,  the  President  is 
elected  from  the  mass  of  the  people,  and,  on  the  expiration  of  the  time 
for  which  he  is  elected,  returns  to  the  mass  of  the  people  again.  How 
essentially  this  difference  of  circumstances  must  vary  the  policy  of  the 
laws  of  the  two  countries,  in  reference  to  the  personal  dignity  of  the  execu- 
tive chief,  will  be  perceived  by  every  one.  In  this  respect,  the  First 
Magistrate  of  the  Union  may  more  properly  be  likened  to  the  first 
magistrate  of  a  State,  —  at  any  rate,  under  the  former  Confederation; 
and  it  is  not  known  ever  to  have  been  doubted  but  that  the  chief  magis- 
trate of  a  State  might  be  served  with  a  subpoena  ad  testificandum.  If 
in  any  court  of  the  United  States  it  has  ever  been  decided  that  a  subpoena 
cannot  issue  to  the  President,  that  decision  is  unknown  to  this  Court. 
If  upon  any  principle  the  President  could  be  construed  to  stand  exempt 
from  the  general  provisions  of  the  Constitution,  it  would  be  because  his 
duties  as  chief  magistrate  demand  his  whole  time  for  national  objects. 
But  it  is  apparent  that  this  demand  is  not  unremitting;  and,  if  it  should 
exist  at  the  time  when  his  attendance  on  a  court  is  required,  it  would  be 
sworn  on  the  return  of  the  subpoena,  and  would  rather  constitute  a  reason 
for  not  obeying  the  process  of  the  Court  than  a  reason  against  its  being 
issued.  In  point  of  fact,  it  cannot  be  doubted  that  the  people  of  England 
have  the  same  interest  in  the  service  of  the  executive  government  — 
that  is,  of  the  cabinet  counsel  —  that  the  American  people  have  in  the 
service  of  the  executive  of  the  United  States,  and  that  their  duties  are  as 
arduous  and  as  unremitting;  yet  it  has  never  been  alleged  that  a  subpoena 
might  not  be  directed  to  them.  It  cannot  be  denied  that  to  issue  a 
subpoena  to  a  person  filling  the  exalted  station  of  the  Chief  Magistrate 
is  a  duty  which  would  be  dispensed  with  more  cheerfully  than  it  would 
be  performed;  but,  if  it  be  a  duty,  the  Court  can  have  no  choice  in  the 
case.  If  then,  as  is  admitted  by  the  counsel  for  the  United  States,  a 
subpoena  may  issue  to  the  President,  the  accused  is  entitled  to  it  of 
course ;  and,  whatever  difference  may  exist  with  respect  to  the  power  to 
compel  the  same  obedience  to  the  process  as  if  it  had  been  directed  to  a 
private  citizen,  there  exists  no  difference  with  respect  to  the  right  to 
obtain  it.  The  guard  furnished  to  this  high  officer  to  protect  him  from 
being  harassed  by  vexatious  and  unnecessary  subpoenas  is  to  be  looked 
for  in  the  conduct  of  a  Court  after  those  subpoenas  have  issued,  —  not  in 
any  circumstance  which  is  to  precede  their  being  issued.  .   .  . 

[As  to  the  argument  that  reasons  of  State  might  forbid  the  disclosure], 
there  is  certainly  nothing  before  the  Court  which  shows  that  the  letter  in 
question  contains  any  matter  the  disclosure  of  which  Mould  endanger 


954  BOOK   i:     RULES   OF  ADMISSIBILITY  No.  657 

the  public  safety.  ...  If  it  does  contain  any  matter  which  it  would 
be  imprudent  to  disclose,  which  it  is  not  the  wish  of  the  Executive  to 
disclose,  such  matter,  if  it  be  not  immediately  and  essentially  applicable 
to  the  point,  will  of  course  be  suppressed.  .  .  .  Everything  of  this  kind, 
however,  will  have  its  due  consideration  on  the  return  of  tlie  subpoena. 
...  I  admit,  in  such  a  case,  much  reliance  must  be  placed  on  the  declara- 
tion of  the  President;  .  .  .  perhaps  the  Court  ought  to  consider  the 
reasons  which  would  induce  the  President  to  refuse  to  exhibit  such  a 
letter  as  conclusive  oh  it,  unless  such  letter  could  be  shown  to  be  abso- 
lutely necessary  in  the  defence.  The  President  may  himself  state  the 
particular  reasons  which  may  have  induced  him  to  withhold  a  paper, 
and  the  Court  would  unquestionably  allow  their  full  force  to  those 
reasons. 

[To  this  subpoena.  President  Jefferson  responded,  without  attend- 
ance, by  a  letter  to  the  prosecuting  counsel,  in  which  he  offered  to  be 
examined  at  Washington  by  deposition,  but  explained  his  non-attendance 
at  Court  as  follows:]  As  to  our  personal  attendance  at  Richmond,  I  am 
persuaded  the  Court  is  sensible  that  paramount  duties  to  the  nation  at 
large  control  the  obligation  of  compliance  with  its  summons  in  this  case; 
as  it  would,  should  we  receive  a  similar  one  to  attend  the  trials  of  Blenner- 
hasset  and  others  [co-conspirators]  in  Mississippi  Territory,  those  insti- 
tuted at  St.  Louis  and  other  places  on  the  western  waters ;  or  at  any  place 
other  than  the  seat  of  government.  To  comply  with  such  calls  would 
leave  the  nation  without  an  executive  branch,  whose  agency  nevertheless 
is  understood  to  be  so  constantly  necessary  that  it  is  the  sole  branch  which 
the  Constitution  requires  to  be  always  in  function.  It  would  not,  then, 
intend  that  it  should  be  withdrawn  from  its  station  by  any  co-ordinate 
authority.  .  .  . 

[The  President  though  forwarding  the  desired  letter,  added  the 
following:]  With  respect  to  papers,  there  is  certainly  a  public  and  private 
side  to  our  offices.  To  the  former  belong  grants  of  land,  patents  for 
inventions,  certain  commissions,  proclamations,  and  other  papers  patent 
in  their  nature.  To  the  other  belong  mere  executive  proceedings.  All 
nations  have  found  it  necessary  that  for  the  advantageous  conduct  of 
their  affairs  some  of  these  proceedings  at  least  should  remain  known  to 
their  executive  functionary  only.  He,  of  course,  from  the  nature  of  the 
case,  must  be  the  sole  judge  of  which  of  them  the  public  interest  will 
permit  publication. 

658.  Mississippi  v.  Johnson.  (1866.  Federal  Supreme  Court.  4  Wall.  475, 
483.)  Attorney-General  Stanbery  (arguing).  If  the  Court  [in  Burr's  Trial]  in 
saying  that  the  President  was  amenable  to  subpoena,  was  right,  the  Court  was 
bound,  at  the  instance  of  the  defendant,  to  follow  it  up  by  process  of  attachment 
to  compel  obedience  to  its  lawful  order.  At  that  point,  however,  the  Court 
hesitated,  and  not  a  step  further  was  taken  towards  enforcing  the  doctrine  laid 
down  by  the  Chief  Justice.     It  then  became  quite  too  apparent  that  a  very  great 


No.  659  PRIVILEGED   RELATIONS  955 

error  had  been  committed.  I  say  a  very  great  error,  with  the  greatest  submission 
to  the  great  Chief  Justice,  who,  on  circuit,  at  Nisi  Prius,  suddenly,  on  a  motion  of 
this  kind,  had  held  that  the  President  of  the  United  States  was  liable  to  the 
subpoena  of  any  Court  as  President. 


659.   BEATSON  v.   SKENE 
Exchequer.     1860 
5  H.  &  N.  838,  853 

[Libel.  The  plaintiff,  Skene,  was  a  general  of  cavalry.  At  the  close 
of  the  Crimean  war  he  was  superseded  in  command,  and  resigned.  An 
investigation  into  the  state  of  the  corps  was  made  by  General  Shirley, 
whose  secretary  and  commissioner  the  defendant  Beatson  was.  The 
defendant  reported  to  his  superior  that  the  plaintiff  had  stirred  up  mutiny 
in  the  corps,  and  afterwards  so  testified  as  a  witness  before  a  military 
court  of  inquiry  held  to  investigate  General  Shirley's  alleged  libel  on  the 
plaintiff.  For  this  testimony  the  plaintiff's  suit  for  libel  was  brought; 
and  he  sought  production,  in  his  proof,  of  the  military  court's  minutes  of 
the  defendant's  testimony,  and  of  the  plaintiff's  own  letters  to  the 
Secretary  of  War.  This  production  was  refused.  On  a  rule  nisi  granting 
production,] 

Bovill  and  Garth  showed  cause.  First,  the  learned  Judge  was  correct 
in  refusing  to  compel  the  production  of  the  letters  and  minutes  of  the 
Court  of  Inquiry,  the  Secretary  of  State  for  War  having  objected  to 
produce  them,  on  the  ground  that  their  production  would  be  prejudicial 
to  the  public  service.  It  is  clear  that  evidence  may  be  excluded,  where 
the  disclosure  would  be  prejudicial  to  public  interests.  .  .  . 

Edwin  James  and  Gray,  in  support  of  the  rule.  First,  the  learned 
Judge  ought  to  have  compelled  the  production  of  the  letters  and  minutes 
of  the  Court  of  Inquiry,  which  the  Secretary  for  War  was  subpoenaed  to 
produce.  The  letters  were  not  confidential  communications,  but  were 
written  by  the  plaintiff  in  explanation  of  his  conduct,  and  for  the  purpose 
of  showing  the  motives  by  which  he  was  actuated.  There  is  no  authority 
that  under  such  circumstances  the  Secretary  for  War  was  entitled  to 
withhold  them.  The  case  is  totally  different  from  that  of  a  confidential 
report  made  by  a  military  officer  to  the  Secretary  for  War,  which  it  is 
conceded  would  be  privileged. 

Pollock,  C.  B.  — -  We  are  of  opinion  that  it  cannot  be  laid  down  that 
all  public  documents,  including  treaties  with  foreign  powers  and  all  the 
correspondence  that  may  precede  or  accompany  them,  and  all  communi- 
cations to  the  heads  of  departments,  are  to  be  produced  and  made  public 
whenever  a  suitor  in  a  court  of  justice  thinks  that  his  case  requires  such 
production.  It  is  manifest,  we  think,  that  there  must  be  a  limit  to  the 
duty  or  the  power  of  compelling  the  production  of  papers  which  are 


956  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  659 

connected  with  acts  of  State.  As  an  instance,  we  would  put  the  case  of 
a  British  minister  at  a  foreign  Court  writing  in  that  capacity  a  letter  to 
the  Secretary  of  State  for  Foreign  Affairs  in  this  country,  containing 
matter  injurious  to  the  reputation  of  a  foreigner  or  a  British  subject; 
can  it  be  contended  that  the  person  referred  to  would  have  a  right  to 
compel  the  production  of  the  letter  in  order  to  take  the  opinion  of  a  jury 
whether  the  injurious  matter  was  written  maliciously  or  not?  We  are 
of  opinion  that,  if  the  production  of  a  State  paper  would  be  injurious  to 
the  public  service,  the  general  public  interest  must  be  considered  para- 
mount to  the  individual  interest  of  a  suitor  in  a  court  of  justice;  and  the 
question  then  arises,  how  is  this  to  be  determined? 

It  is  manifest  it  must  be  determined  either  by  the  presiding  Judge  or 
by  the  responsible  servant  of  the  Crown  in  whose  custody  the  paper  is. 
The  Judge  would  be  unable  to  determine  it  without  ascertaining  what 
the  document  was,  and  why  the  publication  of  it  would  be  injurious  to 
the  public  service  —  an  inquiry  which  cannot  take  place  in  private,  and 
which  taking  place  in  public  may  do  all  the  mischief  which  it  is  proposed 
to  guard  against.  It  appears  to  us  therefore,  that  the  question,  whether 
the  production  of  the  documents  would  be  injurious  to  the  public  service, 
must  be  determined,  not  by  the  Judge  but  by  the  head  of  the  department 
having  the  custody  of  the  paper;  and  if  he  is  in  attendance  and  states 
that  in  his  opinion  the  production  of  the  document  would  be  injurious  to 
the  public  service,  we  think  the  Judge  ought  not  to  compel  the  production 
of  it.  The  administration  of  justice  is  only  a  part  of  the  general  conduct 
of  the  affairs  of  any  State  or  Nation,  and  we  think  is  (with  respect  to  the 
production  or  non-production  of  a  State  paper  in  a  Court  of  justice) 
subordinate  to  the  general  welfare  of  the  community. 

Rule  discharged. 

660.  Hennessy  v.  Wright.  (1888.  Queen's  Bench  Division.  L.  R.  21  Q. 
B.  D.  509,  512.)     Field,  J.  —  There  are  two  aspects  of  this  question. 

First,  the  publication  of  a  State  document  may  involve  danger  to  the  nation. 
If  the  confidential  communications  made  by  servants  of  the  Crown  to  each  other, 
by  superiors  to  inferiors  or  by  inferiors  to  superiors,  in  the  discharge  of  their  duty 
to  the  Crown,  were  liable  to  be  made  public  in  a  court  of  justice  at  the  instance 
of  any  suitor  who  thought  proper  to  say  "fiat  justitia  ruat  coelum,"  an  order  for 
discovery  might  involve  the  country  in  a  war. 

Secondly,  the  publication  of  a  State  paper  may  be  injurious  to  servants  of 
the  Crown  as  individuals;  there  would  be  an  end  of  all  freedom  in  their  official 
communications  if  they  knew  that  any  suitor,  that  as  in  this  case  any  one  of  their 
own  body  whom  circumstances  had  made  a  suitor,  could  legally  insist  that  any 
official  communication,  of  no  matter  how  secret  a  character,  should  be  produced 
openly  in  a  court  of  justice. 


No.  664  PRIVILEGED   RELATIONS  957 


Topic  5.    Physician  and  Patient 

662.  Duchess  of  Kingston's  Trial.  (1776.  House  of  Lords,  20  How.  St. 
Tr.  573.)  [Bigamy.  Mr.  Hawkins,  a  physician,  who  had  attended  the  accused 
and  her  alleged  husband,  was  asked]:  Do  you  know  from  the  parties  of  any 
marriage  between  them? 

Ans.:  I  do  not  know  how  far  anything  that  has  come  before  me  in  a  con- 
fidential trust  in  my  profession  should  be  disclosed,  consistent  with  my  professional; 
honor. 

Mansfield,  L.  C.  J.  —  If  all  your  lordships  will  acquiesce,  Mr.  Hawkins  will 
understand  that  it  is  your  judgment  and  opinion  that  a  surgeon  has  no  privilege, 
where  it  is  a  material  question  in  a  civil  or  criminal  cause  to  know  w'hether  parties 
were  married  or  whether  a  child  was  born,  to  say  that  his  introduction  to  the 
parties  was  in  the  course  of  his  profession  and  in  that  way  he  came  to  the  knowl- 
edge of  it.  ...  If  a  surgeon  was  voluntarily  to  reveal  these  secrets,  to  be  sure, 
he  would  be  guilty  of  a  breach  of  honor  and  of  great  indiscretion;  but  to  give  that 
information  in  a  court  of  justice  which  by  the  law  of  the  land  he  is  bound  to  do, 
will  never  be  imputed  to  him  as  any  indiscretion  whatever. 

663.  Commissioners  on  the  Revision  of  the  Statutes  of  New  York. 
(1836.  Ill,  737.)  The  ground  on  which  communications  to  counsel  are  privileged, 
is  the  supposed  necessity  of  a  full  knowledge  of  the  facts,  to  advise  correctly, 
and  to  prepare  for  the  proper  defence  or  prosecution  of  a  suit.  But  surely  the 
necessity  of  consulting  a  medical  adviser,  when  life  itself  may  be  in  jeopardy, 
is  still  stronger.  And  unless  such  consultations  are  privileged,  men  will  be 
incidentally  punished  by  being  obliged  to  suffer  the  consequences  of  injuries  with- 
out relief  from  the  medical  art,  and  without  conviction  of  any  offence.  Besides, 
in  such  cases,  during  the  struggle  between  legal  duty  on  the  one  hand,  and  pro- 
fessional honor  on  the  other,  the  latter,  aided  by  a  strong  sense  of  the  injustice 
and  inhumanity  of  the  rule,  will,  in  most  cases,  furnish  a  temptation  to  the 
perversion  or  concealment  of  truth,  too  strong  for  human  resistance. 


664.   GARTSIDE  v.   CONNECTICUT  MUTUAL  LIFE   INS.   CO. 

Supreme  Court  of  Missouri.     1882 

76  Mo.  446 

Appeal  from  St.  Louis  Court  of  Appeals.     Affirmed. 

This  suit  was  instituted  in  the  circuit  court  of  the  city  of  St.  Louis, 
on  a  policy  of  insurance  to  recover  a  death  loss.  On  the  trial  judgment 
was  rendered  for  defendant,  which,  on  plaintiff's  appeal  to  the  St.  Louis 
court  of  appeals,  w^as  reversed,  and  from  the  judgment  of  reversal  defend- 
ant prosecutes  an  appeal  to  this  Court. 

The  only  question  presented  on  said  appeal  for  determination  is,  ^ 
whether  a  physician,  who  is  called  to  visit  a  patient,  when  introduced 
as  a  witness,  can  be  required  or  allowed  to  disclose  any  information 
acquired  by  him  from  such  patient  either  orally,  by  signs  or  by  observation 


958  BOOK   l:     RULES   OF   ADMISSIBILITY  No.  664 

/  of  the  patient  after  he  has  submitted  himself  for  examination,  which 
'  information  was  necessary  to  enable  him  to  prescribe  for  such  patient. 
An  affirmative  answer  reverses,  and  a  negative  answer  affirms  the  judg- 
ment, and  the  solution  of  the  question  is  dependent  upon  a  construction 
of  the  fifth  subdivision  of  section  4017,  Revised  Statutes,  which  declares 
that  the  following  persons  shall  be  incompetent  to  testify,  viz:  ...  "A 
physician  or  surgeon,  concerning  any  information  which  he  may  have 
acquired  from  any  patient  while  attending  him  in  a  professional  character, 
and  which  information  was  necessary  to  enable  him  to  prescribe  for  such 
patient  as  a  physician,  or  do  any  act  for  him  as  a  surgeon." 

B.  D.  Lee,  for  appellant.  The  Court  of  Appeals  gave  too  broad  a 
construction  to  the  statute  of  Missouri  relating  to  the  competency  of 
witnesses.  It  should  have  been  strictly  construed.  .  .  .  The  New  York 
and  Michigan  authorities  cited  by  plaintiff  have  no  application  here.  .  .  . 

Jacob  Klein,  for  respondents.  The  information  which  a  physician  is 
forbidden  to  disclose  consists  not  merely  of  the  communications  made  to 
him  by  his  patient,  but  of  facts  which  otherwise  come  to  his  knowledge 
by  virtue  of  his  professional  employment.  ...  It  might  as  well  be 
said  that  information  can  be  gained  only  through  the  sense  of  hearing, 
as  that  the  information  intended  to  be  protected  by  the  statute  is  only 
that  which  the  medical  person  gains  through  the  oral  statements  of 
the  patient.  .  .  .  But  the  context  of  the  clause  puts  the  matter  beyond 
doubt;  there  is  a  studied  discrimination  in  the  language  applied  to  the 
three  professions:  As  to  the  Attorney,  it  is  the  "communication"  that 
is  to  be  withheld.  As  to  the  Priest,  it  is  the  "confession."  As  to  the 
Physician,  it  is  the  "information,"  a  word  more  comprehensive  than 
both  of  the  others.  .  .  .  All  the  knowledge  that  comes  to  a  physician,  in 
regard  to  his  patient,  is  information. 

Again,  it  is  obvious  that  the  purpose  of  the  law  was  to  create  entire 
confidence  in  the  mind  of  the  patient,  that  his  maladies  could  not  be 
disclosed  by  the  physician.  Take  the  case  of  a  patient  who  has  an  ulcer 
produced  by  venereal  disease.  As  soon  as  the  eye  of  the  physician  rests 
upon  it,  he  knows  what  it  is,  and  its  origin.  It  matters  not  what  his 
patient  may  say.  He  may  deny  its  origin,  through  delicacy;  and  yet 
it  is  by  looking  at  the  ulcer  that  the  physician  gets  his  "information." 
It  is  the  policy  of  the  law  to  encourage  the  patient  to  receive  medical 
aid,  and  for  his  friends  to  assist  him ;  and  anything  that  would  prevent 
so  merciful  a  rule  is  against  public  policy.  Take,  for  instance,  cases  of 
delirium  tremens.  It  is  for  the  interest  of  societ\%  and  certainly  in 
harmony  with  e\'ery  humane  principle,  that  the  patient  should  receive 
medical  attention.  But  we  will  say  that  the  physician  who  is  called  to 
attend  upon  him  may  be  called  into  court  to  testify  that  he  had  delirium 
tremens.  The  fear  that  such  would  be  the  case  might  deter  the  friends 
of  the  patient  from  calling  a  physician,  and  thus  the  law  would  become 
an  engine  of  inhumanity  and  cruelty,  for  in  cases  of  delirium  tremens  the 
physician  would  get  "information"  in  regard  to  the  disease  without  any 


No.  664  PRIVILEGED   RELATIONS  959 

"communication"  from  the  patient,  unless  his  incoherent  ravings  may 
be  considered  as  communications. 

Napton,  J.  (after  stating  the  case  as  above).  It  is  contended  upon 
the  one  hand  that  the  above  statute  was  only  designed  and  intended  to 
forbid  the  disclosure  of  such  information  as  a  physician  while  attending 
a  patient  acquires  orally  from  the  patient.  It  is  contended,  on  the  other 
hand,  that  the  statute  forbids,  not  only  information  acquired  through  the 
ear  by  oral  communication,  but  also  all  information  acquired  through 
the  eye  by  observation  or  examination  of  the  patient  after  he  has 
submitted  himself  to  the  care  of  the  physician  for  examination  and 
treatment.  In  settling  this  contention,  and  in  determining  the  proper 
construction  to  be  placed  on  said  section  4017,  we  feel  authorized  to 
look  at  the  adjudications  in  other  States  having  similar  statutes.  .  .  . 

A  kindred  statute  has  been  in  existence  in  New  York  since  1828.  .  .  . 
This  statute  has  been  repeatedly  before  the  Courts  of  that  State  for  con- 
struction, and  in  a  long  line  of  decisions,  beginning  in  1834,  it  has  been 
held  that  the  object  of  the  statute  was  to  impress  secrecy  upon  the 
knowledge  acquired  by  a  physician  in  the  sick  chamber,  whether  acquired 
by  conversations  had  with  the  patient,  or  as  the  result  of  observation  or 
examination  of  such  patient,  and  which  information  was  necessary  to 
enable  him  to  prescribe  for  the  patient.  ...  In  Michigan  the  statute 
upon  this  subject  is  in  the  exact  words  of  the  New  York  statute,  and 
the  same  construction  has  been  put  upon  it  by  the  Courts  of  that  State, 
Judge  CooLEY  delivering  the  opinion  in  the  case  of  Briggs  v.  Briggs,  20 
Mich.  34 

It  is  plausibly  argued  by  counsel  that,  inasmuch  as  our  statute  differs 
from  the  New  York  and  Michigan  statutes  in  this,  that  the  words  "  from 
the  patient"  inserted  in  our  statute  after  the  word  "acquired,"  are  not 
to  be  found  in  the  New  York  statute,  therefore  the  decisions  above 
referred  to  are  not  authoritative.  While  it  is  true  that  the  phraseology 
of  our  statute  is  different  in  the  above  respect  from  the  New  York 
statute,  it  is  also  true  that  the  object  intended  to  be  accomplished  by 
both  is  the  same,  and  the  meaning  of  both  is  the  same  when  construed 
with  reference  to  the  object  intended  to  be  brought  about,  viz:  casting 
"the  veil  of  privilege"  or  secrecy  over  information  acquired  by  a  physi- 
cian while  professionally  engaged  in  the  sick  chamber,  and  necessary  to 
enable  him  to  prescribe.  Information  acquired  by  a  physician  from  in- 
spection, examination  or  observation  of  the  person  of  the  patient,  after 
he  has  submitted  himself  to  such  examination,  may  as  appropriately  be 
said  to  be  acquired  from  the  patient  as  if  the  same  information  had  been 
orally  communicated  by  the  patient.  The  construction  contended  for  by 
defendant's  counsel,  that  by  the  statute  a  physician  is  forbidden  to 
disclose  only  such  information  as  may  have  been  communicated  to  him 
orally  by  his  patient,  would,  in  our  opinion,  nullify  the  law.  To  hold 
that,  while  under  the  statute  a  physician  would  be  forbidden  from 
disclosing  a  statement  made  to  him  by  his  patient  that  he  was  suffering 


960  BOOK   i:     RULES   OF   ADMISSIBILITY  No.  664 

from  syphilis;  and  to  allow  him  to  state  as  the  result  of  his  observation 
and  examination  of  the  patient  that  he  was  diseased  with  syphilis  would 
be  to  make  the  statute  inconsistent  with  itself.  It  is  doubtless  true  that 
a  physician  learns  more  of  the  condition  of  a  patient  from  his  own  diag- 
nosis of  the  case  than  from  what  is  communicated  by  the  words  of  the 
patient;  and  to  say  that  while  the  mouth  of  the  physician  is  sealed  as 
to  the  information  acquired  orally  from  his  patient,  it  is  opened  wide  as 
to  information  acquired  from  a  source  upon  which  he  must  rely,  viz: 
his  own  diagnosis  of  the  case,  would  be  to  restrict  the  operation  of  the 
statute  to  narrower  limits  than  was  ever  intended  by  the  Legislature  and 
virtually  to  overthrow  it. 

It  follows  from  what  has  been  said  that  the  Circuit  Court  erred  in 
permitting  Drs.  Gregory  and  Bauduy,  two  physicians,  to  give  in  evidence 
the  information  acquired  by  them  While  attending  Gartside,  their  patient, 
professionally,  although  such  information  was  acquired  not  from  what 
the  patient  said  but  from  observation  and  examination. 

The  judgment  of  the  St.  Louis  Court  of  Appeals  reversing  the  judg- 
ment of  the  Circuit  Court  and  remanding  the  cause,  is  affirmed,  with 
the  concurrence  of  all  the  judges. 


665.   McRAE  v.   ERICKSON 

Court  of  Appeal  of  California.     1905 

1  Cal.  App.  326;  82  Pac.  20^ 

Appeal  from  Superior  Court,  Los  Angeles  County;  M.  T.  Allen, 
Judge.  Action  by  Alexander  McRae  against  Charles  Erickson  and 
others.  From  a  judgment  for  plaintiff,  and  from  an  order  denying  a 
new  trial,  defendants  appeal.     Affirmed. 

BickncU,  Gibson  &  Trask,  for  appellants.  Edwin  A.  Meserve  and 
Fred  E.  Burlew,  for  respondents. 

Smith,  J.  —  Appeal  from  a  judgment  for  the  plaintiff,  and  from  an 
order  denying  the  defendants'  motion  for  a  new  trial.  The  suit -is  for 
damages  for  injuries  received  by  plaintiff  while  working  for  defendants 
in  the  construction  of  a  tunnel  for  the  Southern  Pacific  Railroad  Company 
on  the  line  between  Los  Angeles  and  Ventura  covmties.  .  .  . 

The  remaining  point  urged  is  that  the  Court  erred  in  excluding  the 
testimony  of  Dr.  Hitt  as  to  a  statement  made  to  him  by  the  plaintiff  at 
the  defendants'  hospital,  where  he  had  been  taken  for  treatment;  and 
this  is  objected  to  on  the  two  grounds:  That  there  is  nothing  in  the 
record  to  indicate  that  the  witness  was  acting  professionally,  or  with  a 
view  to  treating  plaintiff,  or  that  the  information  was  obtained  with  a 
view  to  treatment,  and  that  the  information  was,  in  fact,  not  "  necessary 
to  enable  him  to  prescribe  or  act  for  the  patient." 

1.    Rut  the  former  point,  we  think,  is  obviously  untenable.     The 


No.  605  PRIVILEGED   RELATIONS  961 

witness  was  a  physician  and  surgeon,  and  as  such  was  in  charge  of  the 
defendants'  hospital,  and  his  services  were  remunerated  by  assessments 
upon  the  wages  of  the  men,  so  that  he  was,  in  effect,  employed  by  the 
plaintiff.  He  examined  the  plaintiff  as  a  physician,  and  the  plaintiff 
knew  that  he  was  examining  him  as  such,  and  the  information  sought 
was  obtained  from  the  plaintiff  at  the  time  he  was  examining  him,  or 
sometime  during  the  day.  The  Court  below,  we  think,  was  right  in  i 
holding  that  the  communication  was  made  to  the  witness  in  the  course  j 
of  professional  employment. 

2.  As  to  the  remaining  objection:  The  question  asked  the  witness 
was:  "If  Mr.  McRae  made  any  statement  to  yOu,  explaining  how  the 
rock  fell,  and  how  it  hit  him,"  to  which  he  answered:  "He  did."  The 
witness  was  then  asked:  "Now,  state  whether  he  told  you  how  the  rock 
came  down  and  from  whence  it  came,"  and,  the  question  being  objected 
to,  the  witness  testified  that  the  statement  referred  to  "had  nothing  to 
do  with  his  (the  plaintiff's)  treatment,  nor  with  the  examination  of  him 
for  the  purpose  of  determining  his  physical  injuries";  that  "it  had  no 
relation  whatever  to  his  treatment";  that  "it  was  customary  in  the  hos- 
pital to  get  a  record  from  the  patients  as  to  how  these  things  occurred." 
.  .  .  The  objection  to  the  question  was  thereupon  sustained,  and  the 
appellants  excepted.  The  Court  was  not  informed  as  to  the  effect  of  the 
statement  sought,  otherwise  than  by  the  questions  above  quoted;  and 
from  these  it  cannot  be  very  clearly  determined  what  the  statement 
would  have  been.  If  it  was  as  indicated  by  the  first  question,  the 
information  sought  was  apparently  of  a.  character  necessary  to  the 
proper  treatment  of  the  patient;  but  information  as  to  the  direction  or 
point  whence  the  rock  came  would  seem  to  have  been  unnecessary  for 
such  purpose,  and  to  this  extent,  if  we  have  regard  to  the  most  obvious 
sense  of  the  provision  of  the  statute  under  consideration,  the  objection 
of  the  respondent  would  seem  to  have  been  well  taken. 

But  to  give  to  the  statute  this  narrow  construction  would  equally 
exclude  from  its  application  many,  if  not  most,  of  the  answers  to  questions 
usually  put,  and  properly  and  necessarily  put,  by  competent  physicians 
to  patients  in  cases  of  this  kind,  in  order  to  enable  them  to  act  for  their 
patients.  This,  we  think,  would  be  to  defeat  the  obvious  purpose  of  the 
act,  which,  it  is  said,  "  is  to  facilitate  and  make  safe,  full,  and  confidential 
disclosure  by  patient  to  physician  of  all  facts,  circumstances,  and  symp- 
toms, untrammeled  by  apprehension  of  their  subsequent  and  enforced 
disclosure  and  pul^lication  on  the  witness  stand,  to  the  end  that  the 
physician  may  form  a  correct  opinion,  and  be  enabled  safely  and  effi- 
caciously to  treat  his  patient."  Will  of  Bruendl,  102  Wis.  47,  78  N.  W. 
169.  .  .  .  Though  the  precise  question  has  not  been  determined  by  the 
Supreme  Court  of  this  State,  the  same  view  seems  to  have  been  com- 
monly taken.  ...  , 

We  are  therefore  of  the  opinion  that  the  view  of  the  Court  below  in  1 
this  case  w^as  correct,  and  that  the  intention  of  the  statute  is  to  exclude 


962  BOOK   i:     RULES    OF   ADMISSIBILITY  No.  665 

all  statements  made  by  a  patient  to  his  physician  while  attending  him 
in  that  capacity  for  the  purpose  of  determining  his  condition.  Nor  does 
this  construction  do  violence  to  the  language  of  the  act  liberally  construed, 
which  we  think  is  to  be  understood  as  forbidding  a  physician  to  be  ex- 
amined "as  to  any  information  acquired  in  attending  the  patient,  the 
acquisition  of  which  was  necessary  (or  which  it  was  necessary  for  him 
to  acquire)  in  order  to  enable  him  to  prescribe  or  act  for  the  patient." 
Of  this  necessity,  from  the  nature  of  the  case,  the  physician  must  com- 
monly be  regarded  as  the  sole  judge;  for  it  would  be  obviously  unreason- 
able to  require  of  the  patient  the  exercise  of  any  judgment  with  reference 
to  the  propriety  of  the  questions  asked  by  his  physician,  except,  possibly, 
in  cases  where  the  materiality  of  the  question  is  obviously  apparent. 

We  are  of  the  opinion  that  the  judgment  and  order  appealed  from 
should  be  affirmed,  and  it  is  so  ordered. 

We  concur :  Gray,  P.  J, ;  Allen,  J. 


BOOK  II.     HOW  AND   WHEN    EVIDENCE 
IS   TO    BE    PRESENTED 

(PROCEDURE   OF   ADMISSIBILITY) 

TITLE  I.     THEORY  OF  AUMISSIBILITY 

Topic  1.    Multiple  Admissibility 

667.  People  v.  Doyle.  (1870.  Michigan.  21  Mich.  221,  227.)  Graves,  J. 
Whenever  a  question  is  made  upon  the  admission  of  evidence,  it  is  indispensable  \ 
to  consider  the  object  for  which  it  is  produced,  and  the  point  intended  to  be  1 
estabhshed  by  it.  .  .  .  It  frequently  happens  that  an  item  of  proof  is  plainly  j 
relevant  and  proper  for  one  purpose,  while  wholly  inadmissible  for  another  which  ; 
it  would  naturally  tend  to  establish.  And  when  this  occiu"s,  the  evidence  when  } 
offered  for  the  legal  purpose  can  no  more  be  excluded  on  the  ground  of  its  aptitude  I 
to  show  the  unauthorized  fact  than  its  admission  to  prove  such  unauthorized  1 
fact  can  be  justified  on  the  ground  of  its  aptness  to  prove  another  fact  legally 
provable  under  the  issue. 


668.   GOODHAND  v.   BENTON 

Court  of  Appeals  of  Maryland.     1834 

&G.  &  J.  481 

APPEA.L  from  Queen  Anne's  county  court.  This  was  an  action  of 
Replevin,  commenced  by  the  appellee  against  the  appellant,  on  the 
17th  day  of  October,  1831,  for  negro  boy  named  Bill.  Issues  were  joined 
upon  the  pleas  of  non  cepit,  and  property  in  defendant. 

At  the  trial  the  plaintiff  read  to  the  jury  a  bill  of  sale  from  Charles  M. 
Stevenson  to  Mary  Ann  Burgess,  daughter  of  George  B.  and  Isabella 
Burgess,  dated  February  20,  1817,  of  a  negro  woman  named  Rlioda,  and 
a  boy  Bill,  the  subject  of  the  present  action. 

The  cause  was  argued  before  Stephen,  Archer,  and  Dorset,  JJ. 

Spencer,  for  the  appellant.      Wm.  Carmichael  for  the  appellee.  .  .  . 

DoRSEY,  J.,  delivered  the  opinion  of  the  Court.  ...  It  has  been 
contended  by  the  appellant's  counsel,  that  whether  the  subject  matter  of 
a  cross-examination  has  any  relevancy  or  bearing  upon  the  issues  made 
up  in  the  cause,  or  has  any  immediate  connection  with,  or  pertinence  to, 
any  material  testimony  offered  in  relation  to  such  issues,  is  w'holly  imma- 
terial; that  in  a  cross-examination  for  the  purpose  of  impeaching  the 
testimony  of  a  witness,  or  involving  him  in  contradictions,  or  showing  his 


964  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.  668 

ignorance,  or  the  inaccuracy  of  his  memory,  he  may  be  interrogated  as 
to  any  thing  and  every  thing,  without  reference  to  its  relevancy  to  the 
issues  which  by  the  pleadings  in  the  cause  have  been  submitted  to  the 
jury. 

To  such  an  unreasonable,  pernicious,  and  latitudinarian  principle, 
this  Court  can  never  yield  its  sanction.  .  .  . 

Having  disposed  of  the  question,  as  far  as  regards  the  abstract  power 
of  the  appellant,  in  the  cross-examination  of  the  witness,  let  us  now 
apply  the  principles  of  our  decision  to  test  the  accuracy  of  the  Court's 
opinion  in  the  first  bill  of  exceptions.  The  witness,  Thomas  Thomas,  in 
his  examination  in  chief,  had  testified  that  he  knew  Rhoda,  the  mother 
of  Bill,  in  1817,  when  she  lived  with  George  B.  Burgess;  that  his  father  at 
the  time  of  his  death  lived  on  the  farm  of  Mary  Burgess,  who  was  a 
lunatic,  and  for  whom  George  B.  Burgess  was  trustee;  that  the  witness, 
in  December,  1817,  went  to  the  house  of  George  B.  Burgess,  who  then 
resided  in  Church  Hill,  to  settle  with  Burgess  for  the  rent  of  the  farm, 
and  that  while  there,  he  was  carried  by  Burgess  into  the  kitchen,  where 
he  saw  Rhoda's  child,  then  an  infant,  of  but  a  few  weeks  old;  that  he  took 
out  letters  of  administration  on  the  estate  of  his  father,  James  Thomas, 
in  June,  1817,  and  that  he  did  not  go  to  settle  with  Burgess  until  after  he 
had  taken  out  letters.  And  the  witness,  on  being  cross-examined,  stated 
that  he  did  not  apply  to  Burgess  to  know  the  state  of  his  father's  accounts 
before  the  date  of  his  letters;  that  he  knew  the  state  of  his  accounts; 
that  his  father  was  indebted  to  Burgess  for  a  store  account,  and  for  the 
hire  of  a  negro,  and  for  a  store;  besides  a  balance  of  the  rent.  That  the 
rent  was  not  settled  between  him  and  Burgess;  they  having  differed, 
the  subject  was  referred,  and  was  before  arbitrators  two  years  or  more; 
and  that  he  had  never  charged  his  father's  estate  for  the  rent,  in  any 
account  passed  by  him  with  the  Orphan's  court.  The  plaintiflF  then 
produced  the  letters  of  administration,  dated  June  1,  1817. 

All  this  testimony,  with  the  other  proof  set  forth  in  the  bill  of  excep- 
tions, being  before  the  jury,  without  objection  by  either  party,  the 
defendant  offered  to  read  in  evidence  the  account  passed  by  the  witness, 
and  the  co-administratrix  of  his  father,  before  the  Orphan's  court  in 
June,  1818,  containing  among  other  credits  the  following:  "for  cash 
due  from  said  deceased  to  George  B.  Burgess,  trustee  of  Mary  Burgess, 
and  paid  by  these  accountants,  as  per  account  proved,  and  receipt 
allowed  S226.74:"  declaring  the  object  of  the  testimony  then  offered, 
to  be,  to  contradict  Thomas  Thomas,  and  impeach  the  accuracy  of  his 
recollection  in  regard  to  the  passing  an  account  for  rent  and  as  to  the 
time  expended  in  investigating  the  claim  before  arbitrators;  but  the 
Court  refused  to  permit  the  said  accounts  being  laid  before  the  jury  for 
the  purpose  for  which  the  same  was  offered. 

As  to  the  correctness  of  this  refusal,  we  fully  concur  in  opinion  with 
the  County  Court.  The  testimony  which  had  been  offered  on  the  cross- 
examination,  unless  subsequently  made  competent  by  the  production 


No.  668  MULTIPLE   ADMISSIBILITY  965 

of  the  account  for  a  legitimate  purpose,  was  wholly  irrelevant  and  imma- 
terial to  the  issues  in  the  cause.  If  the  purpose  for  which  the  account 
was  offered,  was  effectuated  —  if  the  facts  which  it  was  designed  to  prove 
were  established  or  admitted  —  the  e\'idence  given  on  the  cross-examina- 
tion was  still  left  wholly  irrelevant,  impertinent  to  the  issues,  and  every 
material  fact  proved  in  relation  to  them;  and  being  so,  no  testimony 
contradictory  thereof  was  admissible  to  impeach  the  credit  of  the  witness 
or  show  the  inaccuracy  of  his  memory.  P^'or  the  purpose,  then,  for  which 
the  account  was  offered  in  evidence,  we  think  it  clearly  inadmissil)le, 
and  approve  of  its  rejection  as  made  by  the  County  Court.  .  .  . 

In  the  Court's  rejection  of  the  account,  they  do  not  declare  it  admissi- 
ble evidence  for  no  purpose,  but  simply  that  it  was  inadmissible  for  the 
purpose  for  which  it  was  offered.  It  was  still  open  to  the  appellant 
to  offer  it  as  evidence  for  any  other  purpose,  for  which  it  was  legally 
competent.  Had  the  defendant  offered  the  account  in  evidence  generally, 
without  specifying  his  object,  or  had  stated  it  to  be  to  contradict  or 
discredit  the  testimony  of  the  witness  given  on  his  examination  in  chief, 
in  relation  to  his  statement  of  having  seen  Rhoda's  child,  a  few  weeks 
old  in  December,  1817,  upon  the  principles  settled  by  this  Court  in 
Davis  et  al.  v.  Barney,  2  Gill  and  Johns.  382,  ,  .  .  there  could  not  have 
been  a  doubt  as  to  its  legal  admissibility.  Connecting  it  with  the  proof 
offered  on  the  cross-examination,  it  was  testimon}-  legally  sufficient  to 
have  been  submitted  to  the  consideration  of  the  jury.  .  .  .  The  witness, 
on  his  examination  in  chief,  had  proved  that  in  December,  1817,  (after 
the  granting  of  his  letters  of  administration  in  the  June  preceding)  he 
had  called  on  George  B.  Burgess  to  settle  the  rent,  and  saw  there  Rhoda's 
child.  Bill  (the  negro  in  controversy),  then  but  a  few  weeks  old;  and 
on  his  cross-examination  he  deposed,  that  the  rent  was  not  settled  between 
him  and  Burgess ;  but  that  having  differed  as  to  the  rent,  it  was  referred 
to  arbitrators,  and  remained  before  them  two  years  or  more.  The  account 
passed  by  the  Orphan's  court  is  evidence,  that  the  witness  paid  the  rent 
anterior  to  June  18,  1818.  All  the  statements  of  the  witness,  therefore, 
cannot  possibly  be  true.  A  part  of  the  testimony  elicited  by  the  cross- 
examination  was  in  direct  collision  with  that  given  on  the  examination 
in  chief:  both  could  not  stand  together.  It  could  not  be  true,  that  the 
controversy  about  the  rent  was  two  or  more  years  before  the  arbitrators, 
if  the  reference  had  been  made  as  stated  by  the  witness.  Which  state- 
ment was  true,  the  jury  only  was  competent  to  decide.  Should  they 
have  believed  that  the  subject  of  the  rent  was  before  the  arbitrators  two 
or  more  years,  it  was  within  the  scope  of  their  powers  to  conclude  that 
the  reference,  though  continued  afterwards,  commenced  in  the  lifetime 
of  James  Thomas ;  and  that  the  witness  was  mistaken  in  dating  his  visit 
to  George  B.  Burgess'  house  in  December,  1817;  that  in  truth  it  occurred 
in  December,  1816.  .  .  . 

Concurring  in  opinion  with  the  County  Court,  on  both  bills  of  excep- 
tion, we  affirm  the  judgment.  Judgment  affirmed. 


966  BOOK   II :     PROCEDURE   OF   ADMISSIBILITY  No.  669 


669.   PEGG  V.   WARFORD 
Court  of  Appeals  of  Maryland.     1855 

7  Md.  582,  607 

Appeal  from  the  Circuit  Court  for  Baltimore  county. 

This  was  a  case  of  issues  from  the  Orphan's  court,  to  try  the  vahdity 
of  two  wills  executed  by  Rachel  Colvin,  deceased,  the  one  on  the  30th 
of  October,  1845,  and  the  other  on  the  6th  of  April,  1848.  .  .  .  These 
issues  were.  .  .  .  Whether  the  paper  of  the  6th  of  April,  1848,  was  .  .  . 
executed  by  her  under  the  influence  of  suggestions  and  importunities 
of  some  person  or  persons,  when  her  mind,  from  its  diseased  or  en- 
feebled state,  was  unable  to  resist  the  same?  .  .  . 

The  caveatee,  upon  the  cross-examination  of  St.  George  W.  Teackle, 
a  witness  produced  by  the  caveators,  proved  that  he  (witness)  endeavored 
to  get  the  testatrix,  Rachel  Colvin,  to  insert  in  the  will  of  1845  the  name 
of  Mrs.  Mary  Ann  Ellicott,  as  a  devisee,  but  the  said  testatrix  refused, 
upon  the  ground  that  Mrs.  Ellicott  was  the  only  child  of  a  rich  father.  .  .  . 
The  caveators  then  proved  by  Mrs.  Ellicott,  a  competent  witness,  that 
in  the  year  1847,  and  in  the  fall  of  that  year,  the  defendant,  Colvin 
Warford,  called  upon  her,  and  in  the  course  of  conversation  during  his 
visit,  asked  her  if  she  knew  how  much  her  father  was  worth?  to  which 
she  replied,  "  I  do  not."  That  Colvin  Wdrford  then  said  he  had  been  to 
New  Jersey,  and  would  tell  her  how  much  he  was  worth,  and  that  he 
was  worth  $100,000.  .  .  .  The  caveatee  then  offered  to  examine  Mr. 
Shrope  as  a  witness,  and  having  called  him  to  the  stand,  he  was  objected 
to  by  the  caveator's  counsel,  and  the  counsel  for  the  caveatee  being  asked 
what  they  offered  to  prove  by  said  witness,  said,  that  they  offered  said 
witness  for  the  purpose  of  contradicting.  Mrs.  Ellicott,  or  impeaching 
her,  by  showing  that  she  was  mistaken  as  to  the  time  of  said  conversa- 
tion, if  any  was  had,  or  that  the  statement  of  said  Warford  in  said  con- 
versation, if  it  was  had,  was  true.  The  caveatee  then  proved  by  said 
Shrope  that  he  was  one  of  the  assessors  of  one  of  the  townships  of  Hunter-  * 
don  county,  New  Jersey,  where  Elisha  Warford,  the  father  of  Mrs. 
Ellicott,  resided.  .  .  .  That  in  1852,  Colvin  Warford  called  upon  him 
to  ascertain  what  was  the  amount  and  value  of  Elisha  Warford's  estate, 
that  Elisha  Warford  was  going  security  upon  a  bond  in  Maryland; 
that  witness  showed  to  Colvin  Warford  the  assessment  of  Elisha  War- 
ford's  estate,  which  was  .$10,000  worth  of  real  estate,  and  that  he  owned 
lands  in  other  places.  .  .  . 

To  the  admissibility  of  all  which  testimony  of  said  Shrope,  for  the 
purpose  for  which  it  was  offered,  the  counsel  for  the  caveators  objected, 
but  the  Court  overruled  their  objection,  and  permitted  the  evidence  to 
go  to  the  jury.     To  this  ruling  the  caveators  excepted.  .  .  . 


No.   669  MULTIPLE    ADMISSIBILITY  967 

The  verdict  was  in  favor  of  the  caveatee  upon  all  the  issues,  and  the 
caveators  appealed. 

The  cause  was  argued  before  Le  Grand,  C.  J.,  Eccleston  and 
Mason,  JJ. 

Henry  Winter  Davis,  Grafton  L.  Dulany,  and  John  Johnson,  for  the 
appellants.  .  .  .  The  second  exception  relates  to  the  admissibility  of 
the  testimony  of  Shrope  for  the  purposes  for  which  it  was  offered.  When 
Shrope  was  called  as  a  witness  and  was  objected  to,  and  the  counsel  for 
the  caveatee  were  requested  to  state  for  what  purpose  they  offered  him, 
they  said  that  they  offered  him  for  the  purpose  of  contradicting  Mrs. 
Ellicott,  or  impeaching  her  by  showing  that  she  was  mistaken  as  to  the 
time  of  said  conversation  if  any  was  had,  or  that  the  statement  of  War- 
ford  in  said  conversation,  if  it  was  had,  was  true.  Now  these  lyuryoses 
being  legitimate  we  could  make  no  further  objection  until  the  testimony 
was  in.  When  the  testimony  was  given,  we  then  objected  that  it 
did  not  come  up  to  the  purposes  for  which  it  was  offered,  and  insisted 
that  it  was  the  duty  of  the  Court  below  to  have  it  ruled  out.  Now  we 
say: 

1st.  That  this  testimony  was  inadmissible  and  utterly  incompetent 
to  sustain  any  one  of  the  purposes  for  which  it  was  offered.  .  .   . 

2d.  But  conceding  the  evidence  of  Shrope  was  admissible  for  one  or 
two  of  the  three  purposes  for  which  it  was  offered  and  admitted  by  the 
Court,  we  still  ask  for  a  reversal  of  the  judgment,  if  for  the  remaining 
purpose  for  which  it  was  offered  and  let  in  the  proof  was  not  admissible. 
The  purposes  were  stated  in  the  alternative,  and  therefore  unless  the 
appellee  was  entitled  to  the  benefit  of  the  proof  in  support  of  each  and 
every  alternative,  he  has  by  the  judgment  of  the  Court  below  obtained 
an  advantage  to  which  he  is  not  entitled.  We  say  that  unless  it  was 
admissible  to  establish  each  one  and  all  of  the  purposes  for  which  it  was 
offered,  the  testimony  should  have  been  excluded. 

William  Schley  and  Reverdy  Johnson,  for  the  appellee.  .  .  .  The 
only  issue  to  which  the  evidence  of  Mrs.  Ellicott  had  any  application, 
was  the  second,  and  the  object  was  to  show  by  it  that  Miss  Colvin  was 
so  influenced  by  the  suggestion  of  the  appellee  that  Elisha  W^arford  was 
worth  $100,000,  that  no  legacy  was  given  to  Mrs.  Ellicott,  the  only  child 
of  Elisha  Warford.  It  was  therefore  important  that  the  appellee  should 
contradict  this  testimony,  so  far  as  was  in  his  power.  .  .  .  The  evidence 
was  properly  admitted  for  what  it  was  worth  for  the  consideration  of  the 
jury.  ... 

Now  what  is  the  meaning  of  the  objection?  It  is  said,  that  if  this 
testimony  was  not  admissible  for  any  one  of  the  purposes  for  which  it 
was  offered,  it  was  improper  to  admit  it.  But  this  is  an  entire  misappre- 
hension of  the  law.  ...  The  objection  was  a  general  one,  that  the  testi- 
mony was  not  admissible  for  the  purposes  for  which  it  was  offered.  .  .  . 
If  admissible  for  any  of  the  purposes  offered,  it  was  properly  admitted. 
.  .  .  The  exception  was  to  all  the  testimony  of  Shrope,  for  the  purpose 


968  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.  669 

for  which  it  was  offered.  If  any  pari  was  admissible,  the  exception  pro 
tanto  was  too  broad.   .   .   . 

Our  positions  therefore,  upon  this  exception,  are: 

1st.  That  tlie  evidence  of  Shrope  was  admissible  for  the  purpose  of 
showing  (should  it  avail  with  the  other  evidence  in  the  case,)  that  Mrs, 
Ellicott  was  mistaken  as  to  the  time  of  the  alleged  conversation  with  the 
appellee. 

2d.  That  it  was  admissible  for  the  purpose  of  showing  that  the  repre- 
sentation, if  made  by  the  appellee,  as  to  the  pecuniary  condition  of  Elisha 
Warford,  was  true,  and  was  not  a  misrepresentation.  .  .  . 

3rd.  That  proof  of  the  fact  that  the  appellee  never  applied  but  once, 
and  in  1852,  to  Shrope  for  information  as  to  the  pecuniary  condition  of 
Elisha  Warford,  was  a  circumstance  which  .  .  .  the  caveatee  was  entitled 
to  have  submitted  to  the  jury  as  part  of  his  rebutting  evidence.  .  .  . 

4th.  That  it  was  admissible  for  all  the  purposes  specified  respectively 
in  the  preceding  points. 

5th.  That  if  admissible  for  any  of  these  purposes,  this  second  excep- 
tion is  not  well  taken. 

6th.  That  if  any  part  of  this  evidence  was  admissible  for  anj^  one  of 
the  purposes  indicated,  the  exception  being  taken  to  the  whole,  cannot  be 
sustained.  .  .  . 

Mason,  J.,  delivered  the  opinion  of  the  Court.  .  .  .  The  second 
exception  relates  to  the  testimony  of  the  witness  Shrope.  ^^^len  the 
caveatee  proposed  to  examine  this  witness,  he  was  objected  to  by  the 
other  side,  but  the  record  does  not  disclose  upon  what  ground  the  objec- 
tion then  rested.  Such  an  objection,  at  such  a  time,  must  go  to  the 
competency  of  the  w'itness,  and  not  to  the  admissibility  of  his  testimony, 
for  until  the  evidence  is  offered,  no  question  of  admissibility  could  arise. 
The  legal  presumption  being  in  favor  of  the  competency  of  every  witness 
produced  on  the  stand,  no  objection  to  the  competency  of  such  witness 
should  be  entertained,  unless  the  party  making  it  discloses  at  the  time 
the  ground  upon  which  the  objection  is  based.  A  mere  general,  indefinite 
objection  will  not  avail.  Hence  the  objection  in  this  case,  to  Shrope, 
was  improperly  made,  and  the  caveatee  was  not  bound  to  state  any 
special  purpose  for  which  he  was  offered,  or  to  show,  until  the  contrary 
was  at  least  prima  fa,cie  established,  that  the  party  was  a  competent  and 
legal  witness.  The  facts  to  be  disclosed  by  this  witness,  if  admissible 
for  any  purpose,  might  have  been  offered  generally,  as  all  legal  and  perti- 
nent evidence  for  the  most  part  may  be  offered.  Goodhand  v.  Benton, 
6  Gill  &  John.,  488  [ante,  No.  668].  " 

But  the  caveatee  did  not  avail  himself  of  his  legal  rights  in  this 
particular,  but  proceeded  to  assign  three  several  objects  in  the  alterna- 
tive, for  which  the  evidence  Avas  offered,  each  of  which,  in  the  then  aspect 
of  the  case,  was  a  legitimate  subject  of  proof.  By  the  case  of  Goodhand 
V.  Benton,  [ante.  No.  668],  it  may  be  regarded  as  settled,  that  if  evidence 
offered  for  a  particular  purpose,  be  inadmissible  for  that  purpose,  though 


No.  669  MULTIPLE   ADMISSIBILITY  969 

admissible  generally,  or  for  some  other  object,  it  may  be  properly  rejected. 
Acknowledging  this  principle  to  be  sound,  it  would  follow,  that  if  the 
evidence  of  Shrope  had  been  admissible  for  all  the  special  objects  for 
which  it  was  tendered,  though  perchance  it  might  be  legal  evidence  for 
some  other  purpose,  it  should  have  been  rejected;  and  the  appellants 
contend  that  the  principle  should  l)e  carried  to  the  extent  of  determining 
that  unless  admissible  for  each  and  all  the  several  purposes  for  which  it 
was  offered,  it  should  not  have  been  received,  and  this  is  the  main  point 
involved  in  this  exception. 

The  testimony  of  Shrope,  if  applicable  at  all  to  the  issues  in  the  case, 
might  have  been  offered  generally,  as  we  have  already  shown.  If  it  were 
competent  testimony  for  any  purpose,  it  must  be  presumed  to  have  been 
for  one  or  the  other  of  the  subjects  for  which  it  was  alleged  to  be  offered ; 
at  least  no  attempt  was  made  to  use  it  for  any  other.  If  it  could  have 
been  offered  for  no  other  purpose,  does  it  not  follow  that  the  offer  was 
virtually  a  general  offer,  even  though,  in  point  of  fact,  the  testimony  may 
not  have  been  legally  applicable  to  all  of  the  points  to  which  it  was 
declared  to  relate?  If  there  be  any  reason  why  the  omission  to  mention 
all  the  purposes  for  which  the  testimony  might  be  applicable,  when  you 
have  attempted  to  name  some,  would  be  fatal  to  its  admissibility  for  the 
purposes  not  mentioned,  it  must  be  because  the  opposite  party  might  be 
thereby  misled,  and  prevented  from  fortifying  himself  with  rebutting 
testimony  upon  the  point,  in  reference  to  which  he  may  have  been  led  to 
believe  the  testimony  was  not  to  be  used.  While  the  omission  to  mention 
all  the  purposes -to  which  this  testimony  might  relate,  might  have  such 
an  effect,  it  is  difficult  to  imagine  why  such  a  result,  or  why  any  other 
inconvenience  could  follow  from  enumerating  among  the  proper  purposes 
for  which  testimony  was  offered,  others  for  which  it  was  not.  The 
question  resolves  itself  then  into  this,  was  the  testimony  admissible  for 
any  of  the  purposes  for  w'hich  it  was  offered? 

An  attempt  had  been  made  on  the  part  of  the  caveators  to  show,  by 
Mrs.  Ellicott,  that  Miss  Colvin,  the  testatrix,  had  been  deceived  by 
false  representations  made  by  Colvin  Warford,  as  to  the  pecuniary  con- 
dition of  Elisha  Warford,  the  father  of  Mrs.  Ellicott,  by  which  the  latter 
lost  a  legacy  which  she  supposes  she  would  otherwise  have  received.  It 
is  said  he  represented  Elisha  Warford  to  Miss  Colvin  as  being  worth 
$100,000.  If  this  were  a  fact,  or  if  he  honestly  believed  it  to  be  a  fact, 
there  was  no  impropriety  in  Warford's  having  mentioned  it  to  Miss 
Colvin,  let  his  motive  for  doing  so  be  what  it  may.  The  caveatee  offered 
Shrope,  at  this  juncture  of  the  case,  as  he  stated,  "for  the  purpose  of 
contradicting  j\Irs.  Ellicott,  or  impeaching  her,  by  showing  that  she  was 
mistaken  as  to  the  time  of  said  conversation,  if  any  was  had,  or  that  the 
statement  of  said  Warford,  in  said  conversation,  if  it  was  had,  was 
true."  .  .  . 

One  of  the  purposes,  then,  assigned  for  offering  this  testimony,  was 
to  show  that  this  statement  of  Warford  was  made  in  good  faith.     The 


f 


970  BOOK    II:     PROCEDURE    OF   ADMISSIBILITY  No.  669 

issue  thus  collaterally  arising  was  simply,  Was  or  was  not  the  statement 
true,  that  Elisha  Warford  was  worth  $100,000?  .  .  .  Shrope  surely 
proved  a  material  part  of  that  sum,  and  his  testimony  was  therefore 
clearly  admissible.  .  .  . 

But  it  has  been  said,  that  as  this  evidence  was  received  for  all  or 
either  of  the  three  purposes  for  which  it  was  offered,  unless  it  was  legally 
applicable  to  each,  the  jury  might  have  been  misled,  and  applied  it  to 
one  of  the  purposes  to  which  it  did  not  relate.  To  avoid  such  a  result, 
it  was  the  duty  of  the  counsel  objecting  to  have  pointed  out  specifically 
the  purpose  to  which  the  testimony  had  no  legal  application,  and  to  ask 
I  its  exclusion  for  such  purpose.  A  general  objection  to  testimony  which 
'  is  per  se  applicable  to  the  case  for  any  purpose  will  not  be  sustained, 
1  though  inapplicable  for  other  purposes;  and  such  general  objection  would 
leave  the  testimony  to  go  to  the  jury  as  if  no  objection  had  been  made  at 
all ;  in  other  words,  it  would  be  virtually  an  offer  generally  of  competent 
testimony.  Under  such  circumstances,  suppose,  in  argument  before  the 
jury  in  this  case,  the  counsel  for  the  appellee  had  endeavored  to  show 
that  besides  the  testimony's  tending  to  establish  that  the  statement  of 
Warford  was  true,  it  also  contradicted  the  previous  statements  of  Mrs. 
Ellicott,  when,  in  fact,  if  it  had  been  offered  solely  for  the  latter  purpose, 
it  would  have  been  rejected  as  illegal  evidence,  what  would  have  been 
the  effect?  Could  the  judgment  have  been  reversed  upon  the  assumption 
that  the  jury  made  an  improper,  instead  of  a  proper  application  of  the 
evidence?  Surely  not!  We  must  assume,  where  evidence  has  been 
offered  generally,  that  it  will  be  applied  by  the  jury  to  the  purposes  to 
which  it  is  legally  applicable;  and  if  counsel  wish  to  guard  against  the 
contingency  of  a  misapplication  of  the  evidence  by  the  jury,  they  should 
ask  the  Court,  as  has  been  already  said,  to  point  out  the  branch  of  the 
case  to  which  the  evidence  is  not  to  be  applied.  .  .  . 

As  to  the  sufficiency  of  this  evidence  to  establish  the  fact,  we  say 
nothing;  it  was  for  the  jury  alone,  upon  a  properly  framed  prayer,  to 
say  whether  the  issue  was  proved  or  not.  .  .  . 

Judgment  affirmed. 
EccLESTON,  J.,  dissented. 

670.  Ball  v.  United  States.  (United  States  Circuit  Court  of  Appeals. 
1906.  147  Fed.  32,  38.)  Gilbert,  J.:  ...  The  trial  Court,  over  the 
objection  of  the  plaintiff  in  error,  admitted  the  record  of  the  District  Court  of 
the  United  States  for  the  Northern  District  of  California  of  the  conviction  of 
the  plaintiff  in  error  of  said  offence.  .  .  . 

It  is  contended  that  the  failure  of  the  trial  Court  to  instruct  the  jury  that 
the  evidence  of  the  prior  conviction  of  the  plaintiff  in  error  was  to  be  considered 
only  as  tending  to  affect  the  credibility  of  his  testimony  was  error.  There  was 
no  request  for  such  an  instruction,  nor  was  any  objection  made  to  the  omission 
of  the  Court  so  to  instruct,  nor  is  the  failure  of  the  Court  so  to  instruct  assigned 
as  error.  In  Kentucky,  Tennessee,  and  Missouri  it  is  held,  contrary  to  the 
general  rule,  that  in  criminal  cases  the  omission  of  the  Court  to  charge  the  jury 


No.  671  CURATIVE   ADMISSIBILITY  971 

fully  as  to  any  branch  of  the  law  of  the  case,  though  not  requested,  is  ground  for 
reversal,  unless  it  is  clear  that  no  injury  could  have  resulted  therefrom.  ... 
But  we  think  it  may  be  said  to  be  the  general  rule  that  the  mere  omission  of  the    ( 
Court,  in  the  absence  of  a  specific  request,  to  limit  the  effect  of  evidence  admitted    I  L — 
only  for  a  certain  piu-pose,  is  not  error.  / 


Topic  2.    Curative  Admissibility 

671.     MOWRY  V.  SMITH 

Supreme  Judicial  Court  of  Massachusetts.     1864 

9  All  67 

Tort  to  recover  damages  for  an  assault  and  battery. 

At  the  trial  in  the  Superior  Court,  before  Ames,  J.,  the  committing 
of  an  assault  and  battery  was  admitted;  and  the  defendant,  for  the  pur- 
pose of  showing  provocation,  introduced  evidence  to  show  that  the 
plaintiflF  had  charged  him  with  attempting  to  pass  counterfeit  $.500  bills 
at  Brighton  market,  to  which  the  defendant  was  in  the  habit  of  going. 
The  plaintiff  denied  that  he  had  made  this  charge,  but  testified  that  he 
said  to  the  defendant,  "People  do  say  that  you  show  bad  money;"  and 
he  was  allowed  to  testify,  under  objection,  that  he  had  seen  the  defendant 
frequently  show  his  money  at  Brighton;  that  the  defendant  would  take 
it  out  in  papers,  and  show  it,  several  thousand  dollars  at  a  time. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

F.  H.  Dewey,  {A.  Dadmnn  with  him,)  for  the  defendant.  G.  F.  Hoar, 
for  the  plaintiff. 

Bigelow,  C.  J.  —  We  are  at  a  loss  to  understand  on  what  ground 
evidence  was  introduced  at  the  trial  of  this  case  to  show  that  the  plaintiff 
had  charged  the  defendant  with  passing  counterfeit  money.  Unless 
this  charge  was  made  at  the  time  the  alleged  assault  was  committed, 
and  so  formed  part  of  the  res  gestae,  which  does  not  appear  by  the 
exceptions,  the  evidence  was  clearly  incompetent,  even  in  mitigation  of 
damages.  Provocation  cannot  be  shown  unless  it  was  so  recent  and 
immediate  as  to  lead  to  the  inference  that  the  violence  was  committed 
under  the  direct  influence  of  the  passion  wrongfully  excited  by  the  plain- 
tiff, and  before  there  was  time  for  opportunity  for  it  to  cool  and  subside. 
Avery  v.  Ray,  1  Mass.  12.     Lee  v.  Woolsey,  19  Johns.  319. 

But  the  introduction  of  this  e^'idence  was  not  objected  to  by  the 
plaintiff  at  the  trial.  The  question  then  arises,  how  far  the  admission  of 
incompetent  and  irrelevant  evidence  offered  by  one  party,  to  which  no 
objection  is  taken,  renders  it  competent  for  the  opposite  party  to  intro- 
duce evidence  of  a  similar  character. 

There  certainly  must  be  some  limit  beyond  which  parties  cannot  be 
permitted  to  go,  in  extending  issues  of  fact  and  bringing  into  a  case 


972  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.  671 

matters  which  have  no  essential  bearing  on  its  real  merits.  Without 
indicating  a  general  rule  appHcable  to  all  cases  of  this  nature,  we  think 
it  may  he  safely  said  that  a  party  should  not  be  allowed  to  go  farther 
than  to  prove  facts  which  have  a  direct  tendency  to  contradict  and 
control  the  irrelevant  or  incompetent  evidence  which  his  adversary  has 
introduced  into  the  case.  To  this  extent,  it  may  be  properly  held  that 
the  latter  has  waived  the  strict  rule  of  law  applicable  to  such  evidence, 
and  is  estopped  from  objecting  to  the  proof  of  facts,  by  the  opposite 
party,  which  can  be  properly  deemed  to  be  contradictory  or  in  rebuttal 
of  those  offered  by  himself.  It  seems  to  us  that  the  plaintiff  was  allowed 
to  transcend  this  limit  at  the  trial,  in  the  introduction  of  evidence  to 
which  the  defendant  objected.  He  was  not  confined  to  disproof  of  the 
fact  that  he  had  charged  the  defendant  with  passing  counterfeit  money, 
which  was  the  only  ground  of  provocation  which  the  latter  had  attempted 
to  establish.  The  plaintiff  was  allowed  to  go  much  further,  and  to  show 
the  distinct  and  independent  fact  that  the  defendant  had  large  sums  of 
money  in  his  possession,  which  he  would  take  out  in  papers  and  show  to 
persons  about  him,  to  the  amount  of  several  thousand  dollars  at  a  time. 
This  was  an  irrelevant  and  immaterial  fact,  which  not  only  had  no  bear- 
ing on  the  true  issue  between  the  parties,  but  did  not  tend  to  contradict 
or  control  the  evidence  which  the  defendant  had  introduced  in  mitigation 
of  damages. 

The  plaintifp's  counsel  suggests  that  the  evidence  to  which  objection 
was  taken  could  have  no  tendency  to  injure  the  defendant,  and  that  not 
being  prejudiced  by  its  admission  he  has  no  valid  ground  of  exception. 
But  we  cannot  regard  the  evidence  in  such  a  light.  In  connection  with 
the  alleged  provocation  and  the  testimony  of  the  plaintiff  that  he  had 
stated  that  people  said  that  the  defendant  showed  bad  money,  the 
evidence  offered  by  the  plaintiff  was  calculated  to  lead  to  the  inference 
that  the  defendant  was  the  possessor  of  counterfeit  money,  and  thus 
to  disparage  his  character,  and  create  in  the  minds  of  the  jury  a  prejudice 
against  him.  Exceptions  sustained. 

672.  Phelps  r.  HuTVT.  (1875.  Connecticut.  -4.3  Conn.  194,  199.)  Loomis,  J. 
—  On  the  cross-examination  the  plaintiff  asked  the  defendant  what  he  told  Good- 
man about  a  sale  of  his  goods  to  one  Foskett.  .  .  .  This  question,  being  objected 
to  by  the  defendant,  was  ruled  out  by  the  auditor.  It  is  ob\'ious  that  this  whole 
subject  matter,  both  of  the  direct  and  cross-examination,  was  wholly  irrelevant, 
and  ought  not  to  have  been  entertained  at  all.  .  .  . 

The  plaintiff  seems  to  assume  that  if  the  cross-examination  was  pertinent 
to  the  examination  in  chief  it  necessarily  makes  the  ruling  erroneous.  This 
proposition  we  do  not  accept.  \Miere  the  plaintiff  stands  on  matters  "stricti 
juris,"  it  must  appear  that  the  particular  ruling  complained  of  was  erroneous  in 
law.  We  cannot  hold  that  it  was  error  in  law  to  rule  out,  objection  being  made, 
what  it  would  have  been  error  to  admit,  merely  because  the  Court  had  received 
without  objection  matter  just  as  irrelevant  before.  The  maxim,  "Similia  simili- 
bus  curantur,"  has  been  applied  to  some  extent  in  the  science  of  medicine,  but 
the  principle  has  never  been  recognized  as  applied  to  the  cure  of  errors  in  law. 


No.  675  CONDITIONAL  ADMISSIBILITY  973 

673.  SiSLERi'.  Shaffkh.  (1897.  West  Virginia.  43  W.  Va.  769;  28  S.  E. 
721.)  Dent,  J.  — To  discredit  the  defendant's  testimony,  the  Court  allowed  the 
plaintiff,  over  the  objection  of  the  defendant,  to  introduce  the  witnesses  LjTich 
and  Wright,  who  testified  that  about  the  same  time  the  defendant  had  purchased 
separate  bills  of  lumber  of  them,  and  that  they  had  or  were  about  to  sue  him 
therefor.  This  was  not  a  matter  material  to  the  issue,  about  which  the  defendant 
ordinarily  could  be  contradicted.  His  own  evidence  on  the  point  was  irrelevant, 
but,  having  introduced  it  in  support  of  his  evidence,  the  plaintiff  had  the  right 
to  contradict  it.  "A  party  who  draws  from  his  own  witness  irrelevant  testimony, 
which  is  prejudicial  to  the  opposing  party,  ought  not  to  be  heard  to  object  to  its 
contradiction  on  the  ground  of  its  irrelevancy."  29  Am.  &  Eng.  Enc.  Law,  793; 
State  V.  Sergent,  32  Me.  429.  Strange  cattle  having  wandered  through  a  gap 
made  by  himself,  he  cannot  complain. 

674.  State  v.  Slack.  (1897.  Vermont.  69  Vt.  486;  38  Atl.  311.) 
[Printed  ante,  as  No.  234;   Point  2  of  the  opinion.] 


Topic  3.    Conditional  Admissibility 

675.     ROGERS  v.  BRENT 

SuPKEME  Court  of  Illinois.     1849 

10  ///.  573 

This  was  an  action  of  ejectment,  and  upon  the  trial  in  the  circuit 
court  the  plaintiff  below  introduced  a  patent  from  the  United  States, 
for  the  premises  in  question,  to  Jesse  Bowman  as  assignee  of  Samuel  M. 
Bowman,  dated  on  the  first  of  May,  1843,  which  was  followed  by  a  deed 
from  Jesse  Bowman  to  Brent,  dated  December  1st,  1846.  The  plaintiff 
then  proved  the  possession  of  the  defendant,  and  closed  his  case. 

The  defendant  then  offered  to  prove  by  the  register's  certificate, 
that  the  land  in  controversy  was  entered  at  the  land  office  by  Samuel  M. 
Bowman  on  the  19th  of  May,  1840,  and  that  he  assigned  his  certificate 
of  purchase  to  Jesse  Bowman  on  the  5th  of  April,  1843.  He  also  offered 
the  record  of  a  judgment  in  the  Lee  circuit  court,  against  Samuel  M. 
Bowman,  which  was  entered  on  the  12th  day  of  September,  1842,  upon 
which  an  execution  was  issued  on  the  28th  of  the  same  month,  by  virtue 
of  which  the  sheriff  levied  on  the  premises  in  question,  and  advertised 
and  sold  them  according  to  law  to  Southwick,  who  obtained  a  sheriff's 
deed  on  the  17th  of  December,  1844.  As  each  portion  of  this  evidence 
was  offered  it  was  objected  to,  and  ruled  out  by  the  Court,  and  an  excep- 
tion taken.     A  verdict  and  judgment  were  entered  for  the  plaintiff.  .  .  . 

The  plaintiff  in  error  assigned  for  errors  the  several  decisions  of  the 
Circuit  Court  in  excluding  the  evidence  recited  above. 

J.  0.  Glover  and  B.  C.  Cooh,  for  the  plaintiff  in  error.  .  .  . 

The  certificate  of  the  Register  was  evidence  of  title  in  Samuel  M. 
Bowman  at  the  time  of  the  sale  of  the  land  on  the  judgment.  .  .  . 


974  BOOK  II :     PROCEDURE   OF  ADMISSIBILITY  No.  675 

E.  S.  Lcland,  for  the  defendants  in  error.  The  certificate  of  the 
Commissioner  of  the  General  Land  Office  is  not  sufficient  to  prove  when 
the  certificate  of  entry  was  assigned.  The  certificate  supposed  to  be 
assigned,  or  a  certified  copy  thereof,  should  have  been  produced,  in  order 
that  the  Court  might  see  whether  the  assignment  of  said  certificate  is 
valid.  .  .  .  The  defendant  below  was  not  injured  by  the  exclusion  of 
his  offered  evidence,  because  there  is  no  evidence  in  this  case,  nor  was  any 
offered,  to  connect  him  with  Southwick's  title.  .  .  . 

The  opinion  of  the  Court  was  delivered  by 

Caton,  J.  ...  It  is  first  necessary  to  inquire  what  rights  were 
acquired  under  the  judgment  and  sheriff's  sale  and  conveyance,  as 
against  the  patentee  and  his  grantee,  and  then  whether  these  rights 
could  be  asserted  and  vindicated  in  this  action  of  ejectment.  .  .  . 

Having  shown  in  what  way  it  was  competent  for  Rogers  to  prove  that 
he  did  not,  in  the  language  of  the  issue,  "  unlawfully  withhold  the  posses- 
sion," it  only  remains  to  be  seen  whether  the  evidence  which  he  offered, 
and  which  was  excluded  by  the  Court,  tended  to  prove  such  a  case. 

All  of  the  interest  which  Samuel  M.  Bowman  ever  had  in  the  land, 
whether  legal  or  equitable,  passed  to  Southwick  by  the  sale  under  the 
execution  and  the  sheriff's  deed,  as  completely  as  if  the  transfer  had  been 
by  voluntary  conveyance  and  Southwick  was  as  much  entitled  to  a 
patent  in  the  one  case  as  he  would  have  been  in  the  other.  ...  At  the  ^ 
time  of  the  assignment  by  Samuel  M.  Bowman,  he  had  no  interest  in 
the  premises  except  the  right  of  redemption  of  which  the  assignee  never 
availed  himself,  and  the  sheriff's  deed  must  relate  back  to  the  time  of  the 
judgment,  which  was  notice  to  all  the  world  of  everything  which  was 
legally  done  under  it.  The  rights  acquired  by  the  sheriff's  deed  stand 
upon  as  high  grovmd  as  if  the  Patent  had  been  issued  to  Jesse  Bowman 
without  any  assignment  at  all;  for  as  to  those  rights  the  assignment 
was  utterly  void.  The  assignor  had  no  interest  which  he  could  assign 
except  the  right  of  redemption,  and  the  assignee  was  bound  to  know 
this.  A  Patent  issued  under  a  void  assignment  could  convey  no  more 
right  than  one  issued  upon  a  second  sale  when  the  first  was  valid,  and  in 
such  a  case  the  Supreme  Court  of  the  United  States  has  said  that  the 
Patent  conveys  no  title. 

.  .  .  The  question  is,  not  whether  the  debt's  offer  of  evidence  was  suf- 
ficent  of  itself  to  make  out  the  defence,  but  would  it  aid  to  make  out  the 
case?  Would  it  tend  to  prove  the  defence?  IVIost  cases  have  to  be  proved 
by  a  succession  of  distinct  facts,  neither  of  which  standing  alone  would 
amount  to  anything,  while  all  taken  together  form  a  connected  chain  and 
establish  the  issue;  and  from  necessity  a  party  must  be  allowed  to  present 
his  case  in  such  detached  parts  as  the  nature  of  his  evidence  requires. 
It  would,  be  no  less  absurd  than  inconvenient,  when  proof  is  offered  in  its 
proper  order,  of  one  necessary  fact,  to  require  the  party  to  go  on  and  offer 
to  prove  at  the  same  time  all  the  other  necessary  facts  to  make  out  the 
case.     Such  a  practice  would  embarrass  the  administration  of  justice 


No.  676  CONDITIONAL  ADMISSIBILITY  975 

and  prove  detrimental  to  the  rights  of  parties.  It  may  be  that  Rogers 
was  bound  to  connect  himself  with  Southwick's  title  before  he  could 
insist  that  the  patent  was  void  because  obtained  in  fraud  of  such  title; 
but  he  must  first  prove  such  title  to  exist  before  he  could  connect  himself 
with  it;  and  this  he  was  not  allowed  to  do.  If  he  was  bound  to  connect 
himself  with  Bowman's  creditors,  to  avail  himself  of  the  fraud  practiced 
upon  them,  he  must  first  show  that  there  were  such  creditors;  and  the 
judgment  which  proved  this  was  ruled  out  by  the  Court.  It  is  the  right 
of  the  party,  when  he  offers  evidence  in  its  proper  order  which  proves  or 
tends  to  prove  any  necessary  fact  in  the  case,  to  have  it  go  to  the  jury; 
for  the  reasonable  presumption  is  that  it  will  be  followed  by  such  other 
proof  as  is  necessary  for  its  proper  connection,  and  if  it  is  not,  it  then 
becomes  irrelevant,  and  as  such,  if  desired,  may  be  withdrawn  from  the 
jury.  If  there  is  anything  to  induce  the  suspicion  that  the  time  of  the 
Court  is  being  trifled  with,  it  may  be  proper  to  call  upon  counsel  to  state 
the  connection  which  they  expect  to  give  the  proposed  evidence;  but 
this  should  ordinarily  be  avoided,  as  it  is  often  embarrassing  for  counsel 
to  anticipate  their  case  in  the  presence  of  the  opposite  party. 

It  may  sometimes  happen  that  evidence  is  offered  so  out  of  its  proper 
place  as  to  authorize  the  Court  to  exclude  it  for  want  of  a  proper  founda- 
tion; as,  in  this  case,  had  the  sheriff's  deed  been  offered  without  the 
previous  proceedings,  it  might  have  been  properly  excluded  till  the 
proper  foundation  for  it  was  shown.  No  such  objection,  however, 
existed  in  this  case.  The  party  commenced  at  the  foundation  of  his  case, 
and  offered  to  establish  the  first  necessary  fact;  and,  when  that  w^as 
ruled  out,  he  still  persisted  in  offering  to  prove  subsequent  parts  of  his 
case  dependent  upon  those  previously  offered  and  rejected,  till  his  re- 
peated offers  had  almost  the  appearance  of  wrestling  with  the  opinion  of 
the  Court.  He  proceeded  as  far  as  duty  or  propriety  required;  for  it 
was  apparent  then,  as  it  is  now,  that  the  evidence  was  ruled  out  because 
it  was  the  opinion  of  the  Court  that  it  was  not  competent  to  defeat  the 
Patent,  by  the  case  which  the  evidence  tended  to  show,  and  not  because 
the  party  did  not  propose  evidence  enough.  Nor  has  it  been  insisted 
here  that  the  evidence  was  ruled  out  because  Rogers  did  not  offer  to 
connect  himself  with  Southwick's  title,  but  the  whole  effort  has  been  to 
sustain  the  decision  upon  the  other  ground. 

We  are  of  opinion  that  the  Court  erred  in  rejecting  the  evidence 
offered,  and  for  that  reason  the  judgment  is  reversed  with  costs,  and 
the  cause  remanded.  Judgment  reversed. 

676.  Campau  ?).  Dewey.  (1861.  Michigan.  9  Mich.  381,  422.)  Christiancy, 
J. — On  the  direct  examination,  it  is  true,  if  the  relevancy  of  a  proposed  inquiry 
does  not  appear,  the  Court  have  a  right  to  call  on  the  counsel  to  state  the  object 
of  the  proposed  testimony  and  the  manner  in  which  it  is  to  be  made  relevant; 
and  the  Court  may  in  the  exercise  of  its  discretion  require  a  particular  statement 
of  the  substance  of  the  evidence  in  connection  with  which  the  proposed  inquiry 
is  to  be  rendered  pertinent,  and,  if  refused,  may  reject  the  evidence.   .   .  . 


976  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  676 

But  on  a  cross-examination  the  rule  as  to  relevancy  is  not  so  strict;  and  it 
would  be  a  very  unsafe  rule  which  should  allow  the  Court  to  reject  evidence,  which 
may  in  any  manner  be  rendered  material,  Ijecause  the  party  proposing  it  has  not 
volunteered  to  precede  it  with  a  statement  of  its  precise  object  and  of  the  other 
facts  in  connection  with  which  it  is  to  be  rendered  material.  The  Court  may 
doubtless,  in  its  discretion,  when  a  question  is  asked  on  cross-examination  which 
he  thinks  cannot  be  rendered  pertinent,  require  an  intimation  of  its  object,  and 
reject  the  evidence  if  not  given.  But  this  is  a  discretion  which  should  be  very 
sparingly  exercised,  and  nothing  further  than  a  bare  intimation  should  generally 
be  required;  for,  in  many  cases,  to  state  the  precise  object  of  a  cross-examination 
would  be  to  defeat  it. 

677.  Parxell  Commission's  Proceedings.  (1S88.  London.  33d  day, 
Times'  Rep.  pt.  9,  p.  104.)  [The  Irish  Land  League  and  its  leaders  being  charged 
with  complicity  in  crime,  the  doings  and  admissions  of  various  known  criminals 
were  offered,  with  the  purpose  of  connecting  with  them  the  League  leaders.  Sir 
Richard  Webster,  Attorney-General,  having  asked  a  witness  w'hat  one  Carey  said 
about  Egan,  one  of  the  leaders,  Sir  Charles  Russell  objected.] 

Sir  R.  Webster.  —  I  think,  if  your  lordships  trust  me  for  a  moment,  you  will 
see  that  it  is  in  the  interests  of  justice  that  this  man  should  make  his  statement. 
I  will  undertake  to  connect  it  with  Egan. 

Sir  C.  Russell.  —  I  do  not  think  that  is  a  reason. 

President  Hannex.  —  Well,  if  the  Attorney-General  does  not  fulfil  his  pledge, 
I  shall  strike  out  what  is  said. 

Sir  C.  Russell.  —  We  have  had  so  many  of  these  pledges  which  have  been 
broken. 

Sir  R.  Webster.  —  I  beg  your  pardon;  no  pledges  that  I  have  given  have 
been  broken. 

Sh-  C.  Russell.  —  Well,  left  unfulfilled. 

Sir  R.  Webster.  —  Or  left  unfulfilled. 

President  Hannen.  —  Counsel  can  only  say  what  they  anticipate  will  be  the 
case;   if  this  is  not  made  evidence,  I  will  strike  it  out. 

678.   ELLIS  V.   THAYER 

Supreme  Judicial  "Court  of  Massachusetts.     1903 

183  Mass.  309;  67  N.  E.  325 

Tort  by  a  card  stripper  for  injuries  in  the  defendant's  mill  at  East 
Dedham,  from  being  struck  by  a  loose  pulley  alleged  to  have  come  off  a 
shaft  owing  to  a  screw  not  being  tightened  properly.  Writ  dated  March 
16,  1901.  In  the  Superior  Court  the  case  was  tried  before  Mason,  C.  J. 
The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  SI, 200;  and 
the  defendant  alleged  exceptions. 

The  plaintiff  while  employed  as  a  card  stripper  in  the  defendant's 
factory,  was  injured  by  a  loose  pulley  which  came  off  from  a  shaft  and 
struck  him.  The  pulley,  when  in  use,  is  held  in  its  place  near  the  end 
of  the  shaft  by  an  iron  collar  which  surrounds  the  shaft  at  the  end,  and 
is  fastened  there  by  a  screw  which  passes  through  the  collar  and  engages 


No.  678  CONDITIONAL  ADMISSIBILITY  977 

the  shaft.  There  is,  or  should  be,  a  small  slot  in  the  shaft  to  receive  the 
screw.  The  evidence  tended  to  show  that  this  screw  was  not  turned  up 
to  its  place,  and  that  the  collar  and  pulley  came  off  from  the  shaft  because 
at  the  time  there  was  nothing  to  hold  them  on. 

The  first  exception  relates  to  the  admission  of  testimony.  A  witness 
was  called  to  testify  that  once  previously,  about  four  years  before  this 
accident,  the  collar  and  pulley  came  off.  The  judge  ruled,  subject  to  the 
defendant's  exception,  that  the  question  might  be  answered  on  the  con- 
dition that,  unless  further  evidence  should  be  offered  that  the  machines 
remained  the  same,  the  judge  would  order  it  stricken  out  if  called  to  his 
attention,  and  the  counsel  for  the  defendant  thereupon  said,  "  I  will  call 
your  honor's  attention  to  it."  At  the  close  of  the  plaintiff's  case  the 
attention  of  the  judge  was  called  to  the  fact  that  the  evidence  had  not 
disclosed  that  the  machine  remained  unchanged,  and  the  judge  there- 
upon ordered  the  evidence  stricken  out.  This  order  was  made  in  the 
absence  of  the  jury,  but  the  judge's  attention  was  not  called  to  the  jury's 
absence,  and  neither  the  counsel  nor  the  judge  referred  to  this  evidence 
again  until  several  days  after  the  end  of  the  trial. 

S.  R.  Sprmg,  (H.  R.  Bygrave  with  him,)  for  the  defendant.  E. 
Greenhood,  for  the  plaintiff. 

Knowltox,  C.  J.  (after  stating  the  case  as  above).  The  ruling 
excepted  to  was  within  the  discretion  of  the  judge.  The  meaning  and 
effect  of  it  was,  that,  for  reasons  satisfactory  to  the  judge,  the  testimony 
might  be  heard  then,  with  an  understanding  that  it  would  not  be  con- 
sidered as  evidence  unless  afterwards  supported  by  other  testimony 
which  would  make  it  competent.  Of  course,  testimony  should  not  be 
received  in  this  way  if  it  is  of  a  kind  which  will  be  likely  to  prejudice  the 
jury  notwithstanding  that  it  is  subsequently  stricken  from  the  case  and 
an  instruction  given  that  they  are  not  to  consider  it.  But  sometimes  it 
is  convenient  and  not  harmful  to^receive  testimony  in  this  way,  and  ordi- 
narily the  decision  of  the  presiding  justice  on  a  question  «f  this  kind  should 
be  treated  as  final.  The  ruling  excepted  to  contemplated  striking  the 
evidence  from  the  record  in  a  way  which  would  leave  the  case  as  if  it 
never  had  been  presented.  This  would  involve  an  instruction  to  the 
jury  to  disregard  it,  unless  they  alread}'  understood  the  ruling  under  which 
it  was  received;  and  the  defendant's  counsel,  who  undertook  to  bring 
the  matter  to  the  Court's  attention,  must  have  known  this.  The  evi- 
dence was  subsequently  stricken  from  the  record  at  the  defendant's 
request,  and  the  manner  of  doing  it  probably  was  satisfactory  to  the  coun- 
sel at  the  time.  .  .  .  Moreover,  if  the  jury  were  attentive  to  the  ruling 
when  the  testimony  was  received,  they  must  have  known  that  in  the 
absence  of  additional  proof,  it  was  not  to  be  regarded.  We  are  of  opinion 
that  under  these  circumstances  he  should  not  be  permitted  to  have  the 
benefit  of  an  exception  founded  upon  the  failure  of  the  judge  to  instruct 
the  jury  about  it,  when  the  only  exception  that  he  took  was  to  a  matter 
within  the  discretion  of  the  Court.  .  .  .  Exceptions  overruled. 


978  BOOK   II:     PROCEDURE   OF   ADMISSIBILITY  No.  679 

679.   PUTNAM  v.   HARRIS 

Supreme  Judicial  Court  of  Massachusetts.     1906 

193  Mass.  58;  78  N.  E.  747 

Tort  for  alleged  negligence  in  causing  the  burning  over  of  a  woodlot 
of  the  plaintiff  in  Templeton.  Writ  dated  August  8,  1905.  In  the 
Superior  Court  the  case  was  tried  before  Pierce,  J.  .  .  . 

The  testimony  was  conflicting  as  to  whether  the  fire  which  started 
on  the  defendants'  land  spread  to  the  plaintiff's  land  and  caused  the 
damage  alleged.  The  defendants  had  in  their  employ  one  McNaughton, 
who  died  about  a  month  before  the  bringing  of  this  action.  .  .  .  The 
plaintiff  offered  the  testimony  of  Frank  L.  Putnam,  the  plaintiff's  son, 
to  a  conversation  between  him  and  McNaughton  on  the  evening  of  the 
fire,  which  was  objected  to  by  the  defendants  and  was  admitted  by  the 
judge  against  the  exception  of  the  defendants.  .  .  .  The  jury  returned 
a  verdict  for  the  plaintiff  in  the  sum  of  $577.54;  and  the  defendants 
alleged  exceptions. 

G.  R.  IVarficld,  for  the  defendants.     J.  P.  Carney,  for  the  plaintiff. 

LoRiNG,  J.  —  The  testimony  was  admitted  under  Rev.  Laws,  c.  175, 
§  66,  and  was  competent  against  the  defendants  if  it  was  show^n  that 
McNaughton  had  authority  from  them  to  give  the  directions  in  question. 
Whether  evidence  of  the  directions  given  should  be  admitted  first  and 
the  authority  shown  later,  or  the  evidence  of  the  directions  given  should 
be  excluded  until  McNaughton's  authority  was  shown,  was  a  matter  to 
be  decided  by  the  presiding  judge  in  his  discretion. 

It  heretofore  has  been  generally  laid  down  that  in  such  a  case  the  ex- 
ception will  not  be  sustained  unless  it  appears  from  the  bill  of  exceptions 
that  the  evidence  was  not  properly  connected.  Whitcher  v.  INIcLaughlin, 
115  Mass.  167;  Costello  v.  Crowell,  133  Mass.  352,  where  the  earlier 
cases  are  collected.  It  is  more  correct  to  say  that  the  exception  will  not 
be  sustained  unless  the  fact  that  the  evidence  admitted  de  bene  had  not 
been  properly  connected  afterwards  was  brought  to  the  attention  of  the 
Court  and  a  further  ruling  on  that  ground  asked  for.  The  rule  was  so 
laid  down  in  Brady  v.  Firm,  162  Mass.  260.  See,  also,  Williams  v.  Clark, 
182  Mass.  316. 

But  whichever  is  the  true  statement  of  the  rule,  the  exception  in 
question  must  be  overruled.  The  matter  was  not  subsequently  brought 
to  the  attention  of  the  Court  either  by  a  request  to  strike  out  the  evidence 
admitted  de  bene,  or  by  a  request  for  a  ruling  that  there  was  no  evidence 
for  the  jury  on  this  point. 


No.  683  THE   OFFER  979 


TITLE  II.    MODE  OF  INTRODUCING  EVIDENCE 

Topic  1.    The  Offer 

682.     GOODHAND  r.  BENTON 

Court  of  Appeals  of  Maryland.     1834 

6  G.  &  J.  481 

[Printed  ante,  as  No.  668] 

683.     FARLEIGH  v.  KELLEY 
Supreme  Court  of  Montana.     1903 
2S  Mont.  421;   72  Pac.  756 

Appeal  from  District  Court,  Jefferson  County;  Henry  C.  Smith, 
Judge.  Petition  by  Caroline  V.  Kelley  for  the  probate  of  an  instrument 
purporting  to  be  the  last  will  of  John  D.  AUport,  deceased,  to  v.-hich 
Lillie  Sue  Farleigh  and  others  filed  objections  as  contestants.  From 
a  judgment  for  contestants,  petitioner  appeals.  Affirmed.  .  .  .  The 
cause  came  on  for  trial  before  the  Court  and  a  jury,  and,  .  .  .  the  jury 
found  against  the  petitioner,  and  declared  that  the  instrument  offered 
was  not  the  will  of  John  D.  AUport.  From  an  order  overruling  petitioner's 
motion  for  a  new  trial,  this  appeal  is  taken. 

T.  J.  Walsh,  B.  H.  Giles,  and  Geo.  F.  Cowan,  for  appellant.  Walsh  & 
Neicvian,  Robert  B.  Smith,  and  Chas.  R.  Leonard,  for  respondents. 

Hollow^ AY,  J.  ...  5.  Upon  the  trial  the  petitioner  sought  to  prove 
by  the  witness  Nichols  that  in  May,  1899,  the  subscribing  witness 
Geigerich  had  come  to  his  office  and  handed  to  him  the  will  in  contro- 
versy, at  the  same  time  explaining  the  circumstances  under  which  he  had 
held  possession  of  the  document  from  the  time  of  its  alleged  execution. 
The  substance  of  Geigerich's  statement  to  Nichols  was  that  in  October, 
1895,  AUport  had  executed  the  will,  and  gone  with  Geigerich  to  the  office 
of  the  Butte  Hardware  Company  to  leave  the  instrument  with  one 
Kirby;  that  Kirby  was  not  in,  and  AUport  then  handed  it  to  Geigerich 
and  asked  him  to  deliver  it  to  Kirby;  that  he  (Geigerich)  put  the  will 
away,  and  forgot  about  it  until  May,  1899,  when  he  went  to  get  a  paper 
from  a  box  in  which  he  kept  valuable  papers,  and  discovered  the  will  and 
brought  it  to  Nichols.  The  offer  to  prove  these  declarations  by  the 
witness  Nichols  was  excluded. 

As  we  have  heretofore  seen,  Geigerich  was,  to  all  intents  and  purposes, 
a  witness  in  court,  testifying  under  oath  that  the  facts  recited  in  the 
attestation  clause  actually  occurred  as  therein  set  forth,  and  the  reason 


980  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  683 

for  the  rule  which  now  excludes  these  declarations  made  by  him  to 
Nichols  is  that  his  declarations  not  made  under  oath  cannot  strengthen 
the  testimony  which  he  has  given  under  oath.  .  .  .  The  declarations  of 
Geigerich  were  hearsay,  and  notably  so  are  his  declarations  of  declara- 
tions made  to  him  by  AUport. 

But  it  is  contended  that  they  should  have  been  received  as  a  part  of 
the  res  gestae.  They  were  made  nearly  four  years  after  the  alleged 
will  purports  to  have  been  executed,  and  cannot,  therefore,  be  said  to 
characterize  or  explain  the  principal  fact,  viz.,  the  execution  of  the  will. 
As  to  that,  they  are  narrations  of  a  past  transaction,  and,  as  such, 
inadmissible. 

But  it  is  contended  that  they  characterize  and  tend  to  explain  the 
possession  of  the  will,  and  for  that  purpose,  at  least,  were  admissible. 
The  evidence  was  offered  en  masse  —  the  offer  was  an  entirety;  and  along 
with  the  declarations  of  Geigerich,  explaining  his  possession,  were  the 
declarations  made  to  him  by  AUport,  and  these,  as  offered,  were  incom- 
petent under  any  phase  of  the  case.  So  long,  then,  as  the  offer  included 
evidence  incompetent,  coupled  with  that  which  may  have  been  compe- 
tent, the  Court  committed  no  error  in  excluding  the  offer  in  its  entirety. 
It  was  not  the  duty  of  the  Court  to  separate  the  competent  from  the 
incompetent  matter,  and  admit  the  one  and  exclude  the  other.  It 
properly  passed  upon  the  order  as  made,  and  was  not  required  to  do  for 
counsel  that  which  he  should  ha^'e  done  for  himself.  Yoder  r.  Reynolds, 
28  Mont.  183,  72  Pac.  417;  Clark  v.  Ryan,  95  Ala.  406,  11  South.  22; 
Bank  V.  North,  2  S.  D.  480,  51  N.  W.  96;  Thompson  on  Trials,  678.  .  .  . 

The  order  overruling  petitioner's  motion  for  a  new  trial  is  affirmed. 

Affirmed. 

MiLBURN,  J.  —  I  concur,  although  I  do  not  agree  with  Mr.  Justice 
HoLLOWAY  in  all  that  is  said  in  sections  5  and  6  of  the  opinion. 

Brantly,  C.  J.,  concurs. 

684.  Indianapolis  &  Martinsville  Rapid  Transit  Co.  r.  Hall.  (1905. 
Indiana.  165  Ind.  557;  76  N.  E.  242.)  Gillett,  C.  J.:  This  was  an  action  by 
appellee  to  recover  for  an  injury  to  his  person.  .  .  .  The  record  shows  that 
appellee's  counsel  objected  "to  Dr.  Hylton  testifying  as  a  witness  in  this  case  as 
to  anything  he  learned,  either  by  observation  or  examination,  or  from  the  state- 
ments of  the  plaintiff,  while  he  was  treating  him  as  a  physician."  Then  follows 
an  offer  to  prove  upon  the  part  of  appellant.  The  offer,  as  set  out  in  the  record, 
involves  various  subjects.  .  .  .  The  record  then  shows  that  the  Court  sustained 
the  objection  of  appellant,  and  refused  to  allow  the  witness  to  testify,  to  which 
ruling  appellant  excepted.  .  .  . 

The  course  pursued  by  appellant's  counsel  was  objectionable  in  another 
particular,  and  that  is  that  the  offer  to  prove  what  was  said  was  part  of  a  general 
offer  that  involved  an  offer  to  introduce  incompetent  testimony.  It  is  the  duty 
of  a  party  to  select  the  competent  from  the  incompetent  in  offering  testimony, 
and  he  cannot  impose  this  duty  upon  the  trial  Court.  .  .  .  The  later  decisions 
of  this  Court  uphold  the  view  that  a  ruling  that  a  witness  is  incompetent  will  not 
excuse  the  making  of  a  sufficient  offer  to  prove.     State  ex  rel.  r.  Cox,  155  Ind. 


No.  G85  THE   OFFER  981 

593,  58  N.  E.  849;  Toner  v.  Wagner,  158  Ind.  447,  63  N.  E.  859.  The  rules  of 
practice  above  indicated  are  not  merely  arbitrary,  but  they  are  rules  which  ex- 
perience has  demonstrated  to  be  essential  to  the  administration  of  justice.  It  is 
too  much  to  expect  that  a  Court,  without  even  the  aid  of  an  apposite  question, 
shall  sift  out  of  a  long  offer  to  prove,  consisting  largely  of  that  which  is  incom- 
petent, an  item  of  proposed  testimony  which  would  only  be  admissible  because  of 
certain  testimony  which  had  been  previously  offered  by  the  other  side.  The 
sustaining  of  an  objection  to  the  question  in  such  circumstances  is  not  error, 
and  even  the  [erroneous]  indicating  by  the  Court  that  the  witness  is  incompetent 
will  not  dispense  with  the  necessity  of  an  appropriate  cjuestion  and  a  proper  offer 
to  prove.  It  is  only  by  the  method  of  saving  questions  above  indicated  that 
misapprehensions  can  be  avoided  during  the  course  of  a  trial,  and  that  the  Court 
on  appeal  can  be  advised  that  the  ruling  was  made  with  a  precise  understand- 
ing of  its  import. 

685.   MARSHALL  v.   MARSHALL 

Supreme  Court  of  Kansas.     1905 

71    Kan.  312;  80  Pac.  629 

Error  from  Reno  District  Court;  Matthew  P.  Simpson,  Judge. 
Opinion  filed  April  8,  1905.     Affirmed. 

Isaac  E.  Marshall  executed  a  deed  purporting  to  convey  a  tract  of 
land  to  two  of  his  sons  and  the  wife  of  a  third  son,  but  reserving  a  Hfe- 
interest  in  the  grantor.  About  two  years  later  he  began  a  suit  to  set 
aside  the  deed,  alleging  that  his  signature  had  been  procured  by  the 
fraudulent  representation,  believed  and  relied  iipon  by  him,  that  the 
instrument  contained  a  provision  making  it  revocable  at  his  pleasure. 
Issues  were  joined  and  tried,  the  testimony  being  largely  oral.  The 
Court  found  generally  for  the  defendants  and  rendered  judgment  accord- 
ingly, which  the  plaintiff  now  seeks  to  have  reversed.  ... 

The  fraudulent  representations  relied  upon  were  alleged  to  have 
been  made  by  Elmer  Marshall,  the  husband  of  one  of  the  grantees.  The 
plaintiff  testified  that  after  the  deed  was  made  he  had  a  conversation 
with  Elmer  about  deeding  back  the  land,  but  that  he  did  not,  however, 
talk  to  him  anything  about  leaving  out  the  condition  authorizing  a 
revocation.  The  question  was  then  put:  "What  did  you  ask  him?" 
Thereupon  the  defendants  objected  "to  any  conversation  with  Elmer 
after  the  deed  was  executed,  as  incompetent,  irrelevant,  and  immaterial 
—  not  binding  on  these  defendants."  The  objection  was  sustained,  and 
the  ruling  was  excepted  to,  and  is  now  assigned  as  error.  No  further 
questions  were  asked,  however,  and  no  offer  was  made  to  explain  the 
purpose  of  the  inquiry  already  made  or  to  show  any  specific  fact  by  the 
witness. 

Carr  W.  Taylor,  and  J.  U.  Broivn,  for  plaintiff  in  error.  George  A. 
Vandeveer,  and  F.  L.  Martin,  for  defendants  in  error. 

The  opinion  of  the  Court  was  deH\ered  by 


982  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.  685 

Mason,  J.  (after  stating  the  case  as  above).  ...  In  this  condition 
of  the  record  the  action  of  the  Court  must  be  regarded  merely  as  a  rejec- 
tion of  the  very  question  asked.  The  question  did  not  point  to  any 
matter  of  obvious  relevancy  and  materiality,  and  in  the  absence  of  further 
information  the  trial  Court  could  not  have  known  that  the  answer 
sought  to  be  elicited  would  be  admissible.  The  ruling  cannot  be  said  to 
have  been  prejudicially  erroneous  merely  because  it  may  be  possible  to 
imagine  a  conversation  between  the  w^itness  and  his  son  that  might  prop- 
erly have  been  received  in  evidence. 

In  volume  2  of  the  Cyclopedia  of  Law  and  Procedure,  at  page  697, 
it  is  said : 

"To  reserve  any  question  on  the  ruling  of  the  trial  Court  in  excluding  testi- 
mony, there  must  be  a  pertinent  question  propounded,  and,  upon  objection  being 
made,  a  statement  to  the  Court  of  the  testimony  which  it  is  expected  will  be 
elicited  by  the  question,  and  an  exception  taken  to  the  ruling  thereon." 

The  proposition  is  there  somewhat  too  broadly  stated,  since  the 
question  itself  may  be,  and  often  is,  of  such  a  character  that  in  connection 
with  the  other  proceedings  it  clearly  indicates  the  materiality  of  the 
answ^er  sought  and  renders  superfluous  any  statement  as  to  what  it  is 
expected  to  be. 

On  the  other  hand,  a  too  narrow  enunciation  of  the  principle  is  made 
in  volume  8  of  the  Encyclopedia  of  Pleading  and  Practice,  at  page  76, 
where  it  is  said: 

"The  Court  may  require  counsel  to  explain  the  materiality  of  the  answer 
sought  from  a  witness;  and,  if  this  be  not  done,  the  exclusion  of  the  evidence  is 
not  available  on  appeal." 

This  language  seems  to  imply  that  no  statement  or  explanation  need 
be  made  unless  in  response  to  a  demand  by  the  Court.  In  a  doubtful 
case  the  Court  may  well  inquire  of  counsel,  as  an  aid  to  an  intelligent 
ruling,  the  purpose  of  a  particular  line  of  inquiry;  but  it  is  incumbent 
upon  the  attorney  conducting  an  examination  to  show  affirmatively 
upon  his  own  motion  that  the  testimony  he  offers  is  material,  assuming 
himself  the  risk  that  if  he  fail  to  do  so  a  reviewing  court  can  grant  him  no 
relief.  As  was  said  in  Mitchell  v.  Harcourt  et  al.,  62  Iowa,  349,  17  N.  W. 
581: 

"The  true  rule,  we  think,  is  that,  when  it  is  apparent  on  the  face  of  the  ques- 
tion asked  the  witness  what  the  evidence  sought  to  be  introduced  is,  and  that  it  is 
material,  this  is  sufficient;  but  when  this  is  not  apparent,  then  the  party  seeking 
to  introduce  the  e\'idence  is  required  to  state  what  he  expects  to  prove,  and  thus 
make  its  materiality  appear."  .  .  . 

The  judgment  is  affirmed.     All  the  justices  concurring. 


No.  688  THE    OBJECTION  983 


Topic  2.    The  Objection 

687.    Cady  «.  Norton.    (1833.   Massachusetts.     14  Pick.  236.)    Shaw,  C.J.  :i 
The  right  to  except  [i.e.,  object]  is  a  privilege,  which  the  party  may  waive;   and 
if  the  ground  of  exception  is  known  and  not  seasonably  taken,  by  inipHcation  of  , 
law  it  is  waived.     This  proceeds  upon  two  grounds:   One,  that  if  the  exception/ 
is  intended  to  be  rehed  on,  and  is  seasonably  taken,  the  omission  may  be  suppHed, 
or  the  error  corrected,  and  the  rights  of  all  parties  saved.     The  other  is,  that  it  is 
not  consistent  with  the  purposes  of  justice  for  a  party,  knowing  of  a  secret  defect, 
to  proceed  and  take  his  chance  for  a  favorable  verdict,  with  the  power  and  intent 
to  annul  it  as  erroneous  and  void,  if  it  should  be  against  him. 


688.  MARSH  v.   HAND 

Court  of  Appeals  of  Maryland.     1871 

35  Md.  123 

Appeal  from  the  Superior  Court  of  Baltimore  City. 

The  case  is  sufficiently  stated  in  the  opinion  of  the  Court. 

The  cause  was  argued  before  Bartol,  C.  J.,  Brent,  Alvey'  and 
Robinson,  J. 

Patrick  M' Laughlin  and  Wm.  Pinkney  Whyte,  for  the  appellants. 
William  A.  Fisher,  for  the  appellee. 

Bartol,  C.  J.,  delivered  the  opinion  of  the  Court.  .  .  . 

The  single  question  presented  by  the  first  bill  of  exceptions,  (the  only 
one  properly  before  us,)  is  whether  the  Court  below  erred  in  permitting/ 
to  be  read  to  the  jury,  as  evidence  on  the  part  of  the  defendant,  a  pressl^ 
copy  of  a  letter  from  him  to  the  plaintiffs,  dated  the  25th  of  January/^  • 
1862.  ' 

The  bill  of  exceptions  states  that  no  notice  had  been  given  to  produce 
the  original;  there  was  no  admission  or  proof  that  the  original  had  ever 
been  received  by  the  plaintiffs.  It  is  very  clear  that  the  copy  was  not 
legal  or  admissible  evidence. 

The  bill  of  exceptions,  however,  states  that  it  was  offered,  and  a 
part  of  it  read  to  the  jury,  when  the  plaintiffs'  counsel  made  their  objec- 
tion. The  Court  decided  that  the  objection  came  too  late;  "  that  having 
allowed  the  first  part  of  the  letter  to  be  read,  the  plaintiffs  could  not 
object  to  the  reading  of  the  balance,  and  that  it  was  too  late  to  object 
to  the  admission  of  the  letter,  in  whole  or  in  part."  .  .  . 

The  rule  is  well  settled,  "  that  it  is  the  duty  of  counsel,  if  aware  of  the  l 
objections  to  its  admissibility,  to  object  to  the  testimony  at  the  time  it  is  j  )^^ 
offered  to  be  given,"  and  it  has  been  embodied  among  the  rules  of  the 
Superior  Court,  as  follows:   Rule  34.     "Every  objection  to  the  admissi- 
bility of  evidence  shall  be  made  at  the  time  such  evidence  is  offered,  or 
as  soon  thereafter  as  the  objection  to  its  admissibility  shall  have  become 


\ 


/ 


984  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  688 

apparent;  otherwise,  the  objection  shall  be  treated  as  waived."  This 
rule  does  not  appear  to  us  to  have  been  infringed  in  this  case  by  the  appel- 
lants. It  must  have  a  reasonable  interpretation.  Its  object  is  to  prevent 
a  party  from  knowingly  withholding  his  objection,  until  he  discovers  the 
effect  of  the  testimony,  and  then  if  it  turns  out  to  be  unfavorable  to 
interpose  his  objection.  Such  a  course  could  not  be  allowed.  It  is  very 
obvious  from  reading  the  bill  of  exceptions  in  this  case,  that  such  a  purpose 
could  not  be  justly  ascribed  to  the  plaintiffs'  attorneys.  There  is  nothing 
to  show  that  they  waived  their  objection  or  consented  to  the  copy  of 
the  letter  being  read.  It  was  not  submitted  to  their  inspection  before 
it  was  offered,  as  is  the  usual  and  proper  course.  But  it  appears  that  in 
the  hurry  of  the  trial,  probably  from  a  momentary  inadvertence  on  their 
part,  a  portion  of  the  letter  had  been  read  to  the  jury,  when  the  objection 
was  interposed  in  good  faith  and  with  reasonable  diligence.  In  our 
judgment  it  would  be  too  strict  and  narrow  a  construction  of  the  rule, 
to  deny  them  under  such  circumstances,  the  right  to  make  their  objection. 
In  our  opinion  there  was  error  in  this  ruling;  the  objection  was  made 
in  due  time,  and  the  evidence  ought  to  have  been  excluded.  .  .  .  And 
inasmuch  as  the  evidence  was  not  legally  admissible  and  ought  to  have 
been  excluded,  the  judgment  will  be  reversed  and  a  new  trial  ordered. 

689.  Burden  of  Objection  as  to  Testimonial  Qualifications.'^  Experi- 
ence has  led  to  an  arrangement  by  which  the  existence  of  the  proper  qualifica- 
tions may  in  some  classes  of  cases  be  assumed,  until  the  opposing  party  proves 
or  the  witness  betrays  their  absence;  wliile  in  certain  other  classes  of  cases  the 
qualifications  are  not  assumed  to  exist,  but  must  first  be  proved  to  exist  by  the 
party  offering  the  witness.  Under  the  former  head  fall,  in  general,  the  elements 
affecting  Organic  and  Emotional  Capacity;  under  the  latter  head,  those  affect- 
ing Experiential  Capacity,  as  well  as  the  qualification  of  Observation  (or 
Knov/ledge) ;  for  the  elements  of  Recollection  and  Narration,  there  is  no  uni- 
form doctrine.  For  example,  the  lack  of  capacity  by  insanity  or  idiocy  must 
be  sho^\^l  as  a  disqualification  by  the  opposing  party;  lack  of  capacity  by  infancy 
must  in  theory  also  be  shown  by  him,  though  the  witness'  age  and  appearance 
usually  serve  to  change  the  burden;  interest  and  relationship  must  be  sho-\\Ti,  as 
disqualifications,  by  the  opposing  party;  while  the  witness'  experience  and 
perception  (or,  means  of  knowledge)  must  be  shown,  as  qualifications,  by  the 
offering  party. 

Mode  of  Proof  of  Qualifications.  Four  ways  are  distinguishable  for  ascertain- 
ing the  qualifications  or  lack  of  qualifications  of  a  witness. 

(1)  The  behavior  of  a  witness,  in  Court  during  trial,  or  after  being  called  to  the 
stand  but  before  being  sworn  or  formally  questioned,  may  reveal  his  incapacity. 
This,  however,  would  in  practice  be  an  available  source  for  the  cases  only  of 
idiocy,  insanity,  intoxication,  or  extreme  infancy. 

(2)  Before  the  witness  is  sworn  as  such,  but  after  he  is  called  and  presented,  a 
preliminary  questioning  of  himself  may  be  had,  in  order  to  ascertain  by  his  own 
answers  his  condition  as  to  qualifications.     This  questioning  (known  as  "voir 

^  Adapted  from  the  present  Compiler's  Treatise  on  Evidence  (1905,  Vol.  I, 
§§  484,  485). 


No.  690  THE   OBJECTION  985 

dire,"  when  applied  to  ascertain  disqualification  by  interest)  formed  originally  a 
distinct  stage  of  the  proceeding;  and  it  was  perhaps  properly  so,  because  the 
answers  of  a  (supposedly)  unqualified  person  could  not  form  testimony,  and 
because  it  is  convenient  to  mark  definitely  the  time  when  the  stage  of  testimony 
proper  begins.  But  in  modern  practice  (especially  under  the  deplorable  custom 
of  administering  the  oath  beforehand  to  the  witnesses  in  mass)  the  separation 
of  the  two  stages  is  usually  ignored.  Moreover,  in  proving  the  qualifications  of 
experience  and  knowledge,  it  was  never  practiced. 

(3)  Before  the  witness  is  sworn  as  such,  but  after  he  is  called  and  presented, 
other  witnesses  may  be  used  to  evidence  the  facts  of  his  incapacity.  This  is  now- 
unusual,  since  the  abolition  of  interest  is  a  disqualification. 

(4)  After  the  witness  has  been  sworn,  the  progress  of  his  direct  examination  or 
cross-examination  may  disclose  his  incapacity,  and  then  he  may  be  stopped  and 
his  preceding  testimony  ordered  expunged ;  or,  if  merely  groimds  of  doubt  are  dis- 
closed, a  questioning  on  voir  dire,  or  other  persons'  testimony,  may  be  resorted  to. 

Time  of  Ohjeding  to  Qualifications.  Wherever  a  plain  separation  is  preserved 
between  the  voir  dire  and  the  testimony  proper,  the  rule  can  be  strictly  enforced 
that  capacity  is  not  to  be  questioned  after  the  person  is  once  sivorn  as  a  witness, 
except  where  the  opposing  party  had  no  prior  notice  of  the  disqualifying  fact,  or 
where,  having  notice,  he  has  made  due  objection  but  has  been  unable  to  prove  the 
fact.  But  in  a  Court  where  the  witnesses  are  customarily  sworn  as  such  before 
any  opportunity  for  questioning  is  given,  this  rule  cannot  be  applied.  Yet  its 
principle  may  be  carried  out  by  recjuiring  the  opponent  to  make  objection  and 
offer  proof  before  the  testimony  of  the  witness  is  begun,  —  so  far  at  least  as  the 
opponent  then  is  aware  of  any  specific  groiuid  of  objection. 

When  the  testimony  is  offered  in  the  form  of  a  deposition,  the  same  general 
principle  is  applied,  i.e.,  the  objection,  if  the  facts  were  known,  must  have  been 
made  at  the  time  of  the  taking  of  the  deposition,  if  it  could  then  have  been  of 
any  avail.  Nevertheless,  since  the  officer  taking  it  has  no  authority  to  exclude 
testimony,  in  some  classes  of  e\'idence  the  objection  would  be  at  that  time  with- 
out practical  consequences,  and  hence  there  is  no  harm  in  permitting  certain 
cpiestions  to  be  raised  at  the  trial  for  the  first  time,  provided  the  party  offering 
the  deposition  has  not  been  put  in  an  inconvenient  position  for  lack  of  the  prior 
objection. 

690.   ALBERS  COMMISSION  CO.   v.   SESSEL 

Supreme  Court  of  Illinois.     1901 

193  ///.  153;  61  N.  E.  1057 

Appeal  from  the  Appellate  Court  for  the  Third  District;  —  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Macoupin  county;  the 
Hon.  Robert  B.  Shirley,  Judge,  presiding. 

This  litigation  arose  in  the  county  court  of  ]\racoupin  county  on  a 
claim  filed  by  appellant  against  the  appellee,  as  executor  of  Peter  J. 
Hendgen,  deceased.  The  claim  was  in  the  form  of  an  account  for  moneys 
advanced  and  commissions  earned  in  the  purchase  and  sale  of  grain  by 
plaintiff.  .  .  .  The  only  e\'idence  offered  in  support  of  the  claim  in  the 
Circuit  Court  was  in  depositions.     C.  H.  Albers,  president  of  the  claimant 


986  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.  690 

company,  a  corporation  organized  under  the  laws  of  the  State  of  Missouri, 
and  a  stockholder  in  that  company,  testified.  .  .  .  The  book-keeper  .of 
the  claimant  company,  also  a  stockholder  in  the  company,  in  his  deposi-  . 
tion  testified  to  substantially  the  same  facts  and  to  conversations  or 
statements  made  by  the  deceased  during  his  lifetime;  also  the  deposition 
of  a  salesman  of  the  corporation,  William  P.  Hazard,  likewise  a  stock- 
holder in  the  company. 

These  depositions  were  taken  in  the  city  of  St.  Louis  some  time  prior 
to  the  hearing  upon  the  claim  in  the  County  Court,  counsel  for  the 
executor  being  then  present  but  making  no  objection  to  the  competency 
of  the  testimony.  Upon  the  trial  in  the  Circuit  Court,  upon  the  offer  of 
the  claimant  to  introduce  those  depositions,  appellee  objected  upon  the 
ground  that  each  of  said  witnesses  was  incompetent  to  testify  in  the 
cause  because  each  was  a  stockholder  of  the  claimant  corporation  and 
defendant  was  executor  of  the  last  will  of  the  deceased,  Hendgen.  But 
the  Court  overruled  the  objection  and  permitted  the  depositions  to  be 
read  to  the  jury. 

Joseph  S.  Laurie,  for  appellant.  E.  W.  Hayes,  and  Bell  &  Burton, 
for  appellee. 

Mr.  Chief  Justice  Wilkin  (after  stating  the  case  as  above)  delivered 
the  opinion  of  the  Court.  .  .  . 

It  is  conceded  by  the  parties  that  neither  of  the  above  named  wit- 
nesses was  competent  to  testify  in  this  case,  and  that  the  admission 
of  their  testimony  would  have  been  reversible  error,  but  for  the  fact,  as 
is  claimed,  that  the  objection  was  waived  by  a  failure  to  urge  it  upon  the 
taking  of  the  depositions,  and  in  support  of  this  contention  Moshier  v. 
Knox  College,  32  111.  155,  Frink  v.  McClung,  4  Gilm.  569,  Kelsey  v. 
Snyder,  118  111.  544,  Cassing  v.  Mortimer,  80  id.  602,  and  Cooke  v.  Orne, 
37  id.  186,  are  relied  upon. 

It  will  be  found,  however,  upon  an  examination  of  these  cases,  that 
the  last  two  are  not  in  point,  and  that  in  the  first  two  the  question  arose 
between  living  parties  as  to  a  common  law  incompetency  of  the  witnesses, 
which  could  have  been  removed  by  other  evidence,  or  by  the  act  of  the 
witness  releasing  his  interest.  Kelsey  v.  Snyder  was  a  bill  against  the 
administrator  of  an  estate  and  the  heirs  of  the  intestate  to  declare  and 
enforce  a  resulting  trust  in  the  deceased,  and  it  was  there  held  that  the 
complainant  was  not  competent  to  testify  in  her  own  behalf  as  to  trans- 
actions and  conversations  with  the  deceased  in  his  lifetime.  We  there 
said  (p.  549):  .  .  . 

"Counsel  contends  that  the  objection  should  have  been  taken  at  the  time 
of  the  taking  of  the  depositions  and  that  it  was  too  late  to  urge  it  for  the  first 
time  on  the  trial  in  the  Circuit  Court,  and  in  support  of  this  he  cites  Frink  v. 
McClung,  4  Gilm.  .569,  Goodrich  v.  Hanson,  .33  111.  498,  and  Warren  v.  Warren,  105 
ibid.  568.  The  objection  to  a  witness  on  account  of  interest  might  at  common  law 
be  obviated  upon  the  trial  by  the  execution  of  an  instrument  having  the  effect 
to  release  that  interest,  and  hence  it  was  required,  as  held  in  the  cases  cited,  that 


No.  691  THE   OBJECTION  987 

an  objection  on  account  of  interest  should  be  made  at  the  earliest"  opportunity, 
so  that  the  party  calling  the  witness  might  have  time,  if  possible,  to  obviate  the 
objection  by  release  or  otherwise.  In  Warren  v.  Warren  no  objection  was  taken 
on  the  hearing;  but  this  rule  did  not  apply  as  to  objections  that  were  incur- 
able, as,  for  instance,  that  the  evidence  was  irrelevant.  (Lockwood  v.  Mills, 
39  111.  602.)  And  the  philosophy  of  the  rule  is  stated  in  Clauser  v.  Stone,  29 
111.  114."  .  .  . 

These  witnesses  were  absolutely  disqualified  to  testify  to  the  facts  , 
sworn  to  by  them,  and  the  objection  to  their  depositions  was  in  apt  time  \ 
at  the  trial  of  the  case.  .  .  .  No  hardship  would  have  resulted  to  the 
claimant  if  the  objection  had  been  sustained,  —  first,  because  the  incom- 
petency of  the  witness  was  absolute  and  could  not  have  been  removed; 
and  second,  if  it  cduld  be  said  to  have  been  taken  by  surprise  in  not  | 
having  an  opportunity  to  procure  other  competent  evidence  of  its  claim, 
it  could  have  asked,  and  upon  a  proper  showing  obtained,  a  continuancef 
of  the  case  to  enable  it  to  produce,  upon  the  final  hearing,  other  competent 
testimony. 

The  trial  Court  erred  in  holding  that  the  objection  came  too  late.  .  .  . 

The  judgment  of  the  Appellate  Court  will  accordingly  be  affirmed. 

Judgment  affirmed. 

Mr.  Justice  Cartwright,  dissenting. 


691.  Rush  v.  French.  (1874.  Arizona.  1  Ariz.  99,  123;  25  Pac.  816.) 
Dunne,  C.  J.  — A  party  wishing  the  benefit  of  the  remedy  must,  at  the  time  he 
complains,  show  how  he  is  hurt;  in  the  language  of  the  old  authorities,  he  must 
lay  his  finger  upon  the  point  of  objection.  .  .  .  He  must  not  merely  complain 
in  a  general  way,  and  say  that  to  let  certain  evidence  in  will  hurt  his  case,  and 
that  under  the  law  it  ought  to  be  excluded,  and  leave  the  judge  and  opposite  side 
in  the  dark  as  to  what  principle  of  law  he  relies  on,  and  compel  them  to  decide 
haphazard,  or  else  stop  the  trial  of  the  cause,  with  a  jury  w-aiting,  while  the  coun- 
sel examine  the  whole  body  of  the  law,  from  the  earliest  judicial  expositions  down 
to  the  latest  act  of  the  legislature,  to  see  if  they  can  discover  any  valid  objection, 
to  the  testimony.  The  opposing  counsel  can  make  no  reply  to  a  general  objection, 
except  to  throw  the  whole  responsibility  upon  the  judge  at  once,  or  else  begin 
systematically  and  argue  that  under  any  possible  objection  the  testimony  should 
come  in.  Many  trials  imder  such  a  system  would  practically  never  end.  The 
effect  of  it  would  be  to  compel  one  party  to  fight  in  the  dark,  not  knowing  when 
his  opponent  intended  to  strike,  while  the  other  would  be  free  to  choose  his 
weapons,  and  the  time  and  place  to  use  them.  Such  things  may  do  in  love  or 
war,  when  all  things  are  said  to  be  fair;  but  life  is  too  short  to  transact  business 
on  such  a  system  in  Courts  of  justice.  .  .  .  An  objection  that  the  testimony  is 
"irrelevant"  without  specifying  wherein  or  how  or  why  it  is  irrelevant  will  not 
be  considered  in  the  Supreme  Court  as  raising  any  issue,  if  the  testimony  could, 
under  any  possible  circumstances,  have  been  relevant.  An  objection  that  the 
testimony  is  "inadmissible"  may  be  disregarded;  it  amounts  to  no  more  than 
the  assertion  that  the  evidence  is  illegal;  the  objection  should  fully  and  specifically 
point  out  how  it  is  inadmissible.     When  an  objection  is  that  the  evidence  offered 


988 


BOOK    II :     PROCEDURE    OF   ADMISSIBILITY 


No.  691 


is  "incompetent  and  illegal,"  it  is  the  duty  of  the  Court  to  overrule  it  if  the  evi- 
dence was  ailniissihle  for  any  purpose.  An  objection  that  evidence  is  "incom- 
petent" does  not  raise  any  issue  as  to  whether  the  question  is  leading  or  not. 
The  only  way  to  raise  such  an  issue  is  to  object  specifically  that  the  question  is 
leading.  .  .  . 

The  object  of  requiring  the  grounds  of  objection  to  be  stated,  which  may 
seem  to  be  a  technicality,  is  really  to  avoid  technicalities  and  prevent  delay  in  the 
administration  of  justice.  When  evidence  is  offered  to  which  there  is  some 
objection,  substantial  justice  requires  that  the  objection  be  specified,  so  that  the 
party  offering  the  evidence  can  remove  it,  if  possible,  and  let  the  case  be  tried  on 
its  merits.  If  it  is  objected  that  the  question  is  leading,  the  form  may  be  changed; 
if  that  the  evidence  is  irrelevant,  the  relevancy  may  be  shown;  if  that  it  is  incom- 
petent, the  incompetency  may  be  removed;  if  that  it  is  immaterial,  its  materi- 
ality may  be  established;  if  to  the  order  of  introduction,  it  "may  be  withdrawn  and 
offered  at  another  time,  —  and  thus  appeals  could  often  be  saved,  delays  avoided, 
and  substantial  justice  administered. 


y 


V 


n 


692.   RINDSKOFF  v.   MALONE 

Supreme  Court  of  Iowa.     1859 

9  la.  541 

Appeal  from  Lucas  District  Court.     Tuesday,  November  1. 

Defendants  are  the  makers  and  endorsers  of  a  negotiable  promissory 
note.  To  charge  the  endorsers,  plaintiffs  offered  in  evidence  the  note 
and  the  protest  of  the  notary,  showing  demand  and  notice  as  required  by 
law.  "Which  (in  the  language  of  the  bill  of  exceptions)  was  the  only 
evidence  offered  by  either  party,  and  the  defendant  objected  to  the  intro- 
duction of  said  note  and  protest,  which  was  overruled;  the  same  was 
received  by  the  Court  as  evidence,  and  at  the  same  time  defendant 
(Malone)  objected  to  judgment  being  rendered  against  him,  and  there- 
upon the  Court  rendered  judgment  against  all  of  said  defendants." 
Malone  is  the  payee  and  endorser  of  the  note,  and  appeals. 

T.  B.  Perry,  for  the  appellant,  cited  Code  of  1851,  §§  82,  83,  24, 14.  .  .  . 

C.  C.  Cole,  with  Baker  &  Edwards,  for  the  appellee,  contended  that 
where  objection  is  made  to  the  introduction  of  evidence  in  the  District 
Court,  it  is  necessary  that  the  party  objecting  should  state  the  ground 
of  his  objection,  so  as  to  afford  the  opposite  party  an  opportunity  to 
remedy  the  defect,  or  this  Court  will  not  reverse  on  any  ground  not  thus 
taken  or  assigned.  .  .  . 

Wright,  C.  J.  —  The  only  question  in  this  case  is,  whether  the  protest 
of  the  notary  was,  under  the  circumstances,  disclosed  by  the  record, 
properly  received  in  evidence.  The  objection  made  to  it  now  is,  that 
it  had  no  seal.  That  this  was  requisite  we  entertain  no  doubt.  (Code, 
§§  244,  82,  83.) 

But  is  appellant  in  a  position  in  this  Court  to  make  this  objection? 
It  will  be  observed  that  the  record  simply  shows  that  he  "  objected  to  the 


No.  692  THE   OBJECTION  989 

introduction  of  said  note  and  protest."  I3ut  why,  or  upon  what  ground, 
is  not  stated  and  nowhere  appears.  Neither  was  there  any  motion  for  a 
new  trial,  or  any  other  step  taken  to  call  the  attention  of  the  Court  to 
this  or  any  other  defect  in  the  protest,  or  variance  in  the  note.  In  our 
opinion  under  these  circumstances,  the  objection  cannot  avail. 

The  degree  of  particularity  required  in  pointing  out  objections  to 
the  testimony,  when  offered,  must  dep(>nd  very  much  upon  the  kind  of 
testimony,  and  the  circumstances  and  attitude  of  the  case.  Thus,  if  it 
was  proposed  to  prove  by  parol,  a  contract  which  was  not  performed 
within  one  year  from  the  making  of  the  same,  it  might  be  sufficient  for  the 
record  to  show  that  the  complaining  party  objected  generally  to  the  com- 
petency of  such  proof,  for  in  such  a  case  the  mind  of  the  opposite  party 
and  the  Court  would  be  directed  unerringly  to  the  very  point  raised. 
So  if  the  wife  should  be  offered  as  a  witness  for  the  husband  in  a  civil 
case,  or  a  party  to  the  action  sljould  offer  himself,  the  opposite  party 
need  show  no  more  than  that  he  objected  to  the  introduction  of  said 
witnesses  and  their  testimony.  But  when  the  testimony  offered  is 
apparently  of  a  hind  that  is  admissible  to  prove  a  particular  fact  or  thing, 
then  a  general  objection  should  be  held  to  raise  the  question  only  of  its 
competency  as  a  kind,  and  not  the  technical  sufficiency  or  competency 
of  the  particular  instrument  relied  upon.  And  especially  is  this  true 
where  no  such  motion  for  a  new  trial  is  made,  or  objection  urged  to  the 
sufficiency  of  the  testimony  to  sustain  the  judgment. 

Now  in  this  case  it  is  claimed,  and  is  true,  that  the  notary  had  omitted 
to  affix  his  seal  to  the  protest.  In  every  other  respect  it  is  complete  and| 
formal.  If  this  objection  had  been  made,  it  must  have  availed  to  ex- 
clude the  testimony.  But  if  made,  the  defect  might  possibly  have  beenj 
cured  at  once,  and  in  this  fact  consists  the  strong  reason  for  requiring 
the  objections  in  such  cases  to  be  specific.  The  notary  w'ould  have  had 
the  right  at  the  time  to  affix  his  seal,  and  thus  every  difficulty  would  have 
been  obviated.  / 

We  would  not  hold  parties  to  a  rule  too  strict  in  this  respect,  but  we 
do  think  some  degree  of  particularity  is  required.     Thus  if  it  had  been 
objected  that  the  protest  was  not  properly  authenticated,  that  it  was 
not  properly  signed  and  sealed,  we  say  if  the  bill  of  exceptions  show^ed  it     h, 
anything  of  this  nature,  we  should  be  inclined  to  give  appellant  the//"^^ 
benefit  of  any  defect  in  the  instrument  which  w^ould  fairly  range  itself^ 
under  such  objections.     Not  so,  however,  when  the  objection  is  so  genera 
and  pointless  as  in  this  instance.     Thompson  v.   Blanchard,  2  low^a  44; 
Danforth,  Davis  &  Co.  v.  Carter  &  May,  1  lb.  552;  Patterson  v.  Stiles,  6 
lb.  54;  State  v.  Wilson,  8  lb.  407.  Judgment  affirmed. 


; 


990  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  693 

693.  TOOLEY  v.   BACON 

Court  of  Appeals  of  New  York.     1877 

70  N.  Y.  34 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
I  in  the  fourth  judicial  department,  affirming  a  judgment  in  favor  of 
defendant,  entered  upon  the  report  of  a  referee.  This  was  an  action  for 
money  alleged  to  have  been  paid  and  received  by  Charles  C.  Bacon, 
plaintiff's  intestate.  The  answer  alleged  in  substance  that  all  moneys 
or  property  which  came  into  the  hands  of  said  intestate,  belonging  to 
plaintiff,  were  transferred  by  the  latter  with  intent  to  hinder,  delay  and 
defraud  his  creditors.  .  .  . 

It  was  alleged  in  the  answer  that  the  plaintiff  placed  the  funds  and 
property  in  controversy  in  the  hands  of  the  intestate  for  the  purpose  of 
delaying  and  defrauding  his  creditors.  After  the  defendant  had  given 
some  evidence  tending  to  sustain  this  defence,  the  plaintiff,  as  a  witness 
in  his  own  behalf,  was  asked  if  he  had  put  the  property  in  the  hands  of 
the  intestate  for  the  purpose  and  with  the  intent  to  delay  or  defraud  his 
creditors.  Counsel  for  plaintiff  objected  to  the  question,  and  the  referee 
sustained  the  objection.  No  ground  of  objection  was  specified,  but  the 
course  of  the  examination  was  such  that  it  must  have  been  understood 
that  the  objection  was  to  the  competency  of  the  plaintiff  to  answer  the 
question  under  §  399  of  the  Code,  Bacon  being  dead. 

Z.  M.  Knoidcs,  for  the  appellant.  The  evidence  offered  upon  the 
question  of  the  intent,  with  which  the  transfer  was  made,  was  competent, 
and  erroneously  excluded.  .  .  . 

E.  H.  Lamb,  for  the  respondent.  .  .  . 

Earl,  J.  (after  stating  the  case  as  above).  .  .  .  That  no  ground  was 
specified  is  immaterial  now.  When  evidence  is  excluded  upon  a  mere 
general  objection,  the  ruling  will  be  upheld,  if  any  ground  in  fact  existed 
for  the  exclusion.  It  will  be  assumed,  in  the  absence  of  any  request  by 
the  opposing  party  or  the  Court  to  make  the  objection  definite,  that  it 
was  understood,  and  that  the  ruling  was  placed  upon  the  right  ground. 
If  in  such  a  case  a  ground  of  objection  be  specified,  the  ruling  must  be 
sustained  upon  that  ground,  unless  the  evidence  excluded  was  in  no  aspect 
of  the  case  competent,  or  could  not  be  made  so.  But  where  there  is  a 
general  objection  to  evidence  and  it  is  overnded,  and  the  evidence  is 
received,  the  ruling  will  not  be  held  erroneous  unless  there  be  some 
ground  which  could  not  have  been  obviated  if  it  had  been  specified,  or 
imless  the  e\ndence  in  its  essential  nature  be  incompetent.  (Le\an  v. 
Russell,  42  N.  Y.  251;   Williams  r.  Sargeant,  46  N.  Y.  481.) 

We  are  of  opinion  that  the  ruling  was  right.  The  plaintiff  could  not 
be  examined  as  a  witness  "in  regard  to  any  personal  transaction  or 
communication"  between  him  and  Bacon.     The  placing  of  property  in 


No.  694  THE   OBJECTION  991 

the  hands  of  Bacon  was  a  personal  transaction  with  him,  and  the  intent 
with  which  it  was  done  accompanied  and  characterized  the  transaction 
and  was  an  element  thereof.  .  .  .  When  death  has  sealed  the  lips  of  one 
party  the  law  should  seal  the  lips  of  the  other.  .  .  . 

The  question,  "  Did  you  say  to  your  counsel  that  you  never  gave  any 
mortgage  to  Bacon?"  put  to  plaintiff  upon  his  cross-examination,  was 
not  objected  to  on  the  ground  that  it  called  for  a  privileged  communica- 
tion, and  no  material  evidence  was  elicited  in  answer  thereto.  .  .  . 

All  concur,  except  Church,  Ch.  J.,  and  Andrews,  J.,  who  dissent,  on 
the  ground  of  the  exclusion  of  evidence  of  plaintiff's, intent  in  the  transfer, 
holding  that  the  question  should  have  been  answered. 

Rapallo,  J.,  absent.  Judgment  affirmed. 


694.   WOLVERTON  v.   COMMONWEALTH 

Supreme  Court  of  Pennsylvania.     1821 

7  S.&R.  273 

Error  to  the  Court  of  Common  Pleas  of  Erie  county. 

This  was  a  scire  facias  on  a  recognisance  in  the  sum  of  $5000,  .  .  . 
conditioned  that  W^olverton  would  perform  the  office  of  sheriff  for  the 
county  of  Erie,  for  the  next  three  years.  The  scire  facias  was  for  the  use 
of  Eli  Hart  and  John  Lay,  trading  under  the  firm  of  Hart  &  Co.,  and  was 
returnable  to  December  Term,  1817;  it  alleged,  generally,  a  breach  of 
the  condition,  .  .  .  setting  out  a  particular  breach,  that  on  the  first  of 
May,  1817,  a  certain  Edwin  Forbes  was  committed  to  the  jail  of  the 
county,  and  in  the  custody  of  the  said  sheriff,  by  virtue  of  an  execution 
issued  by  George  Moore,  a  justice  of  the  peace,  at  the  suit  of  Hart  &  Co., 
for  $117.77,  on  a  judgment  obtained  by  confession,  pursuant  to  the  Act 
of  Assembly,  and  that  the  sheriff  suffered  Forbes  to  escape  and  go  at 
large.  .  .  . 

The  plaintiff  also  offered  parol  evidence  of  the  existence  of  an  execu- 
tion against  Forbes,  "having  first  given  notice  to  the  defendants  to 
produce  the  said  execution;  the  admission  of  which  said  testimony  was 
then  and  there  objected  to  by  the  counsel  of  the  defendants,  on  the 
ground  that  a  record  could  not  be  proved  by  parol  evidence."  This 
objection  was  overruled  by  the  Court,  and  the  testimony  admitted, 
and  an  exception  taken  by  the  defendants.  .  .  . 

The  jury  found  a  verdict  for  the  plaintiffs  for  the  amount  due  to  them 
by  Forbes,  for  which  judgment  was  entered. 

This  case  was  argued  at  the  former  term,  and  again  at  this  term,  by 
Foster,  for  the  plaintiffs  in  error,  and  Baldioin,  for  the  defendants  in 
error. 

Gibson,  J.,  delivered  the  opinion  of  the  Court  on  all  the  points  but 
one.     Tilghman,  C.  J.,  having  been  absent  at  the  argument,  and  a 


992  BOOK   II :     PROCEDURE   OF  ADMISSIBILITY  No.  694 

diflference  of  opinion  having  arisen  between  Gibson,  J.,  and  Duncan,  J., 
on  that  point,  it  was  re-argued  at  this  term,  before  all  the  judges. 

Gibson,  J.  .  .  .  The  plaintiffs  further  offered  parol  evidence  of  the 
contents  of  the  execution,  on  which  Forbes  (for  whose  escape  the  suit 
was  brought)  was  committed;  "having  first  given  notice  to  the  defend- 
ants to  produce  the  said  execution;  the  admission  of  which  testimony 
was  then  and  there  objected  to  by  the  counsel  of  the  defendants,  on  the 
ground  that  a  record  could  not  be  proved  by  parol  evidence."  The 
objection  in  this  Court  is,  that  parol  evidence  was  inadmissible,  before 
the  execution  was.sliQwn  to  have  come  to  the  defendants'  possession,  or 
to  be  lost  or  destroyed. 

And  I  at  once  admit  that  if  it  had  been  put  on  that  ground  at  the 
trial,  it  ought  to  have  prevailed.  But  I  apprehend  there  has  been  a 
total  change  of  position,  since  the  cause  came  here.  The  argument  that, 
to  avoid  the  operation  of  the  rule  which  excludes  parol  evidence  of  the 
contents  of  a  paper,  it  was  incumbent  on  the  plaintiffs  to  bring  the  case 
within  one  of  the  exceptions  to  it,  and  that  until  they  did  so  the  objection 
on  general  grounds  was  unremoved,  is  ingenious,  but  easily  shown  to  be 
unsound.  .  .  . 

I  I  take  it  to  be  an  inflexible  rule,  and  one  of  the  utmost  value,  both  in 
pleading  and  evidence,  that  whatever  is  not  denied  or  made  special 
{ ground  of  objection  is  conceded.  Thus,  if  a  party  being  called  on  for 
^  that  purpose  opens  the  particular  view  with  which  he  offers  any  part  of 
his  evidence,  or  states  the  object  to  be  attained  by  it,  he  precludes  himself 
from  insisting  on  its  operation  in  any  other  direction,  or  for  any  other 
object;  and  the  reason  is,  that  the  opposite  party  is  prevented  from 
objecting  to  its  competency  in  any  view  different  from  the  one  proposed. 
In  like  manner,  a  party  may  be  called  on  to  state  the  particular  ground  on 
which  he  rests  an  objection  to  competency,  and  if  it  fails  him,  it  is  not 
error  to  receive  the  evidence,  although  it  be  incompetent  on  other  grounds. 
Where,  therefore,  there  is  a  special  objection,  or,  what  is  the  same  in 
effect,  a  general  objection  resting,  not  on  collateral  circumstances,  but  on 
the  supposed  existence  of  an  abstract  principle  admitting  of  no  exception, 
as  was  the  case  here,  every  ground  of  exception  which  is  not  particularly 
occupied,  is  to  be  considered  as  abandoned.  For  instance,  a  deposi- 
tion is  offered,  and  it  is  resisted  exclusively  on  the  ground,  that  the 
witness  is  interested,  or  that  the  evidence  is  irrelevant;  would  it  not  be 
palpably  unjust  in  a  court  of  error,  to  listen  to  an  objection,  that  it  did 
not  appear  there  had  been  proof  of  notice,  or  that  the  deposition  had  in 
all  respects  been  regularly  taken?  If  the  defect  were  pointed  out  in 
time,  it  might  be  supplied  by  further  proof;  or  if  that  were  impossible, 
the  party  would,  at  least,  be  apprised  of  the  danger  to  ultimate  success, 
which  is  necessarily  incurred  by  pressing  the  admission  of  incompetent 
testimony.  Here,  if  instead  of  urging  the  abstract  operation  of  the  rule, 
the  defendants  had  objected  that  the  case  did  not  fall  within  the  particu- 
lar exception  to  it,  now  relied  on,  the  plaintiffs  might  have  been  prepared 


No.  694  THE   OBJECTION  993 

to  show  that  the  execution  actually  came  to  the  hands  of  the  sheriff,  or 
that  it  was  lost  or  destroyed;  but,  as  to  that,  the  silence  of  their  antago- 
nists at  the  trial,  had  a  direct  tendency  to  lead  them  into  a  surprise. 

For  reasons  like  these,  I  regret  a  practice,  too  frequent  in  the  Common 
Pleas,  of  stating  the  exception  generally,  without  specifying  the  ground 
on  which  it  is  urged.  In  such  a  case,  as  we  cannot  judicially  know  the 
precise  point  the  Court  was  called  on  to  decide,  we  are  obliged  to  let  in 
any  objection  that  can  be  raised  on  the  face  of  the  record;  and  hence  I 
have  frequently  been  obliged  to  consent  to  reverse,  on  points  that,  I 
had  every  reason  to  believe,  were  never  made  below.  .  .  . 

As,  in  the  case  at  bar,  the  objection  was  made  on  a  supposed  abtract 
inadmissibility  of  the  evidence,  independently  of  collateral  considerations, 
I  am  of  opinion,  that  the  proof  of  all  preliminary  facts,  which  would 
otherwise  have  been  indispensable,  ought  to  be  considered  as  ha\ing 
been  waived.  .  .  . 

On  all  the  points,  therefore,  I  am  of  opinion,  that  the  judgment  be 
affirmed. 

TiLGHMAN,  C.  J.  ...  I  understand  from  this  record,  that  the  only 
ground  on  which  the  evidence  was  objected  to,  was,  that  a  record  could 
not  be  proved  by  parol  evidence.  But  the  plaintiffs  in  error  now  con- 
tend, that  the  evidence  was  inadmissible,  for  want  of  previous  proof  that, 
the  writ  had  come  to  the  sheriff's  hands.  I  do  not  think  that  objection 
now  open ;  it  should  have  been  made  below,  or  the  plaintiff  may  be  taken 
here  by  surprise.  ...  . 

Duncan,  J.  (dissenting).  —  The  fact  in  issue  was,  whether  Edwin 
Forbes  had  been  committed  to  the  custody  of  the  sheriff,  on  the  execution 
of  Hart  &  Co.,  and  had  escaped  from  such  custody.  To  prove  the 
execution,  the  plaintiff  below,  having  proved  a  notice  to  the  sheriff  to 
produce  the  execution  on  the  trial,  offered  a  witness  to  prove  its  existence 
and  contents.  This  was  objected  to,  on  the  ground  that  parol  evidence 
could  not  be  admitted  of  a  record.  .  .  .  The  plaintiffs  offered  the 
parol  evidence,  with  the  proof  of  notice ;  to  this  evidence,  thus  offered  in 
connection,  the  defendants  objected,  on  the  ground  that  parol  evidence 
of  the  execution  could  not  be  received.  .  .  . 

It  was  not  proved  that  the  paper  was  lost;  it  was  neither  admitted 
nor  proved  that  it  ever  came  to  the  hands  of  the  sheriff.  What  is  it 
then,  more  or  less,  than  this?  That  the  Court  received  parol  evidence 
of  the  execution,  without  proof  of  its  loss.  .  .  .  The  objection  was  to 
the  medium  of  proof.  Parol  evidence  cannot  be  admitted  of  this  thing; 
as  a  general  rule  of  evidence,  this  cannot  be  questioned.  If  it  was 
admissible,  it  must  be  because  the  case  fell  within  some  of  the  exceptions 
—  its  loss,  or  that  it  was  in  the  hands  of  the  opponent.  He  who  alleges 
that  his  case  is  excepted  out  of  the  general  rule,  must  make  it  out,  that 
it  falls  within  some  of  the  exceptions  of  the  cardinal  rule  of  evidence.  .  .  . 

The  plaintiffs  in  error  did  not  make  one  objection  to  the  evidence 
below,  and  a  different  one  here;   that  could  not  be  endured.     But  thev 


994  BOOK  II :     PROCEDURE   OF  ADMISSIBILITY  No.  694 

object  here,  as  they  did  in  the  Common  Pleas,  that  parol  evidence  ought 
not  to  be  received  of  the  execution.  .  .  .  Here  the  plaintiffs  in  error 
resisted  all  parol  evidence  of  the  execution.  .  .  . 

I  agree  that  the  plaintiffs  in  error  have  failed  in  all  the  other  excep- 
tions made  by  them,  but  this  I  think  they  have  fully  supported. 


695.  SPENCER  v.   POTTER'S  ESTATE 

Supreme  Court  of  Vermont.     1911 
85  Vt;  80  Atl.  821 

Appeal  from  Rutland  County  Court;  Fred  M.  Butler,  Judge. 

Proceedings  by  Kate  Spencer  against  Jarvis  T.  Potter's  estate. 
From  a  commissioner's  decision  disallowing  a  claim,  petitioner  appeals. 
Reversed  and  remanded. 

This  is  an  appeal  from  the  decision  of  commissioners  on  Jarvis  T. 
Potter's  estate,  disallowing  the  plaintiff's  claim  based  on  a  written  instru- 
ment dated  February  17,  1905,  purporting  to  be  signed  by  the  testator, 
and  of  the  tenor  following:  "I  have  given  this  day  to  my  niece,  Kate 
Spencer,  the  sum  of  fifteen  hundred  dollars  ($1500),  to  be  paid  by  the 
administrator  of  my  estate  at  my  decease.  The  above  is  given  in  con- 
sideration of  her  kind  care  and  attention  during  my  sickness  in  her  home. 
Her  Uncle  Jarvis  T.  Potter."  Ii]  the  court  below  the  plaintiff  declared 
in  special  assumpsit  on  said  instrument,  and  the  defendant  pleaded  the 
general  issue,  and  gave  notice  thereunder  that  it  should  deny  the  execu- 
tion of  the  instrument  by  the  testator. 

The  testator  had  lived  many  years  in  Burlington  and  Essex,  in  this 
State,  and  was  a  tin  peddler  and  later  a  farmer.  His  wife  died  in  1903, 
and  in  the  summer  of  1904  he  went  to  Clarendon,  where  he  lived  ever 
after,  and  where  he  had  a  half-brother,  John  Spencer,  and  numerous 
other  relatives,  among  whom  were  Sarah  R.  Spencer  Hoag,  the  executrix, 
and  Albert  H.  Spencer,  children  of  John  Spencer.  The  plaintiff  is  the 
wife  of  Albert  H.  Spencer.  .  .  .  The  testator  was  accustomed  to  visit 
frequently  at  the  homes  of  his  relatives.  He  was  84  years  old  when 
he  died  in  January,  1909.   .   .   . 

The  testator  made  a  will  after  the  date  of  the  instrument  in  suit, 
by  which  he  distributed  his  estate,  amounting  to  between  $5,000  and 
$6,000,  among  his  relatives  into  twenty-four  parts,  leaving  one  cent  to 
the  plaintiff's  husband.  The  defendant  claimed  that  it  was  never 
expected  nor  understood  that  the  care  during  the  testator's  sickness 
at  the  plaintiff's  house  should  be  paid  for,  and  that  such  services  as 
were  rendered  were  out  of  personal  regard  and  because  of  relationship, 
and  while  the  testator  was  there  on  a  visit. 

There  was  considerable  testimony  on  both  sides  on  the  question  of 
the  genuineness  of  the  signature  to  said  instrument,  a  number  of  the 


No.  095  THE   OBJECTION  995 

plaintiff's  witnesses  testifying  their  opinion  that  it  was  genuine,  and  a 
number  of  the  defendant's  that  it  was  not  genuine.  The  instrument  was 
admitted  "under  objection  and  exception  by  the  defendant."  The 
defendant  claimed,  and  its  testimony  tended  to  show,  that  on  October 
26,  1904,  the  testator  made  a  gift  to  the  plaintiff  of  $100,  for  which  she 
executed  a  receipt,  which  is  referred  to.  The  plaintiff's  husband  testified 
that  the  signature  to  said  instrument  is  the  genuine  signature  of  the 
testator.  On  cross-examination  he  testified  that  a  few  days  after  October 
6,  190G,  he  delivered  a  package  to  the  testator  and  got  his  signature  to 
a  receipt  therefor,  and  that  later  the  testator  demanded  to  know  what  the 
paper  was  that  he  signed,  and  wanted  to  see  it,  but  that  the  husband 
did  not  show  it  to  him.  The  defendant  then  produced  the  receipt  and 
put  it  into  the  case,  and  in  that  connection  claimed  that  the  signature 
thereto  was  procured  by  Spencer  and  used  by  him  or  some  one  else  as  a 
model  from  which  to  copy  the  testator's  signature  onto  the  instrument 
in  suit.  On  Spencer's  redirect  examination  the  plaintiff  introduced  a 
letter  dated  June  2,  1906,  with  documents  pinned  to  it,  for  the  purpose  of 
showing  that  the  defendant's  claim  was  not  correct,  and  to  show  that  in 
June,  1906,  the  instrument  in  suit  was  in  existence,  and  had  been  submitted 
to  an  attorney  in  Cornell  University  for  his  opinion,  and  the  letter  and 
the  documents  pinned  to  it  were  limited  to  that  purpose.  Said  letter 
purported  to  come  from  the  law  office  of  Henry  L.  Allen,  Hornorsville, 
N.Y.,  and  was  addressed  to  "George  x\lvord.  City."  In  it  Mr.  Allen, 
the  writer,  said  he  had  examined  the  instrument  left  with  him  by  Alvord 
the  other  day,  and  had  examined  some  of  the  authorities  on  that  subject, 
some  of  which  he  indorsed  on  a  separate  sheet,  together  with  the  instru- 
ment and  his  opinion  thereon.  Pinned  to  the  letter  were  two  separate 
sheets  containing  a  copy  of  the  instrument,  citation,  and  discussion  of 
legal  authorities,  and  an  opinion  that  the  instrument  is  valid  and  enforce- 
able. Spencer  had  testified  that  the  plaintiff  had  a  relative  in  the  state 
of  New  York  named  George  Alvord,  to  whom  said  instrument  was  sent, 
and  that  Alvord  had  submitted  it  to  Henry  Allen,  an  attorney,  for  an 
opinion,  and  that  Alvord  sent  said  letter  and  sheets  in  a  letter  of  his. 
To  their  admission  the  defendant  objected  and  excepted.   .   .   . 

Argued  before  Rowell,  C.  J.,  and  Munson,  Watson,  Haselton, 
and  Powers,  JJ. 

T.  W.  Moloney  and  J.  A.  Merrill,  for  appellant.  M.  C.  Webber,  for 
appellee. 

Rowell,  C.  J.  ...  It  is  contended  that  the  Court  erred  in  admitting 
the  letter  of  June  2,  1906,  from  Allen  to  Alvord,  and  the  documents 
pinned  thereto,  because  not  admissible  for  the  purpose  offered,  as  the 
defendant  had  not  opened  up  its  admission.  It  is  conceded  that,  in  view 
of  the  defendant's  claim  that  the  receipt  for  the  package  was  procured 
for  the  purpose  of  using  the  testator's  signature  thereto  as  a  model, 
the  plaintiff  could  show  by  proper  evidence  that  the  instrument  was 
already  in  existence.     But  it  is  contended  that  she  could  not  import  said 


996  BOOK    II :     PROCEDURE   OF   ADMISSIBILITY  No.  695 

letter  into  the  case,  as  it  had  no  probative  force  in  itself,  and  was  between 
persons  not  parties  here;  that  the  purpose  was  to  show  the  date  of  the 
letter,  but  that  there  is  no  proof  of  the  authenticity  of  the  letter  nor  that 
it  was  ever  written  by  Allen  and  received  by  Alvord,  nor  that  the  date 
was  correct;  that  the  most  the  testimony  showed  was  that  plaintiff's 
husband  said  he  received  the  letter  in  one  from  Alvord;  that  it  is,  in 
effect,  the  testimony  of  Allen  as  to  the  validity  of  the  instrument;  and 
that  it  was  not  necessary  to  resort  to  the  letter  and  the  accompanying 
documents  in  order  to  get  evidence  before  the  jury  that  the  instrument 
was  in  existence  before  October  6,  1906,  for  plaintiff's  husband  had 
already  testified  that  he  saw  the  instrument  from  two  to  six  months 
after  February  17,  1905. 

It  is  to  be  noticed  that  no  ground  of  objection  was  stated  to  the 
admission  of  this  letter  and  the  accompanying  documents,  the  exceptions 
showing  only  that  "to  their  admission  the  defendant  objected  and  ex- 
cepted." This  Court  has  had  frequent  occasion  of  late  to  state  and 
enforce  the  rule  in  respect  of  such  exceptions.  The  last  time  was  in 
Townshend  v.  Townshend,  84  Vt.  319,  where  it  is  held  to  be  the  general 
rule  that  objections  to  the  admission  of  testimony  must  be  such  as  to 
indicate  the  precise  point  that  the  Court  is  asked  to  rule  upon;  but  that 
this  rule  has  its  exceptions,  one  of  which  is,  when  the  offered  evidence 
cannot  be  material  nor  relevant  in  any  state  of  the  case,  and  that  is 
apparent  on  the  face  of  the  question  asked  or  the  offer  made,  a  general 
objection  is  sufficient.  Mr.  Wigmore  says  that  "the  cardinal  principle, 
no  sooner  repeated  by  courts  than  forgotten  by  counsel,  is  that  a  general 
objection,  if  overruled,  cannot  avail,"  and  "that  the  only  modification 
of  this  broad  rule  is  that,  if  on  the  face  of  the  evidence  in  its  relation  to 
the  rest  of  the  case  there  appears  no  purpose  whatever  for  which  it  could 
have  been  admissible,  then  a  general  objection,  though  overruled,  will 
be  deemed  to  have  been  sufficient."  And  he  sustains  his  statement  of 
the  rule  and  its  modification  by  reference  to  many  cases.  1  Wigmore 
Evidence  §§  18,  p.  57  et  seq.  Applying  this  rule  to  this  exception,  it  is 
manifest  that  it  cannot  prevail.  .  .  . 

[But  the  judgment  on  other  grounds  must  be] 

Reserved  and  remanded. 


Topic  3.    The  Ruling 

697.   HAMBLETT  v.  HAMBLETT 

Supreme  Court  of  Judicature  of  New  Hampshire.     1833 

6  N.  H.  333 

Appeal  from  the  decree  of  the  judge  of  probate  approving  and  allow- 
ing a  certain  instrument  as  the  last  will  of  David  Hamblett,  deceased. 
The  defence  being  that  the  testator  was  not  of  sound  and  disposing 


No.  G97  THE   RULING  997 

mind,  an  issue,  formed  for  the  purpose  of  trying  that  question,  came 
before  the  jur^',  August  term,  1832.  .  .  . 

The  appellee  also  ottered  in  evidence  the  deposition  of  Mary  Palmer,  p 
in  which  she  testified,  among  other  things,  that  on  the  day  of  the  execu-  I 
tion  of  the  will  she  was  at  the  house  of  the  testator,  and  that  "  his  dis-  j 
course  was  satisfactory  to  her."  To  this  part  of  the  testimony  the 
appellant  objected.  The  evidence  was  admitted,  but  the  Court  in  their 
instructions  to  the  jury  directed  them  not  to  rely  upon  any  evidence  of  ^ 
opinion  as  to  the  sanity  or  insanity  of  the  testator,  except  what  was  J 
derived  from  the  testimony  of  the  subscribing  witnesses  to  the  will.  .  .  .  '* 

The  jury  returned  a  verdict  that  the  testator  was  sane,  and  the 
appellant  moved  for  a  new  trial.  ... 

Porter,  for  the  appellant.     C.  H.  Atherton,  for  the  appellee. 

Parker,  J.  .  .  .  On  the  supposition  that  this  testimony  of  Mary 
Palmer,  to  matter  of  opinion,  or  rather  to  matter  from  which  her  opinion 
of  sanity  is  to  be  inferred,  was  incompetent  —  which  is  not  conceded, 
if  sufficiently  connected  with  facts  —  the  question  arises  whether  this 
furnishes  any  ground  for  a  new  trial,  the  Court  having  thus  directed  the 
jury. 

Upon  this  subject  it  did  not  seem  to  us,  at  first,  that  there  could  be 
two  opinions.  But  in  Penfield  v.  Carpenter,  13  Johns.  350,  in  error,  on 
certiorari  to  a  justice's  court,  it  appeared,  that  at  the  trial  a  witness  was 
called,  on  the  part  of  the  defendant,  to  testify  to  the  defendant's  declara- 
tions made  to  the  witness,  and  the  testimony  being  objected  to,  the  justice 
decided  that  the  witness  might  go  through  with  his  testimony,  and  he 
would  then  inform  the  jury  what  part  was  admissible,  and  what  not  — 
and  the  justice  informed  the  jury  that  this  testimony  was  inadmissible, 
and  that  they  ought  not  to  take  any  notice  of  it  as  testimony.  Another 
witness  was  permitted  to  swear  to  hearsay,  and  the  justice  told  the  jury 
that  what  the  witness  had  sworn  was  not  evidence.  The  Court  reversed 
the  judgment,  saying,  "the  admission  of  such  testimony  was  illegal  and 
dangerous,  and  no  subsequent  caution  or  advice,  by  the  justice,  that  the 
jury  ought  to  disregard  what  the  witnesses  had  sworn,  can  cure  the 
irregularity.  The  law  forbids  such  testimony,  because  it  may  have  an 
influence  upon  honest  jurors,  who  are  unconscious  of  the  impressions 
which  they  retain,  notwithstanding  the  effort  of  the  Court  to  obliterate 
them."  .  .  . 

However  irregular  the  proceedings  in  those  cases  may  have  been, 
and  however  proper  the  decisions  may  be  in  New  York,  as  applied  to 
their  courts  of  justices  of  the  peace,  we  cannot  adopt  the  broad  principle 
there  laid  down,  as  sound  law,  applicable  to  all  cases.  The  reason  that 
the  testimony  so  given  in  presence  of  the  jury  might  have  an  influence, 
though  they  are  directed  to  disregard  it,  would  apply  with  equal  force 
in  all  cases  where  anything  irrelevant  may  have  crept  in  during  the 
course  of  the  trial,  and  would  entitle  parties  to  a  succession  of  new  trials, 
until  no  sentence  should  have  been  uttered  which  by  any  possibility 


998  BOOK    II:     PROCEDURE    OF    ADMISSIBILITY  No.  697 

might  have  an  undue  influence,  though  the  jurors  were  unconscious  of  any 
influence.  It  is  apparent  that  the  principle  cannot  be  carried  to  this 
extent,  and  other  authorities  show  it  must  faU  far  short  of  it,  even  if  it 
can  be  supported  in  any  degree. 

The  rule  respecting  the  testimony  of  interested  witnesses,  as  laid  down 
by  Starkie  and  Phillipps,  is  that  where  it  is  discovered  incidentally  in 
the  course  of  a  cause  that  the  witness  is  interested,  his  evidence  will  be 
struck  out,  although  no  objection  has  been  made  to  him  on  the  voir  dire. 
•*  .  ,  .  So  where  evidence  which  is  competent  in  one  view,  and  yet  from  its 
'  nature  or  connection  proves  something  else,  which  would  not  be  com- 
petent, and  which  might  possibly  have  an  effect  upon  the  jury,  the  evi- 
dence is  admitted,  and  the  jury  directed  not  to  regard  it  as  evidence, 
except  for  the  purpose  for  which  it  is  admissible.  So  where  the  confession 
of  a  prisoner  implicates  others,  charged  in  the  same  indictment,  the  whole 
evidence  is  introduced,  and  the  jury  directed  to  disregard  it  as  to  the 
others.  .  .  .  Cases  are  of  daily  occurrence,  also,  where  evidence  is  ad- 
mitted, which,  from  a  failure  to  connect  it  with  other  evidence,  with 
which  it  had  a  necessary  connection  in  order  to  be  relevant,  eventually 
turns  out  to  be  incompetent.  The  utmost  caution  cannot  always  prevent 
the  introduction  of  evidence,  which  in  the  course  of  the  trial  is  discovered 
to  be  clearly  inadmissible,  and  if,  in  such  cases,  its  introduction  was  to 
be  regarded  as  ground  for  a  new  trial,  on  the  application  of  the  party 
objecting,  the  practice  should  be  to  stop  the  case,  and  begin  de  novo  to 
another  jury,  for  however  strongly  the  jury  were  directed  to  disregard 
the  testimony,  it  could  not  be  shown  that  it  had  not  had  an  influence 
upon  the  verdict,  of  which  the  jurors  were  not  conscious  —  and  yet  it 
is  not  believed,  that  a  practice  of  stopping  a  trial  upon  such  account,  ever 
prevailed  in  any  court.  .  .  . 

This  rule  respecting  the  introduction,  of  incompetent  testimony  may 
j  admit  of  exceptions.  If  the  testimony  be  of  a  nature  to  excite  popular 
/  prejudice,  and  if  there  is  good  reason  from  the  verdict  to  suppose  that  it 
must  have  influenced  the  jury  improperly,  notwithstanding  the  direction 
of  the  judge  that  it  was  to  be  disregarded,  such  case  might  furnish  an 
exception,  and  the  granting  of  a  new  trial  be  a  proper  exercise  of  the 
discretion  of  the  Court.  But  in  this  case,  the  judge  who  tried  the 
cause  states  that  there  is  no  ground  for  supposing  that  this  testimony  of 
Mary  Palmer  affected  the  verdict  either  way,  and  it  was  of  a  nature  to 
have  the  least  possible  weight,  if  no  direction  had  been  given  in  relation 
to  it.   .  .  . 

Decree  of  Judge  of  Probate  affirmed. 

698.  State  t'.  MoRAN.  (1906.  Iowa.  131  la.  645;  109  N.  W.  187.)  Weaver, 
J. :  Defendant  was  charged  with  the  larceny  of  certain  horses  alleged  to  have 
been  committed  on  May  16,  1901.  ...  It  is  true  that  in  some  exceptional  cases 
the  effect  of  the  admission  of  improper  evidence  is  regarded  as  so  clearly  and 
seriously  prejudicial  that  its  subsequent  withdrawal  from  the  jury  will  not  be 


No.  699  THE   RULixXG  999 

regarded  sufficient  to  cure  the  error;  but  the  general  rule  is  otherwise./  It  is  not 
j)ossible  for  even  the  most  watcliful  and  careful  trial  Court  to  keep  from  the  jury 
at  all  times  all  testimony  of  an  immaterial  oi  incompetent  character,  and  if,  upon 
attention  being  called  thereto,  such  matter  is  stricken  out,  we  must  under  all 
ordinary  circumstances  assume  that  the  jury  has  done  its  duty,  and  given  it  no 
weight  or  influence  in  reaching  the  verdict. 


699.   GULLIFORD  v.   McQUILLEN 

« 

Supreme  Court  of  Kansas.     1907  ,j|^ 

75  Kan.  454;  89  Pac.  927 

Error  from  District  Court,  Chase  County;   F.  A.  Meckel,  Judge.     4, ' 
Action  by  E.  F.  IVIcQuillen  against  William  Gulliford.     From  a  judgment 
in  favor  of  plaintiff,  defendant  brings  error.     Affirmed. 

W.  H.  Carpenter,  for  plaintiff  in  error.  Madden  &  Doolittle,  for 
defendant  in  error. 

Smith,  J.  —  Gulliford  became  the  owner  of  a  mill,  and,  not  being 
himself  a  miller,  employed  McQuillen  to  operate  it.  .  .  .  An  exchange 
was  finally  effected  with  one  McClintock  of  the  mill  and  $2000  for  a 
drug  store  and  dwelling  properties,  in  w^hich  the  mill  was  accepted  at  the 
value  of  SI 8,000.  McQuillen  thereafter  demanded  of  Gulliford  S360 
as  his  commission  on  the  deal,  which  being  refused,  he  brought  suit  and 
recovered  judgment  for  the  amount  claimed,  and  Gulliford  brings  the 
case  here.  .  .  . 

The  plaintiff  below  offered  evidence  tending  to  impeach  the  defend- 
ant's reputation  for  truth  and  veracity,  and  thereupon  the  defendant 
asked  a  postponement  of  the  trial  to  enable  him  to  secure  the  attendance 
of  witnesses  in  rebuttal  thereof,  which  request  the  Court  granted,  and 
immediately  the  plaintiff  withdrew  all  the  impeaching  evidence  and  the 
Court  instructed  the  jury  to  disregard  that  evidence,  and  proceeded 
with  the  trial.  There  is  no  showing  that  plaintiff's  attorney  made. any  ]  V/  L- 
reference  to  this  evidence  in  his  argument.     Neither  was  there  any  '* 

reference  to  that  evidence  in  the  instructions  complained  of.  These 
instructions  were  general,  and  were  such  as  are  usually  given  in  relation 
to  the  weight  of  the  evidence  and  the  credibility  of  witnesses.  No 
request  for  an  instruction  in  writing  on  this  subject  was  made.  .  .  . 
The  judgment  is  affirmed. 

Johnston,  C.  J.,  and  Greene,  Burch,  Mason,  and  Graves,  JJ., 
concur. 

Porter,  J.  (dissenting).  The  whole  case  turned  upon  the  credibility 
of  the  testimony  of  plaintiff  and  defendant.  Plaintiff  had  the  burden 
and  testified  one  way.  Defendant  contradicted  him.  Plaintiff  produced 
a  number  of  witnesses  who  testified  that  defendant's  reputation  for 
truthfulness  in  the  neighborhood  where  he  lived  was  bad.     In  order  to 


l\' 


1000  BOOK   II:     PROCEDURE    OF   ADMISSIBILITY  No.  699 

rebut  this,  defendant  reciuired  time  to  procure  the  attendance  of  w  itnesses 
from  his  neighborhood,  and  the  Court,  recognizing  the  reasonableness 
of  his  request,  granted  a  postponement  until  next  morning.  Plaintiff 
then  offered  to  withdraw  the  impeaching  testimony,  which  the  Court, 
over  the  objections  of  defendant,  permitted,  and  proceeded  with  the 
trial.  It  is  true  the  jury  were  instructed  to  disregard  the  impeaching 
testimony,  but  the  fact  remained  that  several  witnesses  had  sworn  that 
defendant's  reputation  was  such  that  he  was  not  entitled  to  credit,  and 
it  is  not  likely  that  the  jury  could  or  did  entirely  disregard  it. 
\'  If  the  practice  indulged  in  here  is  proper,  I  am  unable  to  see  why  a 
arty  may  not  in  any  case  offer  impeaching  testimony  and  withdraw  it 
efore  the  party  impeached  has  offered  his  rebuttal,  and  thus  prevent 
rebuttal  testimony.  It  may  be  said  that  it  can  be  left  to  the  discretion 
of  the  trial  Court;  but,  in  view  of  the  situation  presented  by  the  record 
here,  and  the  particular  circumstances  of  this  case,  I  think  the  action  of 
the  Court  was  an  abuse  of  discretion  which  prevented  defendant  from 
having  a  fair  trial,  and  that  the  judgment  should  be  reversed  and  a  new 
trial  ordered. 

700.  Judicial  Discretion.^  The  term  "discretion,"  as  applied  to  a  trial 
Court's  powers,  may  be  used  in  several  senses,  which  have  not  been,  in  oiir  law, 
as  often  discriminated  or  as  fully  developed  as  they  ought  to  be. 

It  may  mean  (1)  that  the  trial  judge  is  controlled  by  no  fixed  rules,  but  may  in 
each  case  decide  according  to  good  sense  and  justice  without  regard  to  prece- 
dents, either  by  himself  or  by  a  higher  Court.  In  this  meaning  nothing  is 
involved  as  to  the  finality  of  the  decision;   it  may  or  may  not  be  appealable. 

(2)  It  may  mean,  on  the  contrary,  that  the  trial  judge  decides  according  to 
some  rule,  but  that  in  one  or  another  respect  his  decision  is  final;  and  here  it  may 
be  final  (a)  as  to  the  law,  i.e.  the  tenor  of  the  rule,  (b)  as  to  the  applicability  of 
the  rule  to  the  facts,  or  (c)  as  to  the  existence  of  the  facts.  The  first  of  these 
meanings  (1)  is  Discretion  in  the  ordinary  sense;  the  second  (2)  may  be  termed 
Finality  of  RuHng. 

701.   NORRIS  V.   CLINKSCALES 

Supreme  Court  of  South  Carolina.     1896 

47  S.  C.  488;  25  S.  E.  797 

Before  Earle,  J.,  Abbeville,  January,  1896.     Reversed. 

Action  in  claim  and  delivery  by  E.  B.  Morris,  as  executor  of  J.  Estelle 
Clinkscales,  against  A.  J.  and  T.  L.  Clinkscales,  Jr.  Judgment  for 
plaintiff.     Defendants  appeal. 

This  action  for  claim  and  delivery  was  brought  by  Jane  Estelle  Clink- 
scales to  recover  from  the  defendants  certain  personal  property  covered 
by  a  mortgage,  of  which  she  was  the  assignee.  .  .  .  The  third  exception 
charges  error  in  the  Circuit  Judge,  "  In  refusing  to  allow  secondary  evidence 

^  From  the  present  Compiler's  Treatise  on  Evidence  (1905,  Vol.  I,  §  16). 


No.  701  THE    RULING  1001 

as  to  the  contents  of  the  receipt  signed  by  Estelle  Clinkscales,  in  which  | 
she  elected  to  take  under  the  will  of  her  husband,  J.  P.  Clinkscales,  and  I 
to  give  up  all  claim  to  the  property  covered  by  the  mortgages  in  question,  I 
when  there  was  sufficient  proof  going  to  show  that  said  receipt  had  been/ 
lost  or  destroyed  by  fire."  ...  / 

Mr.  Frank  B.  Gary,  for  appellants.  .  .  . 

Messrs.  Parker  &  McGowan,  also  for  appellants.  .  .  . 

Messrs.  Graydon  &  Gray  don,  contra.  .  .  . 

Oct.  26,  1896.     The  opinion  of  the  Court  was  delivered  by 

Judge  Benet,  acting  Associate  Justice,  in  place  of  Associate  Justice 
Gary. 

This  exception  raises  two  questions :   First.  Is  the  exercise  of  judicial  /  • 
discretion,  in  regard  to  the  admission  or  exclusion  of  secondary  evidence, 
appealable  matter  to  be  reviewed  by  this  Court?     And  second.  If  appeal-   ♦ 
able  and  reviewable,  did  the  Circuit  Judge,  in  the  case  at  bar,  commit 
error  of  law  in  excluding  the  secondary  evidence  offered? 

1.  Arguing  on  the  first  question,  counsel  for  the  respondent  contend 
that  the  admission  or  exclusion  of  secondary  evidence  is  a  matter  solely 
in  the  discretion  of  the  Judge,  and  not  appealable;  and  as  authority 
they  cite  Congdon  v.  Morgan,  14  S.  C.  588.  We  do  not  think  that  case 
will  bear  such  a  construction.  Delivering  the  opinion  of  the  Court, 
Mr.  Chief  Justice  McIver  referred  to  Floyd  v.  Mintsey,  5  Rich.  372, 
and  to  Berry  v.  Jordon,  11  Rich.  75,  to  show  that  no  uniform  rule  could 
be  established  as  to  the  exact  amount  of  evidence  necessary  to  prove  the 
loss  of  the  instrument  before  secondary  evidence  of  its  contents  could  be 
admitted.     And  he  added: 

"Neither  shall  we  undertake,  on  this  occasion,  to  lay  down  an  absohite  rule 
upon  the  subject,  for,  as  it  is  said  in  1  Greenleaf  on  Evidence,  §  558,  'it  should  be 
recollected  that  the  object  of  the  proof  is  merely  to  establish  a  reasonable  pre- 
sumption as  to  the  loss  of  the  instrument,  and  that  this  is  a  preliminary  inquiry 
addressed  to  the  discretion  of  the  judge.'  Hence,  where  the  case,  as  presented 
to  us,  does  not  show  that  the  judge  has  violated  any  of  the  established  rules  of 
evidence  in  the  conduct  and  determination  of  this  preliminary  inquiry,  we  cannot 
say  that  there  was  any  error  on  his  part  in  admitting  the  secondary  evidence. 
In  this  case  we  are  unable  to  perceive  any  such  violation  of  the  rules  of  evidence. 
.  .  .  (After  summarizing  the  facts),  we  do  not  see  that  there  was  any  error  on 
the  part  of  the  circuit  judge  in  holding  that  the  proof  of  loss  was  sufficient  to 
let  in  secondary  evidence.  .  .  .  The  preliminary  evidence  offered  here  was 
certainly  much  stronger  than  that  which  was  held  to  be  sufficient  in  Edwards  v. 
Edwards,  11  Rich.  537." 

This  is  a  plain  recognition  of  the  fact,  that  while  the  preliminary 
inquiry  as  to  the  proof  of  loss  of  the  instrument  is  addressed  to  the 
discretion  of  the  Judge,  the  exercise  of  that  discretion  will  be,  in  a  proper 
case,  reviewed  by  this  Court. 

This  Court  has  always,  and  very  properly,  been  averse  to  disturbing 
the  exercise  of  this  discretion  in  the  Court  below,  having  always  felt 


1002  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  701 

assured  that  the  Judges  presiding  there  would  seldom,  if  ever,  overstep 
the  limits  of  their  power  and  act  capriciously  and  arbitrarily.  ...  In 
the  recent  case  of  Hobbs  v.  Beard,  43  S.  C.  370,  it  was  held  that  "  the  loss 
of  a  paper  is  always  a  preliminary  question  addressed  to  the  discretion  of 
the  presiding  Judge,  and  his  ruling  is  not  ordinarily  the  subject  of  review 
by  this  Court."  (Gary,  A.  J.)  These  views  accord  with  the  opinions 
of  the  Courts  both  of  England  and  of  our  sister  States,  and  they  arise 
out  of  the  very  nature  of  the  case. 

The  term  "discretion"  implies  the  absence  of  a  hard  and  fast  rule. 
The  establishment  of  a  clearly-defined  rule  would  be  the  end  of  discretion. 
And  yet  "discretion"  should  not  be  a  word  for  arbitrary  will  or  unstable 
caprice.  Nor  should  judicial  discretion  be,  as  Lord  Coke  pronounced 
it,  "  a  crooked  cord,"  but  rather,  as  Lord  Mansfield  defined  it,  the 
"exercising  the  best  of  their  judgment  upon  the  occasion  that  calls  for 
it,"  adding  that  "if  this  discretion  be  wilfully  abused,  ...  it  ought  to  be 
under  the  control  of  this  Court."  The  Courts  and  text  writers  all  concur 
that  by  "judicial  discretion"  is  meant  sound  discretion  guided  by  fLxed 
legal  principles.  It  must  not  be  arbitrary  nor  capricious,  but  must  be 
regulated  upon  legal  grounds,  —  grounds  that  will  make  it  judicial. 
It  must  be  compelled  by  conscience,  and  not  by  humor.  So  that  when 
a  judge  properly  exercises  his  judicial  discretion  he  will  decide  and  act 
according  to  the  rules  of  equity,  and  so  as  to  advance  the  ends  of  justice. 

There  are  two  different  kinds  of  discretion  that  may  be  exercised  by 
the  presiding  judge,  one  of  which  is  appealable,  the  other  not.  In  the 
exercise  of  his  exclusive  right  to  decide  a  matter  of  fact,  or  to  control  the 
orderly  conduct  of  trials,  the  discretion  of  the  circuit  judge  will  not  be 
reviewed  by  this  Court.  For  example,  in  granting  or  refusing  a  new  trial 
on  the  evidence,  or  in  granting  or  refusing  additional  time  for  argument 
of  counsel,  or  in  deciding  whether  an  admission  or  confession  was  made 
freely  and  voluntarily,  so  as  to  determine  its  admissibility  as  evidence, 
or  in  permitting  a  witness  to  be  recalled,  or  in  granting  or  refusing  a 
motion  for  a  continuance,  or  the  like.  In  such  matters  no  error  of  law 
can  be  committed,  and  no  appeal  can  be  taken. 

But  to  the  appealable  class  in  this  State  belong  all  instances  of  the 
exercise  of  discretion  which  may  disclose  the  commission  of  error  of  law. 
And,  without  going  into  detail,  it  is  enough  for  the  purpose  of  this  case 
to  say  that  in  deciding  the  preliminary  question  whether  or  not  there  has 
been  sufficient  proof  of  the  loss  of  the  written  instrument  to  justify  the 
admission  of  secondary  evidence  of  its  contents,  it  is  possible  that  a 
Circuit  Judge  may  commit  error  of  law  in  the  violation  or  misapplication 
of  the  rules  of  evidence;  and,  therefore,  his  exercise  of  discretion  may  be 
appealed  from.  And  the  appeal  will  lie,  not  because  of  any  so-called 
"abuse  of  discretion"  —  a  phrase  unhappily  framed,  because  implying 
a  bad  motive  or  MTong  purpose  —  but  because  his  ruling  may  appear  to 
have  been  made  on  grounds  and  for  reasons  clearly  untenable.  This 
principle  is  recognized  in  Trumbo  v.  Finley,  18  S.  C.  315,  where  Mr. 


No.   702  THE    RULING  1003 

Justice  McGowAN  says  that  the  exercise  of  a  Judge's  discretion,  "as  ai  I, 
rule,  will  not  be  disturbed,  unless  it  deprives  a  party  of  a  substantial^ 
right  which  he  can  show  he  is  entitled  to  under  the  law."  J 

2.    In  excluding  the  secondary  evidence  offered  in  this  case,  the 
Circuit  Judge  assigned  his  reasons  for  his  ruling  as  follows :   "  The  person 
who  had  the  paper  in  his  possession  should  have  been  examined  as  to  the 
lost  paper.     Unless  it  be  shown  by  competent  evidence  that  the  paper  is 
lost  and  cannot  be'found,  then  the  contents  of  that  paper  cannot  be  gone 
into.     We  can  introduce  secondary  evidence  only  when  it  is  shown  that 
the  primary  evidence  cannot  be  produced.     It  may  be  possible  that  Mr. 
Gary  foimd  that  receipt  after  he  and  the  witness  made  the  search." 
In  excluding  the  secondary  evidence  upon  the  foregoing  grounds,  did  the 
Circuit  Judge  commit  error  of  law?  .  .  .  Under  the  circumstances,  we 
think  the  Circuit  Judge  committed  error  of  law  in  excluding  the  secondary  / 
evidence.  ...  As  was  well  summed  up  by  Mr.  Justice  Whitner,  in  / 
Berry  v.  Jourdon,  1 1  Rich.  76 :   "  The  party  is  expected  to  show  that  he   Z 
has  in  good  faith  exhausted,  in  a  reasonable  degree,  all  the  sources  oif 
information  and  means  of  discovery  which  the  nature  of  the  case  wouk 
naturally  suggest,  and  which  were  accessible  to  him."     As  we  understanc 
the  riding  of  the  Circuit  Judge  in  the  case  before  us,  he  exacted  a  larger 
measure  of  proof  and  applied  a  stricter  rule  of  evidence.     He  held  that 
"the  person  who  had  the  paper  in  his  possession  should  have  been  ex- 
amined as  to  the  lost  paper.  ...  It  may  be  possible  that  Mr.  Gary  found 
the  receipt  after  he  and  this  witness  made  the  search."     We  do  not  think 
that  the  rules  of  evidence  sustain  Judge  Earle  in  holding,  as  a  sine  qua 
non,  that  "  the  person  who  had  that  paper  in  his  possession  should  have 
been  examined."  .  .  . 

We  think  it  proper  to  add  that,  measured  by  the  quantum  of  proof 
adjudged  to  be  sufficient  in  numerous  cases  in  our  reports,  as  well  as 
elsewhere,  the  case  before  us  came  fully  up  to  the  standard  established 
by  the  Courts.  .  .  .  Our  opinion,  however,  is  not  based  upon  the  quan- 
tum of  proof  —  for  that  is  the  Circuit  Judge's  peculiar  province  —  but 
on  the  ruling  that  "  the  person  who  had  the  paper  in  his  possession  should 
have  been  examined  as  to  the  lost  paper,"  when  this  rule  can  only  apply 
where  the  presumption  is  that  he  is  in  possession  of  the  lost  paper. 
And  here  that  presumption  was  removed  by  the  same  testimony  that 
created  it.   .   .   . 


702.   DE   CAMP  v.   ARCHIBALD 

Supreme  Court  of  Ohio.     1893 

hOOh.  St.  618;  35  A^  E.  1056 

Error  to  the  Circuit  Court  of  Hamilton  county. 
The  object  of  this  proceeding  was  to  reverse  an  order  of  the  Court 
of  Common  Pleas  of  Hamilton  county,  affirmed  by  the  Circuit  Courts 


1004  BOOK   II :     PROCEDURE   OF  .ADMISSIBILITY  No.  702 

remanding  the  plaintiff  in  error  to  custody  of  the  sheriff  of  the  county 
in  a  proceeding  in  habeas  corpus,  the  return  of  the  sheriff  showing  that 
the  party  had  been  committed  to  the  jail  of  the  county  by  a  notary  public 
for  refusing  to  answer  certain  questions  propounded  to  him;  his  deposi- 
tion being  taken  at  the  time  before  the  notary  to  be  used  as  evidence  in 
an  action  then  pending  in  the  superior  court  of  Cincinnati;  the  suit  l)eing 
that  of  Charles  A.  Costello  v.  The  Post  Publishing  Company,  for  an 
alleged  libel  published  in  the  paper  of  the  defendant,'  called  "  The  Cin- 
cinnati Post." 

The  plaintiff  in  error,  Joseph  M.  De  Camp,  having  been  called  as  a 
witness  by  the  defendant,  was  asked,  among  other  questions,  the  follow- 
ing:   "You  have  stated  that  you  prepared  the  substance  of  the  article 
mjublished  in  the  Miami  Valley  News,  and  employed  somebody  else,  or 
■got  somebody  else,  to  assist  you  in  putting  it  into  shape.     I  will  ask 
fyou  who  that  person  was."     After  an  exception  to  the  question  by  the 
>. [plaintiff  as  incompetent  and  irrelevant,  the  witness  answered:   "Well,  it 
was  not  Mr.  Costello,"  —  to  which  the  counsel  for  the  defendant  said: 
"That  does  not  answer  the  question.     I  did  not  ask  you  who  it  was  not, 
but  who  it  was."     To  this  the  witness  answered:    "Well,  I  have  stated 
several  times  that  Mr.  Costello  had  nothing  to  do  with  that  article." 
He  was  then  asked  if  he  refused  to  answer  the  question,  and  he  answered 
that  he  did.     Thereupon  counsel  for  defendant  said:  .  .  .  "We  expect 
to  show  that  the  person  who  prepared  the  article,  or  assisted  Mr.  Costello 
in  preparing  it,  was  Otto  Reich;   that  Otto  Reich  did  prepare  it,  caused 
it  to  be  typewritten  and  put  in  shape  for  publication,  with  the  knowledge 
and  in  consultation  with  Mr.  Costello;  that  the  article  itself  was  scurri- 
lous, indecent,  and  scandalous,  and  was  the  provocation  for  writing  and 
publishing  the  article  which  is  complained  of  in  the  plaintiff's  petition; 
and  therefore  we  desire  the  evidence  for  the  purpose  of  pro\-ing,  or  aiding 
in  the  proof  of,  the  above  fact."     He  was  then  ordered  by  the  notary  to 
•  answer  the  question,  but  refused  to  do  so.  .  .  .  At  the  conclusion  of 
the  examination,  the  notary  adjudged  the  witness  guilty  of  contempt  in 
refusing  to  answer  the  above  questions,  and  committed  him  to  the  jail 
V)f  the  county,  there  to  remain  until  he  should  testify  as  ordered. 

It  is  claimed  that  the  Court  erred  in  remanding  the  party  on  these 
grounds:  (1)  That  no  power  is  conferred  on  a  notary  by  the  Statutes  of 
Ohio,  in  taking  a  deposition,  to  commit  a  witness  to  jail  for  refusing  to 
answer  a  question;  or,  if  this  be  not  so,  then  (2)  such  power,  being  judicial 
in  character,  cannot  be  conferred  on  a  notary;  and  (3)  the  questions 
propounded  the  witness  were  incompetent  and  irrelevant,  and  furnished 
no  ground  for  a  commitment. 

Harmon,  Colston,  Goldsmith  &  Hoadhj,  and  FoUrtt  d-  KcUcy,  for 
plaintiff  in  error.  ...  A  notary  public,  as  appears  from  the  sections  cre- 
ating the  office  and  authorizing  the  appointment  of  notaries  (§§  110  to  123 
inclusive.  Revised  Statutes),  is  a  ministerial  officer,  appointed  by  the 
governor  and  removed  by  the  governor  in  the  manner  provided  in  §  110. 


No.  702  THE   RULING  1005 

That  the  Legislature  could  not  constitutionally  vest  such  an  officer  with 
judicial  power,  is  plain  from  §  10,  art.  IV,  of  the  Constitution,  and  it 
only  remains  to  be  determined  whether  the  power  here  attempted  to  he 
exercised  is  a  judicial  power.  .  .  . 

Batrman  &  IlarjK-r,  for  defendant  in  error.  ...  It  is  claimed  that 
§§  5252-4,  as  applied  and  intended  to  grant  to  notaries  the  power  to 
punish,  are  in  \iolation  of  art.  IV,  §  1,  of  the  Constitution.  This  assumes 
that  the  term  "judicial  power"  embraces  all  discretionary  and  judicial 
functions,  or  functions  in  aid  of  the  exercise  of  judicial  power  by  the 
courts.  This  cannot  be  the  meaning  intended  by  this  provision  of  the 
Constitution.  It  must  be  construed  in  view  of  the  whole  practice, 
and  recognized  constitutional  order  of  our  civil  society,  previous  to 
the  time  of  the  adoption  of  the  Constitution  and  continued  since 
under  it.  .  .  . 

It  is  said  that  the  notary  is  not  an  officer  of  the  court.  Technically', 
he  is  not;  but  the  law  authorizes  his  use  in  its  service,  and,  when  per- 
forming such  service,  he  is  a  subordinate  of  the  court  in  the  exercise  of 
the  powers  in  question,  subject  to  its  supervision.  .  .  . 

MiNSHALL,  J.  (after  stating  the  case  as  above). 

1.  As  to  the  first  question,  is  such  power  conferred  on  a  notary  public 
by  the  statutes  of  the  State?  .  .  .  The  mode  of  taking  testimony  by 
depositions  is  provided  for  in  the  part  of  our  Revised  Statutes  relating  to 
civil  procedure.  §  5269  designates  the  officers  before  whom  evidence 
in  this  form  may  be  taken,  and  includes  "a  notary  public";  §  5252 
provides,  among  other  things,  that  "a  refusal  to  answer  as  a  witness, 
w^hen  la\vfully  ordered,  may  be  punished  as  a  contempt  of  the  court  or 
officer  by  whom  the  attendance  or  testimony  of  the  witness  is  required;" 
and  §  5254  provides  that  "the  punishment  for  the  contempt  mentioned 
in  §  5252  shall  be  as  follows :  When  the  witness  fails  to  attend  in  obedience 
to  the  subpoena,  the  court  or  officer  may  fine  him  in  a  sum  not  exceeding 
fifty  dollars;  in  other  cases  the  court  or  officer  may  fine  the  witness  in  a 
sum  not  exceeding  fifty  nor  less  than  five  dollars,  or  may  imprison  him 
in  the  covmty  jail,  there  to  remain  until  he  submits  to  be  sworn,  testifies, 
or  gives  his  deposition."  It  is  plain  that  by  these  sections  a  notary,  as 
any  other  officer,  empowered  to  take  depositions,  may  imprison  a  witness 
in  the  jail  of  the  county  for  a  refusal  to  testify  before  him  when  required 
to  do  so,  and  the  imprisonment  may  be  until  he  consents  to  do  so ;  and 
this  is  not  inconsistent  with  the  power  conferred  on  him  by,§  118,  Rev. 
St.  This  section  does  not  purport  to  limit  the  powers  of  a  notary  public 
to  those  of  a  justice  of  the  peace  in  matters  of  contempt,  and  is  entirely 
consistent  with  a  statute  that  confers  on  him  other  and  greater  powers 
in  such  matters,  as  is  done  by  the  section  above  referred  to.  The  fact 
that  this  construction  seems  to  render  the  provision  as  to  notaries,  con- 
tained in  §  119,  unnecessary,  is  of  no  consequence,  when  we  consider 
how  the  statutes  of  the  State  have  been  built  up  by  the  annual  labors  of 
the  Legislature,  through  a  long  series  of  years,  and,  so  long  as  consistency 


1006  BOOK  II :     PROCEDURE   OF   .ADMISSIBILITY  No.  702 

is  preserved  by  the  Legislature  in  making  amendments  to  the  laws, 
redundancy  is  a  matter  of  no  great  moment. 

2.  It  is  next  maintained  that  the  imprisonment  of  a  witness  for  refus- 
ing to  answer  a  question  cannot  be  conferred  on  a  notary,  to  be  exercised 
in  taking  a  deposition,  because  such  power  is  judicial  in  character,  and  is 
conferred  by  the  Constitution  upon  the  Courts  of  the  State.  Article  4, 
§  1.  .  .  .  The  term  "judicial  power,"  as  used  in  the  Constitution,  is 
not  capable  of  a  precise  definition.  It  is  included  in  the  power  to  hear 
and  determine,  but  does  not  exhaust  the  power.  That  it  embraces  the 
hearing  and  determination  of  all  suits  and  actions,  whether  public  or 
private,  there  can  be  no  doubt.  But  we  think  that  it  is  equally  clear 
that  it  does  not  necessarily  include  the  power  to  hear  and  determine  a 
matter  that  is  not  in  the  nature  of  a  suit  or  action  between  parties. 
Power  to  hear  and  determine  matters  more  or  less  directly  affecting  public 
and  private  rights  is  conferred  upon,  and  exercised  by,  administrative  and 
executive  officers.  But  this  has  not  been  held  to  affect  the  validity  of 
statutes  by  which  such  powers  are  conferred.  State  v.  Hawkins,  44 
Ohio  St.  98-109.  The  term  "judicial  power"  has  never  been  taken  with 
such  latitude  of  construction  in  the  usages  and  customs  of  our  American 
commonwealths,  and  to  so  extend  the  jurisdiction  of  the  courts  would 
lead  to  the  most  embarrassing  results,  with  little  or  no  compensation 
whatever.  The  taking  of  depositions  is  not  only  a  very  ancient,  but, 
in  many  instances,  necessary,  method  of  obtaining  evidence  to  be  used 
in  the  trial  of  a  cause.  Without  such  means  of  obtaining  evidence,  jus- 
tice could  not  in  many  cases  be  done,  as  the  attendance  of  the  witness 
at  the  trial  could  not  be  secured;  and,  if  the  witness  cannot  be  com- 
pelled by  the  officer  taking  the  deposition  to  answer  a  proper  cjuestion, 
the  rights  of  a  p^rty  might  be  sacrificed  to  the  perversity  of  the  witness. 
In  States  where,  as  in  our  own,  the  power  is  conferred  by  statute,  it 
has  frequently  been  exercised  by  notaries,  and  sustained  by  the  com-ts. 
Dogge  V.  State,  21  Neb.  273,  278;  In  re  Abeles,  12  Kan.  451;  Ex 
parte  McKee,  18  Mo.  599;  Proffatt,  Notaries,  §  98;  Giauque,  Notaries, 
§  146.  .  .  . 

This  seems  the  first  time  the  question  has  been  presented  to  this 
Court,  though  the  statute  conferring  the  power  is  of  long  standing. 
Any  abuse  is  carefully  guarded  against  by  the  power  given  any  judge, 
by  §  5255,  Rev.  St.,  on  application  of  the  witness,  to  discharge  him  if  he 
find  the  imprisonment  to  be  illegal. 

3.  Finally,  it  is  claimed  that  the  questions  put  to  the  plaintiff  in 
error  as  a  witness  were  incompetent,  and  therefore  the  commitment  was 
illegal.  It  might  be  a  sufficient  answer  to  this  to  say  that  neither  of  the 
questions  involved  any  question  of  privilege  on  the  part  of  the  witness, 
and  no  such  pri\alege  was  claimed  as  an  excuse  for  not  answering;  and 
it  seems  well  settled  that  whether  the  questions  are  in  other  respects 
competent  is  a  matter  for  the  determination  of  the  Court  on  the  trial 
of  the  action  in  which  the  depositions  are  being  taken.     Ex  parte  McKee, 


No.  703  THE   RULING  1007 

18  Mo.  599;  People  v.  Sheriff  of  New  York,  7  Abb.  Pr.  96;  People  v. 
Cassels,  5  Hill  164;  Bradley  v.  Veazie,  47  Me.  85;  Rapalje,  Contempts, 
§§  66,  69,  70;  Proffatt,  Notaries,  202.  Here,  however,  the  evidence 
sought  by  the  questions  seems  to  have  been  entirely  competent.  The 
action  being  for  a  libel,  the  defendant  had  the  right,  in  mitigation  of 
damages,  to  show  provocation.  He  had  the  right  to  show  a  prior  publica- 
tion by  the  plaintiff  of  a  provoking  character,  or  that  the  plaintiff"  had 
been  instrumental  in  the  distribution  of  such  a  publication.  .  .  .  The 
defendant  had,  therefore,  the  right  to  know  who  assisted  the  witness  in 
the  publication  and  distribution  of  the  article  in  the  Miami  Valley  News, 
as  such  information  might  have  enabled  him  to  connect  the  plaintiff 
with  the  publication  and  distribution  of  the  article  in  that  paper.  Hence, 
both  questions  were  competent,  and  should  have  been  answered. 

Judgment  affirmed. 

703.  Ex  Parte  Jennings.  (1899.  Ohio.  60  Oh.  St.  319.)  The  petitioner, 
Malcom  Jennings,  by  his  petition  in  habeas  corpus  seeks  to  be  discharged  from  a 
commitment  made  by  a  notary  piibHc  before  whom  his  deposition  was  being/ 
taken  in  an  action  in  quo  warranto  pending  in  this  Court.  .  .  .  The  petitioner 
had  testified  that  he  is  the  proprietor  of  "The  Jennings  News  Bureau  and  Adver- 
tising Agency,"  started  about  December  1,  1898;  that  the  agency  had  contracts 
Avith  newspapers  in  Ohio.  .  .  .  The  witness  was  then  asked  to  furnish  a  list  of 
the  papers  circulating  in  Ohio  with  which  he  had  such  contracts.  This  the  wit- 
ness refused  to  do  upon  the  ground  that  the  information  sought  was  not  perti- 
nent to  the  issues  in  the  case  in  which  the  deposition  was  being  taken  and  that 
the  disclosure  would  be  detrimental  to  the  business  of  the  witness.  .  .  .  The 
witness  persisting  in  his  refusal  to  answer,  the  notary  issued  his  writ  to  a  con- 
stable of  the  township  commanding  him  to  arrest  the  petitioner  and  commit  him 
to  the  jail  of  the  county  and  there  to  remain  until  he  shall  submit  to  testify.  .  .  . 

Shauck,  J.:  Authority  to  punish,  as  for  a  contempt,  a  witness  who  refuses 
to  answer  "when  lawfully  ordered"  is  conferred  upon  notaries  public  by  sections 
5252  and  5254  of  the  Revised  Statutes.  De  Camp  v.  Archibald,  50  Ohio  St.  618 
[ante,  No.  702].  The  denial  here  is  not  of  the  pourr  of  the  officer,  but  of  the 
lawfulness  of  the  occasion  for  its  exercise.  .  .  .  The  settled  law  upon  the  subject 
is  as  stated  in  Church  on  Habeas  Corpus,  section  319 :  "The  law  has  not  invested 
such  officers  (notaries  public)  with  arbitrary  and  omnipotent  power  to  compel 
a  witness  to  answer  all  questions  however  incompetent,  irrelevant,  immaterial, 
3r  inadmissible.  A  refusal  to  answer  such  questions  is  not  necessarily  a  con- 
tempt. To  have  power  to  commit  for  contempt,  the  notary  must  exercise  his 
functions  substantially  in  the  manner  and  itnder  the  circumstances  prescribed 
and  contemplated  by  law.  ..."  [The  subject  here  covered  by  the  question  was 
irrelevant  and  incompetent.]  In  De  Camp  v.  Archibald,  so  confidently  relied 
upon  to  justify  this  imprisonment,  it  was  clearly  pointed  out  in  the  opinion  that 
the  question  which  the  witness  refused  to  answer  was  competent.  •  •  •  ^ 

Petitioner  discharged. 

MiNSHALL,  J.,  dissents  from  the  proposition  of  the  syllabus,  but  not  from 
the  discharge  of  the  relator. 


1008  BOOK  II :     PROCEDURE    OF  ADMISSIBILITY  No.  704 

704.   Ex  Parte  SCHOEPF 

Supreme  Court  of  Ohio.     1906 

74  Oh.  I;  77  A^  E.  276 

[Printed  ayitc  as  No.  500;  Point  1  of  the  opinion] 

705.  DowAGiAC  Manufacturing  Co.  v.  Lochren.  (1906.  United  States 
Circuit  Court  of  Appeals.  143  Fed.  211.)  Sanborn,  J.:  .  .  .  The  examination 
in  this  case  was  proceeding  before  a  special  master,  to  whom  the  case  had  been 
referred,  to  take  the  evidence  and  to  report  the  facts.  ...  In  Blease  v.  Garling- 
ton,  92  U.  S.  1,  7,  the  Supreme  Court  ruled  that  in  suits  in  equity  all  the  evidence 
sought  by  either  party,  whether  it  was  received  or  rejected  by  the  trial  Court, 
should  be  elicited,  and  in  case  of  an  appeal,  presented  to  the  Supreme  Court,  to 
the  end  that,  if  that  Court  were  of  the  opinion  that  the  evidence  rejected  below 
should  have  been  received,  it  might  consider  it  and  render  a  final  decree  without 
remanding  the  suit  to  procure  the  rejected  evidence.  .  .  . 

It  is  a  necessary  corollary  of  this  rule  of  practice,  established  by  the  decision 
in  Blease  v.  Garlington,  that  it  is  the  duty  of  an  auxiliary  Court  to  elicit  and  cause 
to  be  transmitted  to  the  primary  Court  not  only  such  evidence  as  it  deems  com- 
petent and  material,  but  also  that  which  it  deems  incompetent  or  immaterial, 
unless  the  witness  or  the  evidence  is  privileged  or  it  clearly  and  affirmatively 
appears  that  the  evidence  cannot  possibly  be  material  or  relevant.  In  no 
other  way  can  the  general  rule  of  practice  be  made  effectual;  for,  if  the 
auxiliary  Court  refuses  to  compel  the  production  of  the  testimony  because  it 
deems  it  immaterial  or  incompetent,  and  the  appellate  Court  should  be  of  a  differ- 
ent opinion,  the  latter  Court  cannot  consider  the  rejected  evidence  and  render  a 
final  decree  without  remanding  for  further  proof,  because  the  rejected  evidence 
has  not  been  elicited  and  cannot  be  presented  to  it.  Moreover,  this  practice  is 
more  logical,  rational,  and  convenient  than  that  which  requires  the  auxiliary 
judge  or  Court  to  determine  the  admissibility  of  the  evidence  which  either  party 
seeks  to  secure;  because  the  Coint  in  which  the  suit  is  pending  and  in  which  all 
the  pleadings  and  evidence  must  be  gathered  together  is  far  more  competent  to 
decide  questions  of  this  nature  than  a  distant  judge  or  Court  that  has  but  a 
fragment  of  the  case,  and,  more  than  all,  because  the  law  imposes  upon  the 
primary  Court  the  absolute  duty  to  consider  and  decide  all  these  questions  of 
the  admissibility  of  evidence  and  to  determine  the  final  result  in  the  suit,  —  a 
duty  that  the  Court  of  original  jurisdiction  is  no  more  able  than  the  Supreme 
Court  to  fairly  and  wisely  discharge,  unless  all  the  evidence  deemed  competent  or 
material  by  any  of  the  parties  to  the  suit  has  been  produced  and  presented  for 
its  consideration. 

These  considerations  have  led  us  to  this  conclusion:  It  is  not  the  duty  of  an 
auxiliary  Court  or  judge,  within  whose  jiirisdiction  testimony  is  being  taken  in  a 
suit  pending  in  the  Court  of  another  district,  to  consider  or  determine  the  com- 
petency, materiality,  or  relevancy  of  the  evidence  which  one  of  the  parties  seeks 
to  elicit.  It  is  the  duty  of  such  a  Court  or  judge  to  compel  the  production  of 
the  evidence,  although  the  judge  deems  it  incompetent  or  immaterial,  unless  the 
witness  or  the  evidence  is  privileged,  or  it  clearly  and  affirmatively  appears  that 
the  evidence  cannot  possibly  be  competent,  material,  or  relevant,  and  that  it 


No.  707  THE  EXCEPTION  1009 

would  be  an  abuse  of  the  process  of  the  Court  to  compel  its  production.  Fayer- 
weather  v.  Ritch  (C.  C.)  89  Fed.  529.  .  .  .  Strong  v.  Randall,  177  N.  Y.  400, 
69  N.  E.  721. 

Topic  4.    The  Exception 

707.   WRIGHT  v.   SHARP 

King's  Bench.     1709 

1  Salk.  288 

A  CORPORATION-BOOK  was  offered  in  evidence  at  the  assizes  to  prove 
a  member  of  the  corporation  not  in  possession,  and  refused.  No  bill 
of  exceptions  was  then  tendered,  nor  were  the  exceptions  reduced  to 
writing;  so  the  trial  proceeded,  and  a  verdict  was  given  for  the  plaintiff. 

Next  term  the  Court  was  moved  for  a  bill  of  exceptions,  and  it  was 
stirred  and  debated  in  Court.  It  was  urged,  that  the  law  requires  "  quod 
proponat  exceptionem  suam,"  and  no  time  is  appointed  for  the  reducing 
it  into  writing,  and  the  party  is  not  grieved  till  a  verdict  be  given  against 
him;  and  the  same  memory  that  serves  the  judges  for  a  new  trial  will 
serve  for  bills  of  exceptions. 

On  the  other  side,  it  was  said,  that  this  practice  would  prove  a  great 
difficulty  to  judges,  and  delay  of  justice ;  that  the  precedents  and  entries 
suppose  the  exception  to  be  written  down  upon  its  being  disallowed,  and 
the  statute  ^  ought  to  be  construed  so  as  to  prevent  incon\'enience; 
besides  the  words  of  the  Act  are  in  the  present  tense,  and  so  is  the  writ 
formed  on  the  Act. 

Holt,  C.  J.  —  If  this  practice  should  prevail,  the  judge  would  be  in  a 
strange  condition:  He  forgets  the  exception,  and  refuses  to  sign  the  bill, 
so  an  action  must  be  brought.  You  should  have  insisted  on  your  excep- 
tion at  the  trial.  Y^ou  waive  it  if  you  acquiesce,  and  shall  not  resort 
back  to  your  exception  after  a  verdict  against  you,  when  perhaps,  if  you 
had  stood  upon  your  exception,  the  party  had  other  evidence,  and  need 
not  have  put  the  cause  on  this  point.  The  statute  indeed  appoints  no 
time,  but  the  nature  and  reason  of  the  thing  requires  the  exception  should 


1  [12S5,  St.  13  Edw.  I,  Westminster  Second,  c.  31:  "Wlien  one  that  is  im- 
pleaded before  any  of  the  justices  doth  alledge  an  exception,  praying  that  the 
justices  will  allow  it,  which  if  they  will  not  allow,  if  he  that  alledged  the  exception 
do  write  the  same  exception  and  require  that  the  justices  will  put  to  their  seals 
for  a  testimony,  the  justices  shall  do  so;  and  if  one  will  not,  another  of  the  company 
shall;  and  if  the  king,  upon  complaint  made  of  the  justices,  cause  the  record  to 
come  before  him,  and  the  same  exception  be  not  found  in  the  roll,  and  the  plaintiff 
shew  the  exception  \\Titten,  with  the  seal  of  the  justice  put  to,"  then  if  the  justice 
admit  his  seal  genuine,  the  exception  shall  be  adjudged  upon. 

The  history  of  the  statute  is  noticed  in  the  following  works:  1895,  Pollock  & 
Maitland,  History  of  the  English  Law,  II,  663-669;  1838,  Chitty,  General 
Practice,  IV,  c.  1,  §  1.] 


1010  BOOK   II :     PROCEDURE   OF  ADMISSIBILITY  No.  707 

be  reduced  to  writing  when  taken  and  disallowed,  like  a  special  verdict, 
or  a  demurrer  to  evidence;  not  that  they  need  be  drawn  up  in  form; 
but  the  substance  must  be  reduced  to  writing  while  the  thing  is  trans- 
acting, because  it  is  to  become  a  record. 

70S.  HuNNicuTT  V.  Peyton.  (1880.  Federal  Supreme  Court.  102  U.  S. 
333,  353.)  Strong,  J.  —  It  is  no  doubt  necessary  that  exceptions  should  be  taken 
and,  at  least,  noted  before  the  rendition  of  the  verdict;  but  the  reduction  of  the 
bills  to  form,  and  the  signature  of  the  judge  to  the  bills,  required  for  their  attesta- 
tion, or,  as  said  in  the  Statute  of  Westminster,  "for  a  testimony,"  may  be  after- 
wards, during  the  term.  In  practice  it  is  not  usual  to  reduce  bills  of  exception  to 
form  and  to  obtain  the  signatiu-e  of  the  judge  during  the  progress  of  the  trial. 
Nor  is  it  necessary.  The  Statute  of  Westminster  did  not  require  it.  It  would 
greatly  and  uselessly  retard  the  business  of  Courts  were  it  required  that  every 
time  an  exception  is  taken  the  progress  of  the  trial  should  be  stayed  until  the  bill 
could  be  reduced  to  form  and  signed  by  the  judge.  For  this  reason  it  has  always 
been  held  that  it  need  only  be  noted  at  the  time  it  is  made,  and  may  be  reduced 
to  form  within  a  reasonable  time  after  the  trial  is  over. 


709.   RUSH  V.  FRENCH 

Supreme  Court  of  Arizona.    1874 

1  Ariz.  99,  121;  25  Pac.  816 

Dunne,  C.  J.  .  .  .  The  cases  where  we  are  called  on  to  review  rulings 
on  the  admission  of  evidence  may  be  reduced  to  two  classes:  1.  When 
the  party  objecting  was  overruled  and  he  appeals.  2.  When  the  party 
objecting  was  sustained  and  the  other  side  appeals. 

1.  In  the  first  case,  where  the  party  objecting  was  overruled  and  he 
appeals,  he  must  show  by  the  record:  (1)  W^hat  the  question  was,  and 
what  answer  was  given  to  it,  or  what  the  evidence  was  which  was  intro- 
duced against  his  objection.  This  is  important  because  the  evidence 
admitted  may  not  injure  him.  The  answer  may  have  been  in  his  favor. 
It  is  not  necessary  that  he  should  show  clearly  that  he  was  injured, 
because  that  would  often  be  impossible,  but  he  must  show  that  the 
evidence  was  admitted  against  his  valid  objection,  which,  it  may  be,  has 
injured  him;  for  the  object  of  granting  a  review  by  this  Court  is  not  to 
determine  the  abstract  questions  as  to  whether  the  judge  below  ruled 
correctly  or  not,  but  to  give  relief  in  case  a  party  may  have  been  injured 
by  an  erroneous  ruling.  (2)  He  must  set  out  enough  of  the  evidence  to 
illustrate  the  point  of  his  objection,  and  to  raise  the  presumption  that  he 
may  have  been  injured;  but  where  error  is  shown,  injury  will  be  presumed, 
unless  the  contrary  clearly  appears.  (3)  He  must  show  what  kind  of  an 
objection  was  made,  and  to  avail  him  here  he  must  show  that  the  objection 
as  made  was  good.  Then  it  is  for  the  other  party  to  see  that  the  state- 
ment made  contains  a  showing  sufficient  to  sustain  the  admission  of  the 


No.  710  THE   EXCEPTION  1011 

evidence  as  against  the  objection  made.  The  amount  of  showing  the 
hitter  party  must  make  depends  upon  the  nature  of  the  objection.  If 
the  party  objecting  interpose  merely  a  general  objection,  all  that  is  nec- 
essary is  to  show  enough  to  obviate  the  general  objection.  If  the 
objection  is  specific,  all  that  is  necessary  is  to  show  enough  to  obvi- 
ate the  specific  objection  as  made.  Beyond  this,  we  cannot  in  reason 
require  him  to  go.  He  should  defend  himself  against  the  particular 
attack  made,  but  we  cannot  ask  him  to  fortify  himself  against  all 
possible  attacks  which  might  have  been  made. 

2.  In  the  second  case,  where  the  party  objecting  was  svstaincd,  and 
the  other  side  appeals  and  asks  to  have  the  ruling  declared  erroneous, 
the  party  appealing  must  see  that  the  record  shows:  (1)  What  cpiestion 
he  asked  or  what  evidence  he  sought  to  introduce ;  (2)  -Sufficient  of  the 
other  evidence  to  illustrate  the  admissibility  of  that  offered;  (3)  That 
the  evidence  so  offered  was  excluded ;  (4)  That  there  is  reasonable  ground 
to  presume  that  he  may  have  been  injured  by  such  exclusion.  The  other 
part}'  must  see  that  the  record  shows  good  grounds  of  exclusion. 


710.     GRIFFIN  V.  HENDERSON 

SuPREAiE  Court  of  Georgia.     1903 

117  Ga.  382;  43  S.  E.  712 

Probate  of  will;  appeal.  Before  Judge  Candler.  Newton  Supe- 
rior Court.  April  12,  1902.  Henderson,  as  executor,  offered  a  paper  for 
probate  as  the  will  of  Mrs.  A.  C.  Brown.  A  caveat  was  filed  by  her 
daughter,  Mrs.  Lula  D.  Griffin.  On  the  trial  there  was  a  verdict  in  favor 
of  the  propounder.  The  caveatrix,  among  other  grounds,  objected  to  the 
probate  of  her  mother's  will,  for  the  reason  that  the  testatrix  had  made  the 
will  under  a  mistake  of  fact  as  to  the  conduct  of  the  daughter,  who  was 
her  sole  heir  at  law.  Civil  Code,  §  3262.  No  demurrer  or  exception  was 
filed  to  this  ground  of  the  caveat.  One  of  the  grounds  of  alleged  error 
was  that  the  Court  refused  to  permit  the  caveatrix  to  testify  as  a  witness 
to  any  communications  made  to  her  by  her  mother,  or  conversations  be- 
tween them.  "The  Court  so  ruling,  no  questions  were  propounded  to 
the  witness  (caveatrix);  who  would  have  testified  that  Mrs.  A.  C.  Brown 
treated  her  entirely  different  after  her  marriage  to  her  husband,  Mr.  C. 
M.  Griffin,  than  she  had  done  prior  to  her  marriage,"  and  to  other  facts 
which  relate  to  the  question  of  a  mistake  of  fact.  ...  A  motion  by  Mrs. 
Griffin  for  a  new  trial  was  overruled,  and  she  excepted. 

Brown  &  Randolph,  L.  L.  Middlcbrook,  and  J.  F.  Rogers,  for  plaintiff 
in  error.     J.  M.  Pace  and  Foster  &  BntJer,  contra. 

Lamar,  J.  ...  It  is  expressly  stated  that  no  questions  were  pro- 
pounded to  the  witness;  and  while  the  motion  says  what  she  would 
have  testified,  it  does  not  appear  that  the  Court  w^as  informed  thereof 


( 


1012  BOOK  II :     PROCEDURE   OF  ADMISSIBILITY  No.  710 

at  the  time  he  excluded  her;  and  therefore  we  are  not  permitted  to  con- 
sider this  assignment  of  error.  No  matter  how  competent  a  witness 
might  be,  a  Court  will  not  grant  a  new  trial  merely  because  he  was  not 
allowed  to  testify.  It  must  appear  that  the  excluded  testimony  was 
material;  and  the  almost  universal  rule  of  practice  is  that  what  that 
material  testimony  was  must  be  expressly  called  to  the  attention  of  the 
trial  Court  at  the  time  of  its  exclusion.  Bigby  v.  Warnock,  115  Ga. 
386  (4);  Southern  Mutual  Insurance  Co.  v.  Hudson,  113  Ga.  438;  Free- 
man V.  Mencken,  115  Ga.  1018. 

In  a  few  instances  there  may  be  one  exception,  particularly  in  cross- 
examinations,  where  the  examining  counsel  may  not  know  what  the 
answer  would  be,  or  is  exercising  a  right  to  test  the  witness.  But  ordi- 
narily the  exclusion  of  oral  testimony  can  be  made  available  as  error  only 
by  asking  some  pertinent  question,  and,  if  an  objection  is  sustained, 
informing  the  Court  at  the  time  what  the  answer  would  be,  so  that  he 
can  then  determine  whether  the  fact  is  or  is  not  material.  It  will  not 
do  to  state  thereafter  what  the  witness  would  have  answered.  ...  If  a 
new  trial  should  be  granted  because  the  answer  was  excluded,  it  might 
happen  that  on  the  second  trial  the  question  would  be  again  propounded, 
allowed,  and  the  witness  give  hearsay,  inadmissible,  or  irrelevant  testi- 
mony, or  the  answer  might  be  harmful  instead  of  helpful  or  the  witness 
may  reply,  "  I  do  not  know,"  with  the  result  that  the  time  and  money  of 
the  parties  and  the  country-  has  been  wasted  for  so  inconsequent  a  con- 
clusion. That  this  is  not  unlikely  to  occur  is  shown  by  the  experience  of 
all  practising  lawyers,  who  have  often  seen  a  long  and  heated  argument 
as  to  the  right  to  ask  a  question,  followed  by  the  laughter  of  all  bystanders 
when  the  Court  held  it  competent,  and  the  witness  replied  that  he  knew 
nothing  about  the  matter.  Parties  can  often  agree  in  the  presence  of 
the  Court  as  to  what  the  witness  would  testify,  or,  if  not,  the  witness  or 
examining  attorney  can  state  what  the  answer  would  be;  and,  where 
the  subject-matter  is  important,  the  judge  may,  in  his  discretion,  retire 
the  jury  until  its  admissibility  has  been  settled.  We  are  well  aware 
that  the  rule  may  be  perverted  into  a  means  of  getting  inadmissible 
evidence  before  the  jury,  or,  by  forcing  their  constant  withdrawal,  retard 
the  trial.  The  Courts  must  rely  upon  the  good  faith  of  counsel  not  to 
bring  about  such  a  result.  But  it  would  never  do  to  grant  a  new  trial 
until  it  appeared  not  only  that  the  question  was  proper,  but  that  the 
answer  was  material,  and  would  have  been  of  benefit  to  the  complaining 
party. 

\Miile  the  rule  as  to  assigning  error  on  the  exclusion  of  testimony 
is  not  without  its  exceptions,  the  practice  in  other  jurisdictions  is  sub- 
stantially that  in  this  State.  Railroad  v.  Stonecipher,  95  Tenn.  311; 
Omaha  Ins.  Co.  v.  Berg,  44  Neb.  522  (3).  .  .  . 

The  judgment  of  the  lower  court  refusing  a  new  trial  is  affirmed. 

By  four  Justices.     Candler,  J.,  disqualified. 


No.  711  NEW  TRIAL   FOR   ERROR  1013 


Topic  5.    New  Trial  for  Erroneous  Ruling 

711.  John  H.  Wigmoue.  A  Treatise  on  Evidence.  (1905.  Vol.  I, 
§  21.)  An  erroneous  ruling  having  been  made  and  excepted  to,  and  the 
excepting  party  having  received  an  adverse  verdict  on  the  law  and  the 
evidence,  the  great  question  on  appeal  then  becomes,  Shall  a  new  trial  be 
granted  because  of  the  errojieous  admission  or  exclusion  of  the  'particular  piece 
of  evidence?  It  is  a  great  question,  because,  although  it  does  not  directly 
involve  the  tenor  of  the  rules  of  evidence,  yet  the  whole  status  of  the  law 
of  evidence,  as  well  as  the  efficiency  of  our  methods  of  doing  justice,  is^ 
dependent  upon  the  answer.  Whether  that  law  of  evidence  shall  be  a 
mere  means  to  an  end,  —  the  end  being  a  just  settlement  of  particular 
controversies,  —  or  whether  it  shall  be  an  end  in  itself  —  an  end  so  inde- 
pendent of  justice,  and  so  superior  thereto,  that  it  must  be  attained  even 
at  the  cost  of  justice,  —  this  depends  practically  upon  whether  it  can  be 
conceded  that  an  erroneous  ruling  of  evidence  is  ipso  facto  a  ground  for  a 
new  trial. 

The  original  and  orthodox  English  rule  was  plain.  An  erroneous 
admission  or  rejection  of  a  piece  of  evidence  was  not  a  sufficient  ground 
for  setting  aside  the  verdict  and  ordering  a  new  trial,  unless  upon  all  the 
evidence  it  appeared  to  the  judges  that  the  truth. had  thereby  not  been 
reached : 

R.  r.  Ball,  R.  &  R.  133  (1807).  ^'Whether  the  judges  on  a  case  reserved 
would  hold  a  conviction  wrong  on  the  ground  that  some  evidence  had  been  im- 
properly received,  when  other  evidence  had  been  properly  admitted  that  was 
of  itself  sufficient  to  support  the  conviction,  the  judges  seemed  to  think  must 
depend  on  the  nature  of  the  case  and  the  weight  of  the  evidence.  If  the  case 
were  clearly  made  out  by  proper  evidence,  in  such  a  way  as  to  have  no  doubt 
of  the  guilt  of  the  prisoner  in  the  mind  of  any  reasonable  man,  they  thought  that 
as  there  could  not  be  a  new  trial  in  felony,  such  a  conviction  ought  not  to  be  set 
aside  because  some  other  evidence  had  been  given  which  ought  not  to  have  been 
received.  But  if  the  case  without  such  improper  evidence  were  not  clearly  made 
out,  and  the  improper  evidence  might  be  supposed  to  have  had  an  effect  on  the 
minds  of  the  jury,  it  would  be  otherwise." 

Such  was  the  rule  in  the  King's  Bench,  in  criminal  as  well  as  in  civil 
cases.  Such  was  the  rule  in  the  Common  Pleas,  plainly  stated  in  Doe  v. 
Tyler  (1830,  6  Bing.  561).     Such  was  equally  the  practice  in  Chancery,^ 

^  1805,  L.  C.  Eldon,  in  Pemberton  v.  Pemberton,  11  Ves.  50,  52:  "If  upon  the 
whole  [record]  he  is  satisfied  that  justice  has  been  done,  though  he  may  think  that 
some  evidence  was  improperly  rejected  at  law,  he  is  at  liberty  to  refuse  a  new 
trial." 

So  too,  in  the  Federal  Supreme  Court,  for  new  trials  as  distinguished  from 
wTits  of  error;  1828,  Story,  J.,  in  M'Lanahan  v.  Ins.  Co.,  1  Pet.  170,  183:  "In 
such  cases,  the  whole  evidence  is  examined  with  minute  care,  and  the  inferences 
which  a  jury  might  properly  draw  from  it  are  adopted  by  the  Court  itself;  if 
therefore  upon  the  whole  case  justice  has  been  done  between  the  parties,  and  the 


1014  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.   711 

when  issues  had  been  sent  to  a  jury  in  a  common  law  court.  All  this 
lasted  down  to  the  decade  of  1830. 

In  that  decade  the  Court  of  Exchequer,  in  Crease  v.  Barrett  (1835,  1 
C.  M.  &  R.  919,  932)  announced  a  rule  which  in  spirit  and  in  later  inter- 
pretation signified  that  an  error  of  ruling  created  per  se  for  the  excepting 
and  defeated  party  a  right  to  a  new  trial.  The  new  Exchequer  rule  was 
speedily  accepted  in  the  other  courts,^  and  for  something  more  than  a 
generation  it  remained  the  law  of  England,  until  it  was  reformed  away, 
for  civil  causes,  in  1875.^ 

The  Exchequer  rule  duly  obtained  recognition  in  the  United  States 
in  a  majority  of  jurisdictions.  In  its  most  extreme  form,  and  in  language 
exhibiting  in  the  most  radical  manner  the  theory  that  the  rules  of  evidence 
form  an  end  in  themselves,  the  new  doctrine  —  which  had  indeed  given 
sporadic  signs  of  independent  growth  —  was  now  rapidly  promulgated.* 
During  the  last  generation,  the  Exchequer  heresy  has  clearly  gained  the 
ascendance. 

There  are,  to  be  sure.  Courts  that  still  cling  to  the  old-fashioned  notion, 
resting  on  the  orthodoxy  of  Doe  t.  Tyler,  and  refusing  to  bow  the  knee 
to  the  Baal-worship  of  the  rules  of  evidence. 

712.   STATE  V.   CRAWFORD 
Supreme  Court  of  Minnesota.     1905 

96  Minn.  95;   104  A^  W.  822 

Appeal  from  District  Court,  Sherburne  County;  A.  E.  Giddings, 
Judge. 

verdict  is  substantially  right,  no  new  trial  will  be  granted,  although  there  may 
have  been  some  mistakes  committed  at  the  trial" 

1  1887,  Coleridge,  C.  J.,  in  R.  v.  Gibson,  L.  R.  IS  Q.  B.  D.  537,  540:  "Until 
the  passing  of  the  Judicature  Acts,  the  rule  was  that  if  any  bit  of  evidence  not 
legally  admissible,  which  might  have  affected  the  verdict,  had  gone  to  the  jury, 
the  party  against  whom  it  was  given  was  entitled  to  a  new  trial." 

^  1875,  Judicature  Act,  1883,  Rules  of  the  Supreme  Court,  Order  39,  rule  6: 
"A  new  trial  shall  not  be  granted  on  the  ground  of  misdirection  or  of  the  improper 
admission  or  rejection  of  evidence  ...  unless  in  the  opinion  of  the  Court  to 
which  the  application  is  made  some  substantial  wrong  or  miscarriage  has  been 
thereby  occasioned  on  the  trial." 

3  1886,  Cobb,  J.,  in  Masters  v.  Marsh,  19  Nebr.  467,  27  N.  W.  438,  excluding 
certain  books  of  account :  "While  I  do  not  think  that  the  books  would  have  proved 
any  fact  of  the  least  value  in  the  case  had  they  been  properly  admitted,  yet  the 
party  presenting  them  would  scarcely  be  permitted  to  escape  the  consequence  of 
an  erroneous  ruling  on  that  ground." 

1874,  Cole,  J.,  in  Schaser  r.  State,  36  Wis.  434:  "It  may  be  shown  by  the  most 
irrefragable  proof  that  the  defendant  is  guilty  of  the  offence  charged  against  him ; 
but  this  does  not  justify  the  violation  of  well  settled  rules  of  evidence  in  order  to 
secure  his  conviction." 


No.  712  NEW   TRIAL   FOR   ERROR  1015 

C.  D.  Crawford  and  George  R.  Palmer  were  convicted  of  murder,  and 
Crawford  appeals.     Affirmed. 

Ernest  S.  Gary  and  Charles  S.  Whcatoti,  for  appellant.  E.  T.  Young, 
Attorney  General,  C.  S.  Jelley,  and  F.  T.  White,  County  Attorney,  for 
the  State. 

Jaggard,  J. — The  accused,  C.  D.  Crawford  jointly  indicted  with  one 
George  R.  Palmer  for  murder  in  the  first  degree,  was  convicted  on 
separate  trial  and  was  sentenced  to  be  hanged.  On  application  of  his 
counsel,  a  stay  of  execution  was  granted.  The  case  comes  before  this 
Court  upon  an  appeal  from  the  judgment  of  the  trial  court.  .  .  .  Craw- 
ford and  his  codefendant.  Palmer,  knew  each  other  before  the  night  of  the 
murder.  Crawford  had  been  in  the  army  and  was  familiar  with  the 
handling  of  firearms.  He  and  Palmer,  together  with  five  other  young 
men,  Lundin,  Freeman,  Bjorquist,  Conradson,  and  Kenner,  were  riding 
together  on  a  freight  train,  in  a  combination  mail  and  baggage  car,  with 
the  consent  of  a  brakeman.  Crawford,  testifying  on  his  own  behalf, 
confirms  the  narrative  of  the  other  eyewitnesses  in  almost  all  essential 
particulars.  In  substantially  his  own  language,  the  tragedy  occurred 
as  follows:  He  had  said  to  Palmer,  while  they  were  on  the  car:  "Let's 
hold  them  up."  Palmer  replied;  "All  right;  I've  a  flash  light."  .  .  . 
Both  Crawford  and  Palmer  cried  out:  "Throw  up  your  hands!"  Al- 
though no  one  offered  any  resistance,  Crawford  fired  one  shot  in  the  air 
just  to  "scare"  the  prospective  victims.  At  the  rear  end  of  the  car  was 
a  sorting  table,  about  fi\'e  feet  long  and  four  feet  wide.  Lundin  and 
Bjorquist  had  lain  down  on  it  and  had  gone  to  sleep,  each  lying  on  his 
right  side,  each  with  his  face  to  the  front  end  of  the  car.  .  .  .  After  thb 
first  shot  was  fired,  Lundin,  lying  with  one  hand  in  his  overcoat  pocket, 
did  not  get  up;  but,  when  Palmer  tried  to  waken  him,  it  seemed  to 
Crawford  "as  if  he  kind  of  raised  up  a  little."  Palmer  then  stepped 
away  and,  according  to  Crawford,  said  to  Crawford,  "Wake  him  up;" 
according  to  all  other  eyewitnesses,  "Shoot  the  son  of  a  bitch."  Craw- 
ford, then  only  a  few  feet  away  from  Lundin,  passed  the  light  backward 
and  forward  and  followed  the  light  with  the  revolver.  He  "shot  the 
revolver  immediately  after  Palmer  said 'Wake  him  up.'"  .  .  . 

Toward  the  close  of  ihe  case  of  the  State  there  occurred  the  only 
matter  which  is  now  properly  before  us  upon  assignment  of  error.  The 
record  reads:  "By  One  of  the  Jurors:  Q.  —  I  would  like  the  witness  a 
question  to  ask.  The  Court:  You  may  ask  it.  Q.  —  Mr.  Conradson, 
you  say  that  after  he  the  first  shot  did  fire,  and  before  he  did  the  second 
shot  fire,  he  did  to  one  side  step?  Q.  —  Yes,  sir.  A.  —  Now  I  would 
like  to  ask  you  if  your  best  judgment  is  if  he,  after  he  the  first  shot  did 
fire,  and  before  he  did  the  second  shot  fire,  he  did  to  one  side  step  that  he 
might  the  better  aim  take?  A.  —  Yes,  sir;  so  that  he  could  see  Lundin's 
face  better  and  get  out  of  our  line  and  get  a  better  view  of  Lundin. 
Q.  ^—  And  you  say  that  he  careful  aim  did  take?  A.  —  Yes,  sir.  Q.  — 
And  then  did  you  hear  the  report?     A.  —  Yes,  sir.     Q.  —  Now,  then. 


1016  BOOK   II:     PROCEDURE   OF   ADMISSIBILITY  No.   712 

after  you  the  report  did  hear,  did  you  right  away  know  that  Lundin  was 
hit?  A.  —  No,  sir.  Q.  —  How  long  after  you  the  report  did  hear  before 
you  knew  that  the  man  on  the  table  sleeping  was  hit?  A.  —  1  didn't 
know  that  he  was  hit.  1  knew  that  he  didn't  get  up,  and  I  thought  he 
must  be  shot.     That  is  all  I  knew  about  it." 

Counsel  for  the  accused  insists  that  it  is  the  duty  of  the  Court  in  its 
sound  discretion  to  allow  the  juror  to  ask  any  proper  and  competent 
question:  but:  that  it  was  likewise  the  duty  of  the  Court  in  its  sound 
discretion,  with  regard  to  the  rights  of  the  defendant,  to  determine 
whether  or  not  the  questions  were  proper  and  competent  questions  before 
allowing  the  same  to  be  submitted  to  the  witness,  and  not  to  allow  incom- 
petent questions  to  be  asked,  and  that  failure  to  object  to  this  question 
involving  the  opinion  of  this  witness  was  error.  In  support  of  this  he 
cites  typical  authorities  to  the  effect  that  it  is  a  well-established  principle 
that  the  rejection  of  competent  and  material  evidence,  or  the  reception  of 
incompetent  and  improper  evidence,  Avhich  is  harmful  to  the  defendant 
and  excepted  to,  present  an  error  requiring  reversal.  Such  a  ruling  affects 
the  substantial  rights  of  the  defendant,  even  though  the  appellate  Court 
would,  with  the  rejected  evidence  before  it,  or  with  the  improper  evidence 
excluded,  still  come  to  the  same  conclusion  reached  by  the  jury.  The 
defendant  has  the  right  to  insist  that  material  and  legal  evidence  offered 
by  him  shall  be  received  and  submitted  to  the  jury,  and  to  have  illegal 
and  improper  evidence,  which  may  be  harmful,  excluded,  and  have  the 
opinion  of  the  jury  upon  proper  evidence  admitted  in  the  case,  and 
upon  such  evidence  only.  People  v.  Wood,  126  N.  Y.  249;  People 
V.  Greenwall,  108  N.  Y.  296.  As  was  said  by  Earl,  J.,  in  the  latter 
case:  "A  person  on  trial  for  his  life  is  entitled  to  all  the  advantages 
which  the  law  gives  him,  and  among  them  is  the  right  to  have  his 
case  submitted  to  an  impartial  jury  upon  competent  evidence.  Stokes 
V.  People,  53  N.  Y.  164."  People  v.  Corey,  148  N.  Y.  476,  42  N.  E. 
1066. 

We  are  satisfied  that  as  a  matter  of  strict  technical  construction  there 
is  no  error  in  this  record  entitling  the  accused  to  a  new  trial  as  a  matter 
of  right.  .  .  .  Accordingly,  assuming  that  the  questions  and  testimony 
have  all  the  legal  faults  counsel  for  the  accused  contends  for,  and  that 
the  decision  of  this  case  is  to  be  rested  upon  technical  rules,  the  appeal 
must  fail.  .  .  .  There  are  cases  in  which  it  would  be  the  more  orderly 
practice  for  the  trial  court,  in  its  discretion,  to  ask  the  juryman  to  indicate 
the  point  of  his  inquiry  and  then  to  see  that  the  question  is  properly 
formulated,  as  by  directing  counsel  to  put  it,  so  as  to  afford  the  usual 
opportunity  for  objection  and  exception.  Indeed,  there  is  ordinarily 
no  occasion  for  a  juryman  to  interrogate  a  witness.  In  the  instant  case, 
however,  no  abuse  of  discretion  on  the  part  of  the  trial  Court  and  no 
reversible  error  appears  in  this  matter. 

The  decision  in  this  case,  however,  is  not  based  upon  compliance  or 
noncompliance  with  technical  rules  of  practice  or  evidence.     Such  rules 


No.   712  NEW   TRIAL   FOK    ERHOK  1017 

are  primarily  different  from  the  constitutional  guaranties,  without  the 
strict  observance  of  which  punishment  even  by  a  properly  constituted 
court  is  little  better  than  the  punishment  by  a  mob.  Matters  of  mere 
procedure,  however,  have  no  such  sanctity.  When  a  court  exercises  its 
traditional  power  to  regulate  a  trial,  to  pass  on  the  competency,  materi- 
ality, or  sufficiency  of  evidence,  or  the  propriety  of  the  form  of  a  question, 
and  to  revise  the  action  of  a  jury,  it  violates  no  constitutional  right; 
nor  does  it  when  it  confirms  the  verdict  of  a  jury.  Rules  of  practice  and 
evidence  are  primarily  designed  to  secure  the  orderly  administration  of 
the  laws  of  the  land.  They  serve  their  purpose  so  far  as,  and  only  so  far 
as,  they  conduce  to  a  fair  trial.  But,  instead  of  serving  as  a  means  of 
securing  justice,  they  have  been  made  to  usurp  dominion  as  if  their 
observation  were  the  end  to  be  attained. 

Decisions  of  many  Courts  have  determined  controversies  concerning 
them  as  if  they  were  the  constitutional  requirements,  as  if  the  object  of 
the  law  was  their  evolution  into  a  perfect  system,  and  as  if  the  function 
of  even  the  highest  judicial  tribunals  was  to  secure  their  consistent 
enforcement.  Under  the  guise  of  protecting  the  "rights  of  the  accused," 
this  perversion  in  the  use  of  these  rules  has  been  and  must  be  the  source 
of  wrong,  alike  to  the  accused  and  to  the  public.  For,  on  the  one  hand, 
cases  involving  human  lives  may  arise  in  which  an  appellate  Court  would 
properly  feel  that  there  was  imposed  on  it  the  duty  of  setting  aside  a 
verdict  of  con\^iction  and  of  granting  a  new  trial  for  errors  committed 
by  the  trial  Court  resulting  in  an  unfair  trial  of  the  defendant,  although 
no  objection  or  exception  was  made  or  taken  to  the  improper  admission 
or  exclusion  of  evidence,  or  to  the  improper  conduct  or  ruling  of  a  trial 
court,  because  of  the  mistake  or  misconduct,  neglect,  or  incompetency 
of  his  counsel.  The  strict  application  of  practice  rules  would  then  make 
a  new  and  fair  trial  impossible.  On  the  other  hand,  the  exaggeration 
of  the  value  of  such  technicalities  has  opened  the  doors  for  the  escape 
of  unnumbered  and  undoubted  criminals.  "Some  of  the  instances  of 
enforcement  would  seem  incredible,  even  in  the  justice  of  a  tribe  of 
African  fetish  worshipers."     1  Wigmore  on  Evidence,  p.  73. 

There  is  a  current  impression  on  part  of  the  profession  of  law,  and  of 
the  community  in  general,  that  all  Courts  are  hopelessly  committed  to 
this  apotheosis  of  an  artificial  system,  as  repugnant  to  common  sense  as 
it  is  subversive  of  common  justice.  In  point  of  fact,  this  is  far  from  being 
true.  The  original  English  rule  was  that  erroneous  admission  or  exclusion 
of  evidence,  duly  objected  to,  would  not  be  a  basis  for  new  trial  if  the  rest 
of  the  testimony  be  sufficient  to  warrant  the  conclusion  to  which  the  jury 
have  come.  Later,  and  about  IS-S.^i,  a  different  rule  came  to  be  generally 
accepted,  viz.,  "that  an  error  or  ruling  created  per  se  for  the  defeated 
party  a  right  to  a  new  trial.  It  remained  the  law  of  England  until  it 
was  reformed  away  for  civil  cases  in  1S75."  In  the  Ignited  States  this 
rule  is  the  law  in  the  majority  of  jurisdictions,  but  it  is  not  sustained  by 
the  better  opinion  or  reason  (1  Wigmore  on  Evidence,  p.  71,  §  21),  and 


1018  BOOK    II:     PROCEDURE    OF   ADMISSIBILITY  No.   712 

is  distinctly  not  the  law  in  this  State.     In  State  v.  Nelson,  91  Minn.  143, 
144,  145,  Brown,  J.,  says: 

"New  trials  in  criminal  prosecutions  have  for  many  years  been  granted  by 
the  Courts  with  too  much  liberality  (3  Columbia  Law  Rev.  433),  and  to  such  an 
extent  have  the  technical  rights  of  accused  persons  been  magnified  and  upheld, 
and  that,  too,  in  cases  where  guilt  has  been  overwhelmingly  shown,  as  to  result 
in  much  public  discontent,  and  to  bring  the  administration  of  the  criminal  laws 
into  disrespect.  Errors  of  no  vital  consequence,  at  least  not  affecting  materially 
the  sul>stantial  rights  of  the  accused,  either  in  the  admission  or  exclusion  of  evi- 
dence, in  the  instructions  of  the  trial  Court  to  the  jury,  or  alleged  misconduct  of 
the  prosecuting  attorney,  have  opened  prison  doors  and  liberated  many  criminals. 
This  condition  has  caused  peaceful  and  law-abiding  citizens  to  become  lawless, 
and  to  join  in  the  barbarous  method  of  punishing  crime  by  a  resort  to  the  Court 
of  Judge  Lynch.  All  such  outrages  of  the  law  have  been  attributed  in  the  main 
to  the  lax  administration  of  the  laws  in  the  criminal  Courts,  the  gravity  and 
tenacity  with  which  they  respect  the  alleged  legal  rights  of  the  criminal,  and  the 
unnecessarily  strict  adherence  to  ancient  forms  and  procedure.  Remedies  have 
been  suggested,  among  others,  that  the  right  of  appeal  be  taken  away  in  such 
cases;  but  it  is  believed  that  the  only  appropriate  way  to  quiet  the  public  mind  in 
this  respect  and  restore  confidence  in  the  ability  of  the  Courts  to  administer 
justice,  not  only  to  the  criminal,  but  to  society  and  the  State  as  well,  and  to  over- 
come the  tendency  to  resort  to  lynch  law,  is  a  prompt  and  speedy  trial,  conviction, 
and  certain  and  unrelenting  punishment  of  the  guilty,  unaccompanied  by  the 
long  delays  usually  incident  to  the  administration  of  criminal  laws,  and  vmaccom- 
panied,  too,  by  too  much  respect  for  refined  and  subtle  technicalities.  New 
trials  should  be  granted  only  where  the  substantial  rights  of  the  accused  have  been 
so  violated  as  to  make  it  reasonably  clear  that  a  fair  trial  was  not  had." 

The  present  case,  however,  presents  neither  error  nor  unfair  trial. 
The  substantial  rights  of  the  accused  have  not  been  violated.  .  .  .  The 
prosecuting  attorney  -without  error  proved  every  step  in  the  perpetration 
of  the  double  felony  from  its  beginning  to  its  end,  by  testimony  the  most 
direct,  complete,  and  conclusive,  amounting  to  a  substantial  demonstra- 
tion of  the  guilt,  and  of  the  degree  of  guilt,  of  the  accused.  Not  only  did 
four  full-grown  men,  who  in  the  possession  of  all  their  faculties  had 
seen  in  the  light  held  by  the  prisoner  himself,  in  his  presence  and  in  the 
presence  of  each  other,  every  act  of  the  tragedy,  testify  without  attack, 
impeachment,  or  inconsistency,  to  every  brutal  detail;  not  only  were 
the  revolver  which  shot  the  bullet  and  the  bullet  which  was  taken  from 
the  brain  of  the  dead  man  produced,  identified,  and  connected  with  the 
deceased;  but  he  himself  voluntarily  took  the  stand  and  admitted  the 
robbery  and  the  shooting. 

There  is  accordingly  no  doubt  that  the  judgment  of  the  trial  Court 
should  be,  and  it  is  hereby,  affirmed;  and  it  is  hereby  directed,  in  accord- 
ance with  the  statute  (Gen.  St.  1894,  §  7391),  that  the  sentence  pro- 
nounced by  the  trial  court  be  executed.  Judgment  aflfirmed. 


No.  716  ORDER   OF   INTRODUCING   EVIDENCE  1019 


TITLF.  III.     OBDElt   OF  INTliODUdlNG  EVIIjENCE 

Topic  1.     In  General 

714.  Lord  Lovat's  Trial.    (1746.    House  of  Lords.    18  How.  St.  Tr.  658.) 
Hardwicke,  L.  C.  — My  lords,  the  rule  for  the  examination  of  witnesses  in  this  / 
Court,  in  either  House  of  Parliament,   and  everywhere  else,  is  that  ...  all 
questions  that  are  asked,  whether  touching  the  matter  of  fact  to  be  tried  or  the 
credibility  of  the  witness,  are  to  be  asked  at  the  proper  tim.e.     The  party  who  / 
produces  a  witness  has  a  right  to  go  through  the  examination  first,  and  then  the ' 
other  side  cross-examines  him;    and  after  that  is  over,  the  judge  asks  him  such 
questions  as  he  thinks  proper;   unless,  as  I  said  before,  there  be  any  objections  to 
the  questions,  or  any  doubtful  matter  arises  that  wants  immediately  to  be  cleared 
up.     The  same  method  is  to  be  observed  here;   and  the  reason  of  it,  my  lords,  is 
that  unless  your  lordships  observe  this  method,  you  will  be  in  perpetual  confusion. 

715.  Hathaway  r.  Hemingway.  (1850.  Connecticut.  20  Conn.  191, 195.) 
Waite,  J.  — The  rule  upon  this  subject  is  a  familiar  one.  When,  by  the  pleadings, 
the  burden  of  proof  of  any  matter  in  issue  is  thrown  upon  the  plaintiff,  he  must 
in  the  first  instance  introduce  all  the  evidence  upon  which  he  relies  to  establish! 
his  case.  He  cannot  (as  said  by  Lord  Ellenborough)  go  into  half  his  case  and! 
reserve  the  remainder.  The  same  rule  applies  to  the  defence.  After  the  plaintiff 
has  closed  his  testimony,  the  defendant  must  then  bring  forward  all  the  evidence 
upon  which  he  relies  to  meet  the  claim  on  the  part  of  the  plaintiff.  He  cannot 
introduce  a  part  and  reserve  the  residue  for  some  future  occasion.  After  he  has 
rested,  neither  party  can  as  a  matter  of  right  introduce  any  farther  testimony 
which  may  properly  be  considered  testimony  in  chief.  .  .  . 

But  this  rule  is  not  in  all  cases  an  inflexible  one.     There  is  and  of  necessity  I 
must  be  a  discretionary  power,  vested  in  the  Court  before  which  a  trial  is  had, 
to  relax  the  operation  of  the  rule,  when  great  injustice  will  be  done  by  a  strict 
adherence  to  it. 

716.  RucKER  ?'.  Eddings.     (1841.    Missouri.    7  Mo.  115,  118.)     Scott,  J.: 
The  law  has  entrusted  Courts  with  a  discretion  in  allowing  the  parties  to  a  cause  7 
to  obviate  the  effects  of  inadvertence  by  the  introduction  of  testimony  out  of  its  | 
order.     This  discretion  is  to  be  exercised  in'furtherance  of  justice,  and  in  a  manner 
so  as  not  to  encourage  the  tampering  with  witnesses  to  induce  them  to  prop  up 

a  cause  whose  weakness  has  been  exposed.  Where  mere  formal  proof  has  been  \ 
omitted.  Courts  have  allowed  witnesses  to  be  called  or  documents  to  be  produced  ' 
at  any  time  before  the  jury  retire,  in  order  to  supply  it.  So,  material  testimony 
ought  not  to  be  rejected  because  offered  after  the  evidence  is  closed  on  both  sides, 
unless  it  has  been  kept  back  by  trick  and  the  opposite  party  would  be  deceived 
or  injuriously  affected  by  it.  So,  after  a  witness  has  been  examined  and  cross- 
examined,  the  Court  may  at  its  discretion  permit  either  party  to  examine  him 
again,  even  as  to  new  matter,  at  any  time  during  the  trial.  So,  where  by  an 
accidental  omission  plaintiff's  attorney  does  not  call  and  examine  a  witness  who 
was  present  in  Court,  and  a  non-suit  is  moved  for  after  he  has  rested  his  case, 
the  Court  will  permit  the  witness  to  be  examined  in  furtherance  of  justice. 

This  Court  is  sensible  of  the  disadvantages  under  which  it  labors  in  revising 


1020  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  Xo.  716 

the  discretion  of  the  Circuit  Courts  in  matters  of  this  kind,  and  a  strong  case 
must  be  presented  for  its  interference  before  it  can  be  induced  to  (iisturb  the 
judgment  of  inferior  Courts  by  revising  the  exercise  of  the  discretion  with  which 
they  are  entrusted  in  regard  to  the  relaxation  of  the  rules  of  evidence.  It  must 
be  manifest  to  any  one  conversant  with  the  trial  of  causes  that  the  Court  before 
which  a  trial  is  had,  from  ha\ing  an  opportunity  of  seeing  the  conduct  of  parties, 
of  witnessing  the  difference  in  the  experience  of  the  opposite  counsel,  and  many 
incidents  which  cannot  be  set  out  in  a  bill  of  exceptions  and  which  influence  the 
exercise  of  its  discretion  (and  properly  too),  has  superior  means  for  a  wise  and 
judicious  exercise  of  this  power  than  is  possessed  by  this  Court,  W'hich  is  confined 
entirely  to  the  facts  spread  upon  the  record. 


717.   MUELLER  v.   REBHAN 

Supreme  Court  of  Illinois.     1879 

94  ///.  142 

Appeal  from  the  Circuit  Court  of  St.  Clair  county;  the  Hon.  William 
H.  Snyder,  Judge,  presiding. 

This  was  a  bill  filed  May  8,  1875,  by  Catherine  Rebhan,  the  appellee, 
against  Solomon  Mueller  and  others,  to  set  aside  the  will  of  George 
Christian  Mueller  (executed  on  the  14th  of  March,  1870),  who  died  a 
few  days  after  the  execution  of  the  will.  The  will  was  afterwards  duly 
probated.  .  .  . 

The  ground  upon  which  it  was  sought  to  set  aside  the  will  were  two: 
1.  It  was  charged  that  George  Christian  Mueller  at  the  time  of  the 
making  of  the  will,  was  mentally  incapable,  and  that  he  was  of  weak 
intellect,  not  possessed  of  capacity  sufficient  to  make  a  valid  will.  .  .  . 
An  issue  was  formed  as  to  the  validity  of  the  will,  that  was  submitted  to  a 
jury  for  trial  at  the  January  Term,  1877,  and  resulted  in  a  verdict  that 
the  will  in  question  was  not  the  will  of  the  deceased.  A  motion  for  a 
new  trial  was  made  by  the  defendants  and  overruled  by  the  court,  and 
a  final  decree  entered  setting  the  will  aside,  and  Solomon  Mueller  appeals 
to  this  court. 

Mr.  W.  Winkelman,  for  the  appellant.  Mr.  James  M.  Dill,  and  Mr. 
W.  C.  Kiieffner,  for  the  appellee. 

Mr.  Justice  Dickey  delivered  the  opinion  of  the  Court.  ...  It  is 
insisted  that  the  Court  erred  in  refusing  to  permit  appellant,  after  the 
complainant  had  closed  her  testimony  as  to  the  sanity  of  George  Christian 
Mueller  at  the  time  of  the  making  of  the  will,  to  introduce  testimony 
tending  to  prove  that  he  was  sane  and  mentally  competent.  .  .  . 

As  a  matter  of  practice  the  rulings  of  Courts  are  not  uniform  upon 
this  question.  In  some  Courts  it  is  held  that  neither  party  is  called  upon 
to  produce  all  his  testimony  in  support  of  any  allegation  in  issue  until  it 
has  been  developed  on  the  trial  that  an  issue  on  the  evidence  is  made 
upon  that  question ;  the  view  of  such  Courts  being  that  where  the  burden 


No.  718  ORDER   OF   INTRODUCING    EVIDENCE  1021 

of  proof  of  a  given  allegation  rests  upon  a  party,  it  is  sufficient  for  that 
party,  in  the  first  instance,  to  produce  proof  enough  to  make  a  prima  facie 
case,  and  that  he  is  not  required  to  accumulate  other  testimony  until 
evidence  has  been  introduced  tending  to  contradict  his  prima  facie  case. 
That  rule  has  not  prevailed  in  the  Courts  of  this  State;  but  the  more 
usual  rule  is,  that  the  party  upon  whom  the  burden  of  proof  rests  must, 
in  the  first  instance,  produce  all  the  proof  he  proposes  to  offer  in  support 
of  his  allegation;  and  after  his  adversary  has  closed  his  proof,  he  may  only 
be  heard  in  adducing  proof  directly  rebutting  the  proofs  gi\en  by  his 
adversay.  This  question  of  practice  must,  to  a  greater  or  less  degree,  be 
left  to  the  discretion  of  the  Court  trying  the  case.  This  discretion  should 
be  exercised  in  such  a  manner  that  neither  party  shall  be  taken  by  surprise 
and  deprived,  without  notice,  of  an  opportunity  of  producing  any  material 
proof. 

In  this  case,  when  the  appellant  closed  his  proof  and  rested  his  case 
upon  the  production  of  the  will,  the  affidavit  of  the  subscribing  witnesses 
and  the  order  of  the  Court  admitting  it  to  probate,  appellant  was  notified 
(the  record  shows)  that  if  he  desired  to  produce  any  additional  proof  of 
the  sanity  of  the  testator  it  might  be  then  produced,  otherwise  the 
introduction  of  it  would  not  be  permitted  after  the  defendant  had  closed 
his  case.  Appellant,  having  rested  his  case  upon  this  prima  facie  proof, 
imder  these  circumstances  can  not  be  allowed  to  complain  that  he  was 
not  permitted  to  cumulate  proof  upon  this  subject.  An  examination  of 
the  proof,  however,  shows  that  the  Court  did  allow  appellant  to  introduce 
and  prove  any  and  all  facts  having  a  tendency  to  rebut  the  proof  offered 
by  appellee,  except  in  so  far  as  he  proposed  to  interrogate  witnesses  as  to 
their  opinions  as  to  whether  the  testator  was  sane.  We  are  led  to  believe 
that  appellant  suffered  no  injury  from  this  ruling  of  the  Court.  .  .  .  The 
decree  of  the  Circuit  Court  must  be  affirmed.  Decree  affirmed. 


718.   ANKERSMIT  v.  TUCK 

Court  of  Appeals  of  New  York.     1889 

114  .V.  Y.  51;  20  A^  £.819 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department,  entered  upon  an  order  made  March  28, 
1888,  which  affirmed  a  judgment  in  favor  of  defendant,  entered  on  a 
verdict  and  an  order  denying  a  new  trial. 

This  action  was  brought  to  recover  the  possession  of  eight  bales  of  | 
Sumatra  tobacco  purchased  by  the  defendant's  assignor,  as  is  alleged,  j 
by  means  of  false  and  fraudulent  representations  as  to  his  solvency,  and  1 
with  the  intent  not  to  pay  therefor.  Upon  the  trial  the  plaintiffs  gave 
evidence  tending  to  show  that,  before  making  the  sale  of  the  goods  in  / 
question,  the  defendant's  assignor  represemed  and  stated  that  he  was ' 


1022  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  718 

solvent  and  worth  $20,000;  that  his  wife  had  110,000,  which  was  in  the 
stock  at  the  risk  of  the  business.  After  the  plaintiffs  had  rested,  the 
defendant's  assignor  was  sworn  as  a  witness  for  the  defendant,  and 
denied  that  he  had  made  any  such  representations.  Upon  the  cross- 
examination  he  was  asked  if  he  had  not  purchased  goods  at  about  that 
time  of  various  individuals,  among  whom  were  Schroeder  &  Bon,  and  he 
testified  that  he  had,  but  at  the  time  of  such  purchase  in  August  or 
September,  1885,  Bon  did  not  make  any  inquiry  of  him  as  to  his  financial 
condition,  and  that  he  did  not  say  to  Bon  that  he  was  solvent  and  worth 
$20,000,  and  did  not  state  to  him  that  he  had  $10,000  in  his  business  from 
his  wife,  which  was  at  the  risk  of  the  business.  After  he  had  rested,  the 
plaintiffs  called  Bon  as  a  witness,  who  testified  that  he  sold  the  goods  to 
the  defendant's  assignor  in  August  or  September,  1885,  and  that,  at  the 
time  he  made  a  statement  as  to  his  condition.  The  witness  was  then 
asked  "  Did  he  state  to  you  that  he  was  solvent;  and  that  he  was  worth 
$12,000,  and  that  the  $10,000  which  he  got  from  his  wife  was  at  the  risk 
of  the  business?"  This  was  objected  to  as  immaterial,  incompetent 
and  not  in  rebuttal.  The  evidence  was  excluded  and  an  exception  taken 
by  the  plaintiflFs. 

Frederick  P.  Forster,  for  appellants.  Evidence  impeaching  Moeller's 
credibility  was  erroneously  excluded.  .  .  .  For  the  purpose  of  impeaching 
Moeller  the  evidence  was  not  competent  in  chief;  it  could  only  be  offered 
at  the  time  it  was.  .  .  . 

Alfred  P.  W.  Seaman  and  E.  E.  West,  for  respondent.  A  party  is 
bound  to  exhaust  all  his  testimony  in  support  of  his  issue,  and  to  introduce 
all  his  evidence  before  he  closes.  .  .  .  The  evidence  was  admissible  on 
plaintiff's  case,  as  a  matter  of  right,  but  its  admission  in  rebuttal  was  in 
the  "discretion  of  the  court,  from  the  exercise  of  which  discretion  no 
appeal  lies."  .  .  .  Plaintiffs  neglected  to  produce  e\ddence  of  contem- 
poraneous representations  before  they  rested,  when  competent,  and  when 
they  attempted  to  prove  them  on  cross-examination  of  defendant's 
witness  they  made  the  witness  their  own  for  that  purpose,  and  being 
disappointed  in  the  result,  they  should  not  be  permitted  to  impeach  the 
testimony  they  themselves  brought  out.  .  .  . 

Haight,  J.  (after  stating  the  case  as  above).  The  Court  at  General 
Term,  held  that  the  statement  made  to  Bon  and  others  was  competent  as 
evidence  in  chief,  and  that  the  plaintiffs,  having  rested  without  introdu- 
cing it,  left  its  subsequent  admission  discretionary  with  the  trial  Court, 
and,  consequently,  that  the  exception  to  its  exclusion  was  not  well  taken. 
It  is  doubtless  true  that  the  evidence  was  competent  and  coidd  have 
been  introduced  by  the  plaintiffs  as  a  part  of  their  affirmative  case  for 
the  purpose  of  showing  an  intent  to  cheat  and  defraud,  and  that  their 
neglect  to  introduce  it  at  that  time  deprives  them  of  the  right  to  make 
use  of  it  as  affirmative  evidence.  But  a  party  has  the  right  to  impeach 
or  discredit  the  testimony  of  an  opponent,  and  such  evidence  is  always 
competent.     He  may  contradict  the  testimony  of  a  witness  as  to  any 


No.  719  ORDER   OF   INTRODUCING   EVIDENCE  1023 

matters  upon  which  he  has  been  called  to  give  evidence  in  chief,  provided  / 
it  is  not  collateral  to  the  issue;   if  it  has  reference  to  statements  made  to! 
others,  his  attention  should  first  be  called  to  the  time,  place  and  person/ 
to  whom  the  statement  is  claimed  to  have  been  made,  and  if  denied/ 1/ 
such  person  may  then  be  called  to  contradict  him,  thus  discrediting  hi/  If 
testimony  as  a  witness.     This  is  what  the  plaintiffs  attempted  to  dti,  I 
and  we  do  not  understand  that  it  was  discretionary  with  the  trial  Court  I 
to  exclude  it.  .  .  .  The  judgment  should  be  reversed  and  a  new  trial 
ordered,  costs  to  abide  the  event. 
All  concur.     Judgment  reversed. 


Topic  2.     Putting  in  One's  Own  Case  on  Cross-Examination 

719.   MOODY  V.   ROWELL 

Supreme  Judicial  Court  of  Massachusetts.     1835 

17  Pick.  490 

Assumpsit  on  a  promissory  note  for  the  sum  of  $2,750,  dated  Novem- 
ber 1,  1828,  payable  to  John  Blaisdell,  junior,  since  deceased,  or  his 
order,  in  five  years,  with  interest,  and  purporting  to  be  signed  by  the 
defendant  and  indorsed  by  the  payee.  The  defence  rested  on  the  ground, 
that  the  signatures  of  the  defendant  and  of  the  payee  were  forged. 
Henry  H.  Brown,  who  was  called  as  a  witness  for  the  defendant,  was 
examined  as  to  the  handwriting  of  the  paj^ee.  On  his  cross-examination, 
the  plaintiff  examined  him  as  to  the  handwriting  of  the  defendant.  The  i 
judge  did  not  permit  the  plaintiff  to  cross-examine  the  witness  as  to  the 
defendant's  signature,  he  not  having  been  questioned  on  that  subject  by 
the  defendant.  .  .  . 

The  verdict  was  for  the  defendant;  and  the  plaintiff  moved  for  a  new 
trial. 

Saltonstall  and  Choate,  for  the  plaintiff.  .  .  . 

Cushing,  for  the  defendant,  to  the  point,  that  the  party  cross- 
examining  a  witness,  is  not  authorized  to  put  leading  questions  as  to  a 
matter  not  inquired  of  on  the  direct  examination.  .  .  . 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.  .  .  .  Upon  the  ques- 
tion, whether,  as  a  general  rule,  the  cross-examining  party  is  prohibited 
from  putting  a  leading  question  to  a  matter  not  inquired  of  by  the  party 
calling  him,  on  his  examination  in  chief,  there  is  a  diversity  of  opinion. 
It  was  held  by  Mr.  Justice  Washington,  that  such  question  could  not 
be  put.  Harrison  v.  Rowan,  .3  Wash.  C.  C.  R.  580.  .  .  .  The  same  view 
seems  to  have  been  taken  by  the  Supreme  Court  of  Pennsylvania. 
Ellmaker  v.  Buckley,  16  Serg.  &  Rawle  77.  But  we  think  the  general 
practice  has  been  otherwise  both  in  England  and  in  this  State,  and  is  so  t 
laid  down  by  the  compilers.     1  Starkie  on  Evidence  (4th  Am.  ed.)  131; 


1024  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.   719 

1  Phillipps  on  Evidence  (Gth  ed.)  260.  ...  So  in  several  recent  cases,  it 
has  been  held  that  where  a  witness  is  called  to  a  particular  fact,  he  is  a 
witness  to  all  purposes,  and  may  be  fully  cross-examined  to  the  whole 
case,  and  no  distinction  is  suggested  as  to  the  mode  of  cross-examination. 
Morgan  v.  Brydges,  2  Stark.  R.  314;   Rex  v.  Brooke,  ibid.  472.  .  .  . 

It  is  most  desirable  that  rules  of  general  practice,  of  so  much  impor- 
tance and  of  such  frequent  recurrence,  should  be  as  few,  simple  and 
practical  as  possible,  and  that  distinctions  should  not  be  multiplied 
without  good  cause.  It  would  be  often  difficult,  in  a  long  and  com- 
plicated examination,  to  decide  whether  a  question  applies  wholly  to 
new  matter,  or  to  matter  already  examined  to  in  chief.  The  general  rule 
admitted  on  all  hands  is,  that  on  a  cross-examination,  leading  questions 
may  be  put,  and  the  Court  are  of  opinion,  that  it  would  be  useful  to  en- 
graft upon  it  a  distinction  not  in  general  necessary  to  attain  the  purposes 
of  justice,  in  the  investigation  of  the  truth  of  facts,  that  it  would  be 
often  difficult  of  application,  and  that  all  the  practical  good  expected 
from  it  may  be  as  effectually  attained  by  the  exercise  of  the  discretionary 
power  of  the  court,  where  the  circumstances  are  such  as  to  require  its 
interposition.  As  this  was  laid  down  as  the  general  rule  of  law,  the  Court 
are  of  opinion,  that  upon  this  ground  the  plaintiff,  if  he  shall  be  so 
advised,  is  entitled  to  have  a  new  trial. 

720.  Philadelphia  &  Trenton  R.  Co.  r.  Stimpson.  (1840.  Federal  Supreme 
Court.  14  Pet.  448,  461.)  Story,  J.  (ruling  on  testimony  to  an  admission,  given 
by  the  defendant's  witness  on  cross-examination).  Upon  his  cross-examination 
Winans  stated:  "I  understood  there  were  arrangements  made  with  the  Baltimore 
Company.  I  heard  the  company  paid  five  thousand  dollars."  Now,  certainly, 
these  statements,  if  objected  to  by  the  defendants,  would  have  been  inadmissible 
on  two  distinct  grounds.  1.  First,  as  mere  h-earsay;  2.  And,  secondly  .  .  . 
upon  the  broader  principle  (now  well  established,  although  sometimes  lost  sight 
of  in  our  loose  practice  at  trials)  that  a  party  has  no  right  to  cross-examine  any 
witness  except  as  to  facts  and  circumstances  connected  with  the  matters  stated 
in  his  direct  examination.  If  he  wishes  to  examine  him  as  to  other  matters,  he 
must  do  so  by  making  the  witness  his  own,  and  calling  him  as  such  in  the  subse- 
quent progress  of  the  cause. 

721.  Stafford  r.  Fargo.  (1864.  Illinois.  35  111.481,486.)  Walker,  C.J. : 
[The  opponent]  has  only  the  right  to  cross-examine  upon  the  facts  to  which  he 
[the  witness]  testified  in  chief.  If  he  can  give  evidence  beneficial  to  the  other 
party,  he  shoidd  call  him  at  the  proper  time  and  make  him  his  own  witness  and 
examine  him  in  chief,  thereby  giving  the  other  party  the  benefit  of  a  cross-exami- 
nation on  such  evidence  in  chief.  Otherwise  the  party  calling  the  witness  would 
be  deprived  of  a  cross-examination  as  to  evidence  called  out  by  the  other  side, 
and  the  party  against  whom  the  witness  was  first  called  would  obtain  the  advan- 
tage of  getting  evidence  under  the  latitude  allowed  in  cross-examination. 


Ko.  722  ORDER   OF   INTRODUCING   EVIDENCE  1025 

722.   NEW  YORK  IRON  MINE  v.  NEGAUNEE  BANK 

Supreme  Court  of  Michigan.     1878 

39  Mich.  644 

Error  to  Marquette.  Submitted  October  18  and  22.  Decided 
November  21.     Assumpsit.     Defendant  brings  error. 

W.  P.  Hcaly  and  G.  V.  N.  Lothrop,  for  plaintiff  in  error.  .  .  .  Wide 
latitude  should  be  allowed  in  cross-examining  a  party  charged  with 
fraud  in  the  transaction  at  issue.  .  .  . 

Ball  &  Owen  and  Ashley  Pond,  for  defendant  in  error.  .  .  .  Cross- 
examination  must  be  confined  to  matters  bearing  on  the  direct  testimony 
of  the  witness.   .   .   . 

CooLEY,  J.  —  The  plaintiff  in  error  is  sued  as  a  maker  of  three  prom- 
issory notes  and  endorser  of  a  fourth,  all  of  which  are  copied  in  the   i 
margin.^     By  reference  to  these  notes  it  will  be  seen  that  the  name  of  / 
plaintiff  in  error  is  subscribed  or  endorsed  by  W.  L.  Wetmore,  and  the  I 
contest  has  been  made  over  his  authority  to  make  use  of  the  name  of/ 
plaintiff  in  error  as  he  has  done.     The  New  York  Mine  is  a  corporation/ 
having  its  place  of  operations  at  Ishpeming  in  this  State.     It  was  organ- 
ized some  fourteen  years  ago,  with  Samuel  J.  Tilden  and  W'illiam  L. 
Wetmore  as  corporators.     Mr.   Tilden  has  had  the  principal  interest 
from  the  first,  and  has  always  acted  as  president  and  treasurer,  keeping 
his  office  in  New  York  city.     Mr.  Wetmore  has  always  until  this  con- 
troversy arose  acted  as  general  agent  with  his  office  at  Ishpeming.     The 
board  of  direction  has  been  made  up  of  these  gentlemen  with  some 
nominal  holders  of  stock  in  New  York  city  as  associates.  .  .  .  The  firm 
of  Wetmore  &  Bro.  named  in  the  three  notes  purporting  to  be  made  by 
the  New  York  Mine,  was  composed  of  William  L.  and  F.  P.  Wetmore, 
and  there  was  evidence  that  the  New  York  Mine  had  had  business  trans- 
actions with  that  firm  to  the  amount  in  all  of  $125,000.  ...  It  was  not  ] 
claimed  on  the  trial  that  there  had  ever  been  any  corporate  action  | 
expressly  empowering  Wetmore  as  general  agent  to  make  promissory 
notes,  nor  did  it  appear  that  he  had  ever  executed  any  in  its  name  except 
a  few.  ...  It  was  not  disputed  by  the  defense  that  the  corporation  as 
such  had  power  to  make  the  notes  in  suit.     The  question  was  whether  , 
it  had  in  any  manner  delegated  that  power  to  Wetmore.  ...  / 

Some  of  the  proceedings  on  the  trial  require  attention,  and  especially 
the  rule  of  cross-examination  laid  down  by  the  circuit  judge  when  Wet- 
more was  on  the  stand  as  a  witness  for  the  plaintiff.  Wetmore  was 
manifestly  a  willing  witness,  and  made  such  showing  as  was  in  his  power 
in  support  of  the  authority  which  as  general  agent  he  had  assumed  to 


^  These  notes  were  signed  or  endorsed  "New  York  Iron  Mine,  by  W.  L 
Wetmore." 


102G  BOOK    11 :     PROCEDURE    OF   ADMISSIBILITY  No.   722 

exercise.  But  although  he  was  the  first  witness  called,  and  the  case 
involved  nothing  but  paper  made  or  indorsed  by  himself,  he  was  not 
asked  respecting  his  signatures,  and  the  notes  were  not  offered  in  evidence 
while  he  was  upon  the  stand.  The  reason  for  this  was  apparent  as  soon 
as  the  cross-examination  commenced,  for  when  the  witness  was  asked  any 
questions  concerning  the  notes,  the  purpose  of  which  was  to  show  that 
he  had  signed  or  indorsed  them  without  authority  and  in  fraud  of  defend- 
ant, and  that  he  had  admitted  that  such  was  the  fact,  objection  was  at 
once  interposed  on  behalf  of  the  plaintiff,  and  the  circuit  judge,  remarking 
that  the  witness  had  given  no  testimony  in  reference  to  the  notes,  nor 
had  any  testimony  been  introduced  by  any  other  party  in  reference  to 
them,  nor  had  the  notes  been  put  in  evidence,  sustained  the  objection. 

The  question  of  the  proper  range  of  cross-examination  has  been  dis- 
cussed in  this  State  until  it  would  seem  that  further  discussion  must  be 
entirely  needless.  .  .  .  People  v.  Horton,  4  Mich.  67,  and  Campau  v. 
Dewey,  9  Mich.  381,  would  support  the  ruling  of  the  circuit  judge. 
But  those  cases  have  been  repeatedly  overruled.  In  Chandler  v.  Allison, 
10  Mich.  460,  473,  Mr.  Justice  Campbell  undertook  to  lay  down  the 
proper  rule.     The  object  of  cross-examination,  he  there  explained, 

"is  to  elicit  the  whole  truth  concerning  transactions  which  may  be  supposed  to 
have  been  only  partially  explained,  and  where  the  whole  truth  would  represent 
them  in  a  different  light.  Whenever  an  entire  transaction  is  in  issue,  evidence 
which  conceals  a  part  of  it  is  defective,  and  does  not  comply  with  the  primary 
obligation  of  the  oath,  which  is  designed  to  elicit  the  whole  truth.  If  the  witness 
were  (as  he  always  may  be)  requested  to  state  what  he  knows  about  it,  he  would 
not  do  his  duty  by  designedly  stopping  short  of  it.  Any  question  which  fills  up 
his  omissions,  whether  designed  or  accidental,  is  legitimate  and  proper  on  cross- 
examination.  ...  A  party  cannot  glean  out  certain  parts,  which  alone  would 
make  out  a  false  accoimt,  and  save  his  own  witness  from  the  sifting  process  by 
which  only  those  omissions  can  be  detected.  There  could  be  no  such  thing  as 
cross-examination  if  such  a  course  were  allowed.  .  .  .  No  one  can  be  compelled 
to  make  his  adversary's  witness  his  own  to  explain  or  fill  up  a  transaction  he  has 
partially  explained  already. 

One  might  suppose,  after  reading  this  language,  that  it  was  written 
in  anticipation  of  the  proceedings  in  this  very  case.  .  .  .  Here  the 
matter  in  issue  was  confined  to  the  single  point  of  Wetmore's  authority 
to  make  and  endorse  the  paper  sued  upon.  .  .  .  The  questions  on. 
behalf  of  the  plaintiff  had  been  carefully  restricted  to  that  part  of  the 
facts  which  it  was  supposed  would  tend  in  its  favor  and  in  respect  to 
which  a  cross-examination  could  not  be  damaging,  and  were  intended, 
instead  of  eliciting  the  whole  truth,  to  conceal  whatever  would  favor  the 
defense.  The  witness,  instead  of  being  required,  according  to  the  obliga- 
tion of  his  oath,  to  tell  the  whole  truth,  had  been  carefully  limited  to 
something  less  than  the  whole;  and  when  questions  were  asked  calculated 
to  supply  his  omissions,  they  were  ruled  out  because  they  did  not  relate 
to  the  precise  circumstances  which  the  plaintiff  had  thought  it  for  his 


No.  723 


ORDER   OF   INTRODUCING   EVIDENCE 


1027 


interest  to  call  out.  It  would  be  difficult  to  present  a  more  striking 
illustration  of  the  error  in  the  rule  in  People  v.  Horton  than  is  afforded 
by  this  case.  P'or  here  was  the  principal  actor  in  the  transaction  under 
investigation  brought  forward  as  a  witness  to  support  his  own  acts,  but 
carefully  examined  in  such  a  manner  as  to  avoid  having  him  utter  a  single 
word  regarding  the  main  fact  —  though  it  was  peculiarly  within  his  own 
knowledge  —  and  even  his  handwriting  was  left  to  be  pro\ed  by  another. 
In  that  manner  he  was  made  to  conceal  not  merely  a  part  of  the  trans- 
action but  a  principal  part,  and  made  to  tell,  not  the  whole  truth  accord- 
ing to  the  obligation  of  his  oath,  but  a  small  fraction  only,  —  a  fraction, 
too,  that  was  important  only  as  it  bore  upon  the  main  fact  which  w^as 
so  carefully  kept  out  of  sight  while  this  witness  was  giving  his  evidence. 
It  is  true,  the  defense  was  at  liberty  to  call  the  witness  subsequently; 
but  this  is  no  answer;  the  defense  was  not  compellable  to  give  credit  to 
the  plaintiff's  w^itness  as  its  own  for  the  purposes  of  an  explanation  of 
facts  constituting  the  plaintiff's  case  and  a  part  of  which  the  plaintiff 
had  put  before  the  jury  when  examining  him.  One  of  the  mischiefs  of 
the  rule  in  People  v.  Horton  was  that  it  encouraged  a  practice  not  favor- 
able to  justice,  whereby  a  party  was  compelled  to  make  an  unfriendly 
witness  his  own,  after  the  party  calling  him  had  managed  to  present  a 
one-sided  and  essentially  false  account  of  the  facts,  by  artfully  aiding  the 
witness  to  give  such  glimpses  of  the  truth  only  as  would  favor  his  ow^n 
side  of  the  issue.  What  has  been  said  on  this  point  has  in  substance 
been  said  many  times  before.  The  necessity  of  repeating  it  is  a  singular 
illustration  of  the  difficulty  with  which  a  mischievous  but  plausible 
precedent  is  sometimes  got  rid  of. 

The  question  put  to  Wetmore  on  cross-examination,  whether  he  had 
not  admitted  his  fraud  in  the  issue  of  this  and  similar  paper,  should  have 
been  allowed,  as  bearing  directly  upon  the  trustworthiness  of  his  evidence. 
.  .  .  The  judgment  must  be  reversed  with  costs,  and  a  new  trial  ordered. 

The  other  Justices  concurred. 


723.  Rush  2'.  French.  (1874.  Arizona.  1  Ariz.  99;  25  Pac.  816.)  Dunne, 
C.  J. :  ...  Judge  Garber,  of  Nevada,  in  Ferguson  r.  Rutherford,  7  Nev.  390,  .  .  . 
evolves  a  clear,  definite  rule,  which  everybody  can  understand,  and  which  any 
one  thoroughly  versed  in  the  efPect  of  pleadings  can  apply,  viz.,  that  the  one  inva-  . 

riable  test  to  determine  whether  the  cross-examination  can  be  permitted  is,  Does  I  U^]l£^ 
it  concern  new  matter  of  defence  or  not?  As  we  understand  the  purport  of  this  • 
decision,  it  means  that  whatever  is  in  mere  denial  of  plaintiff's  case  may  be 
brought  out  on  cross-examination,  whether  the  witness  directlj'  testified  con- 
cerning it  or  not;  that  any  such  matter  is,  for  this  purpose,  a  fact  or  circumstance, 
legitimately  connected  with  the  matter  testified  to;  if  the  witness  has  testified 
to  any  material  fact  in  behalf  of  plaintifi^'s  case,  he  may  be  compelled  to  disclose 
on  cross-examination  all  he  knows  about  the  plaintiff's  case,  and  ererything  that 
ivill  go  towards  denying  and  destroying  the  case  set  up  by  plaintiff;  that  so  far  as 
defendant  has  a  right  to  cross-examine  on  such  matter,  he  shall  have  the  full 
benefit  of  cross-examination,  viz.,  the  right  to  make  such  examination  leading. 


1028  BOOK    II :     PROCEDURE    OF   ADMISSIBILITY  No.   723 

thorough,  and  exhaustive,  and  the  fact  that  the  evidence  thus  educed,  while 
pertinent  to  the  pending  matter,  will  also  help  defendant's  case  is  no  ground  for 
its  exclusion.  .  .  . 

We  have  only  one  objection  to  the  rule  as  stated  by  Judge  Garber,  and  that 
is  the  difficulty  of  applying  it  with  certainty  in  the  hurry  of  nisi  prius  trials.  The 
test  as  to  whether  matter  is  or  is  not  new  matter  of  defence  is,  Can  it  be  given  in 
evidence  under  a  general  denial,  and  very  often  it  is  not  easy  to  say,  at  a  moment's 
notice,  whether  the  matter  is  new  or  not,  in  this  sense.  The  rule  would  hardly 
forward  business  on  the  trial;  there  would  be  the  same  objection  by  counsel  as 
to  admissibility,  the  same  consumption  of  time  in  argument,  and  the  same  hesita- 
tion on  the  part  of  the  Court  to  decide.  But  there  is  this  advantage,  after  the 
trial  is  over,  all  parties  know  just  what  is  necessary  to  determine  whether  an  appeal 
will  lie  or  not;  they  know  where  the  line  is  drawn;  they  can  look  for  it,  and  when 
they  find  it,  they  know  that  they  have  struck  "wall  rock,"  and  that  it  is  useless 
to  go  further.  This  is  a  great  deal  better  than  trusting  to  some  other  man's 
idea  of  the  general  equities  of  the  case.  Still,  it  is  a  very  poor  substitute  for  the 
plain,  simple  English  rule,  which  avoids  all  possibility  of  dispute,  saves  all  con- 
tention at  the  trial,  dispatches  the  business  at  once,  and  yet,  according  to  the 
testimony  of  our  oldest  and  busiest  States,  hurts  nobody.  Nevertheless,  the 
Supreme  Court  of  the  United  States  has  discarded  the  English  rule,  and  has 
furnished  some  suggestions  for  a  new  rule,  which  different  States  have  accepted 
as  a  basis  on  which  to  build  up  what  is  called,  by  way  of  distinction,  the  American 
rule,  though  it  has  hardly  received  an  adoption  sufficiently  general  to  warrant 
such  a  title.  These  suggestions  have  been  adopted  in  California  and  Nevada. 
.  .  .  We  shall  adopt  the  following  rules,  believing  them  to  be  clearly  in  accord- 
ance with  the  doctrine  held  in  Nevada,  and  substantially  in  accordance  with  the 
practice  in  California: 
'Xy  1.  When  an  adverse  witness  has  testified  to  any  point  material  to  the  party 
^^Jcalling  him,  he  may  then  and  there  be  fully  cross-examined  and  led  by  the  adverse 
t^  party  upon  all  matters  pertinent  to  the  case  of  the  party  calling  him ,  except  exclusively 
new  matter;   and  nothing  shall  be  deemed  new  matter  except  it  be  such  as  could 

^t^  not  be  given  under  a  general  denial. 

v-'  2.   The  fact  that  evidence  called  forth  by  a  legitimate  cross-examination 

happens  also  to  sustain  a  cross-action  or  counter-claim  affords  no  reason  why  it 
should  be  excluded. 

3.    The  party  entitled  to  cross-examine  may  waive  his  rights  to  do  so  at  the 
time,  and  recall  the  witness  and  cross-examine  him  after  he  opens  his  case. 


724.   AYERS  v.   WABASH  R.   CO. 

Supreme  Court  of  Missouri.     1905 

190  Mo.  228;  88  S.  W.  608 

Appeal  from  Circuit  Court,  Carroll  County;  Jno.  P.  Butler, 
Judge. 

Action  by  Montie  B.  Ayers  against  the  Wabash  Railroad  Company. 
From  a  judgment  for  defendant,  plaintiflp  appeals.     Affirmed. 

Plaintiff  was  struck  by  a  locomotive  on  defendants'  railroad,  and  suf- 
fered personal  injuries.     He  brings  this  suit  for  damages.     The  negligence 


No.  724  ORDER   OF   INTRODUCING   EVIDENCE  1029 

ascribed  to  the  defendant  in  the  petition  is  failure  to  sound  the  bell  or 
whistle  on  approaching  the  point  where  plaintiff  was,  and  failure  of  the 
engineer  to  use  the  appliances  at  hand  to  stop  the  train  in  time  to  avoid 
striking  the  plaintiff  after  seeing  him  in  a  position  of  peril,  or  after  the 
engineer,  by  ordinary  care,  might  have  seen  him.  The  petition  states 
that  defendant's  track  was,  and  had  been  for  many  years,  a  well-recog- 
nized public  path  for  pedestrians,  with  the  knowledge  and  consent  of 
defendant,  and  that  plaintiff  was  on  the  track  when  he  was  struck,  but 
it  omits  to  say  what  he  was  doing,  or  in  what  position  he  was.  The 
answer  was  a  general  denial  and  contributory  negligence.  .  .  . 

The  plaintiff  called  as  a  witness  the  engineer  who  was  operating  the 
locomotive  at  the  time  of  the  accident,  and  interrogated  him  on  two  sub- 
jects; that  is,  asked  him  how  the  engine  was  equipped,  and  what  kind 
of  a  day  it  was.  Then  the  witness  was  turned  over  to  attorney  for 
defendant  for  cross-examination,  and  was  examined  in  regard  to  the 
accident,  in  which  examination  he  stated:  That  when  at  his  post  on  a 
level,  straight  track  he  could  see  from  a  half  to  three-quarters  of  a  mile 
ahead.  That  this  track  was  level  and  straight  for  about  a  quarter  of  a 
mile  south  of  Gates'  Crossing.  That  on  this  occasion  he  was  at  his 
post  on  the  east  side  of  the  cab,  looking  north.  He  was  running  a  little 
over  40  miles  an  hour.  At  that  speed  the  train  could  not  be  stopped 
shorter  than  within  600  or  700  feet.  That  he  did  not  see  the  plaintiff 
until  he  was  within  150  feet  of  him.  The  plaintiff  was  then  lying  on  the 
west  side  of  the  west  rail,  his  body  showing  about  5  or  6  inches  above  the 
rail.  As  soon  as  he  saw  him,  he  used  every  effort  and  means  at  hand  to 
stop,  but  it  was  too  late.  It  was  then  impossible  to  stop  in  time  to  pre- 
vent striking  him.  The  position  of  the  plaintiff  on  the  track  was  such 
that  the  witness  could  not  have  discerned  him  sooner  than  he  did.  At 
the  close  of  the  plaintiff's  evidence  the  Court,  at  the  request  of  defendant, 
gave  an  instruction  to  the  jury  to  find  for  the  defendant.  The  jury 
rendered  a  verdict  accordingly,  and  the  judgment  for  defendant  followed. 
The  plaintiff  appealed. 

John  T.  Barker  and  Conklmg  &  Rca,  for  appellant.  Geo.  S.  Grover, 
for  respondent. 

Valliant,  J.  (after  stating  the  case  as  above).  .  .  .  The  only  question 
for  decision  is,  was  the  plaintiff  entitled  to  have  his  case  submitted  to 
the  jury  under  instructions  authorizing  a  verdict  in  his  favor  under  any 
view  of  the  evidence?  The  plaintiff  insists  that  the  testimony  of  the 
engineer  to  the  effect  that  he  was  at  his  post  and  looking,  yet  did  not  see 
him  until  it  was  too  late,  and  that  as  soon  as  he  discovered  him  he  did 
everything  possible  to  avert  the  injury,  is  not  the  plaintiff's  evidence, 
and  did  not  justify  the  court  in  giving  the  peremptory  instruction.  The 
proposition  is  that  the  engineer  was  the  plaintiff's  witness  only  in  reference 
to  the  subjects  on  which  he  was  examined  by  plaintiff,  and  as  to  the  rest 
he  was  defendant's  witness.  The  question  of  latitude  allowed  in  cross- 
examination  of  an  adversary's  witness  has  led  to  the  adoption  of  one  rule 


1030  BOOK   II :     PROCEDURE    OF   ADMISSIBILITY  No.  724 

in  some  jurisdictions  and  a  diflferent  one  in  others.  A  distinguished 
text-writer  on  this  subject  calls  one  the  "orthodox  rule,"  and  the  other 
the  "Federal  rule"  (3  Wigmore  on  Evidence,  §  1885  et  seq.),  and  quotes 
for  the  orthodox  rule  Fulton  Bank  v.  Stafford,  2  Wend.  483-485: 

"When  a  witness  has  been  sworn  in  chief,  the  opposite  party  may  not  only 
cross-examine  him  in  relation  to  the  point  which  he  was  called  to  prove,  but  he 
may  examine  him  as  to  any  matter  embraced  in  the  issue.  He  may  establish 
his  defence  by  him  without  calling  any  other  witness.  If  he  is  a  competent 
witness  to  the  jury  for  any  piu-pose,  he  is  so  for  all  piu-poses." 

For  the  Federal  rule  the  same  text-writer  quotes  from  Judge  Story  in 
Philadelphia  &  T.  R.  Co.  v.  Stimpson,  14  Pet.  448,  461  [arite,  No.  720]; 

"[The  answers  in  controversy  were  inadmissible]  upon  the  broader  principle 
(now  well  established,  although  sometimes  lost  sight  of  in  our  loose  practice  at 
trials)  that  a  party  has  no  right  to  cross-examine  any  witness  except  as  to  facts 
and  circumstances  connected  with  the  matters  stated  in  his  direct  examination. 
If  he  wishes  to  examine  as  to  other  matters,  he  must  do  so  by  making  the  witness 
his  own,  and  calling  him  as  such  in  the  subsequent  progress  of  the  case." 

What  is  there  called  the  "orthodox  rule"  has  always  been  the  rule 
in  this  State.  Page  v.  Kankey,  6  Mo.  433;  Railroad  v.  Silver,  56  Mo, 
265;  State  v.  Jones,  64  Mo.  391;  State  v.  Soper,  148  Mo.  234.  The 
learned  author  above  named,  after  an  exhaustive  discussion  of  the  subject, 
says,  in  §  1895:  "The  rule  under  consideration  is  concerned  solely  with 
the  order  of  presenting  evidential  material.  The  assumption  is  that  the 
fact  may  be  proved  on  direct  examination  at  a  later  stage,  and  the  only 
question  is  whether  it  may  be  elicited  during  the  earlier  stage."  That  is 
really  the  only  essential  difference  in  effect  between  the  two  rules.  Under 
what  is  called  the  Federal  rule,  the  defendant  may  cross-examine  the 
plaintiff's  witness  on  the  subject  of  his  examination  in  chief,  and  after- 
wards, when  defendant  comes  to  introducing  his  evidence,  he  may  recall 
the  witness,  and  examine  him  on  other  subjects,  making  him  as  to  those 
matters  his  owm  witness.  Under  our  ride  the  defendant  need  not  wait 
until  the  time  for  introducing  his  evidence  has  come,  but  may  examine 
the  witness  before  he  leaves  the  stand  on  other  subjects;  yet  as  to  these 
other  matters  he  is  the  defendant's  witness.  The  testimony  is  the 
defendant's,  and  not  the  plaintiff's.  Hume  v.  Hopkins,  140  Mo.  65; 
State  ex  rel.  v.  Branch,  151  ]\Io.  622,  loc.  cit.  641;  Anderson  v.  Railroad, 
161  Mo.  411.  In  such  case,  if  the  plaintiff  had  by  other  evidence  made 
out  a  prima  facie  case,  the  Court  could  not  take  it  from  the  jury  on 
account  of  testimony  brought  out  by  defendant  in  the  examination  of 
the  plaintiff's  witness  touching  matters  that  had  not  been  referred  to  in 
the  direct  examination.  Such  testimony  would  be  the  same,  in  effect,  as 
if  the  witness  had,  as  in  conformity  with  the  Federal  rule,  come  down 
from  the  stand,  and  been  recalled  by  the  defendant  after  the  plaintiff  had 
closed  his  case.  The  only  difference,  as  the  text-writer  above  quoted 
says,  is  in  the  order  in  which  the  testimony  is  introduced.     Invohed  in 


No.  724  ORDER   OF   INTRODUCING    EVIDENCE  1031 

this  subject  is  the  question  of  the  right  of  plaintiff  to  cross-examine  the 
same  witness  on  the  new  subject  on  which  the  defendant  has  examined 
him,  and  the  right  of  the  plaintiff,  after  having  closed  his  case  in  chief, 
to  bring  out  testimony  not  strictly  in  rebuttal  by  examining  defendant's 
witnesses  on  subjects  upon  which  defendant  had  not  examined  them. 
Those  questions,  however,  are  not  in  this  case,  but  they  are  scientifically 
discussed  by  the  text-writer  above  quoted,  citing  and  reviewing  numerous 
decisions  on  the  subject. 

It  is  not  clear,  however,  from  the  record  in  the  case  at  bar,  that  the 
plaintiff  did  not  make  this  engineer  his  witness  on  the  disputed  point. 
He  asked  him  if  his  engine  was  equipped  with  modern  appliances,  and  if 
it  was  not  a  bright  day.  The  only  significance  of  the  modern  appliances 
was  the  facility  for  stopping  the  engine,  and  the  only  point  to  be  attained 
in  proving  that  the  day  was  clear  was  to  show  that  the  engineer  must 
have  seen  the  man  on  the  track,  if  he  was  at  his  post  and  doing  his  duty. 
We  have  thus  discussed  the  subject  of  the  examination  of  an  adversary's 
witness  not  because  it  is  a  vital  question  in  this  case,  but  because  the 
counsel  on  both  sides  have  discussed  it  in  their  briefs;  for,  even  if  all 
that  the  plaintiff  claims  on  that  point  be  conceded,  and  if  we  disregard 
entirely  the  evidence  the  engineer  gave  on  cross-examination,  the  plaintiff 
made  out  no  case  for  the  jury. 

There  is  no  statute  requiring  the  defendant  to  give  a  signal  by  bell  or 
whistle  on  approaching  a  private  crossing.  Its  duty  to  do  so  depends  on 
the  circumstances  of  the  case.  There  was  therefore  no  negligence  per 
se  in  failing  to  sound  the  bell  or  whistle.  .  .  .  The  learned  trial  judge 
had  the  right  view  of  the  subject. 

The  judgment  is  affirmed. 

Brace,  C.  J.,  concurs.  Marshall  and  Lamm,  JJ.,  concur  in  the 
result,  but  are  of  the  opinion  that  the  engineer  put  on  the  stand  by 
plaintiff  was  plaintiff's  witness  throughout,  and  all  his  testimony  in  chief, 
as  well  as  on  cross-examination,  was  to  be  taken  as  part  of  plaintiff's  case. 


1032  BOOK  II :     PROCEDURE   OF  ADMISSIBILITY  No.  727 


TITLE  IV,     JURISDICTION;    RULES   OF  EVIDENCE  IN 
FEDERAL  COURTS 

727.  John  H.  Wigmore.  A  Treatise  on  Evidence.  (1905.  Vol.  I,  §  6.) 
By  the  principle  of  Conflict  of  Laws,  the  law  of  the  forum  determines  the 
rules  of  evidence.  In  the  Federal  Courts,  their  own  rules  of  evidence 
would  therefore  ordinarily  have  prevailed,  for  the  Federal  jurisdiction 
rests  upon  a  sovereignty  separate  from  that  of  the  respective  States. 
Nevertheless,  their  situation  is  peculiar,  for  (apart  from  the  District 
of  Columbia  and  the  Territories)  there  is  not  a  separate  physical  territory 
within  which  their  jurisdiction  is  exclusive,  and,  in  consequence,  the 
litigation  before  their  trial  sessions  is  commonly  in  the  hands  of  a  body 
of  practitioners  which  primarily  is  a  State  bar  and  represents  local  habits 
and  traditions.  It  would  be  therefore  natural  and  highly  convenient 
to  follow  so  far  as  practicable  the  local  rules  of  evidence.  Such  was  the 
view  of  the  founders  of  the  Federal  Government,  who  in  1789  directed 
the  Federal  Courts  to  follow  local  rules  except  when  otherwise  directed 
by  Federal  legislation:  U.  S.  R.  S.  1878,  §  721  (repeating  St.  1789,  c.  20,  s. 
34):  "The  laws  of  the  several  States,  except  where  the  Constitution, 
treaties,  or  statutes  of  the  United  States  otherwase  require  or  provide, 
shall  be  regarded  as  rules  of  decision  in  trials  at  common  law,  in  the 
Courts  of  the  United  States,  in  cases  where  they  apply." 

This  policy  was  continued  in  later  enactments,  which  enlarged  the 
scope  of  the  rule,  though  they  added  numerous  instances  to  the  excep- 
tions. U.  S.  R.  S.  1878,  §  858  (combining  statutes  of  1862,  1864,  and 
1865;  after  enacting  certain  provisions  as  to  qualifications  of  witnesses, 
it  continues) :  "  In  all  other  respects  the  laws  of  the  State  in  which  the 
trial  is  held  shall  be  the  rules  of  decision  as  to  the  competency  of  witnesses 
in  the  courts  of  the  United  States  in  trials  at  common  law,  and  in  equity 
and  admiralty."  ^ 

The  effect  of  this  legislation  may  be  considered  under  three  heads: 

(a)  In  chancery  proceedings,  since  the  statute  of  1862,  the  local 
State  rules  are  applicable  to  the  "competency  of  witnesses."  But  this 
provision  seems  to  be  ignored  or  narrowly  construed  in  the  Federal 
decisions. 

(6)  In  admiralty  proceedings,  the  Federal  Courts  originally  had  their 
own  rules  of  evidence;  but  since  1862  the  statute  directs  the  adoption 
of  the  local  State  rules. 

(c)  Common  law  trials,  being  expressly  named  in  the  statute  of  1789, 
have  from  the  beginning  been  subject  to  the  rule.  Thus  in  the  Federal 
courts  a  Federal  statute  prevails  over  the  State  rule  upon  the  same  subject, 

1  Amended  by  St.  1906,  June  29,  §  3608,  Stat.  L.  Vol.  34,  p.  618,  so  as  to 
read:  The  competency  of  a  witness  to  testify  in  any  civil  action,  suit,  or  pro- 
ceeding in  the  courts  of  the  United  States  shall  be  determined  by  the  laws  of  the 
State  or  Territory  in  which  the  court  is  held." 


No.  728  JURISDICTION  1033 

but  in  the  absence  of  a  Federal  statute  the  State  rule  is  followed.  The 
State  rules  thus  made  applicable  include  statutory  rules,  and  they  include 
all  the  rules  of  admissibility,  even  under  the  words  "competency  of 
witnesses"  in  U.  S.  R.  S.  §858.  But  by  a  singular  and  indefensible 
construction,  criminal  cases  have  been  held  not  to  be  included  under  the 
term  "trials  at  common  law"  either  in  U.  S.  R.  S.  §  721  or  in  U.  S.  R.  S. 
§  858;  in  consequence  of  which  the  Federal  rules  for  criminal  trials  are 
determinable  by  an  artificial  and  unpractical  test,  which  merely  creates 
useless  obscurity  and  complication  and  ought  to  be  reformed  by  legislation. 


728.   WILSON  V.   NEW  ENGLAND  NAVIGATION  CO. 
United  States  District  Court  Eastern  District,  New  York.    1912 

197  Fed.  88 

At  Law.  Action  by  James  Wilson  against  the  New  England  Naviga- 
tion Company.  On  motion  by  defendant  for  a  bill  of  particulars  and  by 
plaintiff  for  an  examination  and  inspection  of  an  object  in  defendant's 
possession.     Both  motions  granted. 

A.  Delos  Kneeland,  for  plaintiff.  Charles  M.  Sheaf e,  Jr.,  for 
defendant. 

Chatfield,  District  Judge.  —  The  plaintiff  has  alleged  injury  while^ 
at  duty  on  a  steam  tug  belonging  to  the  defendant  by  scalding  from  steam 
escaping  out  of  a  throttle  valve  or  pipe,  which  he  alleges  was  "unsafe, 
defective,    imperfect   and   improperly   constructed   and   applied."     He 
alleges  that  the  defendant  had  notice  of  the  "  defects,  lack  of  safety  and 
disrepair,"  and  that  a  part  of  the  machinery  which  the  plaintiff  was 
using  was,  without  negligence  on  the  plaintiff's  part,  blown  out  in  the 
harbor  of  New  York  through  the  negligence  stated.     The  defendant  has 
made  a  motion  for  a  bill  of  particulars  as  to  the  respects  in  which  the  valve 
and  piping  were  unsafe,  defective,  imperfect,  improperly  constructed  or  \i 
improperly  applied,  in  what  way  any  of  the  other  machinery  was  defect-   \ 
ive  or  out  of  repair,  and  what  part  of  the  machinery  was  blown  into  the    I 
harbor.     It  now  appears  that  the  plaintiff  has  no  evidence  that  any  of 
the  machinery  was  blown  into  the  harbor,  but  intended  to  allege  that  an    J 
explosion  occurred  while  the  boat  was  in  New  York  Harbor.     Nor  does   / 
the  plaintiff  charge  that  any  of  the  machinery  was  out  of  repair  or  unsafe,  / 
other  than  the  throttle  valve  and  the  piping  attached  thereto.     Plaintiff/ 
has  demanded,  by  a  motion  brought  on  at  the  same  time,  examinatioiy 
and  inspection  of  this  throttle  valve,  which  he  alleges  is  in  the  possession 
of  the  defendant,  before  being  required  to  specify  any  defects  or  lack  of 
care  beyond  such  as  he  may  attempt  to  point  out  from  the  happening  of 
the  accident  itself  and  the  conditions  under  which  it  occurred. 

I.  It  will  be  necessary  to  take  up  his  motion  for  inspection  of  this 
particular  article  first. 


^ 


1034  BOOK  II :     PROCEDURE   OF  ADMISSIBILITY  No.  72S 

1.  It  may  be  assumed  that  as  at  common  law  no  power  vests  in  a 
Court  of  law  to  preliminarily  examine  a  witness,  or  documents,  or  to 
require  a  party  to  allow  the  inspection  of  physical  objects,  including  that 
of  the  person  of  a  party,  in  advance  of  trial.  lasagi  v.  Brown,  1  Curt. 
401,  Fed.  Cas.  No.  6,993;   Carpenter  v.  Winn,  221  U.  S.  545. 

2.  Nor  have  the  United  States  Courts  any  such  power  unless  by 
statute. 

In  Ex  parte  Fisk,  113  U.  S.  713,  it  was  held  that  §  914  of  the  Revised 
Statutes  ^  (U.  S.  Comp.  St.  1901,  p.  684),  by  which  the  practice  and 
'procedure  in  cases  in  the  United  States  Courts  are  ordered  to  conform, 
as  near  as  may  be,  in  civil  causes,  to  the  practice  s^nd  procedure  in  the 
State  courts,  and  §  721  of  the  Revised  Statutes  ^  (U.  S.  Comp.  St.  1901, 
p.  581),  by  which  the  laws  of  the  several  States,  except  where  the  Con- 
stitution or  statutes  of  the  United  States  otherwise  provide,  are  to  be 
regarded  as  rules  of  decision  in  trials  at  common  law,  in  courts  of  the 
United  States,  did  not  allow  the  examination  of  a  party  before  a  master, 
according  to  the  laws  of  the  State  in  which  the  action  was  being  tried. 
The  Court  held  this  as  a  conclusion  from  the  language  of  §  861  of  the 
Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  661),  which  directs  that  "the 
mode  of  proof  in  trial  of  actions  at  common  law  shall  be  by  oral  testimony 
and  examination  of  witnesses  in  open  court,  except"  in  the  cases  named 
by  §  863  and  §§  866  to  870  (U.  S.  Comp.  St.  1901,  pp.  661  and  663-665), 
inclusive. 

The  reason  for  taking  the  deposition  in  question  was  not  within 
the  specified  situations  of  either  §  863  or  §  866,  R.  S.,  and  the  Court 
therefore  said  that  the  provisions  of  §  861  must  be  held  conclusive, 
not  only  as  to  the  method  of  presenting  the  testimony  of  witnesses  "at 
the  trial,  but  also  as  to  the  power  of  the  Court  to  procure  written 
testimony  for  use  at  the  trial  in  any  other  way  than  under  the  sections 
above  specified. 

In  Union  Pacific  Railway  Co.  v.  Botsford,  141  U.  S.  250,  personal 
examination  of  a  plaintiff  in  order  that  a  surgeon  might  prepare  to  testify 
at  the  trial  of  an  action  for  personal  injuries  was  held  beyond  the  power 
of  the  United  States  Courts,  without  reference  to  the  law  of  the  State  in 
which  the  case  arose.  And,  although  no  testimony  was  to  be  given  until 
the  trial,  the  court  said,  as  in  Ex  parte  Fisk,  supra,  that  actions  in  a  court 
of  law  of  the  United  States  must  be  governed  by  the  rules  and  exceptions 
of  the  United  States  Courts,  as  the  United  States  statutes  provide. 

^  §  914.  Practice  and  proceedings  in  other  than  equity  and  admiralty  causes. 
The  practice,  pleadings,  and  forms  and  modes  of  proceeding  in  civil  causes,  other 
than  equity  and  admiralty  causes,  in  the  circuit  and  district  courts,  shall  conform, 
as  near  as  may  be,  to  the  practice,  pleadings,  and  forms  and  modes  of  proceeding 
existing  at  the  time  in  like  causes  in  the  courts  of  record  of  the  State  within  which 
such  circuit  or  district  courts  are  held,  any  rule  of  coiut  to  the  contrary  notwith- 
standins;. 

^  [Quoted  ante,  in  No.  797.] 


No.  728  JURISDICTION  1035 

Hence  §  721,  prescribing  the  rules  for  trial,  was  held  not  controlling  over 
the  conduct  of  the  case  prior  to  trial,  while  §  914  was  held  inap- 
plicable to  enlarge  the  power  of  the  United  States  Courts,  so  as  to  grant 
an  examination  of  the  sort  asked,  as  neither  §§  86G  et  seq.  nor  §  724 
provided  for  such  method  of  preparation  for  trial  as  was  asked  in  that 
case. 

In  Camden  &  Suburban  Railway  Co.  v.  Stetson,  177  U.  S.  172, 
however,  the  decision  in  the  Botsford  Case  was  stated  to  have  been  upon 
the  ground  that  no  statute  of  the  State  in  which  the  court  was  held  existed 
allowing  such  examination,  and  an  examination  of  the  person  of  the  plain- 
tiff, under  a  statute  of  the  state  of  New  Jersey  providing  for  such  exami- 
nation, in  order  to  enable  the  witnesses  to  prepare  for  oral  testimony  on 
the  trial,  was  upheld  as  within  the  power  of  the  United  States  Court. 
It  was  intimated  that  the  doctrine  of  Lyon  v.  Manhattan  Railway  Co., 
142  N.  Y.  298,  which  upheld,  under  the  New  York  law,  the  physical 
examination  of  a  party  called  as  a  witness  before  trial,  could  not,  under 
the  decision  of  the  Fisk  Case,  be  upheld  in  a  Federal  court.  But  a  statute 
providing  for  inspection  only  was  in  conflict  with  nothing  in  the  United 
States  statutes,  and  therefore  could  be  invoked  in  a  case  removed  into  the 
United  States  courts. 

In  the  case  of  Hanks  Dental  Association  v.  International  Tooth 
Crown  Co.,  194  U.  S.  303,  taken  up  from  the  Southern  District  of  New 
York,  the  Supreme  Court  held  that  the  provisions  of  §873  of  the  New 
York  Code  (which  allow  a  physical  examination  of  the  plaintifl^  before 
trial,  as  a  part  of  the  examination  of  that  party  for  the  purpose  of  per- 
petuating his  testimony  under  §  870)  were  contrary  to  the  statutes  of  the 
United  States.  But  the  Court  expressly  says  that  the  principle  of  Cam- 
den &  Suburban  Railway  Co.  v.  Stetson,  supra,  is  correct,  and  also 
intimates  that  the  ruling  of  Ex  parte  Fisk,  supra,  is  unaffected  in  any 
substantial  particular. 

In  Carpenter  v.  Winn,  221  U.  S.  533,  the  Supreme  Court  has  held 
that  the  production  of  books,  papers,  memoranda,  etc.,  which  under 
§  724  of  the  Revised  Statutes  can  be  produced  by  order  of  Court  "in 
the  trial  of  an  action  at  law,"  can  only  be  obtained  by  subpoena  or  on 
notice  at  the  trial,  and  that  the  provisions  of  this  section  leave  the  right 
to  a  bill  of  discovery  imaffected.  Hence  the  Court  holds  that  in  an 
action  at  law  the  production  before  trial  of  books  and  papers  cannot  be 
ordered  upon  motion,  but  that  the  right  to  a  bill  of  discovery  is  not 
affected,  and  intimates  that  every  remedy,  except  a  bill  of  discovery,  is 
prevented  by  the  argument  of  exclusion,  based  upon  §  861,  as  in  Ex  parte 
Fisk,  supra.  .  .  . 

3.  The  application  of  §  724,  R.  S.,  therefore,  having  been  limited  to  a 
production  of  books  or  writings  at  the  trial,  we  are  necessarily  (under 
the  express  holding  of  the  Supreme  Court  in  that  case  that  the  right  of  a 
party  to  a  bill  of  discovery  is  not  affected  by  the  provisions  of  §  724) 
brought  to  consider  whether  §  724  does  exclude  the  New  York  Statutes, 


1036  BOOK   II :     PROCEDURE   OF  ADMISSIBILITY  No.  728 

§  803/  providing  for  examination  of  papers  and  property  before  trial.  We 
must,  therefore,  look  to  the  other  sections  of  the  Revised  Statutes,  and 
in  the  present  case  we  must  consider  whether  any  of  these  sections  prevent 
the  examination  of  the  valve  which  the  plaintiff  now  seeks  to  inspect. 

As  has  been  said,  Ex  parte  Fisk,  supra,  and  Hanks  Dental  Associa- 
tion V.  International  Tooth  Crown  Co.,  supra,  have  held  definitely  that 
the  examination  of  parties  and  witnesses  and  the  taking  of  testimony, 
except  at  tiie  trial,  is  contrary  to  the  provisions  of  §  861  and  §  863,  R.  S. 
In  Carpenter  v.  Winn,  supra,  the  production  and  examination  of  books 
and  papers  before  trial  was  held  impossible  because  to  hold  otherwise 
would  be  inconsistent  with  the  court's  conclusion  that  §  724  was  limited 
to  an  order  to  produce  at  the  trial,  and  that  a  bill  of  discovery  could  still 
be  filed.  But  none  of  these  cases  except  that  of  Camden  &  Suburban 
Railway  Co.  v.  Stetson,  supra,  seem  to  have  considered  a  statute  with 
provisions  such  as  §  803,  and  providing  for  an  examination  of  the  object 
apart  from  the  examination  of  a  witness. 

It  will  be  noted  that  §  803  of  the  New  York  Code  applies  to  "  any  court 
of  record,"  and  is  entirely  general  in  its  provisions,  and  the  examination 
is  of  itself  called  a  production  and  discovery.  §§  870  and  873  of  the  New 
York  Code,  on  the  other  hand,  have  to  do  with  the  depositions  of  a  party 
or  person  who  expects  to  be  a  party,  and  the  order  for  physical  examina- 
tion provides  that,  "in  granting  an  order  for  the  examination  of  the 
plaintiff  before  trial,"  the  judge  may  direct  him  to  submit  to  a  physical 
examination  as  well.  The  purpose  of  the  discovery  and  of  these  various 
statutes  is  to  confer  power  upon  the  Court  to  accomplish  what  seems  to 
be  recognized  by  the  Legislatures  and  by  Congress,  in  so  far  as  the  laws 
have  been  passed,  as  desirable  to  simplify  litigation  and  aid  litigants.  ... 

The  defendant  suggests  that  inspection  of  an  exhibit  should  not  be 
allowed  if  the  physical  examination  of  the  plaintiff  is  held  illegal  under 
the  rulings  of  the  Supreme  Court.  But  why  should  the  matter  be  made 
one  of  retribution  and  not  of  law?  The  decision  in  Ex  parte  Fisk  was 
followed  by  an  amendment  by  Congress  to  §  866,  providing  that  "it 
shall  be  lawful  to  take  the  deposition  or  testimony  of  witnesses  in  the 
mode  prescribed  by  the  laws  of  the  State."  But  in  Hanks  Dental 
Association  v.  International  Tooth  Crown  Co.,  supra,  the  Supreme  Court 
again  held  that  the  language  of  §  861,  viz.,  "The  mode  of  proof  in  the 
trial  of  actions  at  common  law  shall  be  by  oral  testimony  and  examination 
of  witnesses  in  open  court,  except  as  hereinafter  provided,"  was  not 
affected  thereby.  In  Carpenter  v.  Winn,  supra,  the  words,  "  in  the  trial," 
are  now  held  to  mean  only  "at  the  trial,"  and  the  words,  "except  as 
hereinafter  provided,"  are  held,  in  Hanks  Dental  Association  r.  Inter- 

^  New  York,  Code  of  Civil  Procedure,  §  803:  A  court  of  record,  other  than  a 
justice's  court  in  a  city,  has  power  to  compel  a  party  to  an  action  ending  therein, 
to  produoe  and  discover,  or  to  give  to  the  other  party,  an  inspection  and  copy, 
or  permission  to  take  a  copy,  of  a  book,  document,  or  other  paper,  in  his  possession 
or  under  his  control,  relating  to  the  merits  of  the  action,  or  of  the  defence  therein. 


No.  728  JURISDICTION  1037 

national  Tooth  Crown  Co.,  supra,  to  mean  only  in  cases  where  the  United 
States  statutes  provide  for  a  deposition.  In  other  words,  the  language 
of  §  861,  which  says,  "  mode  of  proof  at  the  trial,"  includes  the  prohibition 
of  any  other  form  of  preparation  for  trial;  while  in  §  800,  as  amended, 
"mode  prescribed"  means  the  "way  of  taking  down  testimony,"  and 
cannot  be  construed  as  forming  any  rule  as  to  when  the  testimony  shall 
be  taken.  It  is  difficult  to  see  why  the  Hanks  Dental  Association  Case 
should  be  broadened  after  the  limitation  put  upon  §  801  by  the  decision 
in  Carpenter  v.  Winn.  To  hold,  after  this  last  decision,  that  §861  prohib- 
its any  way  of  preparing  or  preserving  testimony,  except  "  at  the  trial," 
or  by  certain  kind  of  depositions,  would  prohibit  a  witness  from  going  to 
inspect  an  object  or  locality  for  the  purpose  of  testifying,  or,  in  other 
words,  would  compel  the  production  at  the  trial  of  everything  to  be 
considered  by  witnesses,  and  might  even  shut  out  testifying  from  recol- 
lection. 

4.  The  present  case  seems  to  be  of  the  sort  where  the  plaintiff  feels 
that  he  has  a  cause  of  action,  but  is  in  some  doubt  as  to  the  exact  ground 
for  the  charge  of  negligence,  because  the  evidence  from  which  he  will 
attempt  to  make  out  his  case  is  in  the  hands  of  the  defendant.  This 
evidence  is  not  necessarily  something  which  the}'  are  retaining  for  their 
defense,  but  is  rather  evidence  which  they  do  not  desire  the  plaintiff  to 
have,  even  if  it  be  necessary  to  him  for  the  proving  of  his  case.  Under 
these  circumstances,  it  would  seem  to  be  hardship  to  allow  the  defendant 
to  prevent  the  plaintiff  from  ascertaining  what  evidence  is  in  existence 
and  will  be  available  to  the  plaintiff  in  proving  the  case  which  he  will  be 
bound  to  prove ;  while  at  the  same  time  the  defendant  can  insist  upon  the 
plaintiff's  not  being  allowed  to  prove  his  case,  unless  he  states  just  how 
he  is  going  to  try  to  charge  liability.  To  deny  the  motion  for  inspection 
might  enable  the  defendant  not  only  to  prevent  the  plaintiff's  proving 
his  case,  if  he  has  one,  but  would  put  him  in  a  position  where  he  might 
never  find  out  or  satisfy  the  court  that  he  has  any  case  to  prove. 

II.  It  also  appears  that  the  application  for  a  bill  of  particulars,  while 
sanctioned  by  usage  and  based  upon  §  531  of  the  New  York  Code,  is 
in  reality  an  application  to  have  the  plaintiff  state  his  theory  of  negligence, 
or  state  more  definitely  just  what  negligent  act  of  the  defendant  is  charged 
and  how  he  intends  to  make  it  out.  This  is,  when  properly  asked,  allow- 
able under  the  form  of  a  so-called  bill  of  particulars,  and  the  defendant's 
motion,  therefore,  should  be  granted,  to  the  extent  of  directing  the  plaintiff 
to  specify  the  cause  of  action  upon  which  he  intends  to  recover,  in  so  far 
as  to  make  certain  whether  the  negligence  was  in  the  management  and 
handling  of  the  machinery  in  question,  or  whether  it  was  in  the  previ- 
ous installation  and  failure  to  provide  or  maintain  suitable  machinery. 

But  the  plaintiff's  motion  for  inspection  should  also  be  granted,  and 
the  order  will  provide  that  the  plaintiff  shall  serve  and  file  his  bill  of 
particulars  within  10  days  after  the  inspection  is  allowed  and  a  proper 
identification  of  the  valve  made.  .  .  . 


BOOK    III.     TO   WHOM    EVIDENCE    IS 
TO    BE    PRESENTED 

(LAW   AND    FACT;    JUDGE   AND   JURY) 

730.  James  Bradley  Thayer.  A  Preliminary  Treatise  on  Evidence.  (1898. 
p.  185.)  Courts  pass  upon  a  vast  number  of  cjuestions  of  fact  that  do  npt  get 
on  the  record,  or  form  any  part  of  the  issue.  Courts  existed  before  juries;  juries 
came  in  to  perform  only  their  own  special  office;  and  the  Courts  have  always 
continued  to  retain  a  multitude  of  functions  which  they  exercised  before  ever 
juries  were  heard  of,  ascertaining  whether  disputed  things  be  true.  In  other 
words,  there  is  not,  and  never  was,  any  such  things  in  jury  trials  as  an  allotting 
of  all  questions  of  fact  to  the  jury.  The  jury  simply  decides  some  questions  of 
fact.  The  maxim,  "ad  quaestionem  facti  non  respondent  judices,  ad  quaestionem 
juris  non  respondent  juratores,"  was  never  true,  if  taken  absolutely.  It  was  a 
favorite  saying  of  Coke,  in  discussing  special  verdicts;  and  in  Isaack  v.  Clark 
(Rolle,  I,  p.  132;  s.c.  Bulst.  p.  314;  1613-14)  he  attributes  it  to  Bracton;  but 
that  appears  to  be  an  error ;  a  careful  search  for  it  in  Bracton  has  failed  to  discover 
it.  It  seems  likely  that  this  formula  took  shape  in  England  in  the  sixteenth 
century.     But  the  maxim  was  never  meant  to  be  taken  absolutely. 


731.  Edward  Bushell's  Trial.  (1670.  King's  Bench.  6  Howell's  State 
Trials,  1000,  1014.)  Note  by  Mr.  Hoioell.  "The  most  usual  trial  of  matters 
of  fact,"  says  Lord  Coke  (First  Inst.  155b),  "is  by  twelve  such  men  ('liberi  et 
legales  homines')  for  'ad  quaestionem  facti  non  respondent  judices;'  and  matters 
in  law  the  judges  ought  to  decide  and  discuss,  for  'ad  quaestionem  juris  non 
respondent  juratores. '  "  Upon  which  passage  his  learned  commentator,  Mr. 
Hargrave,  has  given  the  following  Note: 

"This  'decantatum'  (as  Lord  Chief  Justice  Vaughan  calls  it  on  account  of 
its  frequency  in  the  books)  about  the  respective  provinces  of  judge  and  jury, 
hath,  since  Lord  Coke's  time,  become  the  subject  of  very  heated  controversy, 
especially  in  prosecutions  for  State  libels;  some  aiming  to  render  juries  wholly 
dependent  on  the  judge  for  matters  of  law,  and  others  contending  for  nearly  a 
complete  and  unqualified  independence.  On  the  trial  of  John  Lilburne  for  treason 
in  1649,  high  words  passed  between  the  Court  and  him,  in  consequence  of  his 
stating  to  the  jury  that  they  were  judges  both  of  law  and  fact,  and  citing  passages 
in  the  Coke  upon  Littleton  to  prove  it.  2  State  Tr.  4th  ed.  69  and., post.  228,  a. 
In  the  case  of  Penn  and  Meade,  who  in  1670  were  indicted  for  unlawfully  assem- 
bling the  people  and  preaching  to  them,  the  jury  gave  a  verdict  against  the  direc- 
tions of  the  Court  in  point  of  law%  and  for  this  were  committed  to  prison. 
But  the  commitment  was  questioned;  and  on  Habeas  Corpus  brought  in  the 
Court  of  Common  Pleas,  it  was  declared  illegal;  Lord  Chief  Justice  Vaughan 
distinguishing  himself  on  the  occasion  by  a  most  profound  argument  in  favor  of 


No.  732  LAW  AND  fact:    judge  and  jury  1039 

the  rights  of  a  jury.  Bushell's  Case,  1  Freem.  1,  and  Vaughan  135.  However, 
the  contest  did  not  cease,  as  appears  by  Sir  John  Ilawles's  famous  Dialogue 
between  a  Barrister  and  a  Juryman,  which  was  pul)hshe(l  in  1680,  to  assert  the 
claims  of  the  latter  against  the  then  "current  doctrine  decrying  their  authority. 
Since  the  Revolution  also  many  cases  have  occurred,  in  which  there  has  been 
much  debate  on  the  like  topic.  See  King  i\  Poole,  in  Cas.  B.  R.  temp.  Hardwicke 
23.  Franklin's  case,  in  the  St.  Tr.  Peter  Zenger's,  ibid.  Owen's  case,  in 
the  St.  Tr.,  and  Woodfall's  ease,  5  Burr.  261." 

By  attending  to  the  cases  before  referred  to,  it  will  be  easy  to  trace  the 
progress  of  this  controversy  on  the  limits  of  the  jury's  province. 


732.   COMMONWEALTH  v.   PORTER 

Supreme  Judicial  Court  of  Massachusetts.     1846 

10  Mete.  263 

Indictment  against  the  defendant  on  the  Rev.  Sts.  c.  47,  sees.  1,  2, 
.  .  .  for  "  selling  intoxicating  liquors,  to  be  used  in  and  about  his  house 
in  Cambridge,"  .  .  .  without  being  first  duly  licensed. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Merrick,  J.,  the 
prosecuting  officer  introduced  record  evidence  that  the  defendant  had 
been  licensed  according  to  St.  1837,  c.  242,  sec.  2,  "  to  keep  an  inn,  without 
authority  to  sell  any  intoxicating  liquor."  He  also  introduced  evidence 
that  the  defendant  had  sold  intoxicating  liquors.  The  defendant's 
counsel  contended  that  the  license  which  was  given  in  evidence  was  an 
authority  to  the  defendant  to  do  the  acts  and  make  the  sales  alleged 
and  charged  in  the  indictment,  and  was  a  sufficient  and  legal  justification, 
on  his  part,  for  making  those  sales  and  doing  those  acts. 

The  counsel  was  proceeding  to  argue  to  the  jury  that  such  was  the 
true  construction  of  the  statute,  and  the  legal  effect  of  said  license,  when 
he  was  stopped  by  the  Court.  The  Court  afterwards  ruled,  on  argu- 
ment, that  the  proposition  stated  by  the  defendant's  counsel  was  purely 
a  question  of  law%  and  as  such  was  to  be  decided  by  the  Court,  and  not 
by  the  jury;  and  the  Court  thereupon  rules  that  the  said  license  did  not 
authorize  the  defendant  to  make  the  sales  and  to  do  the  acts  charged  in 
the  indictment,  and  was  no  justification  to  him  therefor.  .  .  . 

The  defendant's  counsel  contended,  and  was  proceeding  to  argue  to 
the  jviry,  that  sec.  1,  of  c.  47  of  the  Rev.  Sts.  was,  by  necessary  implication, 
revealed  by  St.  1837,  c.  242;  the  provisions  of  the  latter  statute  being 
incompatible  with  those  of  the  former.  He  was  again  stopped  by  the 
Court;  and  the  Court  ruled  (as  before)  that  this  was  a  question  of  law, 
etc.,  and  after  argument,  further  ruled  that  said  section  was  not  so  re- 
pealed, but  remained  in  full  force.  And  the  Court  further  ruled  that  the 
several  questions,  having  been  ruled  and  decided  by  the  Court,  as  afore- 
said, were  not  open  questions  to  the  jury;  that  no  appeal  could  be 
allowed  from  the  Court  to  the  jury,  upon  these  several  rulings  and 


1040       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  732 

decisions  of  the  Court;  and  that  therefore  the  defendant  could  not  be 
permitted,  by  himself  or  his  counsel,  to  argue  these  questions  to  the 
jury,  for  the  purpose  of  inducing  them  to  overrule  or  reverse  these  several 
rulings  and  decisions  of  the  Court.  .  .  . 

The  judge  instructed  the  jury  (among  other  things)  that  it  was  their 
duty  to  adopt  and  follow  the  said  several  rulings  and  decisions  of  the 
Court,  for  the  purposes  of  the  trial.  But  he  stated  to  them  that  they 
occupied  an  independent  position,  and,  being  required  to  return  only  a 
general  verdict,  they  possessed  the  power  of  rendering  a  verdict  in  opposi- 
tion to  the  said  rulings  and  decisions,  whereby  they  would  be  in  fact 
overruled  and  reversed ;  and  that,  if  the  jury  should  do  so,  in  violation 
of  what  the  Court  had  thus  prescribed  as  the  rule  of  their  duty,  they  would 
in  no  way  be  amenable  to  punishment  by  the  law,  or  responsible,  in  any 
form,  to  any  legal  accusation  or  animadversion,  for  such  proceeding.  .  .  . 

This  case  was  argued  at  the  last  October  Term. 

Hallett  &  Nelson,  for  the  defendant.  .  .  .  "  It  is  the  right  of  juries, 
in  criminal  cases,  to  give  a  general  verdict  of  acquittal,  which  cannot  be 
set  aside  on  account  of  its  being  contrary  to  law;  and  hence  results  the 
power  of  juries  to  decide  on  the  law,  as  well  as  on  the  facts  in  all  criminal 
cases."  Per  Chase,  J.,  1  Chase's  Trial  34;  State  v.  Snow,  6  Shepley 
346.  .  .  . 

Huntington  (District  Attorney),  for  the  Commonwealth.  ...  In 
U.  S.  V.  Battiste,  2  Sumner  243,  Story,  J.,  says:  "The  jury  are  no  more 
judges  of  the  law  in  a  capital  or  other  criminal  case,  upon  the  plea  of  not 
guilty,  than  they  are  in  every  civil  case  tried  upon  the  general  issue. 
In  each  they  have  the  physical  power  to  disregard  the  law  as  laid  down  to 
them  by  the  court.  But  I  deny  that  in  any  case,  civil  or  criminal,  they 
have  the  moral  right  to  decide  the  law  according  to  their  own  notions  or 
pleasure.  It  is  the  duty  of  the  jury  to  follow  the  law,  as  it  is  laid  down 
by  the  court.  ..." 

Hallett,  in  reply.  It  is  admitted  on  all  hands,  that  the  jury  have 
the  power  to  determine  the  laAV  as  well  as  the  fact  of  the  case.  "And  if 
the  law  gives  them  the  power  it  gives  them  the  right  also;  power  and 
right  are  convertible  terms  when  the  law  authorizes  the  doing  of  an  act 
which  shall  be  final,  and  for  the  doing  of  which  the  agent  is  not  responsi- 
ble." Such  was  Mr.  Hamilton's  argument  in  the  People  r.  Croswell,  3 
Johns.  Cas.  345,  and  such  was  the  opinion  of  Blackford,  J.,  in  Townsend 
V.  The  State,  2  Blackf.  163.  .  .  .  The  anomalous  cases  of  libel,  under 
Lord  Mansfield,  were  decided  after  the  adoption  of  our  constitution, 
and  were  made  a  state  question  between  the  government  and  the  liberty 
of  the  press.  3  T.  R.  428,  note.  ...  In  all  cases  but  these,  the  doctrine 
that,  in  a  criminal  trial,  the  jury,  on  the  plea  of  not  guilty,  may  determine 
the  law  and  the  fact  of  the  case,  has  been  supported,  or  not  denied, 
by  every  English  judge,  except  Chief  Justice  Jeffries,  in  the  trial  of 
Sidney,  3  Hargrave's  State  Trials,  805.  .  .  . 

Shaw,  C.  J. — This  case  comes  before  the  court  upon  a  bill  of  excep- 


No.  732  LAW  AND  fact:   judge  and  jury  1041 

tions.  And  the  question  is,  whether,  in  a  criminal  prosecution  against 
the  defendant  for  an  alleged  violation  of  the  license  laws,  his  counsel 
have  a  right  to  address  the  jury  upon  the  questions  of  law  embraced  in 
the  issue.  The  effect  of  the  argument  for  the  defendant,  when  analyzed, 
appears  to  be  this;  that  in  criminal  prosecutions,  it  is  within  the  legiti- 
mate right  and  proper  duty  of  juries,  to  adjudicate  and  decide  on  questions 
of  law  as  well  as  questions  of  fact;  and  that  although  the  judge  may 
instruct  and  direct  them  upon  a  question  of  law,  and  they  fully  compre- 
hend and  understand  those  directions,  in  their  application  to  the  facts 
of  the  case,  yet  that  they  are  invested  by  law  with  a  legitimate  power  and 
authority,  if  their  judgments  do  not  coincide  with  that  of  the  judge,  to 
disregard  it,  and  decide  in  conformity  with  their  own  views  of  the  law. 
If  this  were  a  correct  view  of  the  law,  it  would  undoubtedly  follow,  as  a 
necessary  consequence,  that  in '  such  appeal  from  the  Court  to  the  jury, 
the  counsel  on  both  sides  would  have  a  right  to  argue  the  questions  of 
law  to  the  jury.  But  if  this  proposition  is  not  correct,  it  does  not  follow, 
we  think,  as  a  necessary  consequence,  that  the  counsel  cannot  address 
the  jury  upon  the  law,  under  the  direction  of  the  court.  They  are,  in  our 
view,  separate  and  distinct  questions,  to  be  separately  considered. 

We  consider  it  a  well-settled  principle  and  rule,  lying  at  the  founda- 
tion of  jury  trial,  admitted  and  recognized  ever  since  jury  trial  has  been 
adopted  as  an  established  and  settled  mode  of  proceeding  in  courts  of 
justice,  that  it  is  the  proper  province  and  duty  of  judges  to  consider 
and  decide  all  questions  of  law  which  arise,  and  that  the  responsibility 
of  a  correct  decision  is  placed  finally  on  them;  that  it  is  the  proper 
province  and  duty  of  the  jury  to  weigh  and  consider  evidence,  and  decide 
all  questions  of  fact,  and  that  the  responsibility  of  a  correct  decision  is 
placed  upon  them.  And  the  safety,  efficacy,  and  purity  of  jury  trial 
depend  upon  the  steady  maintenance  and  practical  application  of  this 
principle.  It  would  be  alike  a  usurpation  of  authority  and  violation 
of  duty,  for  a  court,  on  a  jury  trial,  to  decide  authoritatively  on  the  ques- 
tions of  fact,  and  for  the  jury  to  de'cide  ultimately  and  authoritatively 
upon  the  questions  of  law.  And  the  obligations  of  each  are  of  a  like 
nature,  being  that  of  a  high  legal  and  moral  obligation  to  the  performance 
of  an  important  duty,  enforced  and  sanctioned  by  an  oath.  .  .  . 

The  whole  doctrine  of  bills  of  exception,  now  in  such  general  and 
familiar  use,  both  in  civil  and  criminal  proceedings,  is  founded  upon  the 
same  great  and  leading  idea.  It  presupposes  that  it  is  within  the  author- 
ity, and  that  it  is  the  duty  of  the  judge  to  instruct  and  direct  the  jury 
authoritatively,  upon  such  questions  of  law  as  may  seem  to  him  to  be 
material  for  the  jury  to  vmderstand  and  apply,  in  the  issue  to  be  tried; 
and  he  may  also  be  required  so  to  instruct  upon  any  pertinent  question 
of  law  within  the  issue,  upon  which  either  party  may  request  him  to 
instruct.  The  doctrine  also  assumes  that  the  jury  understand  and 
follow  such  instruction  in  matter  of  law.  This  results  from  the  con- 
sideration, that  if  such  instruction  be  either  given  or  refused,  it  is  the 


1042       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  732 

duty  of  the  judge  to  state  it  in  a  bill  of  exceptions,  so  that  it  may  be  placed 
on  the  record;  and  if  the  verdict  is  against  the  party  who  took  the  excep- 
tion, and  it  appears,  upon  a  revision  of  the  point  of  law,  that  the  decision 
is  incorrect,  either  in  giving  or  refusing  such  instruction,  the  verdict  is 
set  aside,  as  a  matter  of  course.  To  this  conclusion  the  law  could  come, 
only  on  the  assumption  that  it  was  the  right  and  duty  of  the  court  to 
instruct  the  jury  in  matter  of  law,  that  the  jury  understood  it,  and,  as  a 
matter  of  duty,  were  bound  to  follow  it;  so  that,  if  the  instruction  was 
wrong,  the  law  assumes,  as  a  necessary  legal  consequence,  that  the  verdict 
was  wrong,  and  sets  it  aside.  The  law  could  only  assume  this,  upon  the 
strength  of  the  well  known  and  reasonable  presumption,  that  all  persons, 
in  the  absence  of  proof  to  the  contrary,  do  that  which  it  is  their  duty  to 
do.  It  is  presumed  that  the  jury  followed  the  instruction  of  the  Court 
in  matter  of  law,  because  it  was  their  duty  so  to  do,  and  therefore,  if 
the  instruction  was  WTong,  the  verdict  is  wrong.  But  if  the  jury  could 
rightly  exercise  their  own  judgment,  and  decide  contrary  to  the  direction 
of  the  Court,  as  they  unquestionably  may  do,  in  regard  to  questions  of 
fact,  no  such  presumption  would  follow;  it  would  be  left  entirely  in 
doubt,  whether  the  jury  had  been  misled  or  influenced  by  the  incorrect 
direction  in  matter  of  law,  and  therefore  this  would  alone  be  no  sufficient 
ground  for  setting  aside  the  verdict.  But  entirely  otherwise  it  is  in  regard 
to  a  matter  of  fact,  in  respect  to  which  it  is  within  the  proper  authority, 
and  is  the  duty  of  the  jury  to  exercise  their  judgment  authoritatively  and 
definitely.  And  should  a  judge  express  or  intimate  any  opinion  upon  a 
question  of  fact,  however  incorrect  it  might  be  afterwards  found  to  be, 
upon  a  revision  by  a  higher  Court,  it  would  not  necessarily  afford  a 
ground  for  a  new  trial;  for,  it  not  being  the  duty  of  the  jury  to  fol- 
low it,  there  would  be  no  presumption  that  they  had  followed  it,  and 
therefore  it  would  not,  of  itself,  show  conclusively  that  the  verdict  was 
wrong.  .  .  . 

[Furthermore,  looking  at  the  essential  purposes  of  a  Constitution, 
and  the  fundamental  rights  and  principles  there  guaranteed  in  solid 
permanence,]  it  appears  to  us  that  the  principle  contended  for  would  be 
adverse  to  all  these  objects.  If  a  jury  has  a  legitimate  authority  to 
decide  upon  all  questions  of  law  arising  in  the  cases  before  them,  and  that 
contrary  to  the  instruction  of  the  judge,  in  cases  where  such  direction 
of  the  judge  may  be  supposed  adverse  to  the  views  of  the  law  relied  on 
by  the  accused  or  his  counsel,  they  would  have  the  same  power  to  decide 
any  question  of  law,  against  the  opinion  and  instruction  of  the  judge, 
when  such  opinion  is  in  favor  of  the  accused,  and  find  him  guilty,  where 
the  judge  should  direct  the  jury  that  those  facts  which  the  evidence 
conduces  to  prove,  if  proved  to  their  satisfaction,  would  not  warrant  a 
conviction.  A  case  may  be  supposed,  at  least  for  the  purpose  of  illustra- 
tion, where  a  high  popular  excitement  should  arise  and  become  general 
in  which  large  bodies  of  persons  might  come  to  be  actuat^tl  by  feelings 
of  honest  but  mistaken  indignation  against  some  supposed  wrong,  and 


No.  732      LAW  AND  fact:  judge  and  jury         1043 

earnest  in  the  pursuit  of  the  supposed  interests  of  philanthropy;  or 
perhaps  numbers  may  be  influenced  by  more  base,  interested,  and 
vindictive  passions.  Under  these  circumstances,  a  grand  jury,  having, 
as  the  case  supposes,  a  legitimate  and  rightful  authority  to  decide  on 
questions  of  law,  contrary  to  the  instructions  and  charge  of  the  judge, 
might  return  an  indictment;  a  traverse  jury,  in  their  turn,  might  convict 
upon  it,  though  the  court  before  whom  it  is  tried  should  give  them  such 
directions,  in  point  of  law,  that  if  they  understood  and  followed  them  they 
must  acquit  the  accused.  But  the  case  supposes  that  the  law  may  be 
rightfully  interpreted  by  a  jury  which  may  shift  at  every  trial.  What 
then  becomes  of  the  security  which  every  citizen  is  entitled  to,  by  a 
steady  and  uniform,  as  well  as  impartial  interpretation  of  the  laws  and 
administration  of  justice,  by  judges  as  free,  impartial  and  independent 
as  the  lot  of  humanity  will  admit?  .  .  . 

Whether,  therefore,  we  consider  the  rules  of  the  common  law,  or  the 
constitution  and  law  of  this  Commonwealth,  we  are  of  opinion  that  it 
is  the  proper  province  and  duty  of  the  court  to  expound  and  declare  the 
law,  and  that  it  is  the  proper  province  and  duty  of  the  jury  to  inquire 
into  the  facts  by  such  competent  evidence  as  may  be  laid  before  them, 
according  to  the  rules  of  the  law  for  the  investigation  of  truth,  which 
may  be  declared  to  them  by  the  court,  and  find,  and  ultimately  decide, 
on  the  facts.  .  .  . 

But  in  thus  conducting  a  jury  trial  in  a  criminal  case,  with  a  view  to 
the  return  of  a  general  verdict,  it  is  obvious  that  the  whole  matter  of 
law  as  well  as  of  fact  must  be  stated  and  explained  to  the  jury,  so  that 
they  may  fully  understand  and  apply  it  to  the  facts;  because,  as  we  have 
seen,  in  the  form  of  the  general  verdict,  they  do  declare  the  law  as  well 
as  the  fact.  For  this  purpose,  it  seems  to  be  necessary,  and  in  our  State 
it  is  the  usual  practice,  for  the  parties  respectively,  by  their  counsel,  to 
state  the  law  to  the  jury,  in  the  presence,  and  subject  to  the  ultimate 
direction  of  the  judge;  because,  unless  the  jury  understand  the  rule  of 
law,  with  its  exceptions,  limits  and  qualifications,  they  cannot  know 
how  to  apply  the  evidence,  and  determine  the  truth  of  the  material  facts 
necessary  to  bring  the  case  of  the  accused  within  it.  .  .  .  We  are  of 
opinion  that  a  party  may  by  his  counsel  address  the  jury  upon  questions 
of  law,  subject  to  the  superintending  and  controlling  power  of  the  Court 
to  decide  questions  of  law,  by  directions  to  the  jury,  which  it  is  their 
duty  to  follow. 

On  the  whole  subject,  the  views  of  the  Court  may  be  summarily 
expressed  in  the  following  propositions:  — 

That  in  all  criminal  cases,  it  is  competent  for  the  jury,  if  they  see  fit, 
to  decide  upon  all  questions  of  fact  embraced  in  the  issue,  and  to  refer 
the  law  arising  thereon  to  the  Court,  in  the  form  of  a  special  verdict. 

But  it  is  optional  with  the  jury  thus  to  return  a  special  verdict  or 
not,  and  it  is  within  their  legitimate  province  and  power  to  return  a 
general  verdict,  if  they  see  fit. 


1044       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  732 

In  thus  rendering  a  general  verdict,  the  jury  must  necessarily  pass 
upon  the  whole  issue,  compounded  of  the  law  and  of  the  fact,  and  they 
may  thus  incidentally  pass  on  questions  of  law. 

In  forming  and  returning  such  general  verdict,  it  is  within  the  legiti- 
mate authority  and  power  of  the  jury  to  decide  definitely  upon  all  ques- 
tions of  fact  involved  in  the  issue,  according  to  their  judgment,  upon 
the  force  and  effect  of  the  competent  evidence  laid  before  them;  and  if 
in  the  progress  of  the  trial,  or  in  the  summing  up  and  charge  to  the  jury, 
the  Court  should  express  or  intimate  any  opinion  upon  any  such  question 
of  fact,  it  is  within  the  legitimate  province  of  the  jury  to  revise,  recon- 
sider, and  decide  contrary  to  such  opinion,  if,  in  their  judgment,  it  is 
not  correct  and  warranted  by  the  evidence. 

But  it  is  the  duty  of  the  Court  to  instruct  the  jury  on  all  questions 
of  law  which  appear  to  arise  in  the  cause,  and  also  upon  all  questions, 
pertinent  to  the  issue,  upon  which  either  party  may  request  the  direction 
of  the  Court,  upon  matters  of  law.  And  it  is  the  duty  of  the  jury  to 
receive  the  law  from  the  Court,  and  to  conform  their  judgment  and 
decision  to  such  instructions,  as  far  as  they  understand  them,  in  applying 
the  law  to  the  facts  to  be  found  by  them ;  and  it  is  not  within  the  legiti- 
mate province  of  the  jury  to  revise,  reconsider,  or  decide  contrary  to 
such  opinion  or  direction  of  the  Court  in  matter  of  law.  To  this  duty 
jurors  are  bound  by  a  strong  social  and  moral  obligation,  enforced  by 
the  sanction  of  an  oath,  to  the  same  extent,  and  in  the  same  manner, 
as  they  are  conscientiously  bound  to  decide  all  questions  of  fact  according 
to  the  evidence. 

It  is  within  the  legitimate  power,  and  is  the  duty  of  the  Court,  to 
superintend  the  course  of  the  trial;  to  decide  upon  the  admission  and 
rejection  of  evidence;  to  decide  upon  the  use  of  any  books,  papers, 
documents,  cases  or  works  of  supposed  authority,  which  may  be  offered 
upon  either  side;  to  decide  upon  all  collateral  and  incidental  proceed- 
ings; and  to  confine  parties  and  counsel  to  the  matters  within  the 
issue.  .  .  . 

As  it  appears  by  the  bill  of  exceptions,  that  the  defendant's  counsel 
were  prohibited  from  addressing  the  jury  upon  questions  of  law  embraced 
in  the  issue,  the  Court  are  of  opinion  that  the  verdict  ought  to  be  set 
aside;  and  the  same  is  set  aside,  and  a  new  trial  granted,  to  be  had  at  the 
bar  of  the  Court  of  Common  Pleas. 

733.  State  v.  Gannon.  (1902.  Connecticut.  75  Conn.  206,  223;  52  Atl. 
727.)  Haiiersley,  J.  —  Wliether  such  facility  for  disregarding  both  law  and 
facts,  when  some  impulse  of  lawlessness  or  patriotism  assails  the  integrity  of  the 
jury,  is  a  beneficial  result  of  the  right  to  render  a  general  verdict,  is  a  question  of 
politics.  How  far  a  juror  can  justify  himself  in  yielding  to  such  impulse  is  a 
question  of  conscience.  But  whether  it  is  an  essential  feature  of  jury  trial  as 
settled  by  common  law,  that  the  Court  shall  instruct  the  jury  as  to  what  is  that 
law  which  they  must  consider  with  the  facts  as  found  by  them  in  reaching  a 
verdict,  and  that  the  jury  shall  accept  the  law  so  determined,  as  the  law  for  the 


No.  734      LAW  AND  fact:  judge  and  jury        1045 

case,  in  accordance  to  which  they  are  bound  by  their  oaths  to  return  their  verdict, 
is  a  question  of  law.     On  this  question  we  entertain  no  doubt.  .  .  . 

In  1895,  this  question  was,  for  the  first  time,  formally  passed  upon  by  the 
Supreme  Court  of  the  United  States.  The  case  was  decided  upon  great  delib- 
eration. The  opinions  of  Mr.  Justice  Harlan,  speaking  for  the  majority,  and  of 
Mr.  Justice  Gray,  speaking  for  the  minority,  cover  the  whole  range  of  the  con- 
troversy. The  Court  said:  "We  must  hold  firmly  to  the  doctrine  that  in  the 
Courts  of  the  United  States  it  is  the  duty  of  juries  in  criminal  cases  to  take  the 
law  from  the  Court  and  apply  that  law  to  the  facts  as  they  find  them  to  be  from 
the  evidence."  In  this  conclusion  seven  of  the  nine  judges  concurred.  Sparf 
V.  United  States,  156  U.  S.  51,  102. 

It  is  true  that  during  the  formative  period  of  jury  trial,  and  not  infrequently 
in  later  times,  judges  in  charging  juries  have  used  language  of  doubtful  meaning 
and  sometimes  of  questionable  accuracy;  that  during  times  of  high  political 
excitement  some  public  men  of  repute  have  advocated  the  right  of  juries  to  dis- 
regard the  law;  and  that  a  few  jurists  of  eminence  have  been  led,  by  the  prac- 
tical result  in  former  times  of  a  general  verdict  in  finally  concluding  the  law  in 
criminal  cases,  into  confounding  the  physical  power  to  disregard  the  law  by  the 
rendition  of  a  general  verdict  with  the  duty  imposed  upon  them  by  law.  But 
we  are  satisfied  that  such  expressions  and  views  are  repugnant  to  a  most  essen- 
tial feature  of  jury  trial  and  cannot  bear  the  test  of  thorough  examination. 
They  are  uniformly  rejected  by  the  Courts  of  the  United  States,  and  by  the 
Courts  of  last  resort  in  nearly  all  the  States,  where  the  question  has  been 
discussed. 


734.  Titus  Gates'  Trial.  (1685.  King's  Bench.  10  Howell's  State  Trials, 
1079,  1141.)  [The  notorious  Gates,  having  been  the  chief  informer  testify- 
ing in  the  Popish  Plot  Trials  (Whitebread,  Fenwick,  et  al.)  is  now  on  trial  him- 
self for  perjury  in  those  former  trials.  Part  of  his  defence  is  that  judge  and 
jury  at  those  trials  gave  him  full  credit.  He  now  offers  to  prove  the  charge  given 
to  the  jury  by  the  present  Chief  Justice  Scroggs,  when  presiding  at  the  former 
trial.] 

Oates  [to  the  reporter].  —  Pray  will  you  look  into  what  my  lord  chief  justice 
Scroggs  said  when  he  discharged  the  jury  of  Whitebread  and  Fenwick.  .  .  . 

Blayney.  —  I  have  found  the  place,  what  is  it  you  would  ask  me  about  it? 

Oates.  —  Whether  my  lord  chief  justice  Scroggs  did  not  use  these  words  to 
the  jury?  "I  do  acknowledge  that  Mr.  Gates  has  given  a  very  full  and  ample 
testimony,  accompanied  with  all  the  circumstances  of  time  and  place,  against 
them  all;"  .  .  . 

Blayney.  —  There  is  something  to  that  purpose,  my  lord.  .  .  . 

Oates.  —  Then  will  your  lordship  be  pleased  to  give  me  leave  to  mention 
what  was  said  by  your  lordship  at  that  time,  when  you  were  Recorder  of  London, 
about  your  satisfaction  with  the  evidence. 

L.  C.  J.  —  Ay,  with  all  my  heart.  .  .  .  Ay,  do  so. 

Oates.  —  Says  Mr.  Recorder  of  London,  .  .  .  when  he  gave  judgment  of 
death  upon  these  five  Jesuits  and  Langhorn  (for  I  now  speak  of  your  lordship  in 
the  third  person,)  "Your  several  crimes  have  been  proved  against  you;  you 
have  been  fully  heard,  and  stand  convicted  of  those  crimes  you  have  been 
indicted  for." 

L.  C.J.  —  I  believe  I  might  say  something  to  the  same  purpose  as  you  have 


1046       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  734 

read  now  .  .  .  but  what  counsel  says  at  the  bar,  or  what  judges  say  in  the  Court 
of  their  opinion,  is  no  evidence  of  a  fact,  of  which  the  jury  are  judges  only. 

Gates.  —  My  lord,  every  judge  is  upon  his  oath,  and  delivers  his  judgment 
according  to  his  oath. 

L.  C.  J.  —  Not  as  to  the  fact,  but  only  in  points  of  law,  so  as  to  tell  the  jury 
what  the  law  is,  if  the  fact  be  so  and  so. 

Oates.  —  My  lord,  it  goes  a  great  way  with  the  jury  to  have  the  judge's 
opinion. 

L.  C.  J.  —  iNIr.  Oates,  deceive  not  yourself.  All  this  you  have  insisted  on 
hitherto,  has  not  been  to  the  purpose,  nor  is  any  sort  of  evidence  in  this  case; 
and  therefore  do  not  run  away  with  an  opinion  of  this  as  evidence.  A  judge's 
opinion  is  of  value  in  points  of  law  that  arise  upon  facts  found  by  juries,  but  are 
no  evidence  of  the  fact:  for  judges  only  do  presume  the  fact  to  be  true  as  it  is 
found  by  the  jury;  and  therefore  say  they,  out  of  that  fact  so  found,  the  point 
of  law  arising  is  thus  or  thus.  .  .  .  And  by  the  same  reason  as  this,  a  jury  of 
honest  gentlemen  here,  when  I  tell  them.  Here  is  a  plain  fact  either  to  convict 
you,  or  to  acquit  you  upon  this  indictment,  are  not  bound  to  go  by  what  I  say  in 
point  of  fact,  but  they  are  to  go  according  to  their  own  oaths,  and  according  to 
the  evidence  and  testimony  of  the  witnesses.  It  is  not  my  opinion  that  is  to 
weigh  at  all  with  them,  whether  you  are  guilty  of  this  perjury,  or  are  innocent, 
but  the  evidence  that  is  given  here  in  Court.  Therefore,  what  my  Lord  Chief 
Justice  Scroggs  said  at  any  of  those  trials,  or  what  I  said,  or  any  other  person, 
that  either  was  of  counsel,  or  a  judge  on  the  bench,  said  as  our  opinions  is  but 
our  opinions  on  the  fact  as  it  occurred  to  our  present  apprehensions,  but  is  no 
evidence  nor  binding  to  this  jury. 


735.   STATE  v.  MOSES 

Supreme  Court  of  North  Carolina.     1830 

2  Dev.  452 

Indictment  for  murder  by  shooting.  The  counsel  for  the  prisoner 
placed  his  defence  upon  the  total  want  of  credibility  in  the  witnesses  for 
the  prosecution.  It  was  argued,  first,  that  the  testimony  of  the  principal 
witness  was  not  credible  from  its  absurdity,  for  how  could  a  man  in  a 
dark  night,  at  the  distance  of  ten  steps,  see  another  pull  the  trigger  of  a 
gun.  .  .  .  His  honor,  in  his  charge  to  the  jury,  informed  them  that  the 
credit  they  would  give  to  the  testimony  was  a  matter  exclusively  with 
them,  and  proceeded  to  suggest  such  circumstances  as,  in  his  opinion, 
might  be  considered  by  them  as  tending  to  shake  or  support  the  credit 
of  the  witness  for  the  State,  and  leaving-  it  also  to  them  to  give  such 
weight  to  any  other  circumstances,  which  they  might  remember  and  the 
Judge  should  omit,  as  they  thought  proper.  In  speaking  of  the  first 
objection,  the  Judge  said,  that  a  man  might  see  by  the  flash  of  a  gun, 
even  in  the  night  and  probably  the  darker  the  night  the  more  distinctly; 
and  if  they  believed  from  the  testimony,  that  was  the  case  in  the  present 
instance,  and  that  seeing  a  man  in  the  attitude  of  shooting,  with  his  hand 


No.  735  LAW  AND  fact:   judge  and  jury  1047 

upon  the  trigger,  and  even  by  the  flash  of  tlie  gun,  was  substantially 
seeing  him  pull  the  trigger;  and  that  if  this  was  the  fact  in  the  particular 
case,  then  the  contradiction  relied  upon  in  the  testimony  of  the  witness 
did  not  exist.  .  .  .  The  jury  returned  a  verdict  of  guilty,  upon  which, 
the  counsel  for  the  prisoner  obtained  a  rule  for  a  new  trial,  for  mis- 
direction. .  .  . 

RuFFiN,  J.  —  The  Act  of  1796  (Rev.  c.  452,)  "  to  direct  the  conduct  of 
Judges  in  charges  to  the  petit  jury,"  restrains  the  judge  from  gi^■ing  an 
opinion  whether  a  fact  is  fully  or  sufficiently  proved.  At  the  same  time, 
it  imposes  another  duty ;  which  is,  to  state,  in  a  full  and  explicit  manner, 
the  facts  gi\en  in  evidence,  and  declare  and  explain  the  law  arising 
thereon.  .  .  .  An  unfair  and  partial  exhibition  of  the  testimony  can 
alone  be  complained  of;  and  the  apprehension  of  that  seems  to  have 
induced  the  passage  of  the  law  under  consideration.  It  is  not  for  us 
to  say,  whether  that  apprehension  was  well  or  ill  founded;  or  whether 
the  administration  of  the  law  would  not  be  more  certain,  its  tribunals 
more  revered,  and  the  suitors  better  satisfied,  if  the  Judge  were  required 
to  submit  his  view  upon  the  whole  case,  and  after  the  able  and  ingenious, 
but  interested  and  partial  arguments  of  Counsel,  to  follow  with  his  own 
calm,  discreet,  sensible  and  impartial  summary  of  the  case,  including 
both  law  and  fact.  Such  elucidations  from  an  upright,  learned  and 
discreet  magistrate,  habituated  to  the  investigation  of  complicated  masses 
of  testimony,  often  contradictory,  and  often  apparently  so  but  really 
reconcilable,  would  be  of  infinite  utility  to  a  conscientious  jury  in  arriving 
at  just  conclusions  —  not  by  force  of  the  Judge's  opinion,  but  of  the 
reasons  on  which  it  was  founded,  and  on  which  the  jury  would  still  have 
to  pass.  If  this  duty  were  imposed  on  the  Judge,  it  is  not  to  be  ques- 
tioned, that  success  would,  oftener  than  it  does,  depend  on  the  justice 
of  the  case,  rather  than  the  ability  or  adroitness  of  the  advocate. 

But  such  is  certainly  neither  the  duty  nor  within  the  competency 
of  our  Judges.  I  have  already  mentioned  that  it  would  be  difficult  for 
a  Judge,  surrounded  by  all  the  circumstances,  to  determine  exactly 
what  is  his  duty  in  this  respect,  in  law  and  his  own  conscience.  With 
still  less  certainty  can  a  revising  court  lay  down  any  rules  a  priori,  or 
even  apply  them,  after  they  are  prescribed  to  cases  as  they  arise.  So 
much  of  the  meaning  of  words  depends  upon  their  context,  and  of  words 
spoken,  upon  the  tone,  emphasis,  temper,  and  manner  of  the  speaker, 
that  it  is  utterly  impossible  that  the  whole  can  be  transferred  to  paper, 
so  as  to  enable  an  appellate  tribunal  to  pass  in  general  upon  cases,  without 
imminent  hazard  of  doing  injustice  to  the  parties,  and  casting  unmerited 
reproach  upon  the  intentions  of  the  Judge,  and  the  understanding  of  the 
jury.  If  I  were  to  lay  down  a  rule  as  growing  out  of  this  Act  of  Assembly, 
I  would  say,  that  it  was  in  general  this :  That  the  weight  of  the  evidence 
is  for  the  jury;  they  hold  the  scales  for  that.  But  the  nature,  relevancy 
and  tendency  of  the  evidence,  it  is  competent  for  the  Judge  and  his  duty 
to  explain.     He  is  not  only  to  recapitulate  the  testimony,  but  to  show 


1048       BOOK  III :    TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  735 

what  it  tends  to  prove,  and  he  may  recapitulate  it  in  such  order  and 
connexion,  as  to  give  it  the  effect  of  proving  the  fact  sought  for,  if  in 
itself  it  be  sufficient  for  that  purpose.  Whether  it  be  sufficient,  it  is  the 
province  of  the  jury  to  determine,  and  by  this  statute  it  is  their  exclusive 
province;  and  the  Judge  cannot  give  his  opinion  in  aid  of  theirs,  that  it  is, 
or  is  not  sufficient.  .  .  . 

To  apply  these  observations  to  the  case  before  us :  It  is  objected  here, 
that  the  Court  below  assumed  the  power  of  expressing  an  opinion  upon 
the  facts,  or  expressed  such  forced  inferences  from  the  testimony,  as 
might  bias  the  minds  of  the  jury.  The  facts  to  which  those  parts  of  the 
charge  apply,  were  the  credit  due  to  several  witnesses.  The  main  fact 
in  dispute,  on  which  the  issue  was  joined,  was  the  guilt  or  innocence  of 
the  prisoner.  This  depended  upon  the  subordinate  facts  of  the  veracity 
or  falsehood  of  the  tales  of  the  witnesses.  Now  this  last  fact  —  of 
credibility,  or  the  want  of  it  —  rested  again  upon  other  facts  which 
tended  to  sap  or  sustain  it.  .  .  .  In  charging  the  jury,  the  judge  is  not 
obliged  to  confine  himself  to  delivering  the  abstract  rule,  that  a  witness 
does  impair  his  credit  by  refusing  to  give  full  evidence;  but  may,  and 
ought  also  to  call  the  attention  of  the  jury  to  the  specific  misbehavior 
before  their  own  eyes,  a  fact  in  evidence  to  him  and  them.  Again,  if 
the  credit  of  one  witness  is  assailed  upon  the  ground  that  he  is  contra- 
dicted by  two  others,  is  the  Court  barely  to  inform  the  jury,  that  if  such 
contradiction  exist,  it  may  impair  the  credit  of  the  first  witness,  but 
that  they  have  the  right  in  law  to  reconcile  the  testimony,  and  then  act 
on  it?  Or  may  he  not  mention  to  them  the  circumstances,  and  show 
how  they  are  contradictory,  or  how  reconcilable,  leaving  it  to  the  jury, 
to  say,  whether  in  truth,  the  two  tales  do,  or  do  not  stand  together, 
according  to  the  parts  of  the  transaction  to  which  they  relate,  or  to  the 
meaning  of  the  witnesses?  Such  a  course  as  this  last,  seems  to  me  to 
be  right,  useful  and  lawful.  .  .  . 

In  like  manner,  the  other  exceptions  are  readily  disposed  of,  without 
my  going  through  them  in  detail.  The  whole  are  regarded  as  mere. 
suggestions  by  the  Judge  to  the  jury,  of  the  construction  of  which  the 
words  of  the  witnesses  are  susceptible,  or  the  inferences  which  could  be 
deduced  from  admitted  or  hypothetical  facts;  in  each  case  leaving  it  to 
the  jury  to  say,  what  was  the  true  construction,  or  the  true  inference. 
I  think  this  is  the  legitimate  province  of  a  Judge,  within  the  statute  under 
consideration.  If  I  err,  the  charge  of  the  Judge  is  an  empty  pageant, 
and  ceremonial  mockery,  which  may  serve  for  the  amusement  of  the 
crowd,  but  instead  of  aiding  the  jury,  by  rescuing  the  case  from  the  false 
glosses  of  powerful  advocates,  and  the  misconception  of  the  evidence, 
as  applicable  to  the  legal  controversy,  will  but  confoimd  the  jury,  and 
still  further  obscure  the  truth. 

It  is  to  be  recollected,  that  the  objection  here  is  not  that  the  charge 
of  the  Judge  as  a  whole,  was  partial  or  unfair,  and  therefore  that  he  did 
not  give  "a  full  and  explicit  statement  of  the  facts  in  evidence."  .  .  . 


No.  737  LAW  AND  fact:   judge  and  jury  1049 

There  is  no  such  complaint  here;  the  objection  on  tlie  contrary,  is,  that 
any  suggestion,  however  reasonable,  and  though  (without  relating  to  the 
sufficiency  of  the  proof)  it  form  a  part  of  the  most  explicit  charge,  going 
fully  and  impartially  into  the  case  on  both  sides,  is  forbidden  to  the 
Judge.  That,  I  think,  for  the  reason  I  have  given,  is  not  so.  Conse- 
quently, the  motion  for  a  new  trial  was,  in  my  opinion,  properly  over- 
ruled. .  .  . 

Per  Curiam.  —  Let  the  judgment  of  the  Court  below  be  affirmed. 

736.  James  Bradley  Thayer.  A  PreUminary  Trentue  on  Evidence.  (1898. 
p.  188.)  In  Massachusetts  this  change  was  introduced  in  1860  (Gen.  St.  c.  115, 
s.  5),  in  the  form  that  "The  Courts  shall  not  charge  juries  with  respect  to  matters 
of  fact,  but  may  state  the  testimony  and  the  law." 

It  is  not  too  much  to  say  of  any  period,  in  all  English  history,  that  it  is 
impossible  to  conceive  of  trial  by  jury  as  existing  there  in  a  form  which  would 
withhold  from  the  jury  the  assistance  of  the  Court  in  dealing  with  the  facts. 
Trial  by  jury,  in  such  a  form  as  that,  is  not  trial  by  jury  in  any  historic  sense 
of  the  words.  It  is  not  the  venerated  institution  which  attracted  the  praise  of 
Blackstone  and  of  oiu"  ancestors,  but  something  novel,  modern,  and  much  less 
to  be  respected. 

In  the  Federal  Courts  the  common-law  doctrine  on  this  subject  has  always 
held.  "In  the  Courts  of  the  United  States,  as  in  those  of  England,  from  which 
our  practice  was  derived,  the  judge,  in  submitting  a  case  to  the  jury,  may,  at  his 
discretion,  whenever  he  thinks  it  necessary  to  assist  them  in  arriving  at  a  just 
conclusion,  comment  on  the  evidence,  call  their  attention  to  parts  of  it  which  he 
thinks  important,  and  express  his  opinion  upon  the  facts.  .  ,  .  The  power  of  the 
Couits  of  the  United  States  in  this  respect  is  not  controlled  by  the  statutes  of 
the  State  forbidding  judges  to  express  any  opinion  upon  the  facts."  Gray,  J., 
for  the  Com-t,  in  Vicksburg,  etc.,  R.  R.  Co.  v.  Putnam,  118  U.  S.  545,  55.3  (1886). 

737.  Arthur  C. Train.  The  Prisoner  at  the  Bar.  (1908.  2d  ed.  p.  179.)  Let 
us  consider  first  the  conduct  of  the  judge  during  the  trial  itself.  Theoretically 
it  is  his  duty,  at  least  in  most  States  of  the  Union,  simply  to  declare  the  law  gov- 
erning the  case  and  to  rule  impartially  upon  the  questions  of  evidence  presented. 
He  is  supposed  to  give  no  hint  of  his  own  opinion  as  to  whether  or  not  the 
defendant  should  be  convicted,  and  to  refrain  from  any  marshalling  of  the  facts 
claimed  to  have  been  proven  by  either  side  in  such  a  way  as  to  influence  the 
verdict  of  the  jury.  In  England  he  may  and  generally  does  "simi  up"  the  case; 
in  America  such  a  course  would  usually  be  a  ground  for  reversal,  —  his  function 
being  limited  to  an  abstract  discussion  of  the  law  involved,  with  little  reference 
to  the  facts  save  in  so  far  as  it  may  be  necessary  for  purposes  of  illustrating  the 
way  in  which  the  jury  shall  apply  it.  .  .  . 

This  may  be  all  very  w^ell  in  theory,  —  but  it  is  very  far  from  what  is  either 
followed  in  practice  or,  to  speak  frankly,  desirable.  What  the  people  want  in 
our  criminal  courts  is,  of  course,  a  fair  "trial;"  but  they  want  a  "fair  trial"  that 
results  in  the  acquittal  of  the  innocent  and  the  conviction  of  the  guilty,  —  so 
long  as  he  is  convicted  by  what  they  deem  fair  means.  ...  A  judge  who  has  sat 
for  ten  or  fifteen  years  on  the  criminal  bench  is  usually  keener  to  detect  a  liar  or 
see  through  a  "faked"  defence  than  any  twelve  men  drawn  indiscriminately 
from  different  walks  of  business  activity.     A  timely  question  from  him  may 


1050       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED      No.  737 

demolish  a  perjured  explanation  which,  but  for  his  interference,  would  have 
acquitted  a  guilty  criminal.  Theoretically,  it  is  none  of  his  business.  Practically, 
it  is.  An  inexperienced  prosecutor  may  be  so  inadequate  to  the  task  of  coping 
with  some  old  war-horse  of  a  lawyer  that  save  for  the  assistance  of  the  Court  a 
rascal  would  be  turned  loose  upon  the  community;  or,  turn  about,  a  stupid 
lawyer  may  convict  his  own  client  if  not  prevented  by  a  considerate  presiding 
justice.  Theoretically,  the  judge  must  let  the  parties  fight  it  out  by  themselves. 
In  point  of  fact,  it  is  his  business  to  even  things  up.  .  .  . 

Under  our  prevailing  doctrines  the  Court  has  no  right  to  influence  the  jury 
on  the  facts  in  the  slightest  degree,  and  indeed  most  judges  expressly  direct  the 
jury  to  disregard  absolutely  any  idea  they  may  have  obtained  of  what  the  Court's 
opinion  may  be.  This,  in  the  face  of  the  balance  of  the  charge,  must  often  seem 
paradoxical  to  the  talesman,  for  few  judges  entirely  succeed  in  concealing  their 
own  views  of  the  case,  however  hard  they  may  honestly  try  to  do  so. 

It  is  quite  as  foreign  to  the  spirit  of  our  institutions  for  a  judge  to  interfere 
with  the  jury  on  questions  of  fact  as  for  a  jury  to  arrogate  to  itself  the  decision 
of  points  of  law.  The  system  is  designed  to  do  "justice"  by  means  of  its  several 
parts  working  harmoniously  together,  but  neither  part  "working  justice"  by 
itself.  If  the  judge  arrogate  the  jury's  function,  the  jury  becomes  superfluous. 
This  is  not  the  intent  of  the  Constitution.  There  is  no  real  trial  by  jury  when  the 
judge  decides  the  whole  matter,  and  it  would  be  far  more  dangerous  for  a  single 
man  to  act  as  arbiter  of  the  defendant's  fate  than  for  twelve.  Yet  more  or  less 
consciously  there  is  often  a  tendency  upon  the  part  of  the  criminal  bench  to  lend 
itself  to  the  success  of  one  party  or  the  other,  however  positively  it  may  declare 
and  direct  to  the  contrary.  .  .  . 

A  distinguished  member  of  the  bench,  now  long  since  deceased,  was  accus- 
tomed to  deliver  charges  so  drastic  that  a  defendant  charged  with  a  serious 
offence  rarely,  if  ever,  escaped.  Upon  appeal  absolutely  no  exception  could  be 
taken  to  his  remarks,  yet  nothing  more  unfair  could  be  conceived  of.  The  record 
would  show  that  the  judge  had  charged:  "If  you  believe  the  defendant's  testi- 
mony you  will  of  course  acquit  him.  He  is  presumed  to  be  innocent  until  the 
contrary  is  proved.  If  you  have  any  reasonable  doubt  as  to  his  guilt  you  must 
give  him  the  benefit  of  it.  On  the  other  hand,  if  you  accept  the  testimony  offered 
by  the  people  you  may  and  will  convict  him."  Now,  nothing  on  its  face  would 
seem  to  be  fairer.  What  the  jury  actually  heard  was:  "If  [scornfully]  you 
believe  the  defendant's  testimony  you  will  of  coiu-se  acquit  him.  He  is  presumed 
[with  a  shrug  of  the  shoulders]  to  be  innocent  until  the  contrary  is  proved.  If  you 
have  [another  slirug]  any  reasonable  doubt  as  to  his  guilt,  you  must  give  him  the 
benefit  of  it.  On  the  other  hand,  if  you  accept  the  testimony  offered  in  behalf  of 
the  People,  you  may  and  will  convict  him!"  (The  last  few  words  in  tones  of 
thunder.) 

738.   BARTLETT  v.   SMITH 

Exchequer.     1843 

11  M.  &  W.  483 

Assumpsit  by  the  endorsee  against  the  drawer  of  a  bill  of  exchange. 
The  declaration  stated,  that  the  defendants,  on,  &c.,  made  their  certain 
bill  of  exchange  in  writing,  and  directed  the  same  to  Mr.  John  E.  Butcher, 


No.  738  LAW  AND  fact:    judge  and  jury  1051 

Dublin,  and  thereby  required  the  said  J.  E.  Butcher  to  pay  to  the  order 
of  the  defendants,  in  London,  the  sum  of  £17.  It  then  alleged  the 
endorsement  of  the  bill  to  the  plaintiffs.  The  defendant,  by  his  pleas, 
denied  the  drawing  and  endorsement.  At  the  trial  before  the  Under- 
sheriff  of  Middlesex,  the  bill,  when  produced,  appeared  to  be  drawn  in 
Dublin,  payable  in  London,  and  was  stamped  as  a  foreign  bill. 

On  the  plaintiff's  counsel  proposing  to  read  it  in  evidence,  the  defend- 
ant's counsel  objected,  on  the  ground  that,  although  the  bill  purported 
to  be  drawn  in  Dublin,  it  was  in  fact  drawn  in  London,  and  being  there- 
fore an  inland  bill,  required  a  higher  stamp;  and  proposed  to  give  evidence 
of  that  fact.  The  L  ndersherilf  however  said,  that  as  the  bill  was  not 
objectionable  on  the  face  of  it,  he  should  allow  the  case  to  proceed;  on 
which  the  defendant's  counsel  addressed  the  jury,  and  afterwards  adduced 
evidence  to  show  that  at  the  time  the  bill  bore  date,  the  drawer  was  in 
London:  whereupon  the  Undersheriff  left  it  to  the  jury  to  say  whether 
the  bill  was  drawn  in  London  or  Dublin,  but  reserved  leave  to  the  defend- 
ants to  move  to  enter  a  nonsuit  if  this  Court  should  think  he  ought  to 
have  received  the  evidence  in  the  first  instance,  and  to  have  decided 
upon  it.  .  .  . 

The  jury  having  found  a  verdict  for  the  plaintiff, 

R.  V.  Richards,  on  a  former  day  in  this  Term,  obtained  a  rule  for  a 
non-suit  accordingly. 

Croioder  and  Hughes,  showed  cause.  —  The  evidence  tendered  was 
insufficient.  ...  In  Bire  v.  Moreau,  2  C.  &  P.  376,  .  .  .  the  question  was 
left  to  the  jury.  (Alderson,  B.  —  That  is  leaving  to  the  jury  the 
question  whether  the  document  is  or  is  not  admissible  in  evidence. 
Parke,  B.  —  The  under-sheriff  surely  must  decide- for  himself  whether 
the  evidence  is  or  is  not  admissible.) 

R.  V.  Richards  and  Meteyard,  contra.  —  The  under-sheriff  ought  to 
have  received  the  evidence  for  the  purpose  of  satisfying  his  own  mind 
as  to  when  the  bill  was  drawn,  and  deciding  upon  its  admissibility,  and 
not  to  have  left  the  case  to  the  jury. 

Lord  Abinger,  C.  B.  —  I  am  of  opinion  that  this  rule  must  be  made 
absolute  for  a  new  trial,  but  not  to  enter  a  nonsuit.  All  questions  respect- 
ing the  admissibility  of  evidence  are  to  be  determined  by  the  judge,  who 
ought  to  receive  that  evidence,  and  decide  upon  it  without  any  reference 
to  the  jury.  In  all  cases  where  an  objection  is  made  to  the  competency 
of  witnesses,  any  evidence  to  show  their  incompetency  must  be  received 
by  the  judge,  and  adjudicated  on  by  him  alone.  So,  in  the  present  case, 
evidence  offered  to  impeach  the  admissibility  of  the  bill,  on  the  ground 
that  it  was  improperly  stamped,  should  have  been  received  by  the  judge, 
and  determined  by  him  before  the  bill  was  allowed  to  be  read  to  the  jury. 
When  the  objection  was  made  that  the  bill  bore  a  wrong  stamp,  the 
Undersheriff  ought  to  have  received  the  evidence  to  impeach  it,  before 
he  allowed  the  bill  to  be  read;  and  it  was  for  him  to  say  whether  the 
evidence  adduced  for  the  purpose  was  such  as  to  satisfy  him  or  not. 


1052       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED      No.  738 

The  evidence  tendered  was  for  the  purpose  of  showing  that  the  bill 
ought  not  to  be  read  at  all;  and  if  the  Undersheriff  rejected  it  in  the 
first  instance,  he  ought  not  to  have  received  it  afterwards  and  submitted 
it  to  the  jury.     There  ought,  therefore,  to  be  a  new  trial. 

Parke,  B.  ^  I  am  of  the  same  opinion.  All  preliminary  matters  of 
this  kind  are  to  be  determined  by  the  judge,  not  by  the  jury.  I  well 
recollect  the  case  of  Major  Campbell,  who  was  indicted  for  murder  in 
Ireland;  and  on  a  dying  declaration  being  tendered  in  evidence,  the 
judge  left  it  to  the  jury  to  say  whether  the  deceased  knew,  when  he  made 
it,  that  he  was  at  the  point  of  death.  The  question  as  to  the  propriety 
of  the  course  adopted  in  that  case  was  sent  over  for  the  opinion  of  the 
English  judges,  who  returned  for  answer  that  the  course  taken  was  not 
the  right  one,  and  that  the  judge  ought  to  have  decided  the  question 
himself.  New  trial. 

739.  HUTCHISON  v.  BOWKER 
Exchequer.     1839 
5  M.  &  W.  535,  541 

Assumpsit  for  the  non-delivery  of  barley.  Plea,  non  assumpsit. 
At  the  trial  before  Lord  Abinger,  C.  B.,  it  appeared  that  the  action  was 
brought  by  the  plaintiffs,  who  were  corn  merchants  and  factors  at  Kirk- 
aldy,  in  Fifeshire,  to  recover  from  the  defendants,  who  were  corn  mer- 
chants at  Lynn,  damages  for  the  non-performance  of  a  contract  to  supply 
400  quarters  of  barley.  To  prove  the  contract,  the  following  letters 
were  given  in  evidence: 

"Lynn,  21st  Nov.,  1838. 
"Messrs.  Rt.  Hutchison  &  Co.,  Kirkaldy. 

"  Gentlemen  : 

"In  reply  to  your  favor  of  17th  inst.,  we  beg  to  offer  you  a  cargo 
of  about  400  qrs.  of  good  barley,  weighing  521bs.  per  bl.,  at  34^.  per  qr. 
on  board.  .  .  .  Your  most  obedient  servants, 

"A.  &J.  BOWKER." 

To  this  letter  the  plaintiffs  returned  the  following  answer : 

"Kirkaldy,  14th  Nov.,  1838. 
"Messrs.  A.  &  J.  Bowker,  Lynn. 
"  Gentlemen  : 

"We  have  your  favor  of  21st  current,  offering  400qrs.  good  barley, 
521bs.  per  bl.,  at  34s.  per  qr.  f.  o.  b.,  payment  in  full  by  banker's  bill  at 
two  months,  on  receipt  of  bill  of  lading  and  invoice:    of  such  offer  we 
accept,  expecting  you  will  give  us  fine  barley  and  full  weight.  .  .  . 
"We  remain,  gentlemen, 

"  Your  most  obedient  servants, 

"RoBT.  Hutchison  &  Co." 


No.  739  LAW  AND  fact:    judge  and  juky  1053 

The  defendant  declined  to  ship  "fine  barley."  Evidence  was  given 
at  the  trial  to  show  that  the  phrases  "good"  barley  and  "fine"  barley 
were  terms  well  known  in  the  trade,  and  that  fine  barley  was  the  heavier. 
The  jury  at  first  found  a  verdict  for  the  plaintiffs  generally,  stating  their 
opinion  to  be,  that  "  the  difference  was  in  weight,  and  that  barley  would 
be  fine  and  good  at  521bs.  per  bushel."  The  learned  Judge  asked  them 
to  reconsider  the  verdict,  and  answer  this  question,  whether  there  was  a 
distinction  in  the  corn  trade  between  "good"  and  "fine"?  And  they 
then  found  that  there  was  a  difference  between  good  and  fine,  but  that 
the  parties  did  not  understand  each  other;  and  they  returned  a  verdict 
for  the  plaintifis,  damages  30/.  Cresswell  having  on  a  former  day 
obtained  a  rule  to  show  cause  why  this  verdict  should  not  be  set  aside, 
and  a  non-suit  entered. 

Sir  F.  Pollock  {W.  H.  Watson  with  him)  now  showed  cause.  .  .  .  The 
words  have  either  a  general  or  a  technical  meaning.  It  was  found  that 
the  word  "fine"  had  a  technical  meaning,  and  the  obscurity  is  removed 
by  the  verdict.  The  jury  thought  that  on  this  contract  there  could  be 
no  misunderstanding  amongst  merchants.  It  was  a  question  to  be  left 
to  the  jury,  what  was  the  meaning  of  the  word  "fine"  in. the  contract. 
(Parke,  B.  — You  may  ask  the  jury  the  meaning  of  the  word  "fine"  in 
a  mercantile  sense,  but  you  cannot  go  further.  The  Court  is  to  say  what 
is  the  meaning  of  the  contract,  and  whether  there  has  been  an  acceptance 
of  it.)  ...  It  is  admitted  that  when  the  words  of  a  contract  are  clear 
and  unambiguous,  it  is  for  the  Court  to  put  a  construction  upon  it; 
but  where  the  words  are  either  unintelligible,  or  have  both  a  popular  and 
a  technical  meaning,  it  is  for  the  jury  to  say  whether  the  words  were 
used  in  a  technical  or  ordinary  sense. 

Lord  Abinger,  C.  B.  .  .  .  It  appears  to  me  that  the  question  as  to 
the  interpretation  of  this  contract  is  a  question  entirely  for  the  Court, 
and  not  for  the  jury.  That  they  should  ever  be  the  judges  on  such  a 
matter  was  founded  on  this,  that  there  might  be  technical  words  used  in 
a  contract,  which  the  jury  might  understand,  and  the  Court  might  not; 
but  it  would  be  contrary  to  all  practice  to  say,  after  the  terms  are  ex- 
plained to  the  satisfaction  of  the  Court,  that  the  jury  are  to  have  the 
interpretation  of  the  contract,  and  not  the  Court.  ...  In  this  case,  if 
they  had  said  they  were  satisfied  that  there  was  no  difference  in  the  words, 
I  should  then  have  directed  them  to  find  for  the  plaintiffs ;  but  they  told 
me  they  were  of  opinion  that  there  was  a  difl'erence  in  the  words,  but  they 
did  not  think  the  contract  should  be  interpreted  with  reference  to  that 
distinction,  as  the  parties  did  not  understand  each  other.  I  think  that 
they  had  no  right  to  assume  that.  .  .  . 

The  meaning,  therefore,  being  left  ambiguous,  I  am  of  opinion  that 
this  rule  ought  to  be  made  absolute. 

Parke,  B. —  I  am  of  the  same  opinion.  .  .  .  The  law  I  take  to  be 
this,  —  that  it  is  the  duty  of  the  Court  to  construe  all  written  instru- 
ments ;  if  there  are  peculiar  expressions  used  in  it,  which  have,  in  particu- 


105-1       BOOK  III:    TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  739 

lar  places  or  trades,  a  known  meaning  attached  to  them,  it  is  for  the 
jury  to  say  what  the  meaning  of  these  expressions  was,  but  for  the  Court 
to  decide  what  the  meaning  of  the  contract  was.  It  was  right,  therefore, 
to  leave  it  to  the  jury  to  say  whether  there  was  a  pecuHar  meaning  attached 
to  the  word  "  fine,"  in  the  corn  market;  and  the  jury  having  found  what 
it  was,  the  question,  whether  there  was  a  complete  acceptance  by  the 
written  documents  is  a  question  for  the  judge. 


740.   HOOPER  V.   MOORE 

Supreme  Court  of  North  Carolna.     1857 

5  Jones  L.  130 

This  was  an  action  of  Detinue,  tried  before  Manly,  J.,  at  the  last 
Fall  Term  of  Caswell  Superior  Court.  .  .  . 

The  plaintiff  declared  for  the  detention  of  the  slaves  Fanny  and  her 
children,  and  alleged  title,  as  administrator  with  the  will  annexed  of 
Alexander  Moore,  under  the  provisions  of  that  will.  The  testator  lived 
and  died  in  Halifax  county,  in  the  State  of  Virginia.  .  .  .  The  defendant 
claimed  the  slaves  as  the  administrator  of  Alexander  Moore,  Jun'r., 
and  offered  evidence  to  show  that  .  .  .  the  said  testator  placed  in  the 
possession  of  his  grand-daughter  and  her  husband,  Alexander  Moore, 
Jun'r.,  the  slave  Fanny  in  question,  who  is  the  mother  of  the  other  slaves 
sued  for;  that  Alexander  Moore,  Jun'r.,  held  the  slaves  in  question  for 
ten  years,  during  which  time,  he  lived  in  the  State  of  Virginia,  and 
brought  them  thence  to  the  county  of  Caswell,  where  he  remained  in 
possession  of  them  until  his  death  in  1852.  In  order  to  show  the  law 
of  Virginia  controlling  this  transaction,  the  deposition  of  Woodson 
Hughes,  Esquire,  a  gentleman  of  the  legal  profession  in  that  State,  was 
produced,  who  deposed  that  according  to  the  law  of  Virginia,  no  inference 
of  a  gift  could  be  drawn  from  the  possession  of  the  slaves,  under  the 
circumstances  of  this  case.  The  defendant's  counsel  insisted :  .  .  .  That 
no  statute  of  Virginia  had  been  offered  in  evidence,  altering  the  common 
law;  that  by  the  common  law  a  gift  was  presumed,  and  that  it  was  the 
duty  of  the  Court  to  expound  the  statute  and  give  the  defendant  the 
benefit  of  the  presumption,  notwithstanding  the  deposition  of  Mr. 
Hughes,  and  prayed  the  Court  so  to  instruct  the  jury.  The  Court  .  .  . 
declined  giving  the  instructions  prayed  for,  but  gave  in  charge  the  law 
of  Virginia  as  proved  by  the  deposition  of  Mr.  Hughes,  and  left  it  to  the 
jury  to  decide  the  question,  whether  it  was  a  gift  or  a  loan,  free  from  any 
presumption  either  way.     Defendant  again  excepted.  .  .  . 

Under  these  instructions,  the  jury  returned  a  verdict  for  the  plaintiff; 
a  judgment  was  rendered  thereon,  and  the  defendant  appealed  to  this 
court. 

Norwood,  for  the  plaintiff.     Morehead,  for  the  defendant. 


No.  740      LAW  AND  fact:  judge  and  juky         1055 

Pearson,  J.  .  .  .  What  is  the  law  of  another  State,  or  of  a  foreign 
country,  is  as  much  a  "question  of  law,"  as  what  is  the  law  of  our  own 
State.  There  is  this  difference,  however:  the  Court  is  presumed  to 
know  judicially  the  public  laws  of  our  State,  while  in  respect  to  private 
laws,  and  the  laws  of  other  States  and  foreign  countries,  this  knowledge 
is  not  presumed;  it  follows  that  the  existence  of  the  latter  must  be  alleged 
and  proved  as  facts;  for  otherwise,  the  Court  cannot  know  or  take  notice 
of  them.  This  is  familiar  learning.  In  order  to  give  effect  to  this 
presumption  of  a  knowledge,  on  the  part  of  the  Court,  of  the  public 
laws  of  our  State,  it  is  provided  that  the  persons  who  are  entrusted  with 
the  administration  of  justice  as  a  Court,  shall  be  men  learned  in  the  law. 
.  .  .  When  an  issue  of  fact  involves  a  question  of  law,  the  jury  are  not 
entrusted  to  decide  it;  but  it  is  the  duty  of  the  Court  to  give  to  the  jury 
instruction  in  regard  to  the  law,  and  it  is  the  duty  of  the  jury  to  be 
governed  by  such  instructions.  In  this  way,  as  much  accuracy,  and  as 
great  a  degree  of  fixedness,  in  respect  to  questions  of  law,  is  secured,  as 
the  nature  of  the  subject  admits  of. 

Such  being  the  case  in  respect  to  questions  arising  about  our  own 
laws,  it  Would  seem  as  a  matter  of  course  to  be  likewise  so  in  respect  to 
questions  arising  about  the  laws  of  other  States,  or  of  foreign  countries, 
whenever,  in  the  administration  of  justice,  our  Courts  are  called  upon  to 
deal  with  them.  The  assertion  of  a  contrary  opinion  is  met  at  once  by 
these  considerations,  which,  as  it  seems  to  us,  cannot  be  answered:  i.e., 
if  juries  are  incompetent  to  decide  questions  in  regard  to  our  own  laws, 
and  the  Court  is  required  to  give  them  instructions  in  respect  thereto, 
are  they  any  more  competent  to  decide  questions  in  regard  to  the  laws 
of  other  States,  or  foreign  countries?  and  do  not  they  stand  equally  in 
need  of  instructions  in  respect  to  them?  If  such  questions  are  to  be 
decided  by  the  juries,  their  decisions  cannot  be  reviewed  by  the  Supreme 
Court,  and  where  is  the  security  either  for  accuracy  or  fixedness?  A 
jury  is  not  a  permanent  tribunal,  and  no  memorial  is  kept  of  its  action, 
except  the  general  conclusion  —  a  verdict;  which  is  binding  only  between 
the  parties  to  the  particular  case. 

But  it  is  said  our  Courts  are  not  presumed  to  know  the  laws  of  other 
States,  or  of  foreign  countries.  Admit  it;  still  can  it  be  questioned  that 
the  Court  is  more  competent  to  ascertain  and  understand  such  laws,  than 
the  jury?  or  that  the  jury  stand  as  much  in  need  of  instruction  in  respect 
thereto,  as  in  respect  to  our  own  laws? 

Again,  it  is  said  the  existence  of  such  laws  must  be  alleged  and  proved 
as  facts.  Admit  it.  But  how  are  they  to  be  proved?  To  the  court, 
or  to  the  jury?  Surely  to  the  court,  because  they  are  "  questions  of  law." 
We  are  aware  that  an  impression  prevails  to  some  ex>:ent,  that  the  proof 
is  to  be  made  to  the  jury.  This  originated  from  the  expression  "to  be 
proved  as  facts,"  and  many  loose  dicta  are  to  be  met  with,  scattered 
through  the  books,  in  which  these  words  have  been  inadvertently  added 
to,  so  as  to  make  the  expression  "to  be  proven  as  facts  to  the  jury."  .  .  . 


1056       BOOK  III:    TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No,  740 

If  the  law  be  written,  and  its  existence  is  properly  authenticated,  the 
Court,  availing  itself  of  the  aid  of  the  judicial  decisions  of  the  country, 
puts  a  construction  on  it,  and  explains  its  meaning  and  legal  effect,  and 
the  jury  have  nothing  to  do  with  it,  save  to  follow  the  instructions  of  the 
Court,  as  if  it  was  our  own  law.  If  the  law  is  unwritten,  and  its  existence 
is  presumed  or  admitted,  then  the  jury  have  nothing  to  do  with  it.  For 
example,  if  it  be  presumed,  or  admitted,  that  the  common  law  prevails 
in  the  State  of  Virginia,  and  has  not  been  altered  by  statute  in  respect  to 
the  particular  question,  our  Court  decides  what  the  common  law  is.  .  .  . 

But  if  the  existence  of  an  unwritten  law  of  another  State,  or  foreign 
country,  is  not  presumed  or  admitted,  then  its  existence  must  be 
proved  by  competent  witnesses,  and  the  jury  must  then  pass  on  the 
credibility  of  the  witnesses,  and  it  is  the  province  of  the  Court  to  inform 
the  jury  as  to  the  construction,  meaning,  and  legal  effect  of  the  law, 
supposing  its  existence  to  be  proven;  and  to  this  end,  the  Court  should 
avail  itself  of  the  judicial  decisions  of  the  State  or  country.  .  .  . 

In  our  case,  the  Judge  below  erred  in  refusing  to  decide  that,  according 
to  the  common  law,  a  gift  was  presumed,  as  is  settled  by  repeated  de- 
cisions, and  in  leaving  it  an  open  question  of  fact  for  the  jury  upon  the 
deposition  of  Mr.  Hughes. 

Per  Curiam.     Judgment  reversed,  and  a  venire  de  novo. 


741.   STATE   V.   MONICH 

Court  of  Errors  and  Appeals  of  New  Jersey.     1906 

74  N.  J.  L.  522;  64  Atl.  1016 

Error  to  Court  of  Oyer  and  Terminer,  Morris  County.  Sam 
Monich  was  convicted  of  murder  in  the  first  degree,  and  brings  error. 
Affirmed.  The  defendant  below^  having  been  convicted  of  murder  in  the 
first  degree,  and  thereupon  sentenced  to  death,  brings  the  record  of  that 
conviction  to  this  court  for  review\  .  .  . 

The  circumstances  disclosed  in  evidence  were  briefly  as  follows: 
The  deceased  was  an  able-bodied  woman  of  middle  age  named  Hattie 
Decker.  She  was  widowed,  and  lived  upon  a  farm  with  her  parents,  Mr. 
and  Mrs.  Wilbur  Kayhart.  Betw^een  6  and  half-past  6  in  the  evening 
of  January  16,  1906,  after  having  taken  supper  with  her  parents,  she 
took  a  lighted  lantern  with  the  "avowed  purpose  of  going  from  the  house 
to  the  barn  to  fasten  up  her  dog.  Shortly  afterwards,  as  IMr.  Kayhart 
testified,  he  heard  the  firing  of  two  or  three  shots,  went  quickly  to  the 
door,  and  found  his  daughter  standing  there  with  the  still  lighted  lantern 
in  her  hand  endeavoring  to  enter  the  house,  but  unable  to  do  so  for  want 
of  strength.  To  him  she  said :  "  Oh,  Pa,  I  am  shot  with  a  bullet.  lam 
dying."  He  asked  her:  "For  God's  sake,  who  shot  you?"  and  she 
answered:    "Sam  shot  me"  (meaning  the  defendant).  .  .  .  From  this 


No.  741  LAW  AND  fact:    judge  and  jury  1057 

wound  she  died  within  a  few  hours.  Kayhart's  testimony  that  she 
declared  the  defendant  had  shot  her  was  admitted  over  objection,  and 
an  exception  was  thereupon  sealed.  .  .  . 

Charlton  A.  Reed,  for  plaintiff  in  error.  Charles  A.  Rathbun,  for 
defendant  in  error. 

Pitney,  J.  (after  stating  the  case  as  above).  ...  1.  With  regard  to  the 
function  of  a  Court  of  review  in  the  premises,  Chief  Justice  Green  made 
it  plain  (26  N.  J.  L.  p.  501),  that  the  question  here  is  not  a  question  of  the 
weight  of  testimony,  but  whether  there  was  evidence  before  the  trial 
Court  which  warranted  it  in  admitting  the  evidence.  ...  It  is  entirely 
manifest  that  in  the  case  at  hand  there  was  abundant  evidence  to  legally 
justify  the  determination  of  the  trial  Court  that  the  declarations  of  the 
deceased  that  were  admitted  in  evidence  were  made  under  the  apprehen- 
sion of  impending  death.  .  .  . 

2.  The  only  other  matter  requiring  discussion  is  the  refusal  of  the 
trial  Court  to  charge  the  jury  that 

"before  the  jury  can  consider  declaration  made  by  the  deceased  as  to  the  person 
who  inflicted  the  mortal  injury  in  the  absence  of  such  person,  they  must  be  con- 
vinced that  the  person  making  the  declaration  had  an  absolute  conviction  that 
death  as  an  absolute  certainty  is  immediately  at  hand.  If  there  is  the  least  hope, 
no  matter  how  faint,  the  requisite  certainty  of  belief  does  not  exist." 

The  effect  of  this  instruction  would  have  been  to  permit  the  jury  to 
revise  the  finding  of  the  trial  Court  upon  the  question  of  fact  whether  the 
declaration  was  made  under  a  sense  of  impending  death,  and  to  disregard 
the  declaration  if  they  disagreed  with  the  conclusion  of  the  judge  upon 
this  point.  Defendant's  contention  upon  this  head  received  some 
countenance  from  a  dictum  of  Justice  Depue  (afterwards  Chief  Justice), 
in  Roesel  v.  State,  62  N.  J.  L.  216,  238,  where,  in  discussing  the  admissi- 
bility in  evidence  of  a  confession  made  by  the  prisoner,  he  said: 
"If  there  be  a  conflict  of  evidence  as  to  whether  the  confession  was  or  was  not 
voluntary,  if  the  Coiu*t  decides  that  it  is  admissible,  the  question  may  be  left  to 
the  jury,  with  the  direction  that  they  should  reject  it  if  upon  the  whole  evidence 
they  were  satisfied  that  it  was  not  the  voluntary  act  of  the  defendant." 
This  dictum  was  based  in  part  upon  the  charge  of  Mr.  Justice  Drake 
to  the  jury  in  State  v.  Guild,  and  the  qualified  approval  of  his  instruction 
contained  in  the  opinion  of  the  Supreme  Court  in  the  same  case  (10  N. 
J.  L.  163, 181,  182).  It  will  be  noticed  that  the  language  of  Justice  Depue 
just  quoted  indicates  a  permissible  practice,  not  one  that  the  defendant  is 
entitled  to  have  observed.  In  Bullock  v.  State,  65  N.  J.  L.  557,  at  page 
567,  the  same  learned  jurist  did,  however,  declare  obiter  that  in  cases  of 
doubt  the  question  should  be  left  to  the  jury  with  the  instruction  that 
they  should  reject  the  confession  if  upon  the  whole  evidence  they  are 
satisfied  that  it  was  not  the  defendant's  voluntary  act. 

In  other  jurisdictions,  where  the  practice  is  recognized  of  permitting 
the  jury  to  review  the  finding  of  the  trial  Court  upon  a  preliminary 
question  of  fact  on  which  depends  the  admission  of  a  declaration  or  the 


1058       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED      Xo.  741 

like,  the  practice  is  commonly  treated  as  discretionary  with  the  trial 
Court.  In  Massachusetts,  for  instance,  it  seems  to  have  been  adopted 
as  a  matter  of  grace  to  the  defendant.  Commonwealth  v.  Cuffee,  108 
Mass.  285,  288;  Commonwealth  v.  Smith,  119  Mass.  305,  311;  Com- 
monwealth V.  Nott,  135  Mass.  269,  271;  Commonwealth  v.  Preece,  140 
Mass.  276,  277.  The  opinion  of  Chief  Justice  Fuller  in  Wilson  v. 
United  States,  162  U.  S.  613,  624,  likewise  indicates  his  view  that  the 
practice  is  discretionary.  .  .  . 

The  question  is  fairly  raised  in  the  present  case  by  the  refusal  of  the 
trial  judge  to  accede  to  the  request  to  charge  above  mentioned;  and  in 
our  opinion  it  admits  of  but  one  answer.  The  determination  of  the 
question  whether  a  declaration  that  is  offered  as  a  dying  declaration  was 
in  truth  made  under  a  sense  of  impending  death,  like  the  determination 
of  the  cognate  question  whether  a  defendant's  confession  was  made  volun- 
tarily, is  for  the  trial  Court,  and  not  for  the  jury.  The  question  relates 
to  the  admissibility  of  evidence,  and  like  all  similar  questions  is  not 
reviewable  by  the  jury.  Whether  the  deceased  spoke  the  truth  when  she 
declared  that  the  defendant  had  shot  her  was  for  the  jury's  determination. 
Whether  the  witnesses  who  testified  that  she  made  such  a  declaration 
testified  truthfully  was  likewise  for  the  jury  to  decide.  But,  in  our 
opinion,  it  was  not  their  province  to  lay  aside  the  evidence  of  her  declara- 
tions upon  coming  to  a  conclusion  that  she  was  not  impressed  with  a 
sense  of  impending  death  when  she  made  them.  .  .  . 

The  judgment  under  review  should  be  affirmed. 


742.  BRIDGES  v.  NORTH  LONDON  RAILW^AY  COMPANY 

House  of  Lords.     1874 

L.  R.  7  H.  L.  (E.  &  I.  App.)  213 

Action  for  damages  for  negligence  in  causing  the  death  of  the  plain- 
tiff's husband.  Plea,  not  guilty.  The  cause  was  heard  before  Mr. 
Justice  Blackburn  at  the  Middlesex  Sittings  after  Michaelmas  Term, 
1869.  .  .  .  B.  was  in  the  last  carriage  of  a  railway  train.  Before  reaching 
the  station  at  which  he  was  to  alight  the  train  had  to  pass  through  a 
tunnel.  In  that  tunnel  there  was,  first,  a  heap  of  hard  rubbish  lying 
by  the  side  of  the  rails,  irregular  in  form  and  height,  then  a  short  sloping 
piece  of  ground,  then  a  piece  of  flat  platform,  like  the  main  platform, 
but  narrower,  and  within  the  tunnel.  Beyond  these  was  the  main  plat- 
form itself.  The  train  only  partially  went  up  to  the  main  platform, 
leaving  the  last  two  carriages  within  the  tunnel,  which  had  no  light 
within  it,  and  on  the  occasion  in  question  was  filled  with  steam.  The 
last  carriage  but  one  came  opposite  the  narrow  platform ;  the  last  carriage 
was  opposite  the  hard  rubbish.  A  passenger  in  the  last  carriage  but  one 
(was  who  called  as  a  witness  at  the  trial)  heard  the  name  of  the  station 


No.  742  LAW  AND  fact:   judge  and  jury  1059 

called  out  in  the  usual  way  and  got  out  upon  the  narrow  platform.  He 
then  heard  a  groaning,  and  proceeding  farther  back  into  the  tunnel  found 
B.  lying  on  the  rubbish  with  his  legs  between  the  wheels  of  the  last 
carriage,  but  neither  of  them  had  touched  him.  B.'s  leg  was  broken, 
and  he  had  received  other  injuries,  from  the  effects  of  all  which  he  died. 
The  witness  heard  the  warning,  "Keep  your  seats,"  and  shortly  after- 
wards the  train  moved  on.  .  .  . 

Mr.  Justice  Blackburn  was  of  opinion  that  there  was  no  evidence 
of  negligence  on  the  part  of  the  defendants,  and  directed  a  nonsuit; 
but  the  jury  expressing  a  strong  opinion  to  the  contrary,  a  verdict  was 
taken  for  the  plaintiff,  the  jury  assessing  the  damages  at  £1200.  The 
nonsuit  was  then  entered,  but  leave  was  reserved  to  move  to  enter  the 
verdict  for  the  plaintiff  for  the  damages  thus  contingently  assessed. 

A  rule  was  accordingly  moved  for,  and,  after  argument  in  the  Court 
of  Queen's  Bench,  was  refused.  On  appeal  to  the  Exchequer  Chamber 
the  facts  were  stated  in  a  case,  power  being  reserved  to  the  judges  to 
draw  inferences  of  fact.  The  case  was  heard,  and  the  judgment  of  the 
Court  below  was  affirmed  by  four  judges  to  three. ^  This  appeal  was  then 
brought. 

The  Judges  were  summoned,  and  Lord  Chief  Baron  Kelly,  Mr. 
Baron  Martin,^  Mr.  Justice  Keating,  Mr.  Justice  Brett,  Mr.  Justice 
Denman,  and  Mr.  Baron  Pollock  attended. 

Mr.  Henry  James,  Q.  C,  and  Mr.  Kemp  (Mr.  Snagge  was  with  them), 
for  the  plaintiff  in  error.  The  question  here  is,  whether  there  was  evi- 
dence of  negligence  on  the  part  of  the  defendants,  which  ought  to  have 
been  left  to  the  jury.  .  .  . 

Sir  J.  Karslake,  Q.  C,  and  Mr.  Aspinall,  Q.  C.  (Mr.  A.  G.  Shiell  was 
with  them),  for  the  defendants  in  error.  The  judgment  here  must  be 
affirmed  unless  it  clearly  appears  that  the  deceased  man  was  killed  by 
the  negligence  of  the  company's  servants.  .  .  .  There  being  no  evidence 
on  which  the  jury  could  reasonably  find,  in  point  of  fact,  that  there  had 
been  negligence,  there  was  no  necessity  for  leaving  the  case  to  the  jury, 
but  the  Judge  rightly  took  on  himself  to  say  that  no  case  had  been  made 
out  for  the  plaintiff  and  that  there  must  be  a  nonsuit.  .  .  . 

Lord  Cairns,  who  presided  in  the  absence  of  the  Lord  Chancellor, 
proposed  that  the  following  question  should  be  put  to  the  Judges: 
Whether  in  the  facts  stated  in  the  special  case,  and  having  regard  to 
the  liberty  thereby  given  to  the  Court  to  draw  any  inference  or  find 
any  facts  from  the  facts  therein  stated,  there  was  evidence  of  negligence 
on  the  part  of  the  respondents  which  ought  to  have  been  left  to  the 
jury?  .  .  . 

Mr.  Justice  Brett.  —  My  Lords,  before  determining  whether  there 


1  L.  R.  6  Q.  B.  377. 

"  Mr.  Baron  Martin  heard  the  argument,  but  retired  from  the  Bench  before 
the  Judges'  opinions  were  delivered. 


1060       BOOK  III:   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED      No.  742 

is  or  is  not  evidence  fit  to  be  left  to  a  jury  in  support  of  questions,  one 
must  know  what  the  questions  are  which  are  to  be  so  left.  It  seems  im- 
possible to  answer  satisfactorily  the  question  whether  there  was  or  was 
not  evidence  of  negligence  which  ought  to  have  been  left  to  the  jury, 
without  first  determining  the  form  in  which  the  question  of  negligence, 
if  left,  should  be  judicially  stated  to  a  jury.  It  is  farther  necessary,  as 
it  seems  to  me,  to  consider  the  formula  which  should  be  applied  to  the 
facts  in  evidence,  in  order  to  see  whether  they  ought  or  ought  not  to  be 
left  to  the  jury.  And  farther,  how  much  of  the  dealing  with  facts  is 
within  the  province  of  the  Judge,  and  how  much  is  exclusively  within 
the  province  of  the  jury.  .  .  . 

What  is  the  direction  in  point  of  law  which  ought  to  be  given  to  the 
jury  at  the  trial?  .  .  .  The  proposition  which  the  plaintiff  undertakes 
to  substantiate  is  that  he  has  suffered  injury  by  reason  of  the  negligence 
of  the  defendants  or  their  servants.  .  .  .  This  direction,  however,  is  not 
yet  sufficient.  It  requires  to  be  amplified  by  a  legal  definition  of  what 
amounts  to  negligence.  That  definition  is,  that  negligence  consists  in 
the  doing  of  some  act  which  a  person  of  ordinary  care  and  skill  would 
not  do  under  the  circumstances,  or  in  the  omitting  to  do  some  act  which 
a  person  of  ordinary  care  and  skill  would  do  under  the  circumstances. 
The  final  and  full  and  strict  direction  to  a  jury  therefore  in  such  cases 
is  contained  in  the  following  questions:  Have  the  defendants  or  their 
servants  done  anything  in  the  conveyance  of  the  plaintiff  to  his  destina- 
tion which  persons  of  ordinary  care  and  skill  under  the  circumstances 
would  not  have  done,  or  have  they  or  their  servants  omitted  to  do  any- 
thing which  persons  of  ordinary  care  and  skill  under  the  circumstances 
would  have  done?  .  .  . 

Such  is  the  direction  to  the  jury.  But  before  giving  this  direction 
it  is  the  duty  of  the  Judge  to  determine  whether  there  is  evidence  fit 
to  be  left  to  the  jury  on  each  of  the  propositions  which  it  is  necessary 
that  the  plaintiff  should  establish.  This  l^eing  a  duty  cast  exclusively 
on  the  Judge,  is  a  question  to  be  decided  according  to  some  proposition 
or  rule  of  law.  What  is  that  proposition  or  rule  of  law  which  the  Judge 
is  bound  to  apply  to  the  evidence  in  order  to  determine  this  question  of 
law?  It  cannot  merely  be,  is  there  evidence?  .  .  .  The  proposition 
seems  to  me  to  be  this:  Are  there  facts  in  evidence  which  if  unanswered 
would  justify  men  of  ordinary  reason  and  fairness  in  affirming  the  ques- 
tion which  the  plaintiff  is  bound  to  maintain?  It  may  be  said  that  this 
is  so  indefinite  as  to  amount  to  no  rule,  that  it  leaves  the  Judge  after  all 
to  say  whether  in  his  individual  opinion  the  facts  in  evidence  would  prove 
the  proposition;  but  I  cannot  think  so.  It  is  surely  possible  to  admit 
that  reasonable  and  fair  men  might  come  to  a  conclusion  which  oneself 
would  not  arrive  at.  And  Judges  may  be  able  reasonably  to  say  fre- 
quently, that  although  they  would  not  upon  the  facts  have  come  to  the 
same  conclusion  to  which  the  jury  has  come,  yet  they  or  he  cannot 
say  but  that  reasonable  and  fair  men  might  agree  with  the  conclusion 


No.  742  LAW  AND  fact:    judge  and  jury  1061 

of  the  jury;  or,  in  other  words,  that,  although  they  would  not  have 
arrived  at  the  same  conclusion,  it  is  not  contrary  to  reason  to  have 
arrived  at  it. 

The  Judge  must,  therefore,  before  directing  the  jury  in  the  terms 
above  set  forth,  first  determine  the  following  questions:  Are  there  facts 
in  evidence  upon  which,  if  unanswered,  men  of  ordinary  reason  and 
fairness  might  fairly  say  that  the  plaintiff  had  been  injured  by  some  act 
of  commission  or  omission  by  the  defendants  or  their  servants?  ...  If 
the  Judge,  not  deciding  the  final  issues  according  to  his  own  individual 
view,  but  determining  according  to  the  propositions  last  lai4  down, 
holds  that  there  is  no  evidence  fit  to  be  left  to  the  jury  on  some  one  of 
the  cardinal  questions  before  stated,  he  must  direct  the  jury  as  matter  of 
laiv  that  there  is  no  case  in  favour  of  the  plaintiff,  or  he  must  nonsuit  the 
plaintiff.  ...  If  he  holds  there  is  evidence  on  each  of  the  cardinal 
questions,  he  must  leave  the  case  to  the  jury  according  to  the  direction 
in  point  of  law  before  laid  down  in  this  opinion.  When  the  Judge  has 
so  directed  the  jury  as  to  the  law,  he  has  finished  all  which  it  is  legal  for 
him  exclusively  to  determine.  ...  A  judge  may  be  of  opinion  that 
the  calling  out  of  the  name  of  the  station  ought  not  in  any  way  to 
actuate  the  passenger;  [yet]  jury  after  jury  may  decide  that  according 
to  the  ordinary  understanding  both  of  railway  officials  and  passengers 
it  is  an  indication  upon  which  a  passenger  may  fairly  rely  [so]  that, 
directly  the  train  stops,  he  may,  unless  he  receives  some  other  warn- 
ing, safely  alight.  ...  If  such  decisions  may  be  overruled  on  the  mere 
ground  that  the  Courts  or  judges  do  not  agree  with  them,  juries  are 
bound  to  matters  of  fact  by  the  view  of  the  judges  as  to  facts.  This 
cannot  be.  .  .  . 

My  Lords,  the  paramount  importance  which  I  attach  to  the  enuncia- 
tion of  a  rule  of  conduct  or  of  decision  by  your  Lordships  is,  that  it  will 
prevent  the  decisions  in  these  cases  from  being  governed  by  the  many 
different  views  taken  by  different  judges  of  facts  of  every  day  occurrence 
in  life,  and  which  no  one  can  say  are  questions  of  law.  The  kind  of 
discussion  which  may  be  found  in  this  case  in  the  Courts  below,  and  the 
differing  grounds  of  decision  to  be  found  in  so  many  cases,  would  not  be 
repeated. 

Applying  to  the  question  proposed  by  your  Lordships  the  rule  I 
have  submitted  to  be  the  right  one,  I  cannot  entertain  any  doubt  that 
there  was  in  this  case  evidence  fit  to  be  left  to  the  jury,  and  I  therefore 
answer  your  Lordships'  question  in  the  affirmative.  .  .  . 

Mr.  Baron  Pollock. —  My  answer  to  your  Lordships'  question  is 
in  the  affirmative.  [After  having  stated  the  facts  of  the  case,]  .  .  .  The 
general  rule  which  prescribes  the  duty  of  the  judge  presiding  at  Nisi 
Prius,  when  the  question  is  raised  whether,  at  the  close  of  the  plaintiff's 
case,  there  is  evidence  which  ought  to  be  left  to  a  jury,  is  laid  down,  in 
the  judgment  of  the  Court  of  Exchequer  Chamber  in  Ryder  v.  Wombwell, 
Law  Rep.  4  Ex.  32,  38,  where  the  question  being  whether  articles  supplied 


•  1062       BOOK  III :   TO  WHOM  EVIDENCE  IS  TO  BE  PRESENTED       No.  742 

by  the  plaintiff  to  the  defendant,  who  was  an  infant,  were  "  necessaries," 
the  Court  said: 

"The  first  question  is,  whether  there  was  any  evidence  to  go  to  the  jury  that 
either  of  the  above  articles  was  of  that  description?  Such  a  question  is  one  of 
mixed  law  and  fact;  in  so  far  as  it  is  a  question  of  fact  it  must  be  determined 
by  a  jury,  subject  no  doubt  to  the  control  of  the  Court,  who  may  set  aside 
the  verdict  and  submit  the  question  to  the  decision  of  another  jiu-y;  but  there 
is  in  every  case,  not  merely  in  those  arising  on  a  plea  of  infancy,  a  prelim- 
inary question  which  is  one  of  law,  namely,  whether  there  is  any  evidence  on 
which  the  jiu-y  could  properly  find  the  question  for  the  party  on  whom  the  onus 
of  proof  lies.  If  there  is  not,  the  judge  ought  to  withdraw  the  question  from  the 
jury  and  direct  a  nonsuit  if  the  onus  is  on  the  plaintiff,  or  direct  a  verdict  for  the 
plaintiff  if  the  onus  is  on  the  defendant." 

This  is  a  clear  exposition  of  the  rule,  and  it  has  been  generally  acqui- 
esced in  and  acted  upon,  and  it  follows  from  it  that  although  the  question 
of  negligence  or  no  negligence  is  usually  one  of  pure  fact,  and  therefore 
for  the  jury,  it  is  the  duty  of  the  judge  to  keep  in  view  a  distinct  legal 
definition  of  negligence  as  applicable  to  the  particular  case;  and  if  the 
facts  proved  by  the  plaintiff  do  not,  whatever  view  can  be  reasonably 
taken  of  them,  or  inference  drawn  from  them  by  the  jurors,  present  an 
hypothesis  which  comes  within  that  legal  definition,  then  to  withdraw 
them  from  their  consideration. 

I  commence,  therefore,  by  considering  what  was  the  duty  of  the 
defendants  towards  their  passengers  upon  the  occasion  in  question, 
the  non-observance  of  which  would  constitute  negligence.  .  .  .  [Here  the 
learned  judge  examined  the  facts  and  the  possible  inferences  in  detail, 
and  continued:] 

The  plaintiff  no  doubt  is  bound  to  make  out  her  case,  and  cannot  by 
a  bare  suggestion  challenge  its  rebuttal,  and  if  what  I  have  stated  was 
all  mere  speculation,  it  ought  not  to  have  gone  to  the  jury.  But  if  it 
was  an  inference  which  could  be  fairly  drawn  from  the  facts  proved  in 
the  same  manner  as  things  unseen  or  unproved  —  which  in  the  eye  of 
the  law  are  the  same  —  are  constantly  inferred  and  found  as  facts  by  a 
jury,  then  the  evidence  should  have  been  submitted  to  the  jury,  together 
with  any  which  the  defendants  chose  to  adduce,  and  which  might  have 
exculpated  or  further  inculpated  them  according  as  their  witnesses  knew 
more  of  the  occurrence,  and  confirmed  or  displaced  the  evidence  for  the 
plaintiff. 

Judgment  of  the  Court  of  Exchequer  Chamber  reversed,  and  the  ver- 
dict to  be  entered  for  the  plaintiff  for  the  sum  of  £1200. 

743.  James  Bradley  Thayer.  A  Preliminary  Treatise  on  Evidence.  (1898. 
p.  208.)  This  [judicial]  function  comes  into  play  in  supervising  and  regulating 
the  exercise  of  the  jury's  office.  Herein  lies  one  of  the  most  searching  and  far- 
reaching  occasions  for  judicial  control  —  that  of  keeping  the  jury  within  the 
bounds  of  reason.  This  duty,  as  well  as  that  of  preserving  discipline  and  order, 
belongs  to  the  judge  in  his  mere  capacity  of  presiding  officer  in  the  exercise  of 


No.  743      LAW  AND  fact:  judge  and  jury         1063 

judicature.  Reason  is  not  so  much  a  part  of  the  law,  as  it  is  the  element  wherein 
it  lives  and  works;  those  who  have  to  administer  the  law  can  neither  see,  nor 
move,  nor  breathe  without  it.  Therefore,  not  merely  must  the  jury's  verdict 
be  conformable  to  legal  rules,  but  it  must  be  defensible  in  point  of  sense;  it  must 
not  be  absiu-d  or  whimsical. 

This,  of  course,  is  a  different  thing  from  imposing  upon  the  jury  the  judge's 
own  private  standard  of  what  is  reasonable.  For  example,  when  the  original 
question  for  the  jury  is  one  of  reasonable  conduct,  and  a  Court  is  called  on  to 
revise  the  verdict,  the  judges  do  not  undertake  to  set  aside  the  verdict  because 
their  own  opinion  of  the  conduct  in  question  differs  from  the  jury's.  They  are 
not  an  appellate  jury.  The  question  for  the  Court  is  not  whether  the  conduct 
ultimately  in  question,  e.g.,  that  of  a  party  injured  in  a  railway  accident,  was 
reasonable,  but  whether  the  jury's  conduct  is  reasonable  in  holding  it  to  be  so ; 
and  the  test  is  whether  a  reasonable  person  could,  upon  the  evidence,  entertain 
the  jiu"y's  opinion.  Can  the  conduct  which  the  jiu-y  are  judging,  reasonably  be 
thought  reasonable? 

This  matter  has  been  acciu-ately  and  neatly  handled  by  Lord  Halsbury,  in 
the  House  of  Lords.  A  few  years  before,  in  Solomon  v.  Bitton,  8  Q.  B.  D.  176 
(1881),  .  .  .  the  Court  (Jessel,  M.  R.,  and  Brett  and  Cotton,  L.  JJ.)  had 
said  that  the  rule  in  such  cases  ought  not  to  depend  on  whether  the  judge  who 
tried  the  case  was  dissatisfied  with  the  verdict  or  would  have  come  to  the  same 
conclusion,  "but  whether  the  verdict  was  such  as  reasonable  men  ought  to  come 
to.""  In  1886,  in  the  Metropolitan  Railway  Company  v.  Wright,  11  App.  Cas. 
152  (1886),  in  a  case  involving  the  question  of  negligence.  Lord  HALSBrRY,  in  a 
short  and  excellent  statement,  put  the  matter  with  precision:  "My  lords,  the 
facts  of  this  case  may,  of  course,  be  differently  viewed  by  different  minds.  .  .  . 
Now  I  think  that  the  principle  laid  down  in  Solomon  v.  Bitton  is  erroneous,  as 
reported,  in  the  use  of  the  word  'ought.'  If  a  Court  —  not  a  Court  of  Appeal 
in  which  the  facts  are  open  for  original  judgment,  but  a  Court  which  is  not  a  Court 
to  review  facts  at  all  —  can  grant  a  new  trial  whenever  it  thinks  that  reasonable 
men  ought  to  have  found  another  verdict,  it  seems  to  me  that  they  must  form  and 
act  upon  their  own  view  of  what  the  evidence  in  their  judgment  proved.  This, 
I  think,  is  not  the  law.  ...  If  the  word  'might'  were  substituted  for  'ought  to' 
in  Solomon  v.  Bitton,  I  think  the  principle  would  be  accurately  stated." 


BOOK    IV.     BY   WHOM    EVIDENCE    IS 
TO    BE    PRESENTED 

(BURDENS   OF   PROOF;    PRESUMPTIONS) 

745.  Introductory.^  In  every  attempt  to  explain  the  principles  of  the  law 
as  to  burden  of  proof  and  presumption,  two  things  at  least  present  themselves  for 
consideration,  —  the  general  process,  logical  and  legal,  and  the  usage  of  various 
terms  employed.  The  difficulties  exist,  not  so  much  from  the  intrinsic  com- 
plication or  uncertainty  of  the  situation,  as  from  the  lamentable  ambiguity  of 
phrase  and  confusion  of  terminology  under  which  our  law  has  so  long  suffered. 

I.  Logical  and  Legal  Process.  (1)  Burden  of  Proof;  First  Meaning :  Risk  of 
Non-persuasion.  Whenever  A  and  B  are  at  issue  upon  any  subject  of  contro- 
versy (not  necessarily  legal),  and  M  is  to  take  action  between  them,  and  their 
desire  is,  hence,  respectively  to  persuade  M  as  to  their  contention,  it  is  clear  that 
the  situation  of  the  two,  as  regards  its  advantages  and  risks,  will  be  very  different. 
Suppose  that  A  has  property  in  which  he  would  like  to  have  M  invest  money, 
and  that  B,  with  whom  the  money  is  now  invested,  is  opposed  to  having  M 
change  the  investment  to  A.  M  will  invest  in  A's  property  if  he  can  learn  that 
it  is  a  more  profitable  object,  and  not  otherwise.  Here  it  is  seen  that  the 
advantage  is  with  B,  and  the  disadvantage  with  A;  for  unless  A  succeeds  in 
persuading  M  up  to  the  point  of  action,  A  will  fail  and  B  will  remain  victorious; 
the  burden  of  proof,  or,  in  other  words,  the  risk  of  non-persuasion,  is  upon  A. 
This  does  not  mean  that  B  is  absolutely  safe  though  he  does  nothing,  for  he  cannot 
tell  how  much  it  will  require  to  persuade  M;  a  very  little  argument  from  A  might 
suffice;  or,  if  M  is  of  a  rashly  speculative  tendency,  the  mere  mention  of  the 
proposition  by  A  might  without  more  affect  M's  action;  so  that  it  may  be  safer 
in  any  case  for  B  to  say  what  he  can  on  his  side  of  the  question;  and  thus  in  fact 
he,  as  well  as  A,  has  more  or  less  risk,  in  the  sense  that  there  are  always  chances 
of  A's  persuading  M,  no  matter  how  trifling  his  evidence  and  argument.  But 
nevertheless  the  main  risk  is  really  upon  A,  in  the  sense  that  if  M,  after  all  said 
and  done,  remains  in  doubt,  and  therefore  fails  to  pass  to  the  point  of  action,  it  is 
A  that  loses  and  B  that  succeeds;  because  it  is  A  wiio  wishes  the  action  taken 
and  needed  as  a  prerequisite  to  accomplish  the  persuasion  of  M.  The  risk  of 
non-persuasion,  therefore,  i.e.,  the  risk  of  M's  non-action  because  of  doubt,  may 
properly  be  said  to  be  upon  A. 

This  is  the  situation  common  to  all  cases  of  attempted  persuasion,  whether 
in  the  market,  the  home,  or  the  forum.  So  far  as  mere  logic  is  concerned,  it  is 
perhaps  questionable  whether  there  is  much  importance  in  the  doctrine  of  burden 
of  proof  as  affecting  persons  in  controversy.  The  removal  of  the  burden  is  not 
in  itself  a  matter  of  logical  necessity.     It  is  the  desire  to  have  action  taken  that 


^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905,  Vol.  IV, 
§§  2485-2490). 


No.  745  INTRODUCTORY  1065 

is  important.^  In  the  affairs  of  life  there  is  a  penalty  for  not  sustaining  the  burden 
of  proof,  —  i.e.,  not  persuading  M  beyond  the  doubting  point,  —  namely,  that 
M  will  not  take  the  desired  action,  to  which  his  persuasion  is  a  prerequisite. 

In  litigation,  the  penalty  is  of  course  different;  the  action  which  is  desired 
of  M  is  the  verdict  of  the  jury,  the  decree,  order,  or  finding  of  the  judge,  or  some 
other  appropriate  action  of  the  tribunal.  But  so  also  the  action  differs  in  other 
affairs,  according  as  M  is  an  investor  with  money  to  lend,  or  an  employer  with  a 
position  to  fill,  or  a  friend  with  a  favor  to  grant.  Is  there  no  other  and  more 
radical  difference? 

The  radical  difference  in  litigation,  as  distinguished  from  practical  affairs  at 
large,  is  as  to  the  mode  of  determining  the  propositions  of  'persuasion  which  are  a 
prerequisite  to  M's  action.  In  affairs  at  large,  these  are  determined  solely  by  M's 
notion  of  the  proper  grounds  for  his  action,  —  depending  thus  on  the  circum- 
stances of  the  situation  as  judged  by  M.  In  litigation,  these  prerequisites  are  de- 
termined, first  and  broadly,  by  the  substantive  latv,  which  fixes  the  groups  of  data 
that  constitute  rights  and  duties,  and,  secondly,  more  and  more  in  detail,  by  the 
laivs  of  pleading  and  procedure,  which  further  group  and  subdivide  these  larger 
groups  of  data,  and  assign  one  or  another  sub-group  to  this  or  that  party  as  pre- 
requisites of  the  tribunal's  action  in  his  favor.  Thus,  if  A  were  endeavoring  to 
persuade  M  to  assist  him  with  money  because  M's  brother  B  had  cruelly  assaulted 
and  beaten  A,  M  might  conceivably  exact  of  A  that  the  latter  first  prove  to  him 
—  i.e.,  persuade  him  —  not  merely  that  B  had  beaten  A,  but  further  that  B  had 
not  done  this  in  self-defence  or  by  A's  consent  or  in  ejecting  A  from  B's  premises 
or  otherwise  for  some  reason,  legally  justifiable  or  not.  In  a  legal  tribunal,  on 
the  other  hand,  the  substantive  law  will  define  and  limit,  in  the  first  place,  the 
reasons  to  be  regarded  as  justifiable,  and  will  thus  narrow  the  total  of  facts  that 
can  in  any  event  be  involved;  and,  in  the  second  place,  the  law  of  pleading  will 
fiu"ther  subdivide  and  apportion  these  facts.  It  will  inform  A  that  he  need 
persuade  the  tribunal  of  two  facts  only,  namely,  that  A  was  beaten  and  it  was  B 
who  beat  him;  and  that,  upon  persuading  the  tribunal  of  these  facts,  its  action 
will  be  taken  in  his  favor,  and  A's  risk  of  the  tribunal's  non-action  will  thereupon 
cease.  It  will  inform  B  that  at  this  point  the  risk  of  non-action  will  turn  upon 
him,  in  the  sense  that  he  needs  the  tribunal's  action  in  order  to  relieve  himself  from 
the  consequences  of  its  previous  action,  and  that  this  action  (by  way  of  reversing 
its  provisional  action  in  A's  favor)  will  depend  upon  his  persuading  the  tribunal 
as  to  certain  specified  facts  by  way  of  excuse  or  justification.  Perhaps  the  same 
law  of  pleading  may  further  apportion  to  A  a  third  set  of  facts  to  be  the  subject 
of  a  replication,  in  case  B  succeeds  in  obtaining  action  in  his  favor  on  his  plea. 

But  the  groupings  defined  by  the  substantive  law  and  the  further  subdivision 
by  the  law  of  pleading  do  not  necessarily*  end  the  process  of  apportionment  by 
law.     Even  within  a  single  pleading  there  are  instances  in  which  the  burden  of 

^  "In  Logic,  then,  when  we  speak  of  the  biu"den  of  proof,  we  are  not  speaking 
of  some  merely  artificial  law,  with  artificial  penalties  attached  to  it.  .  .  .  No 
penalty  follows  the  misplacement  of  the  burden  of  proof,  except  the  natural  con- 
sequence that  the  assertion  remains  untested,  and  the  audience  therefore  (if 
inquiring)  unconvinced.  .  .  .  There  is  no  'obligation'  on  any  one  to  prove  an 
assertion,  —  other  than  any  wish  he  may  feel  to  set  an  inquiring  mind  at  rest  or 
to  avoid  the  imputation  of  empty  boasting.  It  is  a  natural  law  alone  with  which 
we  are  here  concerned,  —  the  law  that  an  unsupported  assertion  may,  for  all  that 
appears,  be  either  true  or  false."     (Professor  Alfred  Sidgwick,  "Fallacies,"  163.J 


1066  BOOK  IV:     BURDENS  OF  PROOF;    PRESUMPTIONS       No.  745 

proof  (in  the  sense  of  a  risk  of  non-persuasion)  may  be  taken  from  the  pleader 
desiring  action  and  placed  upon  the  opponent.  In  criminal  cases,  for  example, 
though  there  is  no  affirmative  pleading  for  the  defence,  it  is  put  upon  the  defend- 
ant, in  some  jurisdictions,  to  prove  the  excuse  of  self-defence;  in  many  jurisdic- 
tions in  which  payment  need  not  be  affirmatively  pleaded  to  a  contract-claim, 
the  burden  of  proving  payment  is  nevertheless  put  upon  the  debtor;  and  so  in 
many  other  instances.  The  difference  of  effect  between  an  apportionment  under 
this  method  and  an  apportionment  by  requiring  a  pleading  is  merely  that,  in  the 
latter  method,  all  questions  of  burden  of  proof  might  conceivably  be  disposed 
of  before  trial  or  the  entering  into  evidence;  while  by  the  other  method  the  appor- 
tionment is  not  made  until  the  trial  proper  has  begun.  The  other  method  is  less 
simple  in  the  handling;  but  it  has  come  into  more  vogue  under  the  loose  modes 
of  pleading  current  in  modern  times  in  many  jurisdictions. 

Test  for  this  Burden;  Negative  ami  Affirmative  Allegations;  Facts  peculiarly 
within  a  Party's  Knowledge.  The  characteristic,  then,  of  the  burden  of  proof  (in 
the  sense  of  a  risk  of  non-persviasion)  in  legal  controversies,  is  that  the  law  divides 
the  process  into  stages,  and  apportions  definitely  to  each  party  the  specific  facts 
which  will  in  turn  fall  to  him  as  the  prerequisites  of  obtaining  action  in  his  favor 
by  the  tribunal.  By  what  considerations,  then,  is  this  apportionment  determined? 
Is  there  any  single  principle  or  rule  which  will  afford  a  general  test  for  ascer- 
taining the  incidence  of  this  risk?     By  no  means. 

It  is  merely  a  question  of  policy  and  fairness  based  on  experience  in  the  differ- 
ent situations.  Thus,  in  most  actions  of  tort  there  are  many  possible  justifying 
circumstances,  —  self-defence,  leave  and  license,  and  the  like;  but  it  would  be 
both  contrary  to  experience  and  unfair  to  assume  that  one  of  them  was  prob.ably 
present,  and  to  require  the  plaintiff  to  disprove  the  existence  of  each  one  of  them ; 
so  that  the  plaintiff  is  put  to  prove  merely  the  nature  of  his  harm,  and  the  defend- 
ant's share  in  causing  it;  and  the  other  circumstances,  which  would  if  they  existed 
leave  him  without  a  claim,  are  put  upon  the  defendant  to  prove.  In  criminal 
cases,  the  innovation,  in  some  jurisdictions,  of  putting  upon  the  accused  the 
burden  of  proving  his  insanity  has  apparently  also  been  based  on  an  experience 
in  the  abuses  of  the  contrary  practice.  In  claims  based  on  wTitten  instru- 
ments, experience  has  led  in  most  jurisdictions  to  a  statutory  provision,  requiring 
the  execution  by  the  defendant  to  be  specially  traversed  or  else  taken  for  admitted, 
—  a  step  which  stops  short  of  changing  the  burden  of  proof,  but  well  illustrates 
the  considerations  affecting  its  incidence.  The  controversy  whethera  plaintiff 
in  tort  should  be  required  to  prove  his  own  carefulness,  or  the  defendant  should 
be  required  to  prove  the  plaintiff's  carelessness,  has  depended  in  part  on  experi- 
ence as  to  a  plaintiff  being  commonly  careful  or  careless,  in  part  on  the  fairness 
of  putting  the  burden  on  one  or  the  other,  and  this  in  part  on  the  consideration 
which  of  the  parties  has  the  means  of  proof  more  available. 

There  is,  then,  no  one  principle,  or  set  of  harmonious  principles,  which  afford 
a  sure  and  universal  test  for  the  solution  of  a  given  case.  The  logic  of  the  situation 
does  not  demand  such  a  test;  it  would  be  useless  to  attempt  to  discover  or  to 
invent  one;  and  the  state  of  the  law  does  not  justify  us  in  saying  that  it  has 
accepted  any.  There  are  merely  specific  rides  for  specific  cases,  resting  for  their 
ultimate  reasons  upon  broad  and  undefined  reasons  of  experience  and  fairness. 


(2)  Burden  of  Proof;    Second  Meaning:    Duty  of  Producing  Evidence  to  the 
Judge.     We  come  now  to  a  peculiar  set  of  rules  which  have  their  source  in  the 


No.  745  INTRODUCTORY  •  1067 

bipartite  constitution  of  the  common-law  tribunal.  Apart  from  the  distinction 
of  functions  between  judge  and  jury,  these  rules  need  have  had  no  existence. 
They  owe  their  existence  chiefly  to  the  historic  and  unquestioned  control  of  the 
judge  over  the  jury,  and  to  the  partial  and  dependent  position  of  the  jury  as  a 
member  of  the  tribunal  whose  functions  come  into  play  only  within  certain 
limits. 

At  the  outset,  let  us  note,  then:  The  opportunity  to  decide  finally  upon  the 
evidential  material  offered  does  not  go  to  the  jury  as  a  viatter  of  course.  Each  party 
must  first  with  his  evidence  pass  the  gauntlet  of  the  judge.  Thus,  the  judge,  as  a 
part  of  his  function  in  administering  the  law,  is  to  keep  the  jury  within  the  bounds 
of  reasonable  action.  In  short,  in  order  to  get  to  the  jury  on  the  issue,  and  bring 
into  play  the  other  burden  of  proof  (in  the  sense  of  the  risk  of  non-persuasion  of 
the  jury),  both  parties  alike  must  first  satisfy  the  judge  that  they  hare  a  quantity  of 
evidence  fit  to  be  considered  by  the  jury,  and  to  form  a  reasonable  basis  for  the 
verdict.  This  duty  of  satisfying  the  judge  is  peculiar  in  its  operation,  because 
if  it  is  not  fulfilled,  the  party  in  default  loses,  by  order  of  the  judge,  and  the  jury 
is  not  given  an  opportunity  to  debate  and  form  conclusions  as  if  the  issue  were 
open  to  them.  The  present  "burden  of  proof"  is  therefore  a  duty  towards  the 
jiulge  exclusively,  who  rules  upon  it  as  matter  of  law. 

It  operates  somewhat  as  follows: 

(a)  The  party  having  the  risk  of  non-persuasion  (under  the  pleadings  or  other 
rules)  is  naturally  the  one  vipon  whom  first  falls  this  duty  of  going  forward  with 
evidence;  because,  since  he  wishes  to  have  the  jury  act  for  him,  and  since  with- 
out any  legal  evidence  at  all  they  could. properly  take  no  action,  there  is  no  need 
for  the  opponent  to  adduce  evidence;  and  this  duty  thus  falls  first  upon  the 
proponent  (a  term  convenient  for  designating  the  party  having  the  risk  of 
non-persuasion).  This  duty,  however,  though  determined  in  the  first  instance  by 
the  burden  of  proof  in  the  sense  of  the  risk  of  non-persuasion,  is  a  distinct  one, 
for  it  is  a  duty  towards  the  judge,  and  the  judge  rules  against  the  party  if  it  is  not 
satisfied;  there  is  as  yet  no  opportunity  to  get  to  the  jury  and  ask  if  they  are 
persuaded.  The  judge,  then,  requires  that  the  mass  of  evidence  put  in  be  at 
least  enough  to  be  worth  considering  by  the  jury. 

(fe)  Suppose,  then,  that  the  proponent  has  satisfied  this  duty  towards  the 
judge,  and  that  the  judge  has  ruled  that  sufficient  evidence  has  been  introduced. 
The  duty  has  then  ended.  Up  to  that  point  the  proponent  was  liable  to  a  ruling 
of  law  from  the  judge  which  would  put  an  end  to  his  case.  After  passing  this 
point  he  is  now  before  the  jury,  bearing  his  risk  of  non-persuasion.  There  is  now 
no  duty  on  either  party  towards  the  judge,  to  produce  evidence.  Either  party  may 
introduce  it,  and  doubtless  both  parties  will  do  so.  But  there  is  nothing  that 
requires  either  to  do  so  under  penalty  of  a  ruling  of  law  against  him.  The  pro- 
ponent, however,  still  has  his  other  burden  of  proof,  in  the  sense  of  the  risk  of 
non-persuasion  of  the  jury;  i.e.,  should  the  jury  be  in  doubt  after  hearing  the 
evidence  of  the  proponent,  either  with  or  without  evidence  from  the  opponent, 
the  proponent  fails  to  obtain  their  verdict  upon  that  issue,  and  the  opponent 
remains  successful. 

In  this  second  stage  of  the  trial,  then,  with  the  evidence  before  the  jury,  the 
only  burden  operating  is  that  which  concerns  the  jury,  —  the  risk  of  non-persua- 
sion; and  not  that  which  concerns  the  judge,  —  the  duty  of  producing 
evidence. 

(c)  Suppose,  however,  that  the  proponent  is  able  to  go  further  and  to  adduce 
evidence  which  if  believed  would  make  it  beyond  reason  to  repudiate  the  pro- 


1068  BOOK   IV :     BURDENS   OF  PROOF;    PRESUMPTIONS       No.  745 

ponent's  claim,  —  evidence  such  that  the  jury,  acting  as  reasonable  men,  must 
be  persuaded  and  must  render  a  verdict  on  that  issue  for  the  proponent.  Here 
the  proponent  has  now  put  himself  in  the  same  position  that  was  occupied  by  the 
opponent  at  the  opening  of  the  trial,  i.e.,  unless  the  opponent  now  offers  evidence 
against  the  claim  and  thvis  changes  the  situation,  the  jury  should  not  be  allowed 
to  render  a  verdict  against  reason,  —  a  verdict  which  would  later  have  to  be  set 
aside  as  matter  of  law.  The  matter  is  thus  in  the  hands  of  the  judge  again,  as 
having  the  supervisory  control  of  the  proof;  and  now  he,  as  matter  of  law,  requires 
the  opponent  to  produce  some  evidence,  under  penalty  of  losing  the  case  by  direction 
of  the  judge. 

Thus,  a  duty  of  producing  evidence,  under  this  penalty  for  default,  has  now 
arisen  for  the  opponent.  It  arises  for  the  same  reasons,  is  measured  by  the  same 
tests,  and  has  the  same  consequences  as  the  duty  of  production  which  was  formerly 
upon  the  proponent.  There  are,  however,  two  ways  in  which  it  may  be  invoked 
by  the  judge,  differing  widely  in  terms  and  in  appearance,  but  essentially  the 
same  in  principle: 

{(■')  In  the  ordinary  case,  this  overwhelming  mass  of  evidence,  bearing  do\\Ti 
for  the  proponent,  will  be  made  up  of  a  variety  of  complicated  data  differing  in 
every  new  trial  and  not  to  be  tested  by  any  set  formulas.  The  judge's  ruling 
will  be  based  on  a  svirvey  of  this  mass  of  evidence  as  a  whole;  and  it  will  direct 
the  jury  on  that  issue  to  render  a  verdict  on  that  ma^s  of  evidence  for  the  pro- 
ponent. The  propriety  of  this  has  sometimes  been  doubted  by  Courts  who  do 
not  believe  the  process  to  be  precisely  analogous  to  that  of  directing  a  nonsuit 
for  the  proponent  or  of  enforcing  a  prf sumption,  as  shortly  to  be  explained; 
but  the  better  authority  gives  ample  recognition  to  this  process. 

(c")  Another  mode  under  which  this  process  is  carried  out  employs  the  aid  of 
a  fixed  rule  of  law,  i.e.,  a  presumption,  applicable  to  inferences  from  specific  evi- 
dence to  specific  acts  forming  part  of  the  issue  (rather  than  to  the  general  mass  of 
evidence  bearing  on  the  proposition  in  issue).  If  it  is  a  part  of  the  proponent's 
case,  for  example,  to  prove  that  a  person  is  deceased,  and  he  has  offered  evidence 
that  the  person  has  been  absent,  unheard  from,  for  seven  years  or  more,  and  there 
is  no  other  evidence  on  the  subject,  then  the  proponent  may  ask  that  the  jury  be 
directed,  if  they  believe  this  fact  of  absence,  to  take  as  true  the  proposition  that 
the  person  is  deceased;  if  that,  moreover,  were  the  only  proposition  at  issue, 
then  the  direction  would  be  to  find  a  verdict  for  the  proponent  if  this  fact  of 
absence  were  believed.  The  result  is  the  same  as  in  the  preceding  form  of  the 
process  (c'),  i.e.,  the  opponent  loses  as  a  matter  of  law,  in  default  of  evidence  to 
the  contrary.  This  particular  form  of  the  process,  however  (c"),  happens  to  have 
become  known  as  a  "presumption." 

{d)  Keeping  in  mind,  then,  that  a  presumption  signifies  a  ruling  of  law,  and 
that  to  this  extent  the  matter  is  in  the  judge's  hands  and  not  the  jury's,  what  is 
the  effect  upon  the  legal  situation  of  the  opponent  if  he  does  respond  to  this  duty 
and  comes  foncard  with  other  evidence  against  the  fact  presumed?  \Mien  he  has 
thus  fulfilled  his  duty  under  the  ruling  of  law,  he  puts  himself  out  of  the  hands  of 
the  judge  and  his  ruling,  and  finds  himself  back  again  in  the  hands  of  the  jury. 
He  is  precisely  where  the  proponent  was  in  the  first  place  when  he  fulfilled  the 
duty  (then  his)  of  producing  evidence  and  succeeded  in  getting  from  the  judge 
to  the  jury.  The  case  is  now  open  again  as  to  that  specific  issue,  i.e.,  free  from 
any  liability  to  a  ruling  of  law  against  either  side,  and  is  before  the  jury,  where  the 
original  proponent  (as  ever,  when  the  issue  is  open  to  the  jury)  has  the  burden  of 
proof  in  the  sense  of  the  risk  of  non-persuasion  of  the  jury.     The  important  thing 


No.  745 


INTRODUCTORY 


1069 


is  that  there  is  now  no  longer  in  force  any  ruling  of  law  by  the  judge  requiring  the 
jury  to  find  according  to  the  presumption.^ 

(e)  Are  there  any  further  stages  in  this  possible  shifting  of  the  duty  of  pro- 
ducing evidence?  It  is  conceivable  that  the  proponent  may  be  able  to  invoke 
other  presumptions,  though  this  is  not  common.  But  may  not  the  opponent  go 
further  than  produce  evidence  sufficient  to  remove  the  presumption?  May  he 
not  only  get  the  issue  opened  before  the  jury  again,  but  also  go  further  and  raise 
what  may  be  termed  a  counter-presumption  in  his  favor,  so  that  the  proponent 
will  find  himself  in  his  original  position  at  the  opening  of  the  trial,  namely,  subject 
to  the  duty  of  producing  sufficient  evidence  to  go  the  jury,  under  penalty,  in  case 
of  default,  of  suffering  a  ruling  against  him  by  the  judge  as  a  matter  of  law?  This 
result  is  possible  in  principle,  and  there  are  instances  of  it,  though  rare.  For 
example,  a  plaintiff,  in  an  action  for  the  burning  of  his  property  by  the  defendant 
railway-company's  negligence,  created  a  presumption  of  negligence  by  showing 
the  setting  of  the  fire  by  sparks  from  the  defendant's  locomotive;  the  duty  of 
producing  evidence  was  thus  put  upon  the  defendant,  who  not  only  removed  it 
by  producing  evidence  sufficient  to  go  to  the  jury,  but  by  showing  the  proper 
construction,  ecjuipment,  and  inspection  of  the  locomotive  was  held  to  have 
raised  a  presumption  that  it  had  not  been  negligent  and  thus  to  be  entitled  to  a 
ruling  by  the  judge  against  the  plaintiff,  taking  the  case  from  the  jury. 

The  various  possible  stages  in  the  foregoing  process  may  be  illustrated  by  a 
diagram;  it  shows  in  small  compass  the  relation  of  the  stages  and  the  vital  dis- 
tinction between  the  judge's  and  the  jury's  situation  for  the  two  kinds  of  burdens: 


Judge 


Jury 


Judge 


Proponent : 
D  F 


P' 


Z'^ 


Ky^ 


P  T 


->Z 


\ A' 

Opponent 


Let  A  =  the  starting-point  of  the  proponent  having  the  risk  of  non-persuasion 
on  a  given  issue; 


1  The  following  passage  from  Professor  Austin  Abbott's  article,  in  the  Univer- 
sity Law  Review,  U,  59,  will  serve  to  illustrate  the  general  situation  involved  in 
this  duty  of  producing  evidence:  "To  use  a  homely  illustration,  a  civil  jury  trial 
may  be  compared  to  a  game  of  shuffle-board.  The  first  and  nearest  to  the  playery 
is  the  field  of  mere  scintillas;  if  the  plaintiff's  evidence  halts  there,  he  is  lost. 
Thq  next,  or  middle,  field  is  that  of  balancing  probabilities :  if  his  evidence  reaches 
and  rests  there,  he  gets  to  the  jury;  but  they  alone  can  decide  the  cause,  and  they 
may  decide  it  either  way  or  disagree.  The  third  and  last  field  is  that  of  legal 
conclusion :  if  his  evidence  can  be  pushed  into  that  division,  he  is  entitled  to  his 
victory  at  the  hands  of  the  judge,  and  the  jury  cannot  draw  it  into  doubt;  but 
before  the  judge  can  do  so,  the  defendant  has  a  right  to  give  evidence,  and  that 
evidence  may  bring  the  plaintiff's  evidence  back  into  doubt  again,  and  leave  the 
case  in  the  field  of  balancing  probabilities." 


1070  BOOK    IV :     BURDENS    OF   PROOF;     PRESUMPTIONS       No.  745 

A'  =  the  starting-point  of  the  opponent  on  the  issue; 

Z  =  the  point  of  complete  persuasion  or  proof  for  the  proponent; 

Z'  =  the  corresponding  point  for  the  opponent.  The  proponent  then  finds, 
as  soon  as  he  begins  his  production  of  evidence,  that  at  any  point  between  A  and 
K  he  is  subject  to  a  ruhng  of  the  judge  defeating  him  for  lack  of  sufficient  evidence. 
After  reaching  K,  and  obtaining  a  judicial  ruling  in  his  favor  as  to  sufficiency  of 
his  evidence,  he  is  now  free  from  his  duty  of  producing  evidence  to  the  judge,  and 
has  only  his  risk  of  non-persuasion  of  the  jury.  But  he  may  be  able  to  reach  with 
his  evidence  the  point  P,  and  invoke  again  the  control  of  the  judge,  thus  shifting 
to  the  opponent  the  duty  of  producing  evidence.  This  may  be  done  either  by 
some  general  rule  of  presumption  that  is  applicable,  or  by  a  specific  ruling  of  the 
judge  upon  the  mass  of  evidence  adduced.  If  the  duty  is  thus  created  for  the 
opponent,  he  starts  from  point  A'  to  sustain  it.  Until  he  has  by  some  evidence 
reached  point  K'  he  is  liable  to  a  judicial  ruling  defeating  him  on  that  issue.  If 
he  can  reach  point  K',  the  duty  and  liability  of  satisfying  the  judge  disappears, 
and  he  is  in  the  field  of  the  jury  again.  Here,  however,  the  risk  of  non-persuasion 
of  the  jury  is  still,  as  before,  upon  the  proponent  for  that  issue;  but  neither  party 
has  any  duty  to  satisfy  the  judge.  Further,  however,  the  opponent  may  succeed 
in  reaching  point  P',  at  which  the  judge,  either  by  a  general  rule  of  counter  pre- 
sumption or  by  a  specific  ruling  on  the  mass  of  evidence  will  order  a  verdict  for 
the  opponent,  unless  the  proponent  comes  forward  with  more  evidence.  Thus 
the  proponent  again  has  the  liability  to  produce  some  evidence,  and  must  again 
attain  point  K,  in  order  to  come  into  the  field  of  the  jury  once  more.  The  process, 
however,  seldom  reaches  these  advanced  stages.  If  the  parties  cease  all  produc- 
tion of  evidence  while  the  case  is  between  points  K  and  P  or  K'  and  P',  i.e.,  when 
the  risk  of  non-persuasion  of  the  jury  comes  to  be  the  only  and  final  stage,  there 
are  rules  for  the  jury's  guidance,  namely,  the  rules  for  preponderance  of  evidence 
and  reasonable  doubt. 

The  important  practical  distinction,  then,  between  these  two  senses  of  "biu-- 
den  of  proof"  is  this:  The  risk  of  non-persuasion  operates  only  when  the  case  has 
come  into  the  hands  of  the  jury;  while  the  duty  of  producing  evidence  implies  a 
liability  to  a  ruling  by  the  judge  disposing  of  the  issue  without  leaving  the  ques- 
tion open  to  the  jury's  deliberations. 

Tests  for  Ascertaining  this  Duty  to  Satisfy  the  Judge.  There  is  no  one  test,  of 
any  real  significance,  for  determining  the  incidence  of  this  duty.  At  the  outset 
the  test  is  furnished  by  ascertaining  who  has  the  burden  of  proof,  in  the  sense  of 
the  risk  of  non-persuasion  of  the  jury,  under  the  pleadings  or  other  rules  declaring 
what  "facta  probanda"  are  the  ultimate  facts  of  each  party's  case.  A  little  later, 
the  test  is  whether  the  proponent  has  by  a  ruling  of  the  judge  (based  on  the 
sufficiency  of  the  evidence,  or  a  presumption,  or  a  fact  judicially  noticed)  fulfilled 
this  duty.  Later  on,  it  will  be  whether  the  proponent,  by  a  ruling  of  the  judge 
upon  a  presumption  or  the  evidence  as  a  whole,  has  created  a  duty  for  the 
opponent;  and  still  later,  whether,  for  the  purposes  of  the  judge's  ruling,  the 
opponent  has  satisfied  this  duty.  • 

It  has  been  suggested  that  "the  test  ought  in  strict  accuracy  to  be  expressed 
thus,  namely:  which  party  would  be  successful  if  no  evidence  at  all,  or  no  more 
evidence  (as  the  case  may  be),  were  given?"  But  it  is  obvious  that  this  is  not 
a  test,  in  any  sense  of  being  a  useful  mode  for  ascertaining  the  unknown  from  the 
known;  it  is  simply  defining  and  restating  in  other  words  the  effect  of  this  duty 
of  producing  evidence;  it  says  "the  biu-den  of  proof,  in  this  sense,  means  that  the 
party  liable  to  it  will  lose  as  a  matter  of  judicial  ruling  if  no  evidence  or  no  more 


No.  745  INTRODUCTORY  1071 

evidence  is  given  by  him;"  and  this  does  not  solve  the  main  problem  of  deter- 
mining in  a  given  case  which  is  the  party  thus  liable  to  these  consequences. 

(3)  Measure  of  Persuasion  for  Jury.  Besides  the  foregoing  two  things,  which 
affect  the  parties,  there  is  a  third  thing,  which  affects  the  jury  only.  What  should 
be  the  measure  of  their  persuasion,  which  they  must  reach  in  order  to  be  able  to 
say  that  the  burden  of  proving  to  them  has  been  fulfilled?  The  definition  of  this 
measure  of  persuasion  is  usually  considered  as  a  part  of  the  present  subject. 

II.  Meaning  of  Terms.  (1)  Presumption  is  used  (besides  the  above  meaning) 
in  several  other  senses,  (a)  Presumption,  in  the  old  sense,  is  merely  a  logical 
inference,  —  usually  from  circumstantial  evidence.^ 

(2)  Presumption  is  sometimes  said  to  be  conclusive;  i.e.,  after  a  period  of  time 
of  adverse  possession,  a  grant  of  title  is  "conclusively  presumed."  Such  a  rule 
is  one  of  substantive  law,  and  has  nothing  to  do  with  rules  of  evidence.  In  effect, 
it  says  that  a  certain  fact  is  immaterial  in  law.  \ 

(3)  Prima  facie  is  used  in  two  senses.  In  one  sense,  it  signifies  that  the  pro- 
ponent has  sustained  his  duty  of  satisfying  the  judge  {i.e.,  has  reached  point  iiC 
in  the  diagram).  In  the  other  sense,  it  signifies  that  he  has  by  his  mass  of  evi- 
dence created  for  the  opponent  a  duty  of  satisfying  the  judge  {i.e.,  has  reached 
point  P  in  the  diagram).  The  context  alone  can  show  which  sense  is  used  by  the 
judge. 

(4)  Shifting  the  Burden  of  Proof.  The  first  burden  above  described  —  the 
risk  of  non-persuasion  of  the  jury  —  never  shifts,  since  no  fixed  rule  of  law  can  be 
said  to  shift.  The  law  of  pleading,  or,  within  the  stage  of  a  given  pleading,  some 
further  rule  of  practice,  fixes  beforehand  the  issuable  facts  respectively  appor- 
tioned to  the  case  of  each  party;  each  party  may  know  beforehand,  from  these 
rules,  what  acts  will  be  a  part  of  his  case,  so  far  as  concerns  the  idtimate  risk  of 
non-persuasion.  The  second  kind  of  burden,  however  —  the  duty  of  producing 
evidence  to  satisfy  the  judge  —  does  have  this  characteristic  referred  to  as  a 
"shifting.''  It  is  the  same  kind  of  a  duty  for  both  parties;  but  it  may  rest 
(within  the  same  stage  of  pleading  and  upon  the  same  issue  and  during  one 
burden  of  the  first  sort)  at  one  time  upon  one  party  and  at  another  time  upon  the 
other.  Moreover,  neither  party  can  ascertain  absolutely  beforehand  at  what 
time  it  will  come  upon  him  or  cease  to  be  upon  him  or  by  what  evidence  it  will 
be  removed,  or  created,  —  except  so  far  as  a  presumption  has  by  a  rule  of  law 
been  laid  down  as  determining  the  effect  attached  to  certain  facts. 

In  taking  up  the  cases,  it  will  be  convenient  to  use  the  following  order  of 
topics : 

I.   Measure  of  Jury's  Persuasion. 
II.    Party's  Risk  of  Non-persuasion  of  the  Jiu-y. 
III.   Party's  Duty  of  Satisfying  the  Judge. 


^  This  is  one  of  the  earlier  uses  of  "presumption."  Such  are  Coke's  "pre- 
sumptions, whereof  there  be  three  sorts,  viz.,  violent,  probable,  and  light  or 
temerary"  (Co.  Litt.  6,  b).  This  is  what  is  usually  meant  by  "presumption  of 
fact." 


1072  BOOK    IV:     BURDENS    OF   PROOF;     PRESUMPTIONS       No.  746 

TITLE  I.    MEASURE  OF  JURY'S  PERSUASION 

746.   COMMONWEALTH  v.   WEBSTER 
1850.  Massachusetts.  5  Cush.  295,  320 

Shaw,  C.  J.  (charging  the  jury).  .  .  .  Another  rule  is,  that  the  circum- 
stances taken  together  should  be  of  a  conclusive  nature  and  tendency, 
leading  on  the  whole  to  a  satisfactory  conclusion,  and  producing  in  effect 
a  reasonable  and  moral  certainty,  that  the  accused,  and  no  one  else, 
committed  the  offence  charged.  .  .  .  The  evidence  ...  in  case  of 
homicide,  must  not  only  prove  a  death  by  violence,  but  must,  to  a  reason- 
able extent,  exclude  the  hypothesis  of  suicide,  and  a  death  by  the  act  of 
any  other  person.     This  is  to  be  proved  beyond  reasonable  doubt. 

Then,  what  is  reasonable  doubt?     It  is  a  term  often  used,  probably 

pretty  well  understood,  but  not  easily  defined.     It  is  not  mere  possible 

\  doubt;   because  everything  relating  to  human  affairs,  and  depending  on 

1  moral  evidence,  is  open  to  some  possible  or  imaginary  doubt.     It  is  that 

i  state  of  the  case,  which,  after  the  entire  comparison  and  consideration  of 

all  the  evidence,  leaves  the  minds  of  jurors  in  that  condition  that  they 

cannot  say  they  feel  an  abiding  conviction,  to  a  moral  certainty,  of  the 

truth  of  the  charge. 

The  burden  of  proof  is  upon  the  prosecutor;  all  the  presumptions  of 
law  independent  of  evidence  are  in  favor  of  innocence ;  and  every  person 
is  presumed  to  be  innocent  until  he  is  proved  guilty.  If  upon  such  proof 
there  is  reasonable  doubt  remaining,  the  accused  is  entitled  to  the  benefit 
of  it  by  an  acquittal.  For  it  is  not  sufficient  to  establish  a  probability, 
though  a  strong  one  arising  from  the  doctrine  of  chances,  that  the  fact 
charged  is  more  likely  to  be  true  than  the  contrary;  but  the  evidence 
must  establish  the  truth  of  the  fact  to  a  reasonal)le  and  moral  certainty; 
a  certainty  that  convinces  and  directs  the  understanding,  and  satisnes 
the  reason  and  judgment,  of  those  who  are  bound  to  act  conscientiously 
upon  it. 

This  we  take  to  be  proof  beyond  reasonable  doubt. 

747.   ELLIS  V.   BUZZELL 
Supreme  Court  of  Maine.     1872 
60  Me.  209     ' 

On  exceptions.  Case  for  slander,  charging  that  the  defendant  accused 
the  plaintiff  with  the  crime  of  adultery.  Plea,  general  issue,  with 
justification. 

The  defendant  testified  that  he  saw  the  plaintiff  in  the  act  of  adultery 
with  a  certain  woman.     This  the  plaintiff  denied  by  his  own  testimony. 


No.  747  MEASURE   OF  JUKY's   PERSUASION  1073 

and  introduced  the  deposition  of  the  "particeps  criminis,"  which  also 
denied  the  charge.  The  plaintiff  requested  the  presiding  judge  to 
instruct  the  jury  that  the  truth  of  the  statements  of  the  defendant  con- 
cerning the  plaintift''s  alleged  act  of  adultery  must  be  made  out  beyond 
a  reasonable  doubt,  the  same  as  in  the  trial  of  an  indictment  for  adultery 
in  order  to  constitute  a  defense.  This  the  Court  refused  to  do;  but  did 
instruct  the  jury  that  if  the  defendant  made  out  by  a  preponderance  of 
testimony,  as  in  ordinary  civil  suits,  that  the  words  spoken  by  the  defend- 
ant, concerning  the  alleged  act  of  adultery  by  plaintiff,  were  true,  that 
they  should  find  for  defendant,  and  that  the  truth  of  the  statements  of 
the  defendant  concerning  the  alleged  act  of  adultery  by  the  plaintiff  being 
proved,  would  be  a  complete  justification  of  the  defendant  for  uttering 
the  same. 

The  verdict  was  for  the  defendant,  and  the  plaintiff  alleged  exceptions. 

Lrhrokc  &  Pratt,  for  the  plaintiff.  In  civil  cases,  where  a  criminal 
act  is  so  set  out  in  the  pleadings  as  to  raise  that  distinct  issue  before 
the  jury,  the  crime  charged  must  be  proved  beyond  a  reasonable  doubt 
before  the  plaintiff  is  entitled  to  a  verdict;  but  where  no  such  issue  is 
raised  by  the  pleadings,  the  jury  may  decide  upon  the  preponderance 
of  evidence.  .  .  . 

J.  A.  Peters  &  F.  A.  Wilson,  for  the  defendant. 

Barrows,  J.— The  plaintiff  claims  to  recover  damages  of  the  defend- 
ant, because,  he  says,  the  defendant  falsely  charged  him  with  the  com- 
mission of  the  crime  of  adultery.  The  defendant  says  the  plaintiff  ought 
not  to  recover  damages,  because  the  accusation  was  not  false,  but  true, 
and  he  testified  that  he  saw  the  plaintiff  in  the  act  of  adultery  with  a 
certain  woman.  The  plaintiff  denies  this  in  his  testimony,  and  produces 
the  deposition  of  the  woman,  who  denies  it  also.  Hereupon  he  requests 
the  judge  to  instruct  the  jury  that  the  defendant  in  order  to  maintain  the 
defense  must  prove  the  act  of  adultery  upon  him  beyond  a  reasonable 
doubt,  the  same  as  if  he  was  on  trial  for  the  commission  of  a  crime.  The 
judge  refused  so  to  instruct,  and,  on  the  contrary,  instructed  the  jury  that 
if  the  defendant  had  made  out  the  truth  of  the  charge  against  the  plaintiff 
by  a  preponderance  of  testimony,  it  was  sufficient  to  entitle  him  to  a 
verdict;  and  that  proof  of  the  truth  of  the  statements  made  by  the 
defendant  would  be  a  complete  justification  for  uttering  them.  .  .  . 

Unless  the  charge  made  by  the  defendant  against  the  plaintiff  was  i  i 
false,  as  well  as  malicious,  the  plaintiff  has  no  right  to  recover  damages  t 
from  him.  The  falsehood  of  the  charge  is  a  necessary  element  in  the 
plaintiff's  case.  He  cannot  complain  of  any  one  for  speaking  of  him 
nothing  but  the  truth.  The  burden,  however,  of  proving  that  what  he 
has  said  is  true,  rests  rightfully  enough  upon  the  defendant,  not  only 
because  he  holds  the  affirmative  according  to  the  pleadings,  but  because 
of  the  presumption  of  innocence.  This  presumption,  as  well  as  whatever 
testimony  the  plaintiff  may  offer  to  repel  the  charge,  the  defendant  must 
be  prepared  to  overcome  by  evidence.     But  when  he  has  done  this  by 


1074  BOOK  IV :     BURDENS   OF  PROOF;     PRESUMPTIONS       No.  747 

that  measure  and  quantity  of  evidence  which  is  ordinarily  held  sufficient 
to  entitle  a  party  upon  whom  the  burden  of  proof  rests,  to  a  verdict  in 
his  favor  in  a  civil  case,  shall  he  be  required  to  go  further,  and  in  order  to 
save  himself  from  being  mulcted  in  damages  for  the  benefit  of  the  plaintiff, 
free  the  minds  of  the  jury  from  every  reasonable  doubt  of  the  plaintiff's 
guilt,  as  the  State  must  in  the  trial  of  a  criminal  prosecution? 

We  see  no  good  reason  for  thus  confounding  the  distinction  which  is 
made  by  the  best  text-writers  on  evidence,  between  civil  and  criminal 
cases  with  regard  to  the  degree  of  assurance  which  must  be  given  to  the 
jury  as  the  basis  of  a  \erdict.  In  England  there  was  a  reason  for  carrying 
the  distinction  thus  made  between  civil  and  criminal  cases,  into  suits  of 
this  description,  —  which  never  existed  here,  —  because  there,  as  Lord 
Kenyon  remarked  in  Cook  v.  Field,  3  Esp.  133,  "where  a  defendant 
justifies  words  which  amount  to  a  charge  of  felony,  and  proves  his  justifi- 
cation, the  plaintiff  may  be  put  upon  his  trial  by  that  verdict  without  the 
intervention  of  a  grand  jury;"  and  so  penal  consequences  might  in  some 
sort  be  said  to  follow  the  verdict  in  a  civil  cause.  .  .  .  But  we  think  it 
time  to  limit  the  application  of  a  rule  which  was  originally  adopted  "  in 
favorem  vitae"  in  the  days  of  a  sanguinary  penal  code,  to  cases  arising 
on  the  criminal  docket,  and  no  longer  to  suffer  it  to  obstruct  or  encumber 
the  action  of  juries  in  civil  suits  sounding  only  in  damages.  .  .  . 

It  is  true,  that  this  distinction  has  heretofore  been  carried  into  civil 
cases  and  applied  to  suits  in  which  it  incidentally  became  necessary  to 
determine,  in  order  to  settle  the  issue  which  the  parties  were  litigating, 
whether  one  of  the  parties  had  committed  an  offense  against  the  criminal 
law.  Hence  have  arisen  in  these  actions  for  defamation  among  others, 
a  series  of  decisions  which,  if  juries  had  acted  according  to  their  tenor, 
would  have  been  productive  not  unfrequently  of  very  unjust  results. 
Practically  we  do  not  consider  the  form  of  expression  used  in  the  instruc- 
tions to  juries  in  cases  of  this  description  as  very  likely  to  change  the  re- 
sult. We  do  not  believe,  if  the  jury  in  the  present  case  found  themselves 
inclined  to  believe  upon  the  whole  evidence  that  the  plaintiff  was  verily 
guilty,  as  the  defendant  had  said,  that  they  would  have  proceeded  to 
assess  damages  in  his  favor,  because  he  might  have  started  a  reasonable 
doubt  in  their  minds  whether  he  ought  to  be  convicted  of  the  crime  and 
sent  to  the  State  prison,  upon  that  evidence,  even  had  they  been  so  in- 
structed. The  practical  effect  of  such  an  instruction  would  probably 
have  been  to  eliminate  the  doubt  from  the  minds  of  the  jury,  not  to 
change  the  result  at  which  they  arrived.  But  we  think  it  best  to  recog- 
nize what  has  been  justly  said  to  be  "well  understood,  that  a  jury  will 
not  require  so  strong  proof  to  maintain  a  civil  action  as  to  convict  of  a 
crime;"  and  to  draw  the  line  between  the  cases  where  full  proof  beyond  a 
reasonable  doubt  shall  be  required  and  those  where  a  less  degree  of  assur- 
ance may  serve  as  the  basis  of  a  verdict,  where  the  juror  instinctively 
places  it,  —  making  it  to  depend  rather  upon  the  results  which  are  to 
follow  the  decision,  than  upon  a  philosophical  analysis  of  the  character 


No.  748  MEASURE   OF  JURY's   PERSUASION  1075 

of  the  issue.  ...  A  greater  degree  of  caution  in  coming  to  a  conclusion 
should  be  practiced  to  guard  life  or  liberty  against  the  consequences  of  a 
mistake  always  painful,  and  possibly  irreparable,  than  is  necessary  in 
civil  cases,  where,  as  above  remarked,  the  issue  must  be  settled  in  accord- 
ance with  one  view  or  the  other,  and  the  verdict  is  followed  with  positive 
results  to  one  party  or  the  other,  but  not  of  so  serious  a  nature. 

Exceptions  overruled. 

Appleton,  C.  J.,  Cutting,  Kent,  and  Walton,  JJ.,  concurred. 


748.   BUEL  V.   STATE 

Supreme  Court  of  Wisconsin.     1899 

104  Wis.  132;  80  A^.  W.  78 

Error  to  review  a  judgment  of  the  Circuit  Court  for  Sawyer  county; 
John  K.  Parish,  Circuit  Judge.     Reversed. 

[The  accused  was  charged  with  the  murder  of  one  Nelson,  a  companion 
who  possessed  a  sum  of  money.  The  facts  are  given  fully  in  No.  518, 
ante.] 

For  the  plaintiff  in  error  there  was  a  brief  hy  J.  B.  Alexander,  attor- 
ney, and  V.  W.  James,  of  counsel,  and  oral  argument  by  Mr.  Alexander. 

For  the  defendant  in  error  there  was  a  brief  by  the  Attorney -General, 
and  oral  argument  by  C.  E.  Buell,  first  assistant  attorney-general. 

Marshall,  J.  .  .  .  Evidence  was  produced  to  explain  or  discredit 
much  of  the  evidence  of  the  circumstantial  evidentiary  facts  mentioned, 
and  to  impair  the  probative  force  of  circumstances  established,  pointing 
to  the  guilt  of  Buel.  The  jury  found  him  guilty  of  murder  in  the  first 
degree,  and  judgment  was  entered  accordingly. 

The  motion  to  acquit  the  plaintiff  in  error  and  the  motion  to  set 
aside  the  verdict  for  want  of  sufficient  evidence  to  warrant  a  conviction 
were  properly  denied.  Upon  each  vital  question  in  the  case  there  was 
credible  evidence  tending  to  establish  the  fact  involved,  contradicted  or 
explained  in  many  instances,  it  is  true,  by  other  evidence;  but  it  was  for 
the  jury  to  weigh  all  the  evidence  and  determine  where  the  truth  lay. 
Such  determination  is  conclusive,  unless  we  can  say  it  was  not  warranted 
in  any  reasonable  view  of  the  evidence,  and  we  clearly  cannot  say  that.  .  .  . 

The  Court  was  specially  requested  to  instruct  the  jury  that  before 
finding  the  defendant  guilty  of  any  crime  they  should  require  equally  as 
strong  and  conclusive  evidence  of  his  guilt  as  would  be  required  by  them 
"as  careful  and  prndent  men  to  enter  upon  the  greatest  and  most  important 
acts  of  their  lives."  The  request  embodied,  substantially,  a  correct 
rule  of  law,  which  the  accused  was  entitled  to  have  given  to  the  jury, 
and  unless  the  general  charge  sufficiently  covered  it  the  refusal  to  grant 
the  request  was  reversible  error.  .  .  . 

The  use  of  such  expressions  as,  "  the  jury  before  convicting  an  accused 


1076  BOOK   IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  748 

person  must  be  convinced  of  his  guilt  with  that  degree  of  certainty 
requisite  to  lead  men  to  act  in  the  most  important  affairs  of  life,"  or, 
"  in  considering  the  evidence  and  coming  to  a  conclusion,  the  jury  should 
exercise  all  the  care,  caution,  and  judgment  that  men  exercise  in  the 
most  important  affairs  of  life,"  or  the  jury  "should  be  convinced  only 
by  the  same  proof  as  that  which  would  convince  men  and  upon  which 
they  would  act  in  the  management  of  the  gravest  and  most  important 
matters,  and  in  arranging  the  most  serious  affairs  and  concerns  of  life," 
or  the  jury  "should  not  convict  unless  from  the  whole  evidence  in  the 
case  they  have  an  abiding  conviction  to  a  moral  certainty  that  the 
accused  is  guilty,"  are  each  and  all  mere  explanatory  expressions  to 
convey  to  the  minds  of  jurors  the  exact  meaning  of  the  term  "  beyond  a 
reasonable  doubt"  and  the  degree  of  certainty  which  such  term  calls  for. 
They  are  generally  given  as  the  equivalent  of  the  general  expression 
that,  "in  order  to  convict,  the  jury  should  be  convinced  of  the  guilt  of  the 
accused  beyond  a  reasonable  doubt."  The  latter  expression  contains  all 
there  is  of  the  rule,  and  it  was  given  to  the  jury  in  this  case  with  com- 
mendable fullness.  This  may  be  said  without  expressing  an  approval 
of  the  charge  on  the  subject  as  a  model  for  clearness. 

The  general  instructions  on  such  subject,  found  in  the  different 
portions  of  the  charge,  are  as  follows :  .  .  .  "  You  will  not  convict  the 
defendant  unless  you  are  satisfied  from  the  whole  exidence  that  the 
defendant,  Eugene  Buel,  wilfully,  feloniously,  and  with  malice  afore- 
thought, or  with  premeditated  design  to  effect  the  death  of  Peter  F. 
Nelson,  killed  and  murdered  him  at  the  time  and  place  alleged  in  the 
information.  If  each  and  all  of  you  are  satisfied  that  each  and  every 
material  thing  set  out  in  the  information  is  true  and  has  been  proved  by 
the  evidence  beyond  every  reasonable  doubt,  you  will  convict;  if  you  are 
not  so  satisfied  you  will  acquit."  .  .  .  "  If  a  reasonable  doubt  exists  in 
your  minds  of  defendant's  guilt  of  any  material  allegation  set  out  in  the 
information,  your  verdict  will  be  not  guilty.  A  reasonable,  doubt,  or 
doubt  to  be  of  avail  to  this  defendant,  is  a  doubt  founded  upon  reason." 
...  In  view  of  such  full  instructions,  the  question  is.  Was  it  error  for 
the  Court  to  refuse  to  give  the  explanatory  instruction  requested? 

To  say  that  a  failure  to  explain  the  meaning  of  the  phrase  "beyond 
a  reasonable  doubt"  is  reversible  error,  is  a  doctrine  that  has  but  very 
little  support  in  the  books.  Much  discussion  is  found  in  the  adjudged 
cases  as  to  whether  any  attempt  to  explain  it  does  not  tend  to  confuse.  .  .  . 

It  is  considered  that,  in  this  case,  the  better  practice  would  have 
been  to  have  given  to  the  jury  the  explanatory  instruction  requested; 
but  inasmuch  as  the  subject  was  covered  by  clear  language  in  the  general 
charge,  the  refusal  was  not  reversible  error. 

749.  William  Trickett.  Preponderance  of  Evidence,  and  Reasonable 
Doubt.  (1906.  The  Forum,  Dickinson  School  of  Law,  vol.  X,  p.  76.)  Different 
standards  of  weight  of  evidence  are  imaginable.  If  the  evidence  is  testimonial 
the  number  of  witnesses  for  or  against  can  be  counted.    Two  witnesses  swearing 


No.  749  MEASURE   OF  JURY's   PERSUASION  lf)77 

to  the  same  fact  are  stronger  than  one  of  them  alone.  If  the  evidence  is  cir- 
cumstantial, six  circumstances  equally  persuasive  of  the  "factum  probandum" 
are  stronger  than  three  of  them.  The  number  of  the  media  of  persuasion  is  a 
measure  of  their  persuasiveness.  In  the  Anglo-American  system  of  jurisprudence, 
the  law  seldom  prescribes  any  particular  number  of  pieces  of  evidence.  .  .  . 

But,  besides  difference  in  respect  to  the  number  of  the  media  of  proof,  there  is 
a  difference  in  respect  to  the  intrinsic  persuasiveness  of  the  same  number  of 
media.  There  are  two  witnesses.  A  is  mature,  observant,  careful,  free  from 
proneness  to  exaggeration,  truthful.  B  is  young,  immature,  and  untruthful. 
The  statement  of  A  wins  a  larger  credit  than  that  of  B.  If  the  evidence  is 
circumstantial,  one  circumstance  may,  more  cogently  than  another,  persuade  of 
the  primary  fact.  .  .  . 

But  let  us  suppose  that  the  party  having  the  burden  has  furnished  evidence 
that  is  enough,  in  the  opinion  of  the  judge,  to  warrant  a  jury's  belief  of  the  fact. 
The  opposite  party  then  furnishes  evidence  of  a  contrary  tenor.  The  two  bodies 
of  evidence  have  been  addressed  to  the  same  minds,  and  must  be  considered  and 
compared  by  them.  If  they  leave  these  minds  in  a  state  of  equilibrium,  if  these 
minds  are  unable  to  say  which  of  the  bodies  of  evidence  is  the  more  persuasive; 
or  if  they  are  able  to  say  that  they  are  equally  persuasive,  the  decision  must  be 
against  the  party  who  has  the  so-called  biu-den  of  proof. 

Suppose,  however,  the  e\'idence  is  appreciably  stronger  on  one  side  than  on 
the  other.  Either,  alone,  might  convince,  but  neither,  contradicted  by  the 
other,  may  be  sufficient  to  convince.  Two  apparently  credible  persons  testify 
affirmatively.  One,  somewhat  more  credible,  testifies  negatively.  The  testi- 
mony of  the  two,  or  of  the  one,  would  have  been  believed,  had  it  not  been  con- 
tradicted by  that  of  the  one  or  of  the  two.  It  is  clear  that  the  evidence  may  leave 
the  jury  unconvinced,  as  to  which  of  the  assertions,  the  affirmative  or  the  negative, 
is  true,  although  it  is  conscious  that  the  testimony  of  the  two  is  somewhat  stronger 
than  that  of  the  one,  or  vice  versa.  Opposing  pieces  of  evidence  may  leave  doubt, 
although  one  piece  is  stronger  than  the  other,  and  doubt  is  not  belief.  Doubt 
"means,"  says  Sully,^  "a  pulling  of  the  mind  in  two  directions,  that  is,  a  state  of 
discord  or  conflict  due  to  the  action  of  two  incompatible  and  antagonistic  thought 
tendencies  (forces  of  association).  In  this  case,  it  is  evident,  judgment  is  alto- 
gether arrested,  or  suspended.  It  is  this  state  of  doubt  or  uncertainty,  and  not 
that  of  disbelief,  which  is  the  proper  psychological  opposite  of  belief.  In  belief 
the  mind  is  at  rest,  the  impulse  to  inquire  is  satisfied,  and  the  volitional  activity 
involved  in  thought  is  quieted.  In  doubt,  on  the  other  hand,  we  are  in  a  state 
of  unrest,  conflict,  or  baffled  activity." 

The  text-books  and  authorities  usually  inform  us  that,  in  civil  cases,  the  de- 
cision must  be  according  to  the  "preponderance  of  evidence."  The  persuasion 
necessary,  in  such  cases,  says  Wigmore,^  is  "said  to  be  that  state  of  mind  in  which 
there  is  felt  to  be  a  preponderance  of  evidence,  in  favor  of  the  demandant's, 
proposition."  .  .  .  "In  civil  issues,"  says  Wharton,^  "when  there  are  conflicting 

1  The  Human  Mind,  Vol.  1,  p.  457.     Whately's  Rhetoric,  p.  103. 

2  Evidence,  3.545. 

^  Evidence,  30.  By  proof,  the  author  means  evidence,  presumptions  of  law 
or  fact  and  citations  of  law;  Id.,  p.  2.  Best  says  that  the  "mere  preponderance 
of  probability  is  decisive  in  civil  cases."  Evidence,  p.  85.  But  not  everything 
for  which  some  evidence  can  be  adduced,  is  probable;  nor  everything  for  which 
the  affirmative  evidence  is  appreciably  stronger  than  the  negative  evidence. 


1078  BOOK   IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  749 

hypotheses,  the  judgment  must  be  for  that  for  which  there  is  a  preponderance  of 
proof." 

A  corollary  from  this  rule  would  be  that  the  juror  or  the  judge  must  in  many 
cases  decide  in  favor  of  A  or  B,  the  parties  to  the  suit,  that  a  fact  did  or  did  not 
occur,  although  he  does  not  believe  that  it  occurred  or  did  not  occur. 
A  sues  B  on  a  note,  whose  execution  B  denies.  Six  witnesses  affirm  that 
the  signature  is  in  B's  handwriting.  Five  affirm  that  it  is  not.  No  difference  in 
competence,  or  trustworthiness,  between  these  witnesses  appears.  Six,  however, 
are  more  than  five.  The  ordinary  man,  juror  or  judge,  would  say  that  the  evi- 
dence "preponderated"  in  favor  of  A's  proposition.  But  would  the  ordinary 
discreet  man  believe  that  proposition?  Instead  of  six  let  us  suppose  twenty 
witnesses,  and  instead  of  five  let  us  suppose  nineteen.  Still  there  is  a  prepon- 
derance towards  A's  contention.  But  would  a  sensible  man  necessarily  believe 
that  B  signed  the  note,  when  nineteen  men,  each  equally  credible  with  each  of 
the  twenty,  said  that  he  did  not  sign  it?  In  such  a  state  of  the  evidence,  the 
prudent  and  careful  man  would  remain  in  a  state  of  doubt.  He  would  say, 
"There  is  one-nineteenth  more  evidence  in  favor  of  B's  having  signed,  than  in 
favor  of  his  not  having  signed,  but  I  am  not  convinced  that  he  signed  it;  I 
neither  believe  nor  disbelieve  that  he  signed  it." 

If  the  rule  quoted  is  to  be  adopted,  it  follows  that  a  verdict  in  a  civil  case  need 
not,  and  therefore  does  not,  express  the  belief,  opinion,  or  conviction  of  the  jury 
as  to  the  existence  or  non-existence  of  the  facts  which  form  the  issue,  but  simply 
as  to  the  existence  of  the  preponderance  of  the  evidence,  a  totally  different  matter. 
There  can  be  evidence  that  fact  X  occurred,  when  it  did  not  occur,  and  evidence 
that  fact  X  did  not  occur,  when  it  did  occur,  and,  for  the  same  reason,  there  can 
be  more  evidence  that  it  occurred  than  that  it  did  not  occur,  although  it  in  fact 
did  not  occur,  and  to  believe  that  there  is  this  greater  degree  of  evidence  of 
occurrence  than  of  non-occurrence,  is  not  to  believe  the  occiu-rence  rather 
than  the  non-occurrence. 

The  rule  indicated  results  in  palpable  absurdity.  The  object  of  the  law  is,  or 
ought  to  be,  to  seciu-e  the  sequence  of  certain  results  upon  certain  objective  facts. 
If  B  signed  the  note  he  ought  to  be  compelled  to  pay  it.  It  would  be,  of  course, 
inadmissible  to  hold  that  the  absolute  certainty  of  the  jiu-y  that  he  signed  it, 
should  be  the  preliminary  to  this  compulsion.  But  would  it  be  too  much  to  hold 
that  the  jury  should  believe,  at  least  in  some  low  degree,  that  he  signed  it?  Is  not 
the  principle  abhorrent  that  B  may  be  coerced  into  paying  a  sum  of  money  to  A, 
when  the  jm-y  does  not  believe,  even  in  a  faint  degree,  that  he  promised  to  pay  it, 
simply  because  it  believes  that,  of  the  plaintiff's  and  defendant's  respective  pieces 
of  e\ndence,  that  of  the  former  is  heavier  than  that  of  the  latter? 

What  those  who  have  laid  down  the  principle  that  "preponderance"  of  evi- 
dence will  justify  and  require  a  decision  conformable  with  it,  have  failed  to 
realize,  is  that  perception  of  the  preponderance  of  evidence  is  quite  consistent  with 
want  of  belief.  Of  two  pieces  of  very  weak  evidence,  one  may  preponderate.  It 
might  be  barely  enough  to  convince,  had  it  not  encountered  the  contradictory 
evidence.  Opposed  by  the  latter,  it  may  be  insufficient  to  generate  even  the 
lowest  degree  of  belief.  To  detect  a  preponderance  of  evidence  that  B  signed  a 
note,  is  neither  to  believe  that  he  signed  it,  nor  to  be  logically  required  to  believe 
that  he  signed  it.  It  would  be  fatuous  to  affirm  that  a  man  ought  to  believe,  even 
faintly,  everything  the  evidence  for  which  is,  in  his  opinion,  stronger  than  the 
evidence  against  it. 

Sometimes,  by  some  authorities,  a  distinction  is  taken  between  different  sorts 


No.  749  MEASURE   OF  JURY's   PERSUASION  1079 

of  civil  cases;  in  some,  the  rule  of  preponderance  of  evidence  being  laid  down, 
and  in  others  that  of  belief.  Thus  Starkie  ^  says:  .  .  .  "One  who  seeks  to  charge 
another  with  a  debt,  must  do  so  by  full  and  satisfactory  proof;"  and  one  who 
alleges  payment  of  debt  must  furnish  "full  proof." 

In  a  considerable  number  of  cases  the  Courts  of  this  State  require  not  a 
preponderance  of  evidence,  but  a  satisfaction,  a  convincing  of  the  judge  or  jury, 
not  that  evidence  of  a  fact  preponderates  over  evidence  against  it,  but  that  the 
fact  exists.  An  equitable  title  to  land  resting  in  parol  can  prevail  against  the 
legal  title,  only  when  the  evidence  of  it  is  "clear,  satisfactory  in  character  and 
convincing."  The  evidence  to  reform  a  wTiting  on  account  of  mistake  or  to  set 
it  aside  for  fraud  must  be  satisfactory.  When  the  allegations  in  a  bill  in  equity 
are  denied  by  the  answer,  the  proof  must  be  "clear,  precise,  and  indubitable." 
These  cases  hold  that  a  preponderance  of  evidence,  however  great,  is  insufficient 
to  sustain  the  burden  of  proof.  The  evidence  must  not  only  preponderate,  but 
it  must  convince.  .  .  . 

There  is  no  measm*e  of  the  weight  of  evidence  (unless  the  witnesses  or  the 
evidential  facts  are  counted),  other  than  the  feeling  of  probability  which  it  gen- 
erates. If  X  hearing  A  aver  a  certain  fact,  and  B  deny  it,  believes  the  fact,  or 
disbelieves  it,  he,  in  so  doing,  appraises  the  evidence  of  A  as  heavier  or  lighter 
than  that  of  B.  For  him,  for  it  to  be  heavier  is  for  it  to  produce  faith  in  him. 
The  rule  in  all  civil  cases  ought  to  be  that  the  jiu-y  should  find  against  the  party 
who  has  the  biu-den,  unless  it  is  persuaded,  believes,  is  convinced,  that  the  facts 
which  he  has  averred  have  occurred.  .  .  . 

In  criminal  cases  as  in  the  special  civil  cases  adverted  to,  the  Courts  formed 
the  habit  of  advising  jurors  not  simply  to  be  conscious  of  a  preponderance  of 
evidence  of  guilt,  not  to  believe  the  guilt,  but  to  have  a  "clear  impression"  of  it, 
to  be  "satisfied"  of  it,  before  returning  a  verdict  of  guilty.^  At  length,  the 
admonition  was  given  that  they  should  have  no  "rational  doubt;"  they  should 
be  convinced  beyond  a  "reasonable  doubt."  .  .  . 

Two  important  psychological  elements  appear  in  these  statements:  they  are 
belief  and  doubt.  Doubt,  as  we  have  seen,  is  the  negation  of  belief.  The  question 
for  A  is.  Did  X  strike  Y?  He  neither  believes  nor  disbelieves;  he  is  in  doubt.  To 
advise  A  to  believe  beyond  a  doubt,  is  to  advise  him  simply  to  believe  and  possi- 
bly to  believe  hard.  So  long  as  he  believes,  he  does  not  doubt.  ...  If  the 
admonition  to  the  jury  means  that  the  belief  of  guilt  should  be  strong  and  not 
weak,  tenacious  and  pertinacious,  despite  repeated  reflection  on  and  analysis 
of  the  evidence,  and  despite  the  realization  of  the  gravity  of  a  verdict  of  guilty, 
it  is  intelligible.  But  the  phraseology  employed  is  scarcely  to  be  commended  for 
perspicuousness.  What  is  a  "reasonable  doubt"?  The  advice  is  directed  to 
the  juror.  He  must  have  the  doubt  and  he  must  be  the  critic  of  it.  He  is  to  say 
whether  it  is  reasonable.  But  what  man  ever  entertained  a  doubt,  which  at  the 
time  he  believed  to  be  unreasonable?  To  be  convinced  that,  a  doubt  of  a  fact  is 
unreasonable,  is  to  believe  the  fact.  To  tell  a  man  that,  if  he  believes  beyond  a 
reasonable  doubt,  he  must  do  so  and  so,  is  to  tell  him  that  if  he  believes  beyond 
reasonably  not  believing,  he  is  to  do  so  and  so,  —  a  valuable  instruction 
surely!  .  .  . 

A  statement  of  Chief  Justice  Shaw  of  Massachusetts  has  been  not  infre- 
quently quoted  by  judges.^     The  jury  is  to  render  a  verdict  of  guilty,  if  it  believes 

^  Evidence,  p.  817.  ^  Wigmore,  Evidence,  3542. 

^  It  is  quoted  in  Com.  v.  Devine,  18  Superior,  431. 


1080  BOOK   IV :     BURDENS   OF   PROOF;     PRESUMPTIONS      No.  749 

the  defendant  guilty  beyond  a  reasonable  doubt.  And  this  is  the  explanation  of 
a  reasonable  doubt.  It  is  "that  state  of  the  case  which,  after  the  entire  com- 
parison and  consideration  of  all  the  evidence,  leaves  the  mind  of  jurors  in  that  con- 
dition that  they  cannot  say  they  feel  an  abiding  conviction,  to  a  moral  certainty, 
of  the  truth  of  the  charge.  .  .  .  The  evidence  must  establish  the  truth  of  the 
fact  to  a  reasonable  and  moral  certainty,  —  certainty  that  convinces  and  directs 
the  understanding  and  satisfies  the  reason  and  judgment.  .  .  .  This  we  take  to 
be  proof  beyond  a  reasonable  doubt!" 

The  doubt  is  a  "state  of  the  case"!  I  had  imagined  that  it  was  a  state  of  the 
mind.  The  state  of  the  case,  viz.,  the  state  of  the  evidence  in  the  case,  leaves 
the  jurors'  minds  in  a  condition.  What  condition?  This,  viz.,  that  they  cannot 
say,  that  they  have  a  conviction.  I  suppose  that,  if  they  cannot  say  that  they 
have  a  conviction,  it  is  because  they  have  not  the  conviction.  What  conviction? 
It  is  an  abiding  conviction.  But,  what  is  that?  One  that  has  abode,  for  a  con- 
siderable time,  or  one  that  is  going  to  abide?  How  long  before  rendering  the 
verdict  must  the  conviction  expressed  by  it  have  been  formed?  A  week,  a  day, 
an  hour,  five  minutes?  If  the  abidingness  is  futiu-e,  by  what  faculty  does  the 
juror  know  that  it  is  going  to  abide?  By  what  quality  of  the  conviction  does  he 
recognize  its  longevity?  By  its  strength?  By  its  defiance  of  past  argument  in 
the  jury  room?     Who  knows? 

But,  it  is  a  conviction  to  a  "moral  certainty."  Is  the  certainty  a  different 
state  of  mind  from  the  conviction,  or  is  the  phrase  used  to  mean,  a  conviction 
which  is  a  certainty,  that  is,  a  very  strong  conviction?  It  would  be  hypocritical 
to  challenge  the  usage  which  speaks  of  a  moral  certainty,  but  it  is  impossible  to 
see  how  an  ordinary  jm-or  is  to  be  aided  by  being  told  that  if  he  is  morally  certain 
of  the  prisoner's  guilt,  he  is  to  convict  him.  .  .  . 

In  order  to  convict,  we  are  further  told,  the  evidence  must  produce  a  "moral 
certainty  of  the  guilt."  But  this  certainty  has  some  very  peculiar  powers.  It 
"  convinces,  and  it  directs  the  understanding,"  it  "satisfies  the  reason  and  judg- 
ment." Certainty  is  the  state  of  being  convinced,  but,  in  Shaw's  philosophy,  it 
is  the  cause  of,  and  therefore  different  from,  the  conviction.  A  moment  ago, 
there  was  "an  abiding  conviction  to  a  moral  certainty,"  but  now  it  is 
a  certainty  generating  a  conviction!  This  certainty  (which  is  not  a  state,  but 
an  actor,  a  cause)  has  seemingly,  three  subjects  on  which  to  operate.  There  is 
an  understanding;  there  are  a  reason  and  a  judgment!  Or  are  these  three  names 
only  for  one  thing?  But,  that  cannot  be,  for  the  operations  are  different. 
The  certainty  convinces  and  directs  the  imderstanding.  It  does  no  such 
thing  for  the  reason  or  the  judgment.  Its  function  is,  respecting  these,  humbler, 
shall  we  say,  or  more  exalted?  It  "satisfies"  the  reason  and  judgment!  A 
certainty  satisfies!  The  certainty  that  one  has  fallen  heir  to  a  million  dollars 
"satisfies,"  but  it  does  not  satisfy  the  reason;  only  the  cupidity,  the  desire  for 
happiness.  The  certainty  that  X  the  defendant  killed  Y  satisfies  the  reason! 
What  is  this  strange,  elusive  thing  called  satisfaction  of  the  reason?  And 
what  singular  thing  is  reason,  that  it  should  be  satisfied  by  a  certainty  that 
the  defendant  has  committed  an  atrocious  crime?  Perhaps  what  is  satisfied  is 
the  desire  to  find  out  who  committed  it,  that  is,  the  official  curiosity  of  the  jurors; 
for  which  "reason  and  judgment"  are  odd  names. 

Doing  the  best  possible  with  Chief  Justice  Shaw's  phrases,  all  that  can  be 
got  out  of  them  is  this :  Before  convicting  of  a  crime  a  juror  should  be  morally  cer- 
tain that  he  committed  it,  and  this  conviction  should  be  the  result  of  a  serious 
consideration  of  all  the  evidence. 


No.  751  party's  risk  of  non-persuasion  1081 

Professor  Wigmore  well  says,  in  his  noble  work  on  Evidence/  "When  any- 
thing more  than  a  simple  caution  and  a  brief  definition  is  given,  the  matter 
tends  to  become  one  of  mere  words,  and  the  actual  effect  upon  the  jury,  instead 
of  being  enlightenment,  is  mere  confusion,  or,  at  least,  a  continued  incompre- 
hension." 


TITLE  II.     PARTY'S  RISK  OF  NON-PERSUASION 
OF   THE  JURY 

751.   KENDALL  v.   BROWNSON 

Supreme  Judicial  Court  of  New  Hampshire.     1866 

47  N.  H.  186 

Assumpsit  on  a  note  dated  March  28,  1860,  signed  by  the  defendant 
and  payable  to  the  plaintiff  or  order.  The  defence  was  payment  made 
by  the  defendant  to  the  plantiff  about  a  month  after  the  date  of  the 
note.  The  execution  of  the  note  was  admitted  under  the  rule  and  not 
denied  on  trial;  and  the  only  question  of  fact  in  the  cause  was  whether 
the  note  was  so  paid.  .  .  . 

The  plaintiff  requested  the  Court  to  instruct  the  jury  that  on  the 
question  of  payment  of  the  note  the  burden  of  proof  was  on  the  defendant. 
The  Court  refused  so  to  instruct  the  jury;  but  did  instruct  the  jury  that 
upon  the  whole  case  the  burden  of  proof  was  on  the  plaintiff;  that  if  the 
defendant  had  introduced  no  evidence,  the  burden  of  proof  would  have 
been  supported  by  the  introduction  of  the  note,  the  signature  being 
proved,  or  admitted  expressly,  or  under  the  rule;  and  that  in  such  case 
the  plaintiff  would  have  had  the  verdict;  but  that  the  defendant  having 
introduced  e^^dence  tending  to  show  payment,  it  was  for  the  jury  to 
determine  whether,  the  note  and  all  other  evidence  on  both  sides  being 
considered,  the  evidence  preponderated  in  favor  of  the  plaintiff;  that  if 
it  preponderated  in  his  favor  never  so  little,  he  was  entitled  to  the  verdict; 
that  if  it  preponderated  in  favor  of  the  defendant,  or  if  it  was  in  equili- 
brium and  did  not  preponderate  either  way,  the  verdict  should  be  for 
the  defendant;  that  the  defendant  was  entitled  to  the  verdict  unless 
upon  the  whole  case  it  was  more  probable  than  otherwise  that  the  plaintiff 
was  entitled  to  it. 

A  verdict  was  returned  for  the  defendant,  which  the  plaintiff  moves 
to  set  aside  for  error  in  the  foregoing  rulings  and  instructions. 

H.  &  G.  A.  Bingham,  for  the  plaintiff.  .  .  .  The  defence  to  the  note 
was  payment.     In  such  case  the  burden  of  proof  is  on  the  defendant.  .  .  . 

//.  Hibbord,  for  the  defendant.  .  .  .  The  declaration  in  assumpsit 
contains  an  averment  that  the  claim  is  not  paid.  The  question  of  pay- 
ment may  be  tried  under  the  general  issue.  This  averment  is  put  in 
issue  by  that  plea,  and  it  follows  as  a  necessary  corollary  that  the  burden 

1  Vol.  4,  p.  3543. 


1082  BOOK   IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  751 

of  proof  as  well  as  the  right  to  open  and  close  is  with  the  plaintiff.  Much 
of  the  inconsistency  in  the  dicta  of  the  judges  in  certain  Massachusetts 
cases  on  this  subject,  seems  to  have  arisen  from  inattention  to  the 
distinction  between  two  very  different  things,  that  is,  making  a  prima 
facie  case  and  shifting  the  burden  of  proof. 

Perley,  C.  J.  .  .  .  When  the  plaintiff  had  produced  the  note 
described  in  his  declaration,  the  execution  of  it  being  admitted  by  the 
rule,  his  case  was  made  out,  and  he  was  entitled  to  a  verdict,  unless  his 
prima  facie  case  was  overthrown  by  evidence  coming  from  the  defendant. 
The  defendant  did  not  deny  that  the  note  was  made  on  a  sufficient  con- 
sideration, and  was  originally  a  valid  security;  but  he  undertook  to 
prove  that  he  had  paid  it,  and  that  was  his  sole  defence.  He  did  not 
rely  on  a  negative  of  the  plaintiff's  prima  facie  case,  but  set  up  in  answer 
to  it  the  affirmative  fact  of  payment.  It  is  true,  he  said,  I  gave  you  this 
note,  and  it  was  a  valid  contract,  which  I  was  bound  to  perform,  and  I 
will  prove  that  I  have  performed  it  by  payment;  and  the  only  fact  tried 
in  the  cause  was  whether  after  the  note  was  made  the  defendant  paid  it. 
Besides  other  conflicting  evidence  on  this  point  there  was  the  contra- 
dictory testimony  of  the  parties.  On  this  question  of  fact,  had  the 
plaintiff  or  the  defendant  the  burden  of  proof?  .  .  . 

An  examination  of  the  cases  bearing  on  this  question,  shows  clearly, 
as  I  think,  that  in  this  State  it  has  all  along  been  regarded  as  a  settled 
general  rule  of  practice  in  civil  actions,  that,  whenever  a  party  in  any 
stage  of  the  cause,  under  any  form  of  pleading,  sets  up  an  affirmative 
proposition  in  answer  to  his  adversary's  case,  he  has  the  burden  of 
proof  to  maintain  the  affirmative  fact  on  which  he  relies.  This  general 
recognition  of  the  rule  in  practice,  and  the  direct  authority  of  Buzzell  v. 
Snell,  25  N.  H.  474,  I  consider  to  be  decisive  of  the  present  question.  .  .  . 
So  far,  however,  as  I  have  been  able  to  learn,  the  practice  elsewhere  is, 
in  substantial  agreement  with  what  I  suppose  to  have  been  our  own; 
and  on  this  particular  point  all  the  authorities  that  I  have  seen,  are  unani- 
mous that  where  a  defendant  relies  on  payment,  whether  under  the  general 
issue  or  a  special  plea,  the  burden  of  proof  is  on  him.   .   .  . 

Even  if  we  were  at  liberty  to  go  beyond  the  authorities,  which  to 
my  mind  are  decisive,  and  look  to  the  general  reason  of  the  thing,  I  can 
see  no  ground  for  any  change  in  what  I  understand  to  be  the  present  rule 
of  the  law  on  this  point.  The  defendant  has  his  election  to  plead  his 
defence  or  give  it  under  the  general  issue.  If  he  sets  up  an  affirmative 
fact  to  defeat  the  plaintiff's  case,  he  ought  in  reason  to  assume  the 
burden  of  proving  the  fact,  whether  he  elects  to  show  it  by  special  plea, 
or  finds  it  more  for  his  interest  to  prove  it  under  a  general  denial  of  the 
plaintiff's  case.  It  is  not  reasonable  that  he  should  be  permitted  to  use 
the  indulgence  which  the  law  allows  him,  of  showing  an  affirmative 
defence  under  the  general  issue,  to  shift  the  burden  of  proving  it  from 
himself  and  throw  it  on  the  plaintiff.  .  .  . 

My  opinion  is  that  the  jury  should  have  been  instructed  that  the 


No.  751  party's  risk  of  non-persuasion  1083 

burden  of  proof  on  the  question  of  payment  was  on  the  defendant;  that 
the  instructions  given  on  that  point  were  not  correct;  and  that  conse- 
quently the  verdict  must  be  set  aside. 

Doe,  J.,  dissenting.  .  .  .  The  general  issue  traverses  and  denies  the 
truth  of  every  material  allegation  in  the  declaration,  and,  under  that 
issue,  the  plaintiff  must  prove  every  such  allegation.  ...  In  actions  on 
notes,  as  well  as  in  other  actions  in  assumpsit,  the  plaintiff  must  show  a 
breach  of  contract  by  the  defendant.  2  Greenleaf,  Evidence,  sec.  174; 
Chitty  on  Bills,  573.  The  breach,  being  a  material  fact,  the  only  cause 
of  complaint,  and  the  very  gist  of  the  action,  alleged  by  this  plaintiff,  and 
being  denied  by  the  general  issue,  must  be  shown  by  the  plaintiff  —  that 
is,  if  he  introduced  no  evidence  tending  to  show  it,  he  would  be  non- 
suited. He  has  the  burden  of  proof  as  to  a  breach,  and  there  can  be  no 
other  breach  than  non-payment.  The  obligation  of  proving  any  fact 
lies  upon  the  party  who  substantially  asserts  the  affirmative.  .  .  .  The 
burden  of  proof  is  necessarily  assigned  upon  and  by  the  pleadings  in  the 
first  instance.  If  there  is  no  proof  and  no  legal  presumption  upon  an 
issue  or  a  vital  branch  of  an  issue,  there  must  be  some  means  of  determin- 
ing which  party  shall  prevail.  That  party  has  the  burden  of  proof  on 
an  issue,  who  will  fail  if  there  is  no  evidence  on  that  issue.  Judge  of 
Probate  v.  Stone,  44  N.  H.  593;  Starkie,  Evidence,  534,  8th  Am.  Ed. 
The  strict  meaning  of  the  term,  "  onus  probandi,"  is  this,  that  if  no  evi- 
dence is  given  by  the  party  on  whom  the  burden  is  cast,  the  issue  must 
be  found  against  him.  Barry  v.  Butlin,  1  Curtis  637.  The  rule  as  to 
the  burden  of  proof  determines  which  party  shall  prevail  when  an  issue 
is  not  maintained  by  proof  or  legal  presumption.  .  .  . 

At  the  trial  of  this  case,  upon  the  general  issue,  when  the  signature 
was  admitted  or  proved,  the  note  was  evidence  tending  to  show  a  con- 
sideration, .  .  .  and  a  promise  to  pay  on  demand;  the  record  was  evi- 
dence of  a  demand  made  by  suit,  and  that  demand  was  evidence  of  a 
breach,  because  the  contract  could  not  be  performed  after  that  demand. 
The  note,  with  the  aid  of  the  technical  rules  of  law,  was  proof  tending  to 
sustain  every  material  allegation  of  the  declaration.  Such  proof  made 
a  prima  facie  case  for  the  plaintiff;  but  it  did  not  throw  upon  the  defendant 
the  burden  of  introducing  evidence  of  greater  weight  than  that  intro- 
duced by  the  plaintiff,  and  of  showing  that  upon  all  the  evidence  on  both 
sides  it  was  more  probable  than  otherwise  that  he  had  not  broken  his 
contract.  If  he  introduced  so  much  evidence  that,  upon  the  question 
whether  he  paid  the  note  upon  or  before  demand,  all  the  evidence  in  the 
case  was  in  equilibrium,  he  was  entitled  to  the  verdict,  because  the 
plaintiff  failed  to  sustain  his  burden  of  proving  a  breach.  An  equilibrium 
of  evidence  is  the  same  as  no  evidence,  and  if  there  was  no  evidence  of 
a  breach,  the  plaintiff  could  not  recover  damages  for  a  breach.  .  .  . 

If  the  defence  in  this  case  had  been  payment  made  afier  breach,  it 
"would  have  been  in  confession  and  avoidance,  admitting  a  breach  and 
setting  up  the  new,  distinct,  affirmative  fact  of  subsequent  payment  in 


1084  BOOK   IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  751 

discliarge  of  a  cause  of  action  which  once  existed;  the  burden  of  proof 
would  have  been  on  the  defendant,  and  his  evidence  would  have  been 
received  under  the  general  issue  only  by  a  relaxation  of  the  strict  rule 
of  pleading.  3  Blackstone,  Commentaries,  305,  306;  1  Chitty,  Pleading, 
477.  But  payment  before  suit,  and  before,  or  upon,  actual  demand, 
would  be  a  performance  of  the  contract  before  breach,  rendering  a  breach 
impossible.  The  defence  was  a  negative  of  the  plaintiff's  case  —  a  denial 
of  the  alleged  breach  —  and  not  in  confession  and  avoidance  or  discharge; 
the  burden  of  proof  was  on  the  plaintiff,  and  the  defendant's  evidence  was 
admissible  under  the  general  issue,  —  not  by  a  relaxation  of  any  rule, 
but  by  the  strict  common  law  principle  in  which  the  general  issue  had 
its  origin.  .  .  . 

"Payment,"  as  well  as  "discharge,"  is  used  in  two  senses;  first, 
performance  of  a  contract  to  pay  money  according  to  its  stipulations; 
second,  extinguishment  of  a  cause  of  action  arising  from  breach  of  a 
contract.  "Payment,"  as  generally  used  in  the  books,  has  the  latter 
meaning,  and  "  the  defense  of  payment  "  is  usually  of  the  same  import, 
denoting  a  new,  affirmative,  and  independent  fact  set  up  by  the  defendant 
in  confession  and  avoidance,  and  not  a  denial  of  the  breach.  .  .  .  The 
diflference  between  the  two  significations  of  payment  is  the  difference 
between  the  performance  of  a  contract  and  compensation  accepted  in 
satisfaction  of  a  breach  of  contract;  and  the  distinction  is  not  obliterated 
by  any  general  and  indiscriminate  use  of  language  by  Courts  or  authors 
when  their  attention  is  not  called  to  the  distinction.  The  general  state- 
ment that  payment  is  a  defence  in  confession  and  avoidance  of  a  cause 
of  action,  is  shown  to  be  erroneous  by  a  single  illustration.  If  the  note 
in  this  case  was  pa^'able  within  a  year  from  its  date,  payment  before  the 
expiration  of  the  year  would  not  be  in  discharge  of  the  plaintiff's  cause 
of  action,  for  the  plaintiff  would  never  have  a  cause  of  action,  —  there 
would  be  no  breach,  —  and  the  defence  of  such  a  pajonent  would  be  a 
mere  negative  of  the  breach  which,  upon  the  general  issue,  the  plaintiff 
must  prove.  .  .  . 

It  is  of  some  practical  importance,  as  a  matter  of  justice,  that  prom- 
isors should  not  be  deprived  of  their  property  by  judgment  and  execu- 
tion in  assumpsit  upon  the  accusation,  denied  by  the  general  issue,  that 
they  have  broken  their  contracts,  when,  in  the  equilibrium  of  evidence, 
it  is  as  probable  that  they  have  not,  as  that  they  have,  broken  them. 

752.   LISBON  v.   LYMAN 

Supreme  Judicial  Court  of  New  Hampshire.     1870 

49  .V.  H.  553 

Assumpsit,  for  the  support  of  the  pauper  wife  and  children  of  one 

Volney  C .     Verdict  for  the  plaintiff.     Motion  of  the  defendant 

for  a  new  trial. 


No.  752  party's  RISK  of  non-persuasion  1085 

The  question  was,  whether  Volney  had  a  settlement  in  Lyman,  by 
derivation  from  his  father  Isaac.  .  .  .  There  was  evidence  tending  to 
show  that,  for  four  years  between  1833  and  1851,  Isaac  had  real  estate 
in  Lyman,  of  the  value  of  $150.  There  was  no  evidence  that  any  taxes 
were  assessed  in  Lyman  during  this  time,  nor  that  Isaac  paid  any  taxes. 
The  jury  were  instructed  that  taxation  would  not  be  presumed;  and  that 
it  was  unnecessary  to  consider  whether  he  paid  taxes,  until  it  was  proved 
that  there  were  taxes  to  'be  paid;  to  which  instructions  the  defendant 
excepted. 

Carpenter,  for  the  defendant.  .  .  .  C.  W.  and  E.  D.  Rand,  for  the 
plaintiff. 

Doe,  J.  ...  I.  In  actions  for  malicious  prosecution,  on  the  point  of 
no  probable  cause  (2  Saunders,  Pleading  &  Evidence,  332;  Eastman  v. 
Keazor,  44  N.  H.  520),  and  in  actions  for  not  having  or  not  using,  knowl- 
edge, skill,  or  care,  (Leighton  v.  Sargent,  27  N.  H.  460,  475;  S.  C.  31 
N.  H.  119,  136),  the  plaintiff  affirms  a  literal  negative,  which,  on  the  general 
issue,  he  must  prove.  Such  cases,  countless  in  number,  and  infinite  in 
form,  covering  extensive  departments  of  the  law  of  contract  and  tort,  are 
illustrations  not  of  presumptions  or  exceptions  or  peculiar  rules,  but  of  the 
elementary  principle  which  lays  the  burden  of  proof  on  the  party  having 
the  affirmative  of  the  issue,  or,  in  other  words,  requires  a  party  to  prove 
his  own  side  of  the  case. 

And  there  is  a  great  mass  of  cases,  in  which,  upon  the  general  issue, 
the  plaintiff  has  the  burden  of  proving  that  he  was  careful,  and  that  the 
defendant  was  not  careful  (1  Hilliard  on  Torts,  ch.  4,  §  2):  as  in  actions 
against  towns  for  defective  highways.  .  .  .  It  is  to  be  observed,  however, 
that  this  burden  of  proof,  in  theory,  often  appears  to  be  more  formidable 
than  it  is  in  practice.  The  ordinary  evidence  of  the  plaintiff's  damage 
generally  has  some  tendency  to  show  that  it  was  caused  by  the  faults 
of  the  defendant  (Leighton  v.  Sargent,  31  N.  H.  136);  and  evidence 
going  to  show  that,  generally  tends  to  show  that  it  was  not  caused  by 
the  fault  of  the  plaintiff.  Hill  v.  New  Haven,  37  Vt.  508.)  In  an  action 
for  driving  against  the  plaintiff  on  the  highway,  a  sleigh  (Lane  v.  Crombie, 
12  Pick.  177),  or  a  car  (Gahagan  v.  R.  R.  1  Allen  190;  Robinson  v.  R.  R. 
7  Gray  92),  the  plaintiff  must  prove  that  he  was  careful  and  that  the 
defendant  was  not  careful.  Cases  involving  this  double  aspect,  are 
among  the  most  common.  In  such  cases,  the  plaintiff  has  the  affirmative 
of  the  proposition  that  he  used  reasonable  care;  and  he  has  the  affirma- 
tive of  the  proposition  that  the  defendant  did  not  use  reasonable  care; 
for  the  simple  reason  that  the  plaintiff  is  the  party  who  does  affirm,  and 
must  affirm,  each  of  the  propositions  although  they  are  diametrically 
opposed  to  each  other  in  form  of  language.  A  so-called  negative  affirma- 
tion is  an  affirmation  and  not  a  negation. 

In  assigning  the  burden  of  proof  to  one  party  rather  than  to  the  other, 
the  law  acts  upon  a  better  reason  than  a  verbal  distinction.  The  burden 
is  imposed  according  to  a  plain  principle  of  natural  justice.     The  party 


1086  BOOK  IV:     BURDENS   OF  PROOF;    PRESUMPTIONS       No.  752 

who  affirms  as  part  of  his  case,  a  fact  denied  by  the  other  party,  has  the 
affirmative,  however  much  fiteral  negation  there  may  be  in  his  affirma- 
tion; and  it  is  just  that  he  should  be  required  to  prove  the  essential 
facts  of  his  case,  whether  he  states  them  in  the  form  of  a  negative  affirma- 
tion or  in  any  other  form.  Great  confusion  has  arisen  among  the  author- 
ities, from  the  frequent  application  of  a  verbal,  instead  of  the  legal, 
test,  of  the  affirmative  of  an  issue. 

"  In  every  issue  the  affirmative  is  to  be  proved.  .  .  .  But  to  this  rule 
there  is  an  exception  of  such  cases  where  the  law  presumes  the  affirmative 
contained  in  the  issue.  Therefore,  in  an  information  against  Lord 
Halifax  for  refusing  to  deliver  up  the  rolls  of  the  auditor  of  the  exchequer, 
the  Court  of  Exchequer  put  the  plaintiff  upon  proving  the  negative, 
viz.,  that  he  did  not  deliver  them;  for  a  person  shall  be  presumed  duly 
to  execute  his  office  till  the  contrary  appear."  Bull.  N.  P.  298.  This 
report  of  Lord  Halifax's  case,  indicates  that  the  information  contained 
an  affirmation  that  he  did  not  deliver  the  rolls,  and  that  this  alleged 
non-delivery  was  the  gist  of  the  information,  and  was  traversed  in 
pleading.  If  such  was  the  case,  the  prosecutor,  affirming  non-delivery, 
had  the  burden  of  the  proof  which  the  law  attaches  to  the  affirmative. 
But  the  court  attached  the  burden  to  the  literal,  and  not  to  the  legal, 
affirmative,  and  then  shifted  the  burden  by  a  legal  presumption.  The 
literal  affirmative  was  mistaken  for  the  legal  affirmative;  this  mistake 
placed  the  burden  of  proof  on  the  wrong  party ;  that  error  was  corrected 
by  constructing  or  impressing  a  legal  presumption  to  transport  the 
burden  from  the  defendant  to  the  prosecutor;  and  this  case  of  mistaken 
affirmative,  unnecessary  circuity,  and  superfluous  presumption,  has 
become  a  leading  authority,  and  has  done  much  to  entangle  and  obscure 
a  very  simple  principle  of  law.  .  .  .  By  confounding  the  affirmative  of 
the  issue  with  the  literal  affirmative,  the  legal  negative  is  constantly 
mistaken  for  the  legal  affirmative,  and  undesirable  results  are  reached 
from  which  there  is  no  escape  except  by  complex  processes  and  a  liberal 
use  of  so-called  legal  presumptions  and  exceptions  to  general  rules. 

To  ascertain  which  party  has  the  affirmative  of  a  proposition,  we  do 
not  inquire,  whether  it  is  expressed  in  affirmative  or  negative  terms,  but 
we  inquire  which  party  affirms  the  proposition  in  order  to  make  out  his 
case,  and  whether  it  is  traversed  by  the  other  party.  1  Phillipps,  E\'i- 
dence,  812  (4th  Am.  Ed.)  The  rule  is  elementary.  WTien  a  plaintiff 
grounds  his  right  of  action  upon  a  negative  allegation,  he  has  the  burden 
of  proof.  1  Greenleaf,  Evidence,  §  78.  But  Greenleaf  erroneously 
says  that  this  is  an  exception  to  the  general  rule.  It  is  merely  an  appli- 
cation of  the  general  rule.  .  .  . 

In  the  present  case,  the  jury  were  instructed  that  taxation  would 
not  be  presumed;  and  that  it  was  unnecessary  to  consider  whether 
Isaac  paid  taxes  until  it  was  proved  that  there  were  taxes  to  be  paid. 
There  was  no  legal  presumption  that  taxes  were,  or  were  not,  assessed. 
But  the  effect  of  the  ruling  that  it  was  unnecessary  to  consider  whether 


No.  752  party's  risk  of  non-persuasion  1087 

Isaac  paid  taxes  until  it  was  proved  that  there  were  taxes  to  be  paid, 
was,  to  entirely  reheve  the  plaintiff  from  the  burden  of  proof  as  to  the 
payment  of  all  taxes  assessed,  unless  the  defendant  proved  that  taxes 
were  assessed;  and  to  put  upon  the  defendant  the  burden  of  proving 
assessment  of  taxes. 

This  result  was  at  variance  with  the  rule  which  attaches  the  burden 
of  proof  to  the  legal,  not  to  the  verbal,  affirmative.  .  .  .  The  paupers 
who  had  been  supported  by  the  plaintiff',  and  whose  settlement  was 
in  controversy,  were  the  wife  and  children  of  Volney.  The  plaintiff's 
claim  was  based  on  the  allegation  that  the  paupers  had  their  settlement 
in  Lyman.  .  .  .  The  plaintiff  claimed  that  Isaac  had  gained  a  settlement 
in  Lyman,  in  the  fourth  method  of  Rev.  Stats,  ch.  65,  §  1,  by  "having 
real  estate  of  the  value  of  $150,  ...  in  the  town  where  he"  dwelt  and  had 
"  his  home,  and  paying  all  taxes  duly  assessed  on  him  and  his  estate  for 
four  years  in  succession,"  while  he  was  "of  the  age  of  twenty-one  years." 
The  issue  on  this  subject,  was,  in  effect,  whether  Isaac,  for  four  years  in 
succession,  had  the  four  following  qualifications:  1,  age  of  21  years;  2, 
a  home  in  Lyman;  3,  real  estate  in  Lyman  worth  $150;  4,  payment  of 
all  taxes  duly  assessed  on  him  and  his  estate.  If  these  four  requisites 
existed  for  four  successive  years,  he  had  gained  a  settlement  in  Lyman; 
if  either  of  these  requisites  was  wanting,  he  had  not  gained  such  settle- 
ment. The  plaintiff  alleged  that  Isaac  had  complied  with  these  four 
requirements  for  four  years  in  succession;  and  this  allegation  of  the 
plaintiff  was  denied  by  the  defendant.  .  .  . 

The  allegation  that  Isaac  paid  all  taxes  duly  assessed  four  years  in 
succession,  is  not  an  assertion  that  he  paid  taxes;  nor  is  it  an  assertion 
that  taxes  were  not  assessed;  but  it  is  an  assertion  that  he  paid  taxes 
four  years  in  succession;  or  that  taxes  were  not  assessed  in  the  years  in 
which  he  did  not  pay  taxes.  The  circumstance  that  the  averment  is  an 
alternative  proposition,  does  not  relieve  the  plaintiff  from  the  burden  of 
proving  either  the  one  or  the  other  of  the  alternatives.  If  the  averment 
is  put  in  this  form:  Isaac  paid  taxes  if  any  were  assessed:  it  is  still  an 
alternative  proposition  in  contemplation  of  law;  its  legal  effect  is  not 
changed  by  a  variation  of  phraseology.  .  .  .  L^nless  one  or  the  other 
part  of  the  proposition  is  proved,  the  proposition  as  an  entirety  is  not 
maintained.  It  is  maintained  by  proof  of  either  of  its  parts,  but  not  by 
proof  of  neither  of  them.  ... 

II.  Was  the  burden  of  proof  taken  from  the  plaintiff  and  placed  upon 
the  defendant  by  an  exception  to  the  rule,  on  the  ground  that  the  subject- 
matter  was  peculiarly  tvithin  the  knoxoledge  of  the  defendant? 

When  in  the  nature  of  things,  or  the  circumstances  of  the  case,  it 
would  be  more  difficult  for  one  party  to  prove  an  allegation  essential  to 
his  side  of  the  cause,  if  it  were  true,  than  it  would  be  for  the  other  party 
to  disprove  it,  if  it  were  not  true,  the  omission  of  the  latter  to  produce 
certain  proofs  (the  omission  of  the  defendant,  in  a  criminal  case,  to  testify, 
being  excepted,  laws  1869,  ch.  23,  §2)  may  be  evidence  against  him  and  in 


1088  BOOK   IV :     BURDENS  OF  PROOF;    PRESUMPTIONS      No.  752 

favor  of  the  former;  the  absence  of  proof  on  one  side,  may  be  equivalent 
to  express  proof  on  the  other.  Ela  i'.  Kimball,  30  N.  H.  126,  135.  .  .  . 
The  greater  the  difficulty  on  one  side,  and  the  less  the  difficulty  on  the 
other,  the  stronger  is  the  inference  against  the  latter  and  in  favor  of  the 
former.  Rex  v.  Burdett,  4  B.  Aid.  122,  123,  140,  161.  It  is  a  matter  of 
degrees,  and  a  matter  of  fact.  .  .  .  But,  however  that  may  be,  it  would 
seem  that  nothing  less  than  obvious  impracticability  on  one  side,  con- 
trasted with  obvious  feasibility  on  the  other,  can  authorize  the  invention 
of  an  exception  to  release  a  litigant  from  his  duty  of  proving  the  essential 
facts  of  his  case.  .  .  . 

For  the  attempt  to  establish  an  exception  changing  the  burden  of 
proof  on  the  ground  of  the  difficulty  and  facility  of  furnishing  proof,  we 
seem  to  be  largely  if  not  wholly  indebted  to  a  rigorous  enforcement  of 
the  English  game  laws,  and  the  undue  influence  of  a  small  governing 
class  asserting  their  superior  rights  under  peculiar  institutions  not 
brought  to  this  country  and  hostile  to  our  system  of  society.  The 
authorities  supporting  the  exception,  rest  upon  game-law  precedent.  .  .  . 
When,  in  a  prosecution  on  the  game  laws,  it  was  charged  that  the  defend- 
ant had  killed  a  partridge,  the  defendant  then  and  there  not  having  the 
necessary  aristocratic  qualification,  the  burden  was  put  upon  him  to 
prove  that  he  did  not  belong  to  the  inferior  class  of  men  disabled  by  law 
to  kill  game.  King  v.  Turner,  5  M.  &  S.  206;  Bac.  Abr.  title  Game; 
Com.  Dig.  title  Justices  of  the  Peace  (B.  43).  But  when  a  penalty  was 
claimed  of  a  sailor  on  the  charge  that  he  had  left  his  ship,  not  having 
the  necessary  qualification  by  license  in  writing,  the  burden  was  not  put 
on  him  to  prove  he  had  a  license,  but  on  the  other  party  to  prove  no 
license.  Frontine  v.  Frost,  3  B.  &  P.  302.  .  .  .  The  value  of  such 
authorities  must  be  chiefly  historical.  If  there  could  be  one  rule  for 
game  killers,  and  another  for  sailors,  and  another  for  clergymen,  the 
application  of  these  clashing  regulations  to  other  classes  of  men,  would 
be  perplexing.  .  .  . 

The  game-law  exception,  ha\dng  been  established,  was  extended  to  a 
few  other  cases;  but  as  it  stands  in  the  books,  it  has  no  consistent  or 
satisfactory  foundation  in  principle  or  authority.  It  has  been  extended 
to  the  liquor  laws  of  this  State.  State  v.  Foster,  23  N.  H.  348,  352; 
State  r.  McGlynn,  34  N.  H.  422,  426;  State  v.  Shaw,  35  N.  H.  217.  In 
State  V.  Foster,  it  was  held  that  if  the  defendant  had  been  licensed  he 
could  readily  have  produced  the  license;  while  to  prove  the  negative  the 
government  would  have  been  compelled  to  summon  the  town  clerk  to 
appear  with  the  records  of  the  town.  .  .  .  The  introduction  of  the  game- 
law  exception  in  prosecutions  upon  the  liquor  laws  of  this  State,  brought 
to  them  an  unnecessary  odium.  Its  application  to  them  was  vastly  more 
arbitrary  than  its  original  invention.  It  relieved  the  State  from  proving 
an  essential  averment  of  the  indictment,  when  it  not  only  did  not  appear 
to  be  impracticable  for  the  State  to  prove  it,  but  when  it  did  appear  to  be 
at  least  as  easv  for  the  State  to  summon  the  town  clerk,  as  for  the  defend- 


No.  753  party's  risk  of  non-persuasion  1089 

ant  to  summon  witnesses  (of  whom  the  town  clerk  would  naturally  be 
one)  to  prove  the  signatures  and  authority  of  the  selectmen.  Even  if  it 
were  a  little  more  difficult  for  the  State  to  furnish  the  proof  than  for  the 
defendant  to  furnish  it,  it  is  not  by  a  trifling  difference  between  two  incon- 
siderable difficulties  of  proof,  that  the  general  rule  of  the  burden  of  proof 
can  be  set  aside,  and  an  exception  established.  Cheadle  v.  State,  4  Ohio 
State,  477,  480. 

Upon  an  indictment  for  hunting  deer,  or  catching  fish,  or  cutting 
trees,  or  concealing  a  slave,  without  the  consent  of  the  owner,  the  burden 
is  on  the  government  to  prove  that  the  defendant  was  not  licensed  by  the 
owner.  Rex  v.  Rogers,  2  Camp.  654;  Rex  v.  Allen,  1  Moo.  C.  C.  154; 
Rex  V.  Corden,  4  Burr.  2279;  Rex  v.  Hazy,  2  C.  &  P.  458;  State  v. 
Woodly,  2  Jones,  N.  C.  276.  And  in  other  cases,  the  State  is  constantly 
required  to  prove  a  formal  negative  when  the  difficulty  of  proving  it, 
is  very  great,  and  the  difficulty  of  disproving  it,  would  be  very  slight.  .  .  . 

The  game-law  exception  has  been  applied  in  but  very  few  classes  of 
cases;  the  number  in  which  it  could  as  well  be  applied  as  in  those  few, 
is  very  great.  1  Ben.  &  H.  Lead.  C.  C.  308-317.  It  ought  to  be  ex- 
tended or  extinguished.  Its  present  position  cannot  be  sustained.  In 
its  partial  operation,  it  is  a  mere  exercise  of  arbitrary  power,  destructive 
of  the  congruity  and  unity  of  the  law.  ...  , 

The  instruction  which  relieved  the  plaintiff  of  the  burden  of  proving  fl    j  X^ 
payment  of  all  taxes  assessed,  and  put  upon  the  defendant  the  burden  of  l| 
proving  assessment  of  taxes,  was  erroneous,  and  for  this  cause  there  must 
be  a  new  trial. 


753.    GULF,    COLORADO   &   SANTE   FE    R.    CO.    v.    SHIEDER 

Supreme  Court  of  Texas.     1895 

88  Tex.  152;  30  S.  W.  902 

Error  to  Court  of  Civil  Appeals  for  Third  District,  in  an  appeal 
from  Concho  County.  The  suit  was  transferred  to  Concho  from  Runnels 
County. 

This  suit  was  brought  by  T.  D.  Shieder  against  the  Gulf,  Colorado  & 
Santa  Fe  Railway  Company  to  recover  damages  for  injuries  inflicted 
upon  the  plaintiff's  wife  in  a  collision  between  one  of  the  trains  of  defend- 
ant and  the  biiggy  in  which  Mrs.  Shieder  w^as  riding  at  the  intersection 
of  a  public  street  with  the  railroad  in  the  town  of  Ballinger  on  the  17th 
day  of  April,  1892.  .  .  .  The  Court  below  charged  the  jury  that  the 
burden  of  proof  was  upon  defendant  railroad  to  establish  contributory 
negligence  on  the  part  of  Mrs.  Shieder.  This  charge  is  assigned  as 
error.   .   .  . 

J.  ir.  Ternj  and  Chas.  K.  Lee,  for  plaintiff  in  error.  .  .  .  Where 
the  plaintiff's  own  case  raises  a  suspicion  of  contributory  negligence,  the 


1090  BOOK   IV :     BURDENS    OF   PROOF;     PRESUMPTIONS       No.  753 

burden  is  on  the  plaintiff  not  only  to  show  negligence  on  the  part  of  the 
defendant,  but  to  show  that  he  was  not  guilty  of  contributory  negligence. 
...  In  a  carefully  considered  article  on  the  burden  of  proof,  in  \'olume 
4  of  the  Harvard  Law  Review,  pages  48, 49,  speaking  of  the  term  "  Burden 
of  Proof,"  it  is  said:  "  In  legal  discussion,  this  phrase  is  used  in  two  ways; 
(1)  to  indicate  the  duty  of  bringing  forward  argument  or  evidence  in 
support  of  a  proposition,  whether  at  the  beginning  or  later;  (2)  to  mark 
that  of  establisiiing  a  proposition  as  against  all  counter  argument  or 
evidence;  (3)  it  should  be  added,  that  there  is  a  third  indiscriminate 
usage,  far  more  common  than  either  of  the  others,  in  which  the  term  may 
mean  both  or  either  of  the  first  two.  ..."  Bearing  this  distinction  in 
mind,  we  believe  that  we  can  demonstrate  both  by  reason  and  the  great 
weight,  if  not  substantially  all,  of  the  decisions  of  this  State,  the  following 
propositions : 

First.  That  the  burden  of  proof  on  contributory  negligence,  in  the 
sense  of  the  burden  of  establishing  such  issue  by  a  preponderance  of 
evidence,  where  there  is  evidence  in  the  case  of  contributory  negligence, 
whether  first  offered  by  plaintiff  or  defendant,  on  the  whole  case  has 
never  been  held  by  the  decisions  of  this  State  to  be  on  the  defendant. 
.  .  .  "Second.  .  .  .  That  without  dissent  or  dispute,  the  rule  has 
been  qualified  to  this  extent,  that  where  the  plaintiff's  own  case  discloses 
any  evidence  of  contributory  negligence,  the  burden  is  on  him  on  the 
whole  case.  .  .  . 

Guion  &  Truly,  for  defendant  in  error.  ... 

Denman,  Associate  Justice  (after  stating  the  facts  as  above).  .  .  . 
There  is  much  conflict  of  authority  upon  the  c|uestion  as  whether  the 
burden  of  proof,  upon  the  issue  of  contributory  negligence,  rests  upon 
plaintiff  or  defendant.  The  confusion  resulting  is  intensified  by  the  fact 
that  few,  if  any,  jurisdictions  can  be  found  in  which  the  decisions  of  the 
courts  of  last  resort  can  be  entirely  reconciled  upon  this  important 
question.  A  careful  examination  of  the  cases  leads  us  to  the  conclusion 
that  much  of  the  apparent  conflict  in  the  decisions  of  any  particular 
State  is  due  to  the  fact  that  the  Courts,  in  deciding  individual  causes, 
have  sometimes  relied  upon  the  authority  of  decisions  of  Courts  holding 
a  different  view  of  the  law^  as  to  burden  of  proof;  such  differences  not 
appearing  on  the  face  of  the  opinions,  but  lurking  in  the  principle  upon 
which  they  are  based.  The  two  classes  of  decisions,  and  the  reasons  by 
which  they  are  respectively  supported,  are  essentially  antagonistic. 
They  start  from  different  premises,  and  logically  arrive  at  different 
results,  and  therefore  the  citation  of  one  to  support  the  other  generally 
leads  to  confusion.  Mr.  Beach,  who  undertakes  to  defend  the  rule 
imposing  the  burden  on  the  plaintiff,  asserts  that  it  is  supported  by  "the 
decided  weight  of  authority,"  and  declares  it  to  be  the  doctrine  in  Massa- 
chusetts, Maine,  Mississippi,  Louisiana,  North  Carolina,  Michigan, 
Oregon,  Illinois,  Connecticut,  Iowa,  Indiana,  and  probably  New  York, 
but  candidly  admits  that  the  contrary  is  the  settled  rule  in  England,  the 


No.  753  party's  risk  of  non-persuasion  1091 

supreme  court  of  the  United  States,  Alabama,  California,  Georgia, 
Kentucky,  Kansas,  Maryland,  Minnesota,  Missouri,  New  Hampshire, 
New  Jersey,  Nebraska,  Ohio,  Pennsylvania,  Rhode  Island,  South 
Carolina,  Texas,  Wisconsin,  West  Virginia,  Vermont,  and  Colorado,  and 
is  the  opinion  of  the  text  writers.  .  .  . 

The  rule  seems  to  be  well  settled  that  it  is  not  necessary  for  the 
plaintiff  in  his  petition  to  negative,  either  by  facts  stated  or  by  express 
averment,  the  existence  of  contributory  negligence  on  his  part.  .  .  .  W^e 
have  been  able  to  find  no  case  where  such  pleading  has  been  required, 
except  in  a  few  of  those  states  where  the  burden  of  proof  is  upon  plaintiff 
to  show  that  he  was  not  guilty  of  contributory  negligence.  Since  these 
States  have  changed  the  well-established  and  logical  rule  of  evidence  at 
common  law,  consistency  would  seem  to  require  a  corresponding  change 
in  the  rule  of  pleading;  but  it  seems  that  only  a  few  of  them  have  so 
ruled.  .  .  .  We  are  of  the  opinion  that  the  great  weight  of  authority, 
as  well  as  the  reason  of  the  law,  is  in  favor  of  the  rule  which  imposes  the 
burden  of  proof  upon  defendant  to  establish  plaintiff's  contributory  negli- 
gence, and  it  may  be  considered  the  settled  law  in  this  State.  ...  It  is 
not  necessary  for  us  to  determine  here  in  what  class'of  cases  a  special  plea 
of  contributory  negligence  is  required,  but  it  seems  generally  to  be  admis- 
sible in  many  jurisdictions  under  the  general  denial,  even  where  the 
burden  of  proof  is  on  defendant. 

To  the  general  rule  imposing  upon  the  defendant  the  burden  of  proof 
on  the  issue  of  contributory  negligence  there  appear  to  be,  in  the 'very 
nature  of  things,  two  well-defined  exceptions :  First,  Where  the  legal  effect 
of  the  facts  stated  in  the  petition  is  such  as  to  establish  prima  facie 
negligence  on  the  part  of  plaintiff  as  a  matter  of  law,  then  he  must  plead 
and  prove  such  other  facts  as  will  rebut  such  legal  presumption.  The 
plain  reason  is  that  by  pleading  facts  which,  as  a  matter  of  law,  establish 
his  contributory  negligence,  he  has  made  a  prima  facie  defense  to  his 
cause  of  action  which  will  be  accepted  as  trvie  against  him,  both  on  de- 
murrer and  as  evidence  on  the  trial,  unless  he  pleads  and  proves  such 
other  facts  and  circumstances  that  the  Court  cannot,  as  a  matter  of  law, 
hold  him  guilty  of  contributory  negligence.  W^hen  he  has  done  this,  he 
has  made  a  case  which  must  be  submitted  to  the  jury.  For  instance, 
if  plaintiff's  petition  shows  that  he  was  injured  by  defendant's  cars  while 
on  the  track  under  circumstances  which  in  law  would  make  him  a  tres- 
passer prima  facie,  then  the  law  would  raise  a  presumption  of  contributory 
negligence  against  him,  for  which  his  petition  would  be  bad  on  demurrer; 
and  it  would  be  necessary  for  him  to  plead  some  fact  or  circumstance 
rebutting  such  presumption,  —  such  as  that  he  was,  after  going  upon 
the  track,  stricken  down  by  some  providential  cause,  —  in  order  to  save 
his  petition,  and  on  the  trial  the  burden  would  be  upon  him  to  establish 
such  cause.  Second,  When  the  undisputed  evidence  adduced  on  the 
trial  establishes  prima  facie  as  a  matter  of  law  contributory  negligence 
on  the  part  of  plaintiff,  then  the  burden  of  proof  is  upon  him  to  show 


1092  BOOK   IV :     BURDENS   OF   PROOF;     PRESUMPTIONS      No.  753 

facts  from  which  the  jury  upon  the  whole  case  may  find  him  free  from 
neghgence;  otherwise  the  Court  may  instruct  a  verdict  for  defendant, 
there  being  no  issue  of  fact  for  the  jury. 

Let  us  apply  these  principles  to  the  case  at  bar.  Plaintiff's  wife 
was  traveling  in  a  buggy  along  a  public  street,  when  injured.  She 
evidently  knew  the  track  was  there,  for  she  lived  in  view  of  and  near  the 
crossing.  There  is  no  proof  as  to  whether  she  saw  or  heard  the  engine 
coming  until  she  crossed  the  side  track,  though  there  was  some  disputed 
evidence  as  to  whether  the  whistle  was  blown  some  distance  back,  and 
as  to  whether  the  bell  was  ringing  as  the  engine  approached  the  crossing. 
The  testimony  showed,  that  her  view  of  the  approaching  engine  w^as 
partially  if  not  entirely  obstructed  until  she  crossed  the  side  track,  when 
she  appears  to  have  discovered  the  train  and  tried  to  turn  her  horse, 
which,  becoming  frightened  by  the  approaching  engine,  jumped  onto 
the  track. 

We  have  seen  that  the  law  raises  no  presumption  of  negligence  from 
the  fact  of  injury.  Are  there  any  other  facts  from  which  a  legal  pre- 
sumption of  negligence  on  the  part  of  Mrs.  Shieder  arises?  We  think 
not.  .  .  .  No  fact  or 'group  of  facts  can  be  gathered  from  the  plaintiff's 
pleading  or  the  undisputed  evidence,  from  which  the  law  can  be  said  to 
raise  a  prima  facie  presumption  of  negligence  on  the  part  of  Mrs.  Shieder, 
and  therefore  the  case  does  not  come  within  either  of  the  two  exceptions 
above  noticed  to  the  general  rule  imposing  upon  the  defendant  the 
burden  of  proof  upon  the  issue  of  contributory  negligence.  .  .  . 

We  are  of  the  opinion,  therefore,  that  the  trial  Court  correctly  charge 
the  jury,  that  the  burden  of  proof  was  upon  defendant  to  establish 
contributory  negligence  on  part  of  plaintiff's  wife.  .  .  . 

There  are  many  other  assignments  of  error,  none  of  which  we  consider 
well  taken.     The  judgment  is  affirmed.  Affirmed. 


754.   STATE  v.  QUIGLEY 

Supreme  Court  of  Rhode  Island.     1904 

26  R.  I.  263;  58  yf^/.  905 

Indictment  for  murder.  Heard  on  petition  of  defendant  for  new 
trial,  and  denied. 

The  defendant,  on  January  30,  1903,  was  found  guilty  of  the  murder 
of  Abraham  A.  Camac,  October  4,  1902.  He  now  prays  for  a  new  trial, 
alleging  .  .  .  that  the  presiding  justice  erred  in  his  instructions  to  the 
jury.  .  .  .  The  accused,  through  his  counsel,  sets  up  the  defence  of 
insanity  of  a  temporary  character,  to  wit,  delirium  tremens;  alleging 
that  this  incapacity  existed  at  the  time  of  the  homicide,  but  had  passed 
away  soon  after.  .  .  . 

To  support  this  defence  several  witnesses  appeared  who  had  known 


No.  754  party's  risk  of  non-persuasion  1093 

the  accused  from  one  to  twelve  years,  and  their  testimony  was  to  the 
effect  that  the  accused  was  accustomed  to  drink  to  excess,  and  on  some 
occasions  had  shown  symptoms  which  to  them  indicated  dehrium  tremens. 
One  medical  expert,  I>r.  Ford,  made  examinations  of  the  accused  at 
various  times,  at  the  request  of  his  counsel,  and  declared  it  to  be  his 
opinion  that  the  accused  had  delirium  tremens  or  alcoholic  insanity  on 
October  4th  in  an  aborted  form.  .  .  .  The  State,  in  rebuttal,  called 
amongst  other  witnesses.  Dr.  Keene,  who  is  in  charge  of  the  State  Insane 
Asylum.  .  .  . 

The  Court  charged  that  upon  the  issue  of  insanity  the  burden  of 
proof  is  upon  the  accused,  and  that  the  rule  of  evidence  upon  this  issue 
is  that  it  shall  be  proven  by  a  fair  preponderance  of  evidence. 

Douglas,  J.  (after  stating  the  case  as  above).  The  first,  third,  and 
fourth  requests,  which  were  refused,  were  based  upon  the  proposition 
that  upon  the  question  of  sanity  or  insanity  of  the  accused  the  burden 
is  upon  the  State  to  prove  sanity  beyond  a  reasonable  doubt. 

The  question  was  settled  in  England  in  1843  by  the  answer  of  the 
Judges  to  questions  propounded  by  the  House  of  Lords,  suggested  by 
the  case  of  Daniel  M'Naghten,  reported  in  10  CI.  &  Fin.  200.  In  that 
case  the  law  was  said  to  be:  That  if  the  accused  was  conscious  that  the 
act  was  one  which  he  ought  not  to  do;  and  if  the  act  was  at  the  same 
time  contrary  to  law,  he  is  punishable;  in  all  cases  of  this  kind  the  jurors 
ought  to  be  told  that  every  man  is  presumed  to  be  sane  and  to  possess  a 
sufficient  degree  of  reason  to  be  responsible  for  his  crime  until  the  con- 
trary be  proved  to  their  satisfaction;  and  that  to  establish  a  defence 
on  the  ground  of  insanity,  it  must  be  clearly  proved  that  at  the  time  of 
committing  the  act  the  party  was  laboring  under  such  a  defect  of  reason 
from  disease  of  the  mind  as  not  to  know  the  nature  and  qualit^^  of  the 
act  he  was  doing  or  as  not  to  know  that  what  he  was  doing  was  wrong.  .  .  . 

The  question  has  arisen  in  almost  every  State  of  the  Union,  and  in 
the  courts  of  the  United  States,  and  between  the  decisions  of  these  courts 
thefre  is  a  hopeless  conflict. 

The  decisions  up  to  1882  were  collected  in  an  article  by  Henry  Wade 
Rogers  in  the  Central  Law  Journal,  vol.  14,  p.  2.  The  writer  cites,  as 
supporting  the  view  that  the  burden  is  upon  the  accused,  the  courts  of 
Alabama,  Arkansas,  California,  Connecticut,  Delaware,  Georgia,  Iowa, 
Kentucky,  Maine,  Massachusetts,  Minnesota,  Missouri,  New  Jersey, 
North  Carolina,  Ohio,  Pennsylvania,  Tennessee,  Texas,  and  Virginia. 
To  the  contrary  are  cited  Illinois,  Indiana,  Kansas,  Michigan,  Mississippi, 
and  New  Hampshire,  while  New  York  is  called  uncertain.  From  the 
report  of  the  trial  of  Henry  K.  Goodwin,  published  in  1887,  by  the  attor- 
ney-general of  Massachusetts,  by  authority  of  law,  it  appears  that  the 
Courts  of  that  State  have  abandoned  the  English  rule.  .  .  .  Georgia 
has  also  changed  its  view,  Ryder  v.  State,  100  Ga.  528,  Maryland,  Spencer 
V.  State,  69  Md.  28,  and  New  Mexico,  Faulkner  v.  Ter.,  6  N.  M.  465, 
where  the  question  has  come  up  for  the  first  time,  have  adopted  the  same 


>\ 


1094  BOOK  IV:     BURDENS   OF  PROOF;    PRESUMPTIONS      No.  754 

rule.  To  the  supporters  of  the  English  rule  named  above  may  be  added 
Nevada,  State  v.  Lewis,  20  Nev.  333;  South  Dakota,  State  v.  Yokum, 
11  So.  Da.  5-14;  and  Utah,  People  v.  Dillon,  8  U.  92.  .  .  .  Perhaps  the 
most  weighty  authority  to  the  contrary  is  Davis  v.  United  States,  160 
U.  S.  469.  ...  In  that  case,  the  Court  hold  that  the  burden  is  upon  the 
prosecution  to  establish  sanity  as  an  ingredient  of  the  crime;  and  hence, 
when  the  presumption  of  sanity  becomes  silent  on  the  introduction  of 
evidence  against  it,  proof  of  sanity  beyond  a  reasonable  doubt  must  be 
made  before  the  jury  can  convict. 

It  would  be  a  fruitless  task  to  review  in  detail  the  cases  where  the 
question  has  been  considered,  for  they  are  divided  into  two  classes,  which 
follow  substantially  the  same  two  divergent  lines  of  reasoning. 

The  English  rule  implies  that  the  question  of  guilt  and  the  question 
of  insanity  raise  two  distinct  issues,  and  that  while  both  may  be  involved 
in  the  final  verdict,  the  burden  of  proof  upon  each  issue  lies  upon  different 
parties.  The  most  complete  and  forcible  statement  of  the  argument 
in  support  of  this  rule  which  we  have  found  is  contained  in  the  opinion 
of  Judge  Daxforth  in  State  v.  Lawrence,  57  Me.  574,  581. 

The  American  rule,  so-called,  holds  that  in  a  criminal  case  there  is 
but  one  issue  and  that  the  burden  throughout  is  upon  the  prosecution  to 
prove,  not  only  the  criminal  act,  but  the  capacity  of  the  accused  to 
commit  it  beyond  a  reasonable  doubt. 

^Ye  think  the  first  of  these  positions  is  the  more  logical.  Sanity  is 
not  an  ingredient  of  crime.  It  is  a  condition  precedent  of  all  intelligent 
action,  as  well  benevolent  as  nefarious.  It  is  a  quality  of  the  actor,  not 
an  element  of  the  act.  It  is  incumbent  upon  the  prosecution  to  show  the 
commission  of  the  act,  and  from  this  showing  and  its  circvimstances  to 
sustain  the  inferences  of  malice  and  such  emotions  as  the  particular 
crime  may  include.  But  sanity  is  not  one  of  these  inferences.  It  is  a 
pre-existing  fact  which  may  be  taken  for  granted  as  implied  by  law  and 
general  experience.  .  .  . 

It  is  argued  that  criminal  intent,  malice,  and  premeditation  are  facts 
to  be  proven  by  the  prosecutor;  that  these  can  not  exist  in  any  insane 
mind;  hence  sanity  must  be  proved  by  the  prosecutor.  But  these  are 
facts  of  mental  condition  and  action,  and  they  can  only  be  pro\'ed  by 
inference  from  material  facts,  circumstances,  and  acts.  It  is  incumbent, 
therefore,  upon  the  prosecution  to  prove  such  material  facts,  circum- 
stances, and  acts  as  would  compel  the  inference  of  guilt  in  a  sane  person; 
and  this  is  the  limit  of  his  burden.  In  murder  the  prosecution  must 
establish  the  act,  and  either  by  inference  or  additional  evidence,  malice, 
and  premeditation.  If  these  ingredients  of  the  crime  can  not  exist 
without  sanity,  sanity  is  presumed.  All  the  ingredients  of  the  crime 
must  be  proved,  and  as  to  these  we  agree  the  burden  never  shifts.  But 
as  to  sanity  it  never  attaches  to  the  prosecutor.  The  plea  of  not  guilty 
by  itself  does  not  put  the  sanity  of  the  accused  in  issue.  He  must  raise 
the  question  otherwise,  as  all  agree,  if  not  by  special  plea,  at  least  by 


No.  755  party's  risk  of  non-persuasion  1095 

introducing  evidence,  and  this  is  confession  and  avoidance.  Confession 
and  avoidance  are  an  admission  that  the  accused  performed  the  act 
charged  and  a  denial  that  the  act  was  criminal.  They  are  not,  as  the 
argument  of  several  Courts  assume,  an  admission  that  a  crime  was  com- 
mitted and  the  tender  of  an  excuse  for  committing  it.  The  defence  of 
insanity  admits  the  act  but  not  the  crime,  just  as  the  pleas  of  self-defence 
or  of  a  license  do.  Upon  both  these  defences  we  have  held  the  burden 
to  be  upon  the  accused.  State  v.  Ballou,  20  R.  I.  607;  State  v.  Beswick, 
13  R.  1.211.  .  .  . 

We  can  not  doubt  that  this  is  the  view  of  the  issue  which  is  implied 
by  our  statute  law,  Gen.  Laws  cap.  82,  §  22,  which  provides:  "Whenever, 
upon  the  trial  of  any  person  upon  an  indictment,  the  accused  shall  set  up 
in  defence  thereto  his  insanity,  the  jury,  if  they  acquit  such  person  upon 
such  ground,  shall  state  that  they  have  so  acquitted  him,"  etc.  This 
statute  requires  the  defence  of  insanity  to  be  set  up  by  the  accused, 
and  requires  the  jury  to  find  specially  upon  that  issue.  Under  this  pro- 
vision the  rules  of  evidence  are  as  essentially  fixed  as  if  a  special  plea  of 
insanity  were  required.  .  .  . 

The  petition  for  new  trial  is  denied,  and  the  case  will  be  remanded 
to  the  Common  Pleas  Division  for  sentence. 

Charles  F.  Stearns,  Attorney-general,  for  State.  Cooney  &  Cahill, 
for  defendant. 

755.   GINN  T.   DOLAN 

Supreme  Court  of  Ohio.     1909 

81  Oh.  121;  90  A^  E.  141 

Error  to  the  Circuit  Court  of  Cuyahoga  County.  .  .  . 

The  defendant  in  error  sued  to  recovet  on  four  promissory  notes.  I 
One  of  the  defenses  thereto  was  want  of  consideration.  On  the  trial  and 
before  argument  to  the  jury,  the  defendant  below,  plaintiff  in  error  here, 
asked  the  Court  to  charge  the  jury  that  the  burden  of  proof  was  upon  the 
plaintiff  to  satisfy  the  jury  by  a  preponderance  of  the  evidence,  that  the  / 
notes  were  given  for  a  valuable  consideration;  that  such  burden  does  not  / 
shift  to  or  upon  the  defendant  at  any  stage  of  the  case;  and  that,  although 
the  presumption  is  that  the  notes  were  given  upon  a  sufficient  considera- 
tion, yet  when  other  evidence  on  that  subject  is  offered  by  the  defendant, 
the  burden  is  on  the  plaintiff  to  satisfy  the  jury  upon  all  of  the  evidence 
that  there  was  a  consideration  for  the  notes.  The  Court  refused  to  so 
instruct  the  jury  and,  after  the  argimient,  instructed  the  jury  as  follows: 
"The  law  presumes  the  existence  of  a  consideration  for  a  promissory 
note,  and  this  presumption  continues  until  it  is  shown  that  there  was 
none.  .  .  .  The  defendant  in  this  action,  in  addition  to  the  denial  of  the 
execution  and  delivery  of  the  notes  in  question,  charges  that  said  notes 
are  wholly  without  consideration.     Upon  the  issues  of  the  absence  or 


1096  BOOK  IV :    BURDENS  OF  PROOF;    PRESUMPTIONS      No,  755 

want  of  consideration,  the  burden  of  showing  this  is  on  the  defendant. 
He  must  show  by  a  preponderance  of  the  evidence  that  the  notes  in 
question  were  without  consideration."  The  verdict  and  judgment  were 
for  the  phiintiff,  and  the  judgment  in  the  Court  of  Common  Pleas  was 
affirmed  by  the  Circuit  Court. 

Blandin,  Rice  &  Ginn,  for  plaintiff  in  error.  Our  contention  is  that 
while  the  introduction  of  the  notes  in  evidence  made  a  prima  facie  case 
for  consideration,  it  did  not  shift  the  burden  of  proof  upon  all  the  evidence 
relating  to  that  issue  to  the  defendant  and  require  him  to  establish  by  a 
preponderance  of  the  evidence  that  the  notes  were  without  consideration. 

It  has  been  a  very  common  error  for  the  Courts  of  this  and  other 
states  in  their  statements  of  the  law  to  fail  to  discriminate  closely  between 
the  burden  of  proof  upon  the  whole  case,  and  the  state  of  proof  at  a 
particular  time  in  the  progress  of  the  trial.  This  error  very  frequently 
takes  the  form  of  stating  that  upon  certain  proofs  being  introduced, 
the  burden  shifts  from  one  side  to  the  other,  which  is  upon  all  hands 
conceded  to  be  an  inaccurate  statement  of  the  law;  what  does  in  fact 
happen  is  that  upon  the  introduction  of  certain  proofs  which  are  sufficient 
to  make  a  prima  facie  case,  the  burden  of  producing  countervailing  proof 
is  cast  upon  the  other  party;  but  the  burden  upon  the  whole  case  and 
all  the  evidence  still  remains  upon  the  party  having  the  affirmative. 

This  misuse  of  language  has  not  been  confined  by  the  Courts  to  the 
statement  of  the  law  with  reference  to  the  burden  of  proof  upon  the 
question  of  consideration  for  a  promissory  note;  but  similar  statements 
have  been  made  with  reference  to  every  other  kind  of  case  which  involves 
a  presumption  sufficient  to  make  a  prima  facie  case;  as,  for  instance, 
the  presumption  of  negligence  arising  from  the  occurrence  of  an  accident 
of  a  particular  character  or  occurring  in  a  particular  way;  the  Courts 
have  said  repeatedly  as  to  such  cases  that  upon  proof  being  made  by  the 
plaintifP  of  the  occurrence  of  an  accident  of  that  character  or  of  its 
occurrence  in  that  particular  way,  the  presumption  made  a  prima  facie 
case  in  favor  of  the  plaintiff,  and  that  the  burden  of  proof  at  such  point 
in  the  progress  of  the  case  shifted  to  the  defendant,  and  he  was  required 
to  prove  by  a  preponderance  of  the  evidence  that  he  exercised  due  care 
and  was  not  guilty  of  negligence.  Railroad  Co.  v.  Mowery,  36  Ohio  St. 
418. 

But  the  general  rule  would  seem  to  be  well  established  in  negligence 
cases  by  an  almost  unbroken  line  of  authority,  that  to  rebut  and  destroy 
a  mere  prima  facie  case,  the  part}^  upon  whom  rests  the  burden  of  repelling 
its  effect  need  only  produce  such  amount  or  degree  of  proof  as  will  coun- 
tervail the  presumption  arising  therefrom.  In  other  words,  it  is  sufficient 
if  the  evidence  offered  for  that  purpose  counterbalance  the  e^•idence  by 
which  the  prima  facie  case  is  made  out  or  established ;  it  need  not  over- 
balance or  outweigh  it.  .  .  . 

We  do  not  understand  that  any  Court  has  ever  given  the  presumption, 
attaching  to  a  promissory  note,  that  it  was  upon  a  sufficient  consideration, 


No.  755  party's  risk  of  non-persuasion  1097 

when  introduced  in  evidence,  any  other  effect  than  to  make  a  mere 
prima  facie  case.  All  that  the  defendant  here  was  required  to  do  was 
to  rebut  and  destroy  a  mere  prima  facie  case,  and  only  produce  such 
amount  or  degree  of  proof  as  would  countervail  the  presumption  arising 
therefrom.  In  other  words,  it  was  sufficient  if  the  evidence,  offered  for 
that  purpose,  counterbalanced  the  evidence  by  which  the  prima  facie 
case  was  made  out  and  established;  it  did  not  need  to  overbalance  or 
outweigh  it.  .  .  . 

Kerruish  &  Kerruish,  for  defendant  in  error.  We  submit  that  in  a 
suit  on  a  promissory  note  where  the  defendant  sets  up  in  his  answer 
want  of  consideration,  the  burden  is  on  him  to  establish  this  defense  by 
a  preponderance  of  the  evidence.  .  .  .  We  do  not  contend  that  the 
burden  shifts  from  the  plaintiff  to  the  defendant,  but  we  submit  that  the 
burden  was  on  the  defendant  from  the  beginning  to  the  end  of  the  trial 
to  show  want  of  consideration.  .  .  . 

Davis,  J.  (after  stating  the  facts  as  above).  ...  It  appears  to  us  that 
these  facts  disclose  an  error  of  sufficient  gravity  to  require  the  reversal 
of  the  judgment  below. 

Thfc  weight  of  the  evidence,  or  as  it  is  otherwise  expressed,  the  pre- 
ponderance of  the  evidence,  may  vary  from  side  to  side  as  a  trial  pro- 
gresses; but  the  burden,  which  rests  upon  the  plaintiff  to  establish  the 
material  averments  of  his  cause  of  action  by  the  preponderance  of  all 
the  evidence,  never  shifts.  The  party  who  maintains  the  affirmative  of 
an  issue  carries  the  burden  of  proof  through  the  whole  case,  although  he 
may  be  aided  by  such  a  rebuttal  presumption  of  law,  or  such  facts,  as 
would  prima  facie  support  his  contention.  His  opponent  need  not  do 
more  than  counterbalance  the  presumption,  or  prima  facie  case.  It  is 
not  necessary  that  the  petition  should  in  terms  contain  the  averment 
that  the  note  was  based  on  a  valuable  consideration,  because  that  is 
presumed.  But  when  consideration  is  denied  in  the  answer,  there  is  an 
issue  made  upon  that  point,  on  which  the  plaintiff  has  the  affirmative, 
and,  the  presumption  being  prima  facie  only,  and  not  conclusive,  the 
burden  of  proof  necessarily  rests  upon  the  plaintiff  to  show  a  considera- 
tion, by  a  preponderance  of  the  whole  evidence  given  on  the  trial  of  the 
issue. 

The  reason  of  the  rule,  and  some  of  the  authorities  which  support  it, 
are  fully  shown  in  Klunk  v.  Railway,  74  Ohio  St.  125.  It  would  be 
easy  to  amplify  the  citation  of  authorities  (for  example,  see  cases  cited 
4  Am.  &  Eng.  Ency.  Law  (2  ed.),  200,  n.  2;  Hurley  r.  Ry.  Co.,  180  Mass. 
370;  Bank  v.  Adams,  70  Vt.  132;  Kenny  v.  Walker,  29  Ore.  41;  Owens 
V.  Snell,  29  Ore.  483;  16  Cyc.  932-934),  but  it  would  not  clarify  the 
proposition  to  any  extent.  Indeed,  it  is  not  believed  that  the  Courts 
below  would  have  fallen  into  this  error,  but  for  a  misconstruction  of 
Dalrymple,  Admr.  v.  Wyker,  Admr.,  60  Ohio  St.  108.  There  were  only 
two  questions  considered  in  that  case.  The  first  one  was,  whether  the 
defense  of  want  of  consideration,  as  it  was  there  pleaded,  was    good 


1098  BOOK   IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       No.  755 

against  a  demurrer.  This  Court  held  that  it  was  not.  But  the  case 
having  been  heard  on  evidence,  the  Court  proceeded  to  the  second  ques- 
tion, namely,  whether  the  evidence  adduced  by  the  defendant  was  suffi- 
cient to  overcome  the  presumption  of  a  valuable  consideration;  and  this 
was  the  conclusion  of  the  Court :  "  The  evidence  then  does  not  overcome 
the  presumption  of  a  consideration  arising  from  the  giving  of  the  note, 
[n  other  words,  to  say  the  least,  the  evidence  leaves  the  case  in  as  much 
mcertainty  as  to  whether  there  was,  as  to  whether  there  was  not,  a 
Consideration  sufficient  in  law  to  support  the  note,  and,  consequently, 
the  note  with  the  presumption  in  its  favor  must  prevail."  It  must  be 
obvious,  therefore,  that  the  question  involved  in  the  case  at  bar  was  not 
raised  by  the  record  in  Dalrymple,  Admr.  v.  Wyker,  Admr.,  and  was  not 
considered  by  the  Court;  and  the  syllabus  of  that  case  cannot  be  con- 
strued as  being  any  broader  than  the  facts  of  the  case  would  warrant. 

It  is  proper  to  say  further,  replying  to  a  suggestion  by  counsel  in 
argument,  that  a  plea  of  failure  of  consideration,  or  of  payment,  presents 
a  case  very  different  from  this.  These  defenses,  as  it  were,  confess  and 
avoid.  They  are  affirmative  defenses,  and  upon  such  the  burden  is  upon 
the  defendant  from  the  beginning  to  the  end,  just  as  it  is  upon  the«plain- 
tiff  here. 

The  judgment  of  the  Circuit  Court  and  that  of  the  Court  of  Common 
Pleas  are  reversed. 

Crew,  C.  J.,  Summers,  Spear  and  Shauck,  JJ.,  concur. 


No.  759     party's  duty  to  satisfy  the  judge       1099 


TITLE  III.    r ARTY'S  DUTY  OF  SATISFYING 
THE  JUDGE 

Topic  1.     Sufficiency  of  a  Mass  of  Evidence 

757.  Rex  !'.  Almon.  (1771.  King's  Bench.  5  Burr.  2868.)  [Criminal  libel. 
To  charge  the  defendant  as  the  publisher,  evidence  was  offered  of  a  purchase  of 
the  libel,  imprinted  with  the  defendant's  name  and  bought  in  his  shop.]  L.  C.  J. 
Mansfield.  —  This  being  prima  facie  evidence  of  a  publication  by  the  master 
himself,  it  stands  good  till  answered  by  him;  and  if  not  answered  at  all,  it  thereby 
becomes  conclusive  so  far  as  to  be  sufficient  to  convict  him.  .  .  .  [It]  must  stand 
^(7/  contradicted  or  explained  or  exculpated  by  some  other  evidence,  and  if  not 
contradicted,  explained  or  exculpated,  would  be  in  point  of  evidence  sufficient 
or  tantamount  to  conclusive.  ...  If  it  be  sufficient  in  point  of  law,  and  the 
juryman  believes  it  [i.e.,  the  fact  of  pm-chase],  he  is  bound  in  conscience  to  give 
his  verdict  according  to  it. 

Mr.  Justice  Aston  .  .  .  laid  down  the  same  maxim  as  being  fully  and 
clearly  established,  that  prima  facie  evidence  (if  believed)  is  hmdmgtill  contrary 
evidence  be  produced. 

758.  Regina  v.  O'Doherty.  (1848.  Ireland.  6  State  Tr.  n.  s.  831,  873.) 
Pennefather,  B.  (charging  the  jury,  in  a  prosecution  for  publishing  an  article 
with  seditious  intent).  The  publishing  them  is  certainly  prima  facie  evidence 
against  him,  as  being  the  registered  proprietor  [of  the  newspaper]. 

.  A  Jxiror.  —  There  is  difference  of  opinion  among  the  jiu-ors;  some  hold  that, 
from  your  lordship  stating  there  being  prima  facie  evidence  of  the  prisoner's 
guilt,  we  should  at  once  go  to  find  him  guilty;  others  receiving  the  phase  thus, 
that  your  lordship  did  not  mean  to  convey  that  it  was  sufficient  [to  require  that 
finding]. 

Pennefather,  B.  —  I  did  not  mean,  gentlemen,  to  direct  you  or  tell  you  that 
in  point  of  law,  because  he  was  the  publisher  and  proprietor  of  the  paper,  he 
therefore  necessarily  knew  the  contents.  I  did  not  mean  to  convey  that.  But 
I  told  you  that  it  was  evidence  that  he  did  know  the  contents,  and  that  you  were 
to  form  your  judgment  upon  the  whole  of  the  case,  reading  the  documents  and 
the  evidence. 


759.   GRAY  v.  JACKSON 

Supreme  Judicial  Court  of  New  Hampshire.     1871 

51  A'.  H.  9 

Assumpsit,  by  Calvin  Gray  against  the  defendants  as  common 
carriers.  It  was  alleged  in  the  declaration  that  the  defendants  received 
of  the  plaintiff,  at  Portsmouth,  N.  H.,  the  sum  of  S41,  to  be  carried  from 
Portsmouth  to  Reading,  Mass.,  and  there  delivered  to  Nancy  Thrasher. 
By  agreement  of  parties  the  case  was  tried  by  the  Court,  who  found  the 
following  facts : 

The  defendants  are  expressmen  running  from  Portsmouth  to  Boston. 


1100  BOOK  IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  759 

They  receive,  at  Portsmouth,  besides  packages  for  Boston,  packages  for 
all  parts  of  the  country,  and  at  the  end  of  their  route  deliver  them  to 
other  expressmen  to  be  forwarded.  There  is  no  evidence  that  the 
defendants  have  any  business  connection  or  arrangement  with  other  ex- 
pressmen. July  11,  1865,  the  plaintiff  delivered  to  the  defendants,  at 
Portsmouth,  a  package  containing  S41,  directed  to  "  Miss  Nancy  Thrasher, 
Reading,  Mass.,"  a  place  not  upon  the  defendants'  route;  and  the  plain- 
tiff paid  the  defendants  fifty  cents  as  the  entire  expressage  from  Ports- 
mouth to  Reading.  The  defendants  gave  the  plaintiff  the  following 
writing:  "Jackson  &  Co.  Portsmouth  and  Boston  Express.  Ports- 
mouth, July  11th,  1865.  S41.00.  Received  of  Calvin  Gray,  package 
said  to  contain  forty-one  dollars,  directed  to  Miss  Nancy  Thrasher, 
Reading,  Mass.,  per  Jackson  &  Co.  Marden."  The  plaintiff  knew  that 
the  defendants  carried  packages  from  Portsmouth  to  Boston,  but  did 
not  know  whether  their  line  extended  elsewhere  or  not.  No  notice  was 
given  him  on  this  point  by  the  defendants,  except  so  far  as  such  notice 
may  have  been  given  by  the  above  writing  and  the  other  facts  herein 
mentioned.  ^Yhen  the  package  was  delivered  by  the  plaintiff  to  the 
defendants,  the  plaintiff  understood  that  the  defendants  undertook  to 
carry  it  to  Reading  and  there  deliver  it  to  Miss  Thrasher.  The  defend- 
ants understood  that  they  undertook  to  do  nothing  more  than  they 
afterwards  did.  There  was  no  conversation  on  this  matter  at  the  time, 
but  the  Court  finds  the  understanding  of  each  party  to  have  been  as 
above  stated. 

The  defendants  carried  the  package  to  Boston,  gave  it  to  the  agent 
of  the  expressman  whose  route  was  from  Boston  to  Reading,  paid  him 
twenty-five  cents,  and  took  his  receipt.  The  Reading  expressman 
appropriated  the  money  to  his  own  use,  and  has  since  left  this  part  of  the 
country.  The  defendants  had  no  business  connection  with  the  express 
from  Boston  to  Reading.  About  four  weeks  after  July  11th,  an  agent 
of  Miss  Thrasher,  to  w^hom  the  Reading  expressman  had  admitted  the 
receipt  of  the  money  but  refused  to  pay  it  over  (virtually  acknowledging 
that  he  had  spent  it),  went  with  Miss  Thrasher  to  the  Boston  office  of 
the  defendants,  notified  the  defendants  of  the  non-receipt,  and  demanded 
the  money.  About  two  weeks  later,  the  plaintiff  notified  the  defendants, 
at  their  Portsmouth  office,  that  the  money  had  not  been  received. 

The  Court  found  a  verdict  for  the  defendants,  and  the  plaintiff  moved 
for  a  new  trial. 

Minot,  Tappan  &  Mugridge,  for  the  plaintiff.  C.  P.  Sanborn,  for 
the  defendants. 

Doe,  J.  .  .  .  The  defendants  have  taken  upon  themselves  the 
public  office,  trust,  and  duty  of  common  carriers  between  Portsmouth 
and  Boston,  but  not  between  Boston  and  Reading.  They  were  under  an 
obligation  as  common  carriers  to  receive  the  plaintiff's  parcel  and  carry 
it  to  Boston.  That  was  their  official  duty.  Assuming  the  office,  they 
promise  to  perform  its  duties.     This  is  common  law.     But  it  was  no  part 


No.  759  party's  duty  to  satisfy  the  judge  1101 

of  their  official  duty  to  carry  the  parcel  to  Reading,  or  to  receive  it  coupled 
with  a  contract  to  carry  it  to  Reading.  And  when  the  plaintiff  accuses 
them  of  violating  a  contract  to  carry  it  to  Reading,  the  plaintiff"  must  prove 
the  contract  on  which  it  relies.  It  is  not  proved  by  the  official  duty  of 
their  public  employment,  because  that  does  not  extend  beyond  Boston. 
A  contract  to  carry  the  parcel  to  Reading  must  be  a  mutual  understanding 
of  the  parties.  It  may  be  proved  expressly  or  by  iinplication,  by  direct 
or  circumstantial  evidence,  by  writing  or  parol,  by  words  or  conduct  or 
usage.  .  .  .  There  is  no  law  peculiar  to  this  branch  of  the  contract  of  a 
common  carrier.  There  is  no  law  in  it,  except  the  elementary  and  general 
principles  applicable  to  all  contracts,  that  a  contract  is  a  mutual  under- 
standing, and  that  a  party  may  be  estopped  to  deny  that  his  understand- 
ing was  such  as  he  induced  the  other  to  believe  it  to  be.  All  the  rest  of 
the  question  whether  by  an  implied  contract  a  carrier  undertook  to  carry 
goods  beyond  his  route,  is  a  question  of  fact  to  be  determined  upon  the 
evidence  by  the  tribunal  authorized  to  try  the  questions  of  fact  involved 
in  the  issue. 

How  can  so  plain  a  question  of  fact  be  changed  into  a  question  of  law? 
In  Muschamp  v.  L.  &  P.  J.  R.  Co.,  8  M.  &  W.  421  (decided  in  1841,  and 
everywhere  accepted  as  the  leading  case  on  this  subject),  it  was  held  to  be 
a  question  of  fact.  A  parcel  directed  to  a  place  beyond  the  defendants' 
route,  and  carried  by  them  through  their  route  and  forwarded,  was  after- 
wards lost.  Baron  Rolfe  "  stated  to  the  jury,  in  summing  up,  that  where 
a  common  carrier  takes  into  his  care  a  parcel  directed  to  a  particular 
place,  and  does  not  by  positive  agreement  limit  his  responsibility  to  a 
part  only  of  the  distance,  that  is  prima  facie  evidence  of  an  undertaking 
on  his  part  to  carry  the  parcel  to  the  place  to  which  it  is  directed:  and 
that  the  same  rule  applied,  although  that  place  were  beyond  the  limits 
within  which  he  in  general  professed  to  carry  on  his  trade  of  a  carrier." 
The  jury  found  a  verdict  for  the  plaintiff,  and  the  defendants  moved  "  for 
a  new  trial,  on  the  ground  of  misdirection."     In  the  Exchequer, 

"Lord  Abinger,  C.  B.  —  The  simple  question  in  this  case  is,  whether  the 
learned  judge  misdirected  the  jury  in  telling  them  that  if  the  case  were  stripped  of 
all  other  circumstances  beyond  the  mere  fact  of  knowledge  by  the  party  that  the 
defendants  were  carriers  only  from  Lancaster  to  Preston,  and  if,  under  such  cir- 
cumstances, they  accepted  a  parcel  to  be  carried  on  to  a  more  distant  place,  they 
were  liable  for  the  loss  of  it,  this  being  evidence  whence  the  jury  might  infer  that 
they  undertook  to  carry  it  in  safety  to  that  place.  1  think  that  in  this  proposi- 
tion there  was  no  misdirection.  .  .  .  The  question  is,  Why  should  the  jury  infer 
one  of  these  contracts  rather  than  the  other?  Which  of  the  two  is  the  most 
natural,  the  most  usual,  the  most  probable?  .  .  .  The  whole  matter  is  there- 
fore a  question  for  the  jury,  to  determine  what  the  contract  was  on  the  evidence 
before  them.  .  .  . 

GuRNEY,  B.  —  1  think  there  was  no  misdirection  in  this  case,  and  that  the 
jury  might  fairly  infer  the  contract  was  such  as  was  stated  by  the  learned  judge." 

In  this  explicit  manner  the  undertaking  of  the  carrier  to  be  responsible 
for  the  delivery  of  the  parcel  beyond  his  own  route  was  held  to  be  a 


1102  BOOK   IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  759 

pure  question  of  fact,  to  be  determined  by  the  jury  on  the  evidence. 
There  was  such  an  undertaking,  if  both  parties  so  understood  it.  Whether 
there  was  such  an  understanding,  was  plainly  a  question  of  fact,  and  no 
attempt  was  made  to  change  it  into  a  question  of  law.  It  was  submitted 
to  the  jury  by  Baron  Rolfe,  and  the  only  point  decided  by  the  Court  was, 
that  it  was  a  question  of  fact  which  nmst  be  submitted  to  the  jury. 

When  Baron  Rolfe  told  the  jury  that  the  evidence  in  the  case  was 
prima  facie  evidence  of  such  an  undertaking,  by  these  words  he  held  the 
undertaking  to  be  a  matter  of  fact  to  be  proved  by  evidence.  In  saying 
that  the  evidence  was  prima  facie  evidence  of  the  fact,  he  merely  expressed 
his  opinion  of  the  weight  of  the  evidence,  in  accordance  with  the  general 
custom  of  English  judges.  State  v.  Hodge,  50  N.  H.  519,  522,  525.  In 
their  practice,  such  opinions  are  given  in  various  forms.  WHiere  we  should 
say,  "There  is  some  evidence  to  be  submitted  to  the  jury,"  English  judges 
often  say,  "The  evidence  jjwves,"  or  "The  weight  of  the  evidence  is," 
or  "From  the  evidence  the  inference  is,"  or  "The  presumption  is,"  or 
"  This  is  prima  facie  evidence,"  or  "  This  evidence  shifts  the  burden  of 
proof,"  or  "This  evidence  is  sufficient  to  prove  the  fact  unless  it  is  re- 
butted by  the  other  party."  And  when  exception  is  taken  to  such  state- 
ments,  the  point  intended  to  be  raised  by  counsel  and  decided  Ijy  the 
Court  is,  not  whether  the  judge  may  rightfully  give  the  jury  his  opinion  of 
the  evidence  in  such  forms  (that  is  taken  for  granted),  but  whether  there 
is  any  evidence  for  him  to  give  his  opinion  of,  and  for  the  jury  to  give 
their  verdict  upon.  .  .  .  The  opinions  of  English  judges  on  the  weight 
of  the  evidence  being  constantly  given  in  such  expressions  as  "  From  this 
evidence  the  inference  (or  presumption)  is,"  or  "This  is  prima  facie 
evidence,"  or  other  equivalent  phrases,  these  expressions,  having  been 
used  for  ages  in  the  trial  of  cases  by  jury,  became  the  common  judicial 
language  used  in  delivering  judgment  on  motions  for  new  trials  as  well 
as  in  summing  up  to  the  jury.  Muschamp  v.  L.  &  P.  J.  R.  Co.  is  an 
instance  of  this  practice.  On  the  motion  for  a  new  trial,  in  Muschamp 
V.  L.  &  P.  J.  R.  Co.,  Lord  Abinger,  delivering  judgment,  said  the  under- 
taking alleged  by  the  plaintiff  "is  the  most  likely  contract  under  the 
circumstances."  In  saying  this  he  no  more  undertook  to  state  a  rule  of 
law  than  Mr.  Justice  Bayley  did  when  he  told  the  jury,  in  King  v. 
Diggles  (50  N.  H.  520),  that  "it  was  not  very  likely"  that  an  old  man 
would  sell  his  spectacles.  .  .  .  "The  whole  matter,"  says  he,  "is  there- 
fore a  question  for  the  jury,  to  determine  what  the  contract  was  on  the 
evidence  before  them." 

But  the  decision  in  that  case  has  often  been  misunderstood.  It  has 
been  erroneously  supposed  that  the  opinions  of  Rolfe  and  Abinger, 
on  the  prima  facie-  weight  of  the  evidence,  were  laid  down  as  law. 
Through  that  error,  the  decision  has  been  taken  as  the  establishment  of 
a  peculiar  legal  principle  fixing  the  liability  of  common  carriers  beyond 
their  own  routes,  although  it  was  held,  with  remarkable  clearness  and 
emphasis,  that  the  whole  matter  was  a  question  of  fact  for  the  jury. 


No.  759  party's  duty  to  satisfy  tile  judge  1103 

By  such  a  mistake,  and  others  of  a  similar  kind,  a  plain  question  of  fact 
may  inadvertently  be  changed  into  a  question  of  law.  The  mistake  in 
regard  to  the  doctrine  of  Muschamp's  case,  on  the  point  of  prima  facie 
evidence,  was  promoted,  and  another  mistake  was  disseminated,  by  the 
reporters  who  made  the  head  note  of  the  case,  by  adding  to  a  summary 
of  the  evidence  this  unfortunate  statement:  "Held,  that  the  Lancaster 
and  Preston  Railway  Company  were  liable  for  the  loss."  If  they  had 
said  "  Held,  by  the  jury,  that  the  company  were  liable.  Held,  by  the 
Court,  that  there  was  evidence  competent  to  be  submitted  to  the  jury,"  they 
would  have  made  a  correct  and  useful  statement  of  the  case.  In  Angell 
on  Carriers,  §  9.5,  it  is  said  that  in  Muschamp's  case  "  it  was  held  that  the 
company  were  liable  for  the  loss,"  from  which  the  reader  would  under- 
stand that  it  was  so  held  by  the  Court. 

It  has  been  by  no  means  an  unusual  thing  for  fact  to  be  turned  into 
law  by  the  English  practice  of  the  judge  giving  the  jury  his  opinion  of 
the  evidence.  State  v.  Pike,  49  N.  H.  438;  Lisbon  v.  Lyman,  49  N.  H. 
572;  Stater.  Hodge,  50  N.  H.  521.  .  .  . 

The  simple  solution  of  all  the  difficulties  that  have  arisen  on  this 
subject  is,  not  to  hold  fact  to  be  law,  and  not  to  mistake  the  opinions  of 
judges  on  the  weight  of  evidence  for  opinions  on  principles  of  law. 

The  perplexity  of  some  American  authorities,  growing  out  of  a  mis- 
apprehension of  jNIuschamp's  case,  makes  it  necessary,  in  examining  all 
the  authorities,  English  and  American,  to  observe  critically  how  the 
question  arose  in  each  particular  case,  —  whether  it  was  submitted  to 
the  jury  or  any  other  tribunal  as  a  question  of  fact,  whether  the  real 
doctrine  6f  Muschamp's  case  was  understood,  whether  the  attention 
of  the  Court  was  called  to  the  distinction  between  law  and  fact  .  .  . 
[examining  them]. 

These  are  the  principal  English  cases  usually  cited  on  the  question  of 
a  carrier's  liability  beyond  his  own  route.  They  show  that,  in  England, 
when  there  is  no  paper  to  be  construed  by  the  Court  as  a  contract  in 
writing,  —  when  the  undertaking  of  the  carrier  to  carry  beyond  his  own 
route  is  to  be  inferred  or  implied  from  circumstantial  evidence,  —  the 
question  is  one  of  fact.  They  also  show  that,  upon  the  evidence  usually 
introduced  on  that  question  of  fact,  the  jury  and  the  Court  habitually 
arrive  at  the  same  conclusion.  .  .  .  And  with  a  tendency  to  allow  settled 
fact  to  grow  into  law,  and  in  the  absence  of  a  universal  habit  of  critically' 
and  inflexibly  preserving  the  distinction  between  law  and  fact,  it  is  not 
unlikely  that  the  finding  of  the  jury,  recorded  as  the  head  note  in  Mus- 
champ's case,  will  eventually  be  regarded  as  the  statement  of  a  principle 
of  English  law.  ... 

These  [enumerating  and  stating  them]  are  some  of  the  principal 
American  cases  usually  cited  on  the  question  of  the  liability  of  a  carrier 
beyond  his  own  route,  in  the  absence  of  an  express  written  contract. 
Some  of  them  are  not  in  point.  Many  contain  nothing  but  dicta  on  the 
subject.     Some  turn  on  writings  held  to  be,  or  treated  as,  express  con- 


1104  BOOK  IV:     BURDENS    OF  PROOF;    PRESUMPTIONS      No.  759 

tracts,  the  construction  of  which  by  the  Court  shows  the  understanding 
of  the  parties,  without  the  finding  of  a  jury  on  parol  or  circumstantial 
evidence.  Some  are  based  on  the  mistake  of  supposing  tliat  in  Mus- 
champ's  case  the  defendants  were  held  liable  by  the  Court  as  a  matter  of 
law.  Some  are  controlled  or  influenced  by  the  mistake  of  supposing 
that  in  Muschamp's  case  the  opinions  of  the  judges  on  the  prima  facie 
weight  of  the  evidence  were  opinions  on  the  law.  It  would  seem  that 
in  no  one  of  them  has  the  question  been  held  to  be,  or  been  treated  as,  a 
question  of  law,  where  it  was  claimed  to  be  a  question  of  fact,  or  where 
the  attention  of  the  Court  was  called  to  the  distinction  between  law  and 
fact,  —  a  distinction  which  has  been  clouded  by  misapprehensions  of 
Muschamp's  case.  In  nearly  all  of  them,  when  there  is  no  decisive 
contract  in  writing,  it  is  held  to  be,  or  practically  treated  as,  a  question 
of  fact.  There  is  much  in  the  American  authorities  going  strongly  to 
show  that  Lord  Abinger  was  right,  and  there  is  nothing  in  them  having 
any  considerable  tendency  to  show  that  he  was  wrong,  when  he  said,  in 
Muschamp's  case,  "The  whole  matter  is  therefore  a  question  for  the  jury 
to  determine  what  the  contract  was,  on  the  evidence  before  them."  .  .  . 

Upon  the  question  of  the  understanding  of  the  parties  in  this  case, 
it  may  be  doubtful  whether  the  mere  reception  by  the  defendants  of  the 
parcel,  directed  to  a  place  beyond  their  route,  is  evidence  of  an  under- 
taking to  carry  the  parcel  to  that  place,  or  to  be  responsible  for  its  car- 
riage beyond  Boston.  .  .  .  No  such  mutual  understanding,  binding  the 
defendants  to  carry  the  plaintiff's  parcel  beyond  Boston,  was  found  by 
the  judge  who  tried  the  facts  in  this  case.  .  .  . 

The  judge  who  tried  the  case  found  a  general  verdict  for  the  defend- 
ants, and  there  must  be  Judgment  on  the  verdict. 


760.   BRIDGES  v.   NORTH  LONDON  R.   CO. 

House  of  Lords.     1874 

L.  R.  7  H.  L.  (E.  &  I.  App.)  213 

[Printed  ante,  as  No.  742) 

761.   HEHIR  V.   RHODE   ISLAND   CO. 

Supreme  Court  of  Rhode  Island.     1904 

26  R.  I.  30;  58  Atl  246 

Trespass  on  the  Case  for  negligence.  Heard  on  petition  of  defendant 
for  re-argument,  after  denial  of  its  petition  for  new  trial.  Petition 
dismissed. 

TiLLiNGHAST,  J.  —  This  case  was  very  fully  and  carefully  considered 
by  the  Court  before  rendering  the  decision  now  complained  of  by  defend- 


No.  761  party's  duty  to  satisfy  the  judge  1105 

ant's  counsel,  and,  after  reading  his  brief  in  support  of  his  motion  for  a 
re-argument,  we  fail  to  see  that  he  has  pointed  out  any  error  committed 
by  the  Court  in  said  decision. 

Counsel  criticises  the  rule  adopted  by  the  Court  that  "  where  the  evi- 
dence is  conflicting,  the  case  is  one  which  is  peculiarly  within  the  prov- 
ince of  the  jury  to  decide;"  contending  that  under  such  a  broad  rule 
the  Appellate  Division  could  in  no  case  consider  a  petition  for  new  trial, 
based  upon  the  ground  of  the  verdict  being  against  the  evidence,  because 
every  case  has  two  sides,  and  there  must  of  necessity  be  conflicting 
testimony  in  every  case.  He  argues,  further,  that  the  law  does  not 
contemplate  such  a  rigid  rule,  and  that  it  is  only  in  cases  where  the 
testimony  is  sufficiently  conflicting  to  make  it  doubtful  where  the  pre- 
ponderance may  be  that  the  Court  would  refuse  to  interfere  with  the 
verdict. 

The  rule  which  the  Court  adopted  —  or  rather  followed  —  is,  and 
always  has  been,  the  rule  which  controls  in  petitions  for  new  trials,  not 
only  in  this  State,  but  wherever  the  common  law  is  in  force.  Questions 
of  fact  are  for  the  jury  to  try  and  determine.  And  where  the  evidence 
as  to  the  existence  of  those  facts  which  are  put  in  issue  is  conflicting,  and 
of  such  a  character  that  fair-minded  men  might  honestly  differ  as  to  the 
result  thereof,  the  verdict  of  the  jury  is  final  and  conclusive.  .  .  . 

And  this  is  so,  even  though  the  Court  or  another  jury  might  come  to 
a  different  conclusion  upon  the  same  state  of  facts.  The  cases,  both 
reported  and  unreported,  in  this  State  are  numerous  and  uniform  in 
support  of  this  doctrine.  See,  by  way  of  illustration,  Watson  v.  Tripp, 
11  R.  I.  98;  Boss  v.  R.  R.  Co.,  15  R.  I.  149;  East  Greenwich  Inst,  for 
Savings  v.  Kenyon,  20  R.  I.  110. 

The  language  of  the  former  rescript  criticised  by  counsel,  does  not 
mean  that  where  there  is  merely  a  technical  or  nominal  conflict  in  the 
testimony  the  Court  may  not  reverse  the  finding  of  the  jury;  for  no  Court 
of  last  resort  ever  adopts  such  a  rule.  A  mere  scintilla  is  never  sufficient 
to  sustain  a  verdict,  or,  according  to  the  modern  rule,  even  to  warrant 
the  trial  Court  in  submitting  the  case  to  the  jury;  Commissioners  v. 
Clarke,  94  U.  S.  p.  284;  Bouv.  Law  Diet.  vol.  2,  959-60.  Nor  is  a  slight 
amount  of  direct  and  positive  evidence  on  one  side  sufficient  to  sustain 
a  verdict  based  thereon,  where  the  evidence  opposed  to  it  is  strong  and 
convincing  and  wry  clearly  of  greater  weight.  All  that  the  Court  meant 
by  the  use  of  the  language  criticised,  and  all  that  any  Court  means 
thereby  —  for  it  is  a  most  common  expression  in  opinions  upon  petitions 
for  new  trials  —  was  that  the  testimony,  the  positive  and  substantial 
testimony  introduced  by  the  respective  parties  to  the  case,  at  the  trial 
thereof,  was  so  conflicting  that  the  Court  could  not  say  that  the  verdict 
was  clearly  and  palpably  wrong.  And  under  the  decision  of  this  Court 
in  Johnson  v.  Blanchard,  5  R.  I.  24,  which  has  been  repeatedly  reaffirmed, 
a  verdict  cannot  be  set  aside  unless  the  evidence  "  very  strongly  prevon- 
derates"  against  it. 


1106  BOOK   IV :     BURDENS    OF   PROOF;     PRESUMPTIONS       Xo.  761 

In  the  opinion  of  a  majority  of  the  Court  the  evidence  in  this  case 
did  not  so  preponderate,  but  on  the  other  hand  was  sufficient  to  sustain 
the  verdict.  The  defendant's  motion  for  re-argument  is  therefore  denied 
and  dismissed. 

A.  A.  McCaughin,  for  plaintiff.  Henry  W.  Hayes,  Frank  T.  Boston, 
Lefferts  S.  Hoffman,  for  defendant. 


762.   STATE  v.   FORBES 

Supreme  Court  of  New  Hampshire.     1909 

75  N.  H.  306;  73  Atl.  929 

Exceptions  from  Superior  Court,  Coos  County;   Pike,  Judge. 

Fred  Forbes  was  convicted  of  forgery,  and  he  brings  exceptions. 
Overruled. 

Indictment,  charging  that  the  defendant,  on  December  4,  1908,  "  did 
falsely  make  and  counterfeit  a  certain  American  Express  money  order  for 
the  payment  of  money,  purporting  to  be  made  and  signed  by  one  W.  A. 
Davids,  assistant  agent,  for  the  sum  of  SoO,  .  .  .  with  intent  that  some 
person  should  be  defrauded."  Trial  by  jury  and  verdict  of  guilty. 
The  defendant  moved  for  his  discharge  upon  the  ground  that  there  was 
no  evidence  upon  which  it  could  be  found  that  he  falsely  made  and 
counterfeited  the  order  in  Coos  County.  The  motion  was  denied,  and 
he  excepted.  After  verdict  the  Court  imposed  sentence,  but  stayed 
execution  pending  the  determination  of  the  question  of  law  reserved. 
The  State's  evidence  tended  to  prove  that  on  Wednesday  or  Thursday 
in  the  week  ending  August  15,  1908,  the  defendant  was  seen  in  company 
with  one  Wilhelm  at  the  Windham  Junction  station  of  the  Boston  & 
Maine  Railroad.  The  railroad  agent  at  that  station  does  business  for 
the  American  Express  Company,  "issuing  orders,  filling  out  freight,"  etc. 
AYilhelm  bought  of  the  agent  an  express  order  for  $1.  On  August  15th, 
after  Forbes  and  Wilhelm  had  disappeared,  the  station  agent  discovered 
that  a  book  containing  twenty  blank  money  orders  had  been  stolen  from 
the  office.  There  was  evidence  that  the  theft  was  committed  by  Forbes 
and  Wilhelm.  All  orders  of  the  American  Express  Company  are  issued 
in  blank  books  of  twenty  or  more,  each  bearing  a  serial  number  which 
has  no  duplicate.  One  of  the  blank  orders  in  the  stolen  book  bore 
the  serial  number  8-3265268.  After  the  disappearance  of  Forbes  from 
Windham  Junction,  he  was  next  seen  at  Lancaster,  on  September  4th. 
How  long  he  had  been  there  did  not  appear.  AMiile  in  Lancaster  he 
went  into  a  store  and  bargained  for  some  clothing,  for  which  he  agreed 
to  pay  S28,  and  offered  in  payment  therefor  an  American  Express  money 
order  for  .$50,  like  the  one  set  forth  in  the  indictment,  bearing  the  serial 
number  8-3265268,  with  the  addition  that  it  bore  upon  its  back  the 
indorsement  "Paul  N.  Mertha,  Jr."  .  .  . 


No.  762  party's  duty  to  satisfy  the  judge  1107 

J.  Howard  Wight,  Sol.,  and  Brew,  Jordan,  Shurtleff  &  Morris,  for  the 
State.     Sullivan  &  Daley  and  Burritt  H.  H in  man,  for  defendant. 

Bingham,  J. — To  sustain  a  conviction  of  the  crime  of  forgery,  as  in 
other  crimes,  it  should  appear  that  it  was  committed  in  the  county 
where  the  offence  is  laid ;  and  according  to  the  weight  of  authority  proof 
of  that  fact  is  sufhciently  made  out  to  entitle  the  State  to  go  to  the  jury, 
if  nothing  further  appears  than  that  the  person  charged  with  the  offence 
is  show^n  to  have  uttered  the  forged  instrument  in  the  county  w-here  the 
indictment  is  found.  Spencer  v.  Commonwealth,  2  Leigh  (Va.)  751; 
State  V.  Poindexter,  23  W.  Va.  805;  State  v.  Morgan,  19  N.  C.  348; 
Johnson  v.  State,  35  Ala.  370;  Bland  v.  People,  3  Scam.  (111.)  364;  State 
V.  Blanchard,  74  Iowa  628;  United  States  v.  Britton,  2  Mason  464,  469, 
470,  Fed.  Cas.  No.  14,650;  Rex  v.  Parkes,  2  East,  Pleas  of  the  Crown, 
992;  s.  c,  2  Russell,  Crimes  (2d  ed.)  371;  2  Leach,  Crown  Law^  898, 
909.  In  other  words,  proof  that  the  forged  instrument  was  uttered  by 
the  forger  in  the  county  where  the  indictment  w'as  found,  if  unanswered, 
is  sufficient  to  sustain  the  verdict  of  a  jury  that  the  crime  was  there 
committed. 

If  this  is  the  law  (and  we  see  no  reason  for  thinking  that  it  is  not), 
it  would  seem  that  the  situation  w'ould  not  cease  to  present  a  question 
of  fact  for  the  jury,  and  become  a  question  of  law  for  the  Court,  if  other 
evidence  should  be  introduced  upon  w^hich  a  contrary  finding  might  be 
predicated,  and  that  the  cases  above  cited,  to  the  extent  that  they  present 
a  contrar}^  view,  are  not  to  be  followed.  It  is  said  in  those  cases  "that 
the  place  where  an  instrument  is  found  or  offered  in  a  forged  state 
affords  prima  facie  evidence,  or  a  presumption,  that  the  instrument  was 
forged  there,  unless  that  presumption  is  repelled  by  some  other  fact  in 
the  case;"  and  in  Commonwealth  v.  Costley,  118  Mass.  1,  26,  it  is  said 
that  this  is  all  that  was  decided  in  Commonwealth  v.  Parmenter,  5  Pick. 
(Mass.)  279,  the  case  relied  upon  by  the  defendant.  If  the  terms  "  prima 
facie  evidence  or  presumption,"  as  there  employed,  mean,  as  we  under- 
stand they  do,  that  such  evidence  answers  the  legal  requirements  of  proof 
authorizing  a  submission  of  the  question  to  the  jury  (King  v.  Hopkins, 
57  N.  H.  334,  359),  then  it  does  not  follow^  that,  in  case  countervailing 
proof  is  put  in  evidence,  the  Court  would  be  warranted  in  withdrawing 
the  question  from  the  jury;  for  the  w^eight  to  be  given  the  evidence  is  for 
them  to  pass  upon,  and  presents  no  question  of  laW',  and  if  a  verdict  is 
rendered  which  is  against  the  weight  of  the  evidence,  the  injured  party's 
remedy  is  to  seasonably  apply  to  the  trial  Court  to  have  the  verdict  set 
aside.  The  true  rule,  as  stated  by  Wigmore,  is:  Are  there  facts  in  e\'i- 
dence  which,  if  unanswered,  would  justify  men  of  ordinary  reason  and 
fairness  in  affirming  the  question  which  the  plaintiiT  is  bound  to  maintain? 
If  there  are,  he  has  passed  the  judge,  and  may  properly  claim  that  the 
jury  be  allowed  to  consider  his  case.  4  AVigmore,  Evidence,  §§  2494, 
2513. 

As  it  is  conceded  that  the  defendant  forged  the  order  and  uttered 


1108  BOOK    IV :     BURDENS   OF   BROOF;     PRESUMPTIONS       No.  762 

it  at  Lancaster,  in  the  County  of  Coos,  there  was  sufficient  evidence  from 
which  it  could  be  found  that  the  crime  of  forgery  was  there  committed ; 
and  this,  irrespective  of  the  fact  whether  there  was  or  was  not  other 
evidence  tending  to  disprove  such  a  conclusion. 

Exception  overruled.     All  concurred. 


763.  JOLIET,   AURORA  &  NORTHERN  R.   CO.   v.  VELIE 

Supreme  Court  of  Illinois.     1892 
140  ///.  59;  29  N.  E.  706 

Appeal  from  the  Appellate  Court  for  the  Second  District;  —  heard  in 
that  Court  on  appeal  from  the  Circuit  Court  of  Kane  County;  the  Hon. 
Isaac  G.  Wilson,  Judge,  presiding. 

This  is  an  action  on  the  case  begun  on  April  23,  1888,  by  the  appellee 
against  the  appellant  company  in  the  Circuit  Court  of  Kane  County  to 
recover  damages  for  a  personal  injury,  which  resulted  in  the  amputation 
of  one  of  the  appellee's  legs  and  the  mangling  of  the  other,  in  tearing  his 
ribs  from  the  breast  bone,  in  inflicting  internal  injuries  and  in  completly 
shattering  his  nervous  system.  The  plea  was  not  guilty.  The  first  trial 
resulted  in  a  verdict  in  favor  of  the  plaintiff  for  $15,000.00.  A  new  trial 
was  granted.  The  second  trial  has  resulted  in  verdict  and  judgment  in 
favor  of  the  plaintiff  for  $14,000.00.  This  judgment  has  been  affirmed 
by  the  Appellate  Court,  and  the  judgment  of  the  latter  Court  is  brought 
here  for  review  by  appeal.  .  .  .  After  the  plaintiff  below  had  introduced 
his  evidence  and  rested,  the  defendant  —  the  appellant  here  —  moved  to 
exclude  the  plaintiff's  evidence.  This  motion  was  overruled,  and  excep- 
tion was  taken.  The  action  of  the  trial  Court  in  thus  overruling  the 
motion  of  the  defendant  to  exclude  all  of  the  plaintiff's  evidence,  so  made 
at  the  close  of  the  plaintiff's  evidence,  and  not  afterwards,  is  the  only 
error  now  insisted  upon  by  appellant's  counsel;  except  the  claim  that  the 
damages  are  excessive. 

Williams,  Holt  &  JJ'^heeler,  for  the  appellant.  The  Circuit  Court 
should  have  allowed  defendant's  motion  to  take  the  case  from  the  jury, 
on  the  ground  that  by  plaintiff''s  own  showing  he  knew  the  hazard,  and 
so  was  not  entitled  to  recover.  .  .  . 

A.  J.  Hopkins,  F.  H.  Thatcher,  and  A'^.  J.  Aldrich,  for  the  appellee. 
The  motion  to  exclude  the  plaintiff's  evidence  is  in  the  nature  of  a 
demurrer  to  the  evidence,  and  subject  to  the  same  rules  and  require- 
ments. .  .  . 

Mr.  Chief  Justice  Magruder  (after  stating  the  case  as  above) 
delivered  the  opinion  of  the  Court.  .  .  . 

A  motion  to  exclude  the  evidence  operates  as  a  demurrer  to  the 
evidence.  Where  the  defendant  demurs  to  the  plaintiff's  evidence,  he 
must  be  held  to  admit  not  only  all  that  the  plaintiff's  testimony  proves, 


No.  763  party's  duty  to  satisfy  the  judge  1109 

but  all  that  it  tends  to  prove.  The  demurrer  not  only  admits  the  truth 
of  the  testimony  demurred  to,  but  all  the  conclusions  of  fact  which  a 
jury  may  fairly  draw  therefrom.  The  testimony  is  to  be  taken  most 
strongly  against  the  party  demurring,  and  whatever  inferences  a  jury 
would  be  entitled  to  draw  the  Court  ought  to  draw.  The  object  of  the 
demurrer  is  to  refer  to  the  Court  the  law  arising  from  facts.  ...  Hence, 
if  there  is  evidence  tending  to  prove  the  issues  in  favor  of  the  plaintiff, 
the  judgment  must  be  in  his  favor,  or,  what  amounts  to  the  same  thing 
under  the  more  recent  practice,  the  motion  to  exclude  must  be  overruled. 
If,  therefore,  the  record  in  this  case  was  in  such  shape  as  to  present  for 
our  consideration  the  question  of  law  whether  the  evidence,  that  had 
been  introduced  by  the  plaintiff  below  when  he  rested  his  case,  was  or 
was  not  sufficient  to  justify  a  recovery,  or  establish  a  cause  of  action,  we 
would  be  obliged  to  examine  such  evidence  in  order  to  determine  the 
question  thus  presented. 

But  we  do  not  think  that  the  appellant  is  in  a  position  to  urge  before 
this  Court,  that  the  trial  Court  erred  in  refusing  to  sustain  its  motion 
to  exclude  the  evidence  of  the  plaintiff  below.  When  the  motion  was 
overruled  the  defendant  below  did  not  stand  by  the  motion;  on  the 
contrary,  it  proceeded  to  introduce  testimony  to  contradict  the  proofs 
of  the  plaintiif;  and,  after  the  introduction  of  its  own  testimony,  it  did 
not  renew  its  motion  to  exclude,  nor  did  it  ask  the  Court  to  instruct  the 
jury  to  find  for  the  defendant,  but  allowed  the  case  to  go  to  the  jury  under 
instructions  framed  upon  the  theory  that  there  was  such  a  conflict  in  the 
evidence  as  to  justify  the  jury  in  passing  upon  it.  Where  a  defendant, 
whose  motion  to  exclude  plaintiff's  evidence,  made  as  soon  as  plaintiff 
rests,  is  overruled,  fails  to  stand  by  such  motion,  or  to  renew  it  when  all 
the  testimony  is  in,  or  to  request  that  the  jury  be  instructed  to  find  for 
the  defendant,  but  introduces  testimony  of  his  own  to  contradict  the 
case  made  by  the  plaintiff',  and  requests  that  the  jury  be  instructed  to 
pass  upon  the  issues  involved  and  to  determine  them  according  to  the 
preponderance  of  the  evidence,  he  thereby  waives  his  right  to  object  to 
the  action  of  the  Court  in  overruling  his  motion,  and  is  estopped  from 
assigning  such  action  as  error  in  a  Court  of  review. 

This  conclusion  necessarily  follows  from  the  observations  already 
made  upon  the  nature  of  such  a  motion,  which  operates  as  a  demurrer 
to  the  evidence.  When  a  defendant  demurs  to  a  declaration  and  his 
demurrer  is  overruled,  he  has  two  courses  before  him.  He  can  either 
stand  by  his  demurrer  and  suffer  judgment  to  go  against  him,  trusting 
to  the  upper  Court  to  sustain  his  position,  or  he  can  plead  to  the  declara- 
tion and  go  to  trial.  If  he  does  the  latter,  he  loses  any  rights  which  he 
might  have  had  under  his  demurrer  if  he  had  stood  by  it.  We  see  no 
reason  why  the  same  rule  should  not  apply  in  the  case  of  a  motion  by  the 
defendant  to  exclude  the  plaintiff's  evidence,  when  such  motion  is  made 
as  soon  as  the  plaintiff  rests  his  case.  A  motion  of  this  kind  is  a  substitute 
for  the  old  practice  of  filing  a  demurrer  to  the  evidence,  which  set  out 


1110  BOOK    IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       Xo.   703 

all  the  facts  admitted,  and  was  expressed  in  the  formal  language  of  the 
ordinary  demurrer.  The  plaintiff  then  joined  in  the  demurrer,  or  refused 
to  join  therein,  according  to  the  ruling  of  the  Court.  Inasmuch  as  the 
demurrer  admits  all  the  facts  stated  in  it  to  be  true,  and  admits  also  all 
the  inferences  which  can  be  properly  drawn  from  the  facts,  and  merely 
claims  that  the  testimony  is  not  sufficient  in  law  to  enable  the  plaintiff 
to  maintain  his  action,  the  defendant  necessarily  withdraws  his  admis- 
sions when  he  neglects  to  stand  by  his  demurrer  after  it  is  overruled,  and 
proceeds  to  introduce  witnesses  to  contradict  the  very  evidence  which 
he  has  just  admitted  to  be  true.  The  action  of  the  Court  in  ruling  upon 
the  demurrer  to  the  evidence  is  based  upon  defendant's  admission  that 
the  facts  established  by  the  evidence  are  true.  When  the  defendant  no 
longer  admits  such  facts  to  be  true  but  tries  to  prove  that  they  are  false, 
he  ought  to  be  held  to  have  waived  any  error  based  upon  the  admissions 
thus  withdrawn.  .  .  .  When  the  testimony  of  the  defendant  is  introduced 
the  case  made  by  the  plaintiff  may  have  been  strengthened,  and  its 
defects,  if  any  existed,  may  have  been  cured.  Very  often  the  cross- 
examination  of  the  defendant's  witnesses  brings  out  facts  favorable  to 
the  plaintiff's  cause  of  action  which  the  latter  could  not  otherwise  obtain. 
When  all  the  evidence  is  in  on  both  sides,  an  entirely  different  case  may 
be  presented  from  that  which  existed  when  the  plaintiff  rested.  Even 
though  a  motion  to  exclude  plaintiff's  evidence  made  at  the  close  of  his 
case  may  have  been  improperly  overruled,  yet  the  evidence  on  both  sides 
when  considered  all  together  may  show  so  clearly,  that  the  cause  depends 
upon  the  effect  or  weight  of  testimony,  as  not  only  to  justify  but  to  re- 
quire the  jury  to  pass  upon  it.  Would  it  be  right  for  this  Court  to  reverse 
a  judgment  for  error  in  overruling  such  a  motion,  if  it  could  plainly  see 
that  the  case  was  one  for  the  jury  in  view  of  all  the  testimony  presented 
by  both  sides,  and  that  it  was  properly  submitted  to  the  jury  under 
instructions  applicable  to  a  controverted  state  of  facts?  We  think  not. 
If  the  defendant  in  this  case  felt  confidence  in  the  position,  that  the 
evidence  introduced  by  the  plaintiff  established  no  cause  of  action,  it 
should  have  stood  by  its  motion.  .  .  .  What  matters  it  that  it  would 
have  been  wrong  to  submit  the  case  to  the  jury  upon  the  plaintiff's 
evidence  alone,  if  it  was  right  to  submit  it  upon  the  plaintiff's  evidence 
and  the  defendant's  evidence  together?  .  .  .  They  [defendant's  counsel] 
nowhere  claim,  or  ask  us  to  hold,  that  the  case  was  not  properly  submitted 
to  the  jury  upon  all  the  evidence  presented  on  both  sides.  Their  sole 
contention  is,  that  the  plaintiff  ichcn  he  rested  had  not  made  a  case,  and 
that  the  trial  Court  erred  in  not  sustaining  the  motion  then  made  to 
exclude  plaintiff's  evidence  without  reference  to  the  bearing,  or  effect 
on  the  issues,  of  the  evidence  subsequently  introduced;  and  that,  for 
this  alleged  error  alone,  we  must  reverse  the  cause  irrespective  of  any- 
thing that  occurred  after  such  motion  was  overruled,  and  no  matter  upon 
what  theory  or  upon  what  kind  of  instructions  the  case  was  finally 
submitted.     We  are  unable  to  concur  in  this  view. 


No.  765  PRESUMPTIONS  nil 

It  is  claimed  that  the  doctrine  herein  announced  is  opposed  to  the 
weight  of  authority.  After  a  careful  examination  of  all  the  cases  decided 
by  this  Court,  to  which  we  have  been  referred,  we  see  nothing  in  them 
inconsistent  with  the  views  here  expressed.^  .  .  .  Under  our  practice, 
the  trial  Court  cannot  order  a  peremptory  non-suit  against  the  will  of 
the  plaintiflF,  though  the  motion  of  the  defendant  to  exclude  plaintiff's 
evidence  on  the  ground  of  its  insufficiency  to  support  a  verdict  will, 
when  granted,  have  the  same  effect  as  an  enforced  non-suit  and  may 
be  almost  said  to  be  equivalent  thereto.  (Poleman  v.  Johnson,  84  111. 
269.)  Under  the  English  practice,  however,  the  defendant  may,  at  the 
close  of  the  plaintiff's  evidence,  apply  for  a  non-suit  against  the  plaintiff, 
if  it  is  claimed  that  there  is  not  evidence  upon  which  the  j\uy  can  reason- 
ably and  properly  find  a  verdict;  and  it  has  been  held  in  several  English 
cases,  that  the  judge  may  use  the  evidence  introduced  by  the  defendant, 
in  order  to  determine  whether  he  will  grant  a  non-suit  or  not,  or  in  order 
to  change  his  ruling  already  made  upon  an  application  for  a  non-suit. 
(Davis  V.  Hardy,  6  Barn.  &  Cress.  225;  Giblin  v.  McMullin,  Law  Rep. 
2  Privy  Council  Appeals,  317.)  If,  under  these  authorities,  the  evi- 
dence of  the  defendant  may  be  considered  in  connection  with  that  of  the 
plaintiff  in  order  to  decide  whether  or  not  the  plaintiff  has  made  such  a 
case  as  should  be  submitted  to  a  jury,  then  when  a  record  shows  that 
testimony  was  introduced  by  both  plaintiff'  and  defendant,  it  should  be 
made  to  appear  to  this  Court,  by  proper  rulings  obtained  from  the  trial 
Court,  that  the  plaintiff  was  not  entitled  to  go  to  the  jury  upon  all  the 
evidence,  before  we  will  reverse  upon  the  alleged  ground  that  the  case 
ought  to  have  been  taken  from  the  jmy.  .  .  . 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


Topic  2.     Specific  Presumptions 

765.  CoGDELLW.  R.  Co.  (1903.  North  Carolina.  132  N.  C.  852;  44  S.  E. 
618.)  Walker,  J.  —  The  Court  was  requested  to  charge  that  there  was  a  pre- 
siim])tion  that  the  deceased  had  exercised  care,  which  the  Court  refused  to  give, 
but  charged  the  jury  that  there  was  an  inference  that  due  care  was  exercised. 
The  presumption  has  a  technical  force  or  weight,  and  the  jury,  in  the  absence  of 
sufficient  proof  to  overcome  it,  should  find  according  to  the  presumption;  but, 
in  case  of  a  mere  inference,  there  is  no  technical  force  attached  to  it.     The  jury, 


1  [Gray,  J.,  in  Colvmbia  &  C.  R.  R.  Co.  v.  Hawthorne,  144  U.  S.  202,  12 
Sup.  591  (1892) :  The  question  of  the  sufficiency  of  the  evidence  for  the  plaintiff 
to  support  his  action  cannot  be  considered  by  this  Court.  It  has  repeatedly  been 
decided  that  a  request  for  a  ruling  that  upon  the  evidence  introduced  the  plaintiff 
is  not  entitled  to  recover  cannot  be  made  by  the  defendant,  as  a  maiier  of  right, 
unless  at  the  close  of  the  whole  evidence;  and  that  if  the  defendant,  at  the  close  of 
the  plaintiff's  evidence,  and  without  resting  his  own  case,  requests  and  is  refused 
such  a  ruling,  the  refusal  cannot  be  assigned  for  error.  —  Ed.] 


1112  BOOK   IV :     BURDENS    OF   PROOF;     PRESUMPTIONS       No.  765 

in  the  case  of  an  inference,  are  at  liberty  to  find  the  ultimate  fact  one  way  or  the 
other  as  they  may  be  impressed  by  the  testimony.  In  the  one  case  the  law 
draws  a  conclusion  from  the  state  of  the  pleadings  and  evidence,  and  in  the 
other  case  the  jury  draw  it.  An  inference  is  nothing  more  than  a  permissible 
deduction  from  the  evidence,  while  a  presumption  is  compulsory  and  cannot  be 
disregarded  by  the  jury. 


766.   STATE  v.  HODGE 

Supreme  Judicial  Court  of  New  Hampshire.     1869 

50  N.  H.  510 

Indictment,  for  breaking  and  entering  the  dwelling-house  of  one 
James  Call,  in  the  night-time,  and  stealing  a  gold  watch  and  chain. 
Verdict,  guilty;   and  motion  of  the  defendant  for  a  new  trial. 

The  evidence  tended  to  prove  the  following  facts:  The  house  had 
been  broken  and  entered  in  the  night.  The  next  morning,  when  the 
watch  and  chain  were  missed,  the  house  occupied  by  the  defendant  was 
searched,  and  the  watch  and  chain  were  found  (with  two  bits,  a  chisel, 
and  a  spirit-level,  which  belonged  to  Call,  and  which  he  had  kept  in  his 
shop  in  front  of  his  house)  in  a  straw  bed  owned  by  one  Howe,  the  father 
of  Mrs.  Call,  in  a  back  chamber  adjoining  the  room  in  which  the  defendant 
slept.  There  was  no  access  to  the  back  chamber,  except  through  a  door 
which  led  into  the  defendant's  sleeping-room.  The  back  chamber  was 
not  hired  or  occupied  by  the  defendant;  but  Howe  and  Call  kept  sundry 
things  there,  and  they  and  others  had  access  to  it  occasionally.  It  was 
not  under  lock  and  key.  To  enter  it,  it  would  be  necessary  to  go  through 
the  lower  kitchen,  occupied  by  the  defendant,  then  through  an  entry,  and 
up  a  pair  of  stairs,  and  through  his  sleeping-room.  In  his  bed  in  his 
sleeping-room,  under  the  pillows  and  under  the  sheets,  was  found  a  small 
piece  of  upper  leather  which  Call  claimed,  and  which  the  defendant 
admitted  he  had  stolen.  The  defendant  also  admitted  he  had  stolen 
some  sole  leather  from  Call,  which  he  had  used  in  tapping  his  boots, 
saying  he  had  taken  the  leather  to  get  even  with  Call.  The  defendant 
had  worked  for  Call,  and  had  had  some  difficulty  with  him  about  his 
labor. 

The  defendant  excepted  to  the  refusal  of  the  Court  to  instruct  the 
jury  that  the  evidence  was  not  sufficient  to  authorize  a  verdict  against 
him. 

Burke,  for  the  respondent.  In  this  case,  the  State  relies  on  the 
possession,  by  the  respondent,  of  the  articles  alleged  to  be  stolen,  for 
conviction  on  the  charge  of  breaking,  entering,  and  stealing,  set  forth  in 
the  indictment.  Possession  of  stolen  goods,  which  will  justify  convic- 
tion, must  be  recent  and  exclusive.  .  .  , 

Colhy,  solicitor  for  the  State. 

Doe,  J.  —  The  defendant's  counsel  claims  that  "  the  State  relies  on 


No.  766  PRESUMPTIONS  1113 

the  possession  by  the  respondent  of  the  articles  alleged  to  be  stolen;" 
that  "  possession  of  stolen  goods,  which  will  justify  conviction,  must  be 
recent  and  exclusive;"  that  "the  State  has  not  actually  proved  either 
possession  by  the  respondent  of  the  articles  alleged  to  be  stolen,  or 
occupancy  of  the  room  in  which  they  were  found,  much  less  exclusive 
possession;"  and  that  the  Court  erred  in  refusing  to  instruct  the  jury, 
as  requested,  that  the  evidence  was  not  sufficient  to  authorize  a  verdict 
against  him. 

It  has  been  generally  understood,  that  the  prisoner's  exclusive  and 
unexplained  possession  of  stolen  property  recently  after  the  theft,  raises 
the  presumption  that  he  is  the  thief,  and  that  this  presumption  takes 
the  burden  of  proof  from  the  prosecutor  and  lays  it  upon  the  prisoner. 
2  East,  Pleas  of  the  Crown,  656;  Roscoe,  Criminal  Evidence,  18;  J.  F. 
Stephen,  Criminal  Law,  303,  304;  1  Bennett  and  Heard,  Leading  Cases, 
360-372,  1st  ed.;  and  cases  cited  in  2  Bishop,  Criminal  Procedure,  §  701. 
When  the  defendant's  possession  of  stolen  property  has  been  the  only 
evidence  relied  upon  to  convict  him,  judges  have  directed  an  acquittal 
because  they  held  the  possession  was  not  recent,  or  was  not  exclusive, 
or  was  explained.  Trials  have  proceeded  upon  the  ground  that  it  was 
for  the  Court  to  determine  whether  the  possession  proved  was  recent 
enough,  or  exclusive  enough,  or  explained  enough,  to  shift  the  burden 
of  proof,  and  that,  if  the  burden  of  proof  was  not  thus  shifted  by  the 
Court,  the  defendant  was  entitled  to  an  acquittal.  The  Court  has 
decided,  not  whether  there  was  any  evidence,  however  slight,  to  be 
submitted  to  the  jury,  but  whether  there  was  a  presumption  which 
shifted  the  burden  of  proof.  This  practice  was  formerly  so  common, 
that  it  came  to  be  regarded  as  the  application  of  a  rule  of  law,  and  is 
so  laid  down  in  many  books  of  high  authority. 

In  this  case,  the  defendant  claims  that  the  evidence  does  not  bring 
him  within  the  supposed  rule  in  relation  to  possession  of  stolen  property, 
and  that  the  Court  should  have  ordered  his  acquittal.  It  becomes 
necessary,  therefore,  to  inquire  whether  there  is  any  such  rule  of  law  as 
has  been  supposed,  and  what  the  rule  is,  if  there  is  one,  and  whether  this 
case  comes  within  it. 

It  is  obvious,  at  the  outset,  that  if  there  is  such  a  rule,  the  presumption 
which  it  draws  from  the  evidence  must  be  a  presumption  of  law  declared 
by  the  Court,  as  distinguished  from  a  presumption  of  fact  found  by  the 
jury.  The  first  practical  difficulty  in  the  way  of  making  it  a  presumption 
of  law  is  the  impossibility  of  inventing  a  rule  by  which  to  determine 
whether  the  possession  is  recent  or  not.  Cochin's  Case,  2  Lewin  C.  C. 
235,  was  an  indictment  for  stealing  two  sacks,  found  in  the  defendant's 
possession  about  twenty  days  after  they  were  missed;  Coleridge,  J., 
said  to  the  jury : 

"If  I  was  now  to  lose  my  watch,  and  in  a  few  minutes  it  was  to  be  found  on 
the  person  of  one  of  you,  it  would  afford  the  strongest  ground  for  presuming  that 
you  had  stolen  it;  but  if  a  month  hence  it  were  to  be  found  in  your  possession, 


1114  BOOK   IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       No.   766 

the  presumption  of  your  having  stolen  it  would  be  greatly  weakened,  because 
stolen  property  usually  passes  through  many  hands." 

In  a  valuable  note  to  this  case,  the  reporter  says: 

"The  question,  however,  of  distance  of  time  and  recent  possession  must  be 
at  all  times  one  of  fact  under  the  circumstances,  and  a  jury  under  the  judge's 
direction  must  decide."  .  .  . 

"What  shall  be  considered  a  recent  possession,  cannot  be  absolutely  deter- 
mined by  any  rule,  but  must  depend  not  only  upon  the  mere  lapse  of  time,  but 
upon  the  nature  of  the  articles  stolen,  and  the  considerations  whether  they  are  of  a 
description  likely  to  pass  rapidly  from  hand  to  hand,  or  such  as  the  party  might, 
from  his  situation  in  life,  or  the  nature  of  his  vocation,  become  innocently  pos- 
sessed of."  Burrill,  Circumstantial  Evidence,  448;  Best  on  Presumptions,  §  305; 
Best  on  Evidence,  §211;  3  Greenleaf  Evidence,  §  32;  2  Bishop  Criminal  Pro- 
cedure, §  701 ;   Bennett  &  Hurd,  Leading  Cases,  366,  1st  ed.  .  .  . 

Is  it  the  duty  of  the  Court,  or  the  duty  of  the  jury,  to  determine 
whether,  in  view  of  the  nature  of  the  property,  the  possession  is  recent 
enough  to  raise  the  presumption?  This  duty  has  frequently  been  per- 
formed by  the  Court.  Courts  governed  by  precedent  can  easily  find 
precedent  enough  to  put  that  duty  upon  them.  But  whenever  a  judge, 
in  the  discharge  of  that  duty,  undertakes  to  charge  a  jury,  he  practically 
demonstrates,  and  virtually  admits,  that  there  is  no  rule  of  law  on  the 
subject.  He  does  not  say  to  the  jury,  "There  is  a  general  rule  of  law, 
or  a  legal  presumption,  applicable  to  all  kinds  of  property;"  but  he  must 
say,  in  substance,  "  There  is  a  general  rule  of  law^  which  finds  guilt  from 
the  recent  possession  of  stolen  property;  but  whether  the  possession  is 
recent  or  not,  depends  upon  the  nature  of  the  property.  There  is  no 
general  rule  of  law^  which  divides  the  infinite  varieties  of  property  into 
three  hundred  and  sixty-five  or  any  other  number  of  kinds,  and  requires 
you  or  me  to  draw  the  presumption,  from  the  possession  of  one  kind  one 
day  after  the  theft,  from  the  possession  of  another  kind  two  days  after, 
and  so  on  to  the  end  of  the  list ;  that  allotment  of  time  and  variety  is 
left  to  my  judgment ;  and,  in  my  judgment,  the  time  and  variety,  in  this 
case,  are  sufficient  to  raise  the  presumption;  this  presumption,  found 
by  me,  is  binding  upon  you."  It  is  useless  to  call  such  a  presump- 
tion a  presumption  of  law.  Call  it  what  we  may,  it  is  a  presumption 
of  fact.  .  .  . 

These  [precedents  cited]  are  mere  instances  and  illustrations  of  the  gen- 
eral practice  of  the  judge  giving  to  the  jury  his  opinion  on  the  facts ;  and 
this  general  practice,  probably,  is  the  chief  origin  of  the  supposed  legal 
presumption  drawn  from  the  possession  of  stolen  property.  When  judges, 
following  the  common  practice  of  giving  the  jury  their  opinions  of  the 
facts  and  the  weight  of  the  evidence,  had  charged  juries  year  after  year, 
for  a  great  length  of  time,  that  possession  of  stolen  property  was  pre- 
sumptive evidence  of  guilt,  or  raised  a  presumption  of  guilt,  this  form  of 
judicial  instruction  finally  came  to  be  considered  as  the  law^  of  the  land. 
Whether  it  was  matter  of  fact  or  matter  of  law  was  practically  immaterial, 


No.  706  PRESUMPTIONS  1115 

the  influence  of  the  Court  upon  the  jury  being  then  generally  overwhelm- 
ing in  cases  .that  touched  no  political  prejudice  or  sympathy.  Being 
constantly  repeated  by  the  Court,  it  naturally  acquired  the  position  and 
strength  of  an  established  dogma.  .  .  . 

To  whatever  extent  matter  of  fact  involved  in  the  issue  is  held  to  be 
matter  of  law,  to  that  extent  the  constitutional  system  of  trial  by  jury  is 
destroyed;  and  when  part  is  destroyed,  the  remainder  is  put  in  jeopardy. 
One  precedent  is  held  to  justify  another.  Every  matter  of  fact  turned 
into  law,  opens  the  way  for  a  further  annexation  of  the  province  of  the 
jury  to  the  province  of  the  Court,  and  a  gradual  absorption.  None 
the  less  dangerous  is  the  process  because  it  has  been  going  on  for  a  long 
time.  .  .  . 

The  English  doctrine  of  presuming  malice  or  criminal  intent  as  a 
matter  of  law  in  certain  cases  may  have  grown  out  of  the  judicial  practice 
of  advising  the  jury  on  the  weight  of  the  evidence  —  a  practice  continued 
so  long  that  the  true  character  of  the  presumption  as  an  inference  of 
fact  passed  into  oblivion.  Lisbon  v.  Lyman,  49  N.  H.  576.  .  .  .  An 
immense  mass  of  authorities  (Burrill,  Circumstantial  Evidence,  48,  49; 
1  Bennett  and  Heard,  Leading  Cases,  347-360;  2  ibid.  504-538;  1  ibid. 
295-362,  2d  ed.)  was  overthrown  by  the  decision  in  State  v.  Bartlett,  43 
N.  H.  232,  233,  234,  where  the  presumption  of  malice  in  homicide  was 
held  to  be  a  presumption  of  fact,  and  a  long  step  was  taken  towards 
the  rectification  of  the  doctrine  of  presumptions,  and  its  establishment 
upon  ground  consistent  with  the  constitutional  trial  by  jury.  .  .  .  The 
decision  in  State  v.  Bartlett  struck  out  of  our  books  a  vast  number  of 
ancient  and  modern  authorities,  and  submitted  to  the  jury,  as  a  ques- 
tion of  fact,  a  subject  which  had  long  been  stvidied  as  a  question  of  law. 
If,  by  virtue  of  that  precedent,  the  law  should  be  still  more  simplified 
and  sound  constitutional  principle  still  further  advanced,  the  profession 
would  be  relieved  and  justice  promoted. 

Whether  the  defendant,  in  this  case,  had  any  possession  of  the  watch 
and  chain,  at  any  time,  either  when  they  were  found  or  before ;  whether 
his  possession,  if  any  he  had,  was  recent  enough,  or  exclusive  enough,  or 
unexplained  enough,  to  raise  a  presumption  of  guilt, — were  questions 
of  fact  for  the  jury.  There  was  some  evidence  to  be  submitted  to  the 
jury  on  those  questions.  If  the  jury  found  the  defendant  had  the 
property  in  his  possession  after  it  was  stolen,  that  fact  was  evidence 
against  him.  If  they  found  an  absence  of  explanatory  evidence  on  his 
side,  under  circumstances  which  tended  to  show  he  could  furnish  such 
evidence,  that  fact  was  additional  evidence  against  him.  Rex  v.  Burdett, 
4  B.  &  Aid.  161,  162;  1  Phillipps,  Evidence,  598,  599,  4th  Am.  ed.;  J.  F. 
Stephen,  Criminal  Law,  303.  But  if  those  facts  were  found,  there  was 
no  presumption  of  law,  nor  was  the  burden  of  proof  shifted.  The  State, 
in  the  indictment,  made  an  affirmation  of  the  defendant's  guilt  which  the 
defendant  traversed  in  his  plea.  The  State  had  the  affirmative,  and  the 
burden  of  proof  which  belongs  to  the  affirmative.     The  question,  from 


1116  BOOK   IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       Xo.  766 

the  beginning  to  the  end  of  the  trial,  was,  whether  the  affirmative  allega- 
tion of  guilt  was  proved  by  the  testimony  introduced  on  both  sides,  and 
by  the  evidence  which  consists  of  the  non-production  of  testimony,  not 
including  the  refusal  of  the  defendant  to  testify,  if  there  was  such  a 
refusal.     The  Court  rightly  refused  to  instruct  the  jury  as  requested. 

Judgment  on  the  verdict. 


767.   ROSS  V.   COTTON  MILLS 

Supreme  Court  of  North  Carolina.     1905 

140  N.  C.  115;  52  S.  E.  121 

Action  by  M.  C.  Ross  against  the  Double  Shoals  Cotton  Mills, 
for  personal  injury  sustained  by  plaintiff  while  operating  a  lapper  in 
defendant  company's  mill;  .  .  .  heard  by  Judge  M.  H.  Justice  and  a 
jury,  at  the  Spring  Term,  1905,  of  the  Superior  Court  of  Cleveland. 
From  a  judgment  of  nonsuit,  the  plaintiff  appealed. 

Webb  &  Mull  and  D.  F.  Morroic,  for  the  plaintiff.  0.  F.  Mason  and 
Ryburn  &  Hoey,  for  the  defendant. 

Connor,  J.  .  .  .  The  plaintiff,  in  the  employment  of  the  defendant, 
was  on  the  day  of  the  injury  operating  a  lapper  in  defendant's  cotton 
mill.  The  motive  power  was  applied  by  a  belt  running  over  a  pulley  on 
the  machine  attached  to  another  pulley  overhead  working  upon  shafting 
connected  with  the  power.  When  it  was  desired  to  stop  the  machine  for 
any  purpose,  the  belt  was  removed  or  shifted  from  the  tight  to  the  loose 
pulley  by  means  of  the  belt  shifter.  If  the  machine  became  choked  with 
the  cotton  passing  through  the  beater,  and  it  became  necessary  to  clean 
it,  or  remove  the  cotton,  it  is  stopped  by  throwing  the  belt  from  the  tight 
to  the  loose  pulley,  this  being  done  by  a  shifter.  If  in  proper  condition 
it  will  remain  motionless  until  the  belt  is  thrown  back  on  to  the  tight 
pulley.  While  machine  is  in  motion,  there  are  parts  in  which  the  hand 
of  the  operator  may  be  put  without  injury ;  there  are  other  parts  in  which 
the  beater  shaft  revolves  very  rapidly.  Plaintiff's  witness,  Gilliam,  says 
that  two  years  ago  when  he  left  the  mill  the  lapper  was  all  right  and  in 
good  condition.  The  plaintiff  says  that  on  the  11th  day  of  July,  1904, 
he  was  operating  the  lapper,  that  it  became  choked  and  "  the  belt  ran  off 
the  big  pulley,"  that  he  carded  the  belt  off  and  put  belt  grease  on  it  to 
prevent  belt  from  running  off.  In  five  or  ten  minutes  it  choked  again, 
that  he  stopped  the  machine  with  the  belt  shifter  and  carried  some 
cotton  back  to  the  hopper.  Champion  went  to  the  opposite  side,  raised 
the  cap  from  the  beater,  and  the  plaintiff  put  his  hand  into  the  beater 
bars  to  get  the  cotton  out.  The  machine,  by  some  unknowTi  means, 
started  and  tore  his  arm  off.  .  .  . 

With  the  light  afforded  us,  but  one  of  three  possible  explanations  of 
the  unexpected  starting  of  the  machine  occurs  to  our  minds;    either 


No.  767  PRESUMPTIONS  1117 

Champion  accidentally  struck  the  shifter  and  threw  the  belt  on  to  the 
tight  pulley,  or  the  plaintiff,  in  moving  about  the  machine,  did  so;  or 
there  was  some  defect  in  the  belt  or  shifter. 

It  is  elementary  learning  that  the  defendant  is  not  liable  for  the 
movement  of  the  belt,  unless,  either  by  the  negligent  conduct  of  some 
employee  not  a  fellow  servant  or  by  some  defect  in  the  condition  of  the 
shifter,  it  worked  back  and  threw  the  belt  on  to  the  tight  pulley.  In 
this  condition  of  the  case,  what  shall  be  done?  The  defendant  has 
charge  of  the  machinery  and  its  operation  except  in  so  far  as  the  plaintiff, 
in  the  discharge  of  his  duty,  had  such  charge.  The  plaintiff  is  suddenly 
and  unexpectedly  caught  in  the  machine,  struck  dumb,  his  arm  torn  off, 
paralyzed.  Conceding  that  there  is  no  direct  evidence  of  a  defect  in  the 
machine  or  any  of  its  parts,  is  the  plaintiff  driven  to  a  nonsuit?  Or  may 
he,  upon  the  doctrine  of  "res  ipsa  loquitur,"  have  his  case  submitted  to 
the  jury  to  say  whether  there  be  actionable  negligence  which  is  the  proxi- 
mate cause  of  his  injury?  ,  .  . 

While  the  rule  has  not  been,  in  express  terms,  often  applied  in  this 
State,  it  is  by  no  means  new  or  of  unusual  application.  Professor 
Wigmore  says  that,  for  a  generation  at  least,  in  England  it  has  been 
conceded  to  exist  "for  some  classes  of  cases  at  least."  In  1865,  Erle, 
C.  J.,  in  Scott  V.  London  Dock  Co.,  3  H.  &  C.  (Com.  L.  R.  U.  S.  134) 
said: 

"There  must  be  some  evidence  of  negligence,  but  when  the  thing  is  shown  to 
be  under  the  management  of  the  defendant  or  his  servants  and  the  accident  is 
such  that,  as  in  the  ordinary  course  of  things,  does  not  happen  if  those  who  have 
the  management  use  the  proper  care,  it  affords  reasonable  evidence,  in  the 
absence  of  explanation  by  the  defendant,  that  the  accident  arose  from  want 
of  care." 

The  limitations  governing  the  application  of  the  rule  are  thus  stated  by 
Wigmore  (§  2509) : 

"  (1)  The  apparatus  must  be  such  that,  in  the  ordinary  instance,  no  injurious 
operation  is  to  be  expected,  unless  from  a  careless  construction,  inspection  or 
user.  (2)  Both  inspection  and  user  must  have  been,  at  the  time  of  the  injury,  in 
the  control  of  the  party  charged.  (3)  The  injiu-ious  occiu-rence  or  condition  must 
have  happened  irrespective  of  any  voluntary  action,  at  the  time,  by  the  party 
injiu-ed." 

The  underlying  reason  for  the  rule  is  that  usually  the  chief  evidence  of 
the  true  cause  of  procedure  is  practically  accessible  to  the  defendant, 
but  inaccessible  to  the  person  injured.  It  is  for  this  reason  that  in  some 
cases  the  Legislature  has  made  the  fact  of  injury  "presumptive  evidence" 
and  in  others  a  "prma/oc^V"  case.  ... 

To  prevent  any  misconstruction  of  the  circumstances  under  which  or 
the  manner  in  which  this  principle  applies  in  the  trial  of  causes,  we  wish 
to  restate:  .  .  .  It  does  not  in  any  degree  affect  or  modify  the  elementary 
principle  that  the  burden  of  the  iss^ie  is  on  the  plaintiff.  Walker,  J.,  in 
Stewart  v.  Carpet  Co.,  138  N.  C.  60,  clearly  states  the  law  in  this  respect: 


1118  BOOK    IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       No.  767 

"The  doctrine  does  not  dispense  with  the  requirement  that  the  party  who 
alleges  negligence  must  prove  the  fact,  but  relates  only  to  the  mode  of  proving  it. 
The  fact  of  the  accident  furnishes  merely  some  evidence  to  go  to  the  jury  which 
requires  the  defendant  'to  go  forward  with  his  proof.'  The  rule  of  'res  ipsa 
loquitur'  does  not  relieve  the  plaintiff  of  the  biu-den  of  showing  negligence,  nor 
does  it  raise  any  presumption  in  his  favor." 

The  suggestion  has  been  made  in  argument  of  cases  at  this  term  that, 
when  the  rule  applies,  it  is  the  duty  of  the  Court  to  instruct  the  jury  that 
proof  which  calls  the  rule  into  action  constitutes  a  "prima  facie"  case, 
or  raises  a  presumption  of  negligence.  This  is  a  misapprehension  both 
of  the  principle  upon  which  the  rule  is  founded  and  its  application.  It 
must  be  conceded  that  expressions  are  used  in  cases  .  .  .  which  give 
color  to  the  suggestion.  ...  So  learned  and  accurate  a  jurist  as  Judge 
Gaston,  in  Ellis  v.  Railroad,  24  N.  C.  138  (being  the  first  time  that  we 
find  the  rule  declared  in  this  Court),  refers  to  it  as  making  out,  when 
applicable,  a  "prima  facie"  case.  Smith,  C.  J.,  in  Aycock  v.  Railroad, 
89  N.  C.  323,  quotes  with  the  approval  the  language  used  in  Ellis'  case, 
supra.  .  .  .  When  a  breach  of  duty  is  shown  which  is  the  proximate 
cause  of  the  injury,  a  verdict  follows  for  the  plaintiff,  unless  exculpatory 
circumstances  are  shown.  It  is  only,  as  here,  when  there  is  no  direct 
evidence  of  a  defect  in  the  machine,  and  the  physical  conditions  sur- 
rounding the  transaction  do  not  ordinarily  produce  injury,  that  the 
occurrence  speaks  for  itself. 

Such  conditions  are  shown  to  exist  in  this  case.  .  .  .  The  law  says 
that  the  plaintiff  is  entitled  to  have  a  jury  pass  upon  the  physical  facts 
and  condition,  and  to  say  whether  in  their  opinion  he  has  ma(le  good 
his  allegation  of  actionable  negligence.  The  defendant  may,  or  may 
not,  introduce  evidence  as  it  is  advised.  By  failing  to  do  so,  it  admits 
nothing,  but  simply  takes  the  risk  of  non-persuasion.  This  is  what  is 
meant  by  "going  foreward"  with  testimony.  He,  by  this  course,  says 
that  he  is  willing  to  go  to  the  jury  upon  the  plaintiff's  evidence.  .  .  . 

The  judgment  of  nonsuit  must  be  set  aside  and  a  new  trial  had. 

New  trial. 


768.  CONTINENTAL  INSURANCE  CO.  v.  CHICAGO  & 
NORTHWESTERN  R.   CO. 

Supreme  Court  of  Minnesota.     1906 

97  Minn.  467;   107  N.  W.  548 

Appeal  by  plaintiff  from  an  order  of  the  District  Court  for  Winona 
County,  Snow,  J.,  denying  a  motion  for  a  new  trial,  after  a  trial  and 
directed  verdict  in  favor  of  defendant.     Reversed. 

John  Moonan,  for  appellant.    Brown,  Abbott  &  Somsen,  for  respondent. 

Jaggard,  J.  —  This  was  an  action  to  recover  damages  caused  by  a 


No.  768  PRESUMPTIONS  1119 

fire  set  by  the  engine  of  defendant  and  respondent.  The  plaintiff  and 
appellant,  an  insurance  company,  paid  the  loss  on  property  insured  by 
it  and  was  subrogated  to  the  rights  of  the  insured  against  the  defendant. 
At  the  close  of  the  testimony,  the  Court  directed  a  verdict  for  defendant. 
From  a  motion  denying  a  new  trial,  this  appeal  was  taken. 

The  statute  of  this  State  (G.  S.  1894,  §  2700)  provides  that  the  owner 
of  property  burned  by  fire  thrown  from  an  engine  can  recover  damages 
from  the  railroad  company  without  being  required  to  show  defects  in 
the  engine  or  negligence  on  the  part  of  employees.  The  fact  of  fire  is 
"prima  facie"  evidence  of  negligence.  The  cases  construing  this  section 
in  this  State,  and  similar  statutes  in  other  States,  are  not  harmonious. 
Many  of  them  hold  that  it  is  necessarily  for  the  jury  to  weigh  the  statu- 
tory presumption  of  negligence  in  the  balance  against  the  evidence  of 
defendant  in  rebuttal.  Greenfield  v.  Chicago,  83  Iowa  270,  49  N.  W. 
95.  .  .  .  H^gan  v.  Chicago,  8G  Mich.  615,  49  N.  W.  509;  2  Thompson, 
Negligence,  840.  Railway  companies  argue  against  this  rule  that  it 
amounts  to  judicial  legislation,  inasmuch  as  it  converts  a  presumption, 
rebuttable  under  the  statute,  into  an  unrebuttable  one  in  effect,  and 
that  it  deprives  them  in  every  instance  of  the  right  to  try  the  force  of 
the  rebuttal^le  evidence  against  the  presumption  before  the  Court,  and 
enables  incendiaries  in  practical  result  to  sell  them  their  crops  and 
improvements  at  a  price  fixed  by  hostile  juries. 

According  to  other  authorities,  rebuttal  by  proof  that  the  engine 
was  properly  constructed,  equipped,  inspected,  maintained,  and  operated 
is  as  broad  as  the  presumption  of  negligence,  and  justifies  the  trial  Court 
in  directing  a  verdict  for  defendant.  Daly  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  43  Minn.  319.  ...  2  Thompson,  Negligence,  796,  note  30. 

In  language  more  picturesque  than  temperate,  Judge  Thompson  has 
insisted  that  the  rule  last  stated  involves  a  complete  obfuscation  of  the 
line  which  separates  the  province  of  the  Court  and  the  province  of  the 
jury,  and  that  here  is  a  case  where  evidence  of  a  cogent  nature  is  opposed 
to  the  testimony  of  the  agents  and  employees  of  a  railroad  company, 
who,  as  experience  will  show,  will,  in  almost  every  case  swear  up  to 
the  necessary  mark  and  to  whom  nothing  is  more  common  than  to  lie  on 
the  witness  stand : 

"In  nearly  every  such  case  the  railway  company  will  come  forward  with  its 
creatures  and  prove  that  the  engine  was  a  good  one,  that  it  was  suitably  equipped 
with  appliances  to  prevent  scattering  fire;  and  many  Courts  have  held  such  evi- 
dence to  constitute  a  defence,  and,  assuming  its  truthfulness,  ..."    2  Thompson, 

Negl.  840,  844,  796. 

The  contrast  of  the  two  views  was  well  illustrated  and  judicially 
stated  in  a  leading  recent  case,  Great  Northern  Ry.  Co.  v.  Coats,  115 
Fed.  452,  53  C.  C.  A.  382.  Thayer,  J.,  for  the  majority  of  the  Court, 
held  that  where  the  company  produced  testimony  not  directly  con- 
tradicted, tending  to  show  that  the  locomotive  was  properly  constructed, 


1120  BOOK    IV :     BURDENS   OF   PROOF;     PRESUMPTIONS       No.   76S 

equipped,  inspected,  and  operated,  it  was  the  province  of  the  jury  to 
determine  whether  the  statutory  presumption  of  neghgence  was  over- 
come: 

"We  cannot  well  understand,"  he  said,  "upon  what  theory  the  statement  of 
persons  who  were  in  charge  of  a  locomotive  when  it  occasioned  a  disastrous  fire, 
that  it  was  properly  and  prudently  managed,  etc.,  must  be  accepted  by  a  Court 
as  conclusive,  and  as  overturning,  as  a  matter  of  law,  the  presumption  of  negli- 
gence raised  by  other  testimony.  It  would  seem,  rather,  that  the  triors  of  the 
fact  ought,  in  such  a  case,  to  consider  how  far  the  interest  of  such  witnesses  — 
their  natural  desire  to  absolve  themselves  from  all  blame  —  may  have  colored 
their  evidence,  and  how  far  their  statements  are  consistent  with  other  facts  and 
circumstances  which  have  been  proven.  If  a  Court  undertakes  to  weigh  such 
evidence,  and  say  that  the  witnesses  are  credible,  and  also  to  decide  as  to  the 
effect  of  the  proof,  it  plainly  assumes  the  functions  of  the  jury  or  at  least  a  function 
which  is  discharged  by  the  jury  in  other  cases." 

On  the  other  hand,  Sanborn,  J.,  dissenting,  after  a  reference  to  a  number 
of  cases  supporting  his  views,  and  a  consideration  of  the  nature  of  rebut- 
table presumptions,  held  that: 

"The  result  is  that  it  was  in  the  first  instance  a  question  of  law  for  the  Court 
below  in  this  case  whether  or  not  the  presumption  of  negligence  in  the  operation 
of  the  defendant's  locomotive,  which  arose  from  the  scattering  of  the  sparks  or 
coals  and  the  setting  of  the  fire,  was  overcome  by  the  testimony  for  the  defendant; 
and  if  the  testimony  of  its  proper  employees  that  there  was  no  negligence  in  the 
operation  of  the  engine  was  uncontradicted,  and  was  as  broad  as  the  presump- 
tion, then  that  presumption  was  overcome,  as  a  matter  of  law,  and  it  was  the  duty 
of  the  trial  Court  to  withdraw  this  charge  of  negligence  from  the  consideration 
of  the  jury  on  the  motion  of  the  defendant." 

The  opinion  of  the  majority  of  that  Court  was  followed  and  approved  in 
all  respects  in  the  recent  and  well-considered  case  of  Atchison  v.  Geiser, 
68  Kan.  281,  75  Pac.  68.  .  .  . 

Under  the  decisions  of  this  State,  the  rule  is  that  the  statute  throws 
the  burden  of  proof  upon  the  defendant  to  rebut  the  presumption  of 
actionable  negligence  on  its  part,  upon  proof  by  the  plaintiff  that  a  fire 
was  kindled  upon  his  lands  adjoining  a  railway  track  by  sparks  from 
defendant's  locomotive;  that  the  defendant  may  rebut  this  presumption 
by  sufficient  proof  of  its  non-connection  as  cause  or  of  such  construction, 
equipment,  maintenance,  and  operation  of  the  engine  as  was  required 
in  the  exercise  of  care  commensurate  with  all  the  circumstances  of  the 
particular  case.  Such  rebuttal  proof  must  conform,  as  to  character  and 
extent,  to  the  standard,  by  which  in  ordinary  cases  is  measured  the 
propriety  of  a  holding  by  a  trial  Court  that  a  defendant,  against  whom 
a  prima  facie  case  of  negligence  has  been  made,  is  free  from  fault,  as  a 
matter  of  law.  The  adequacy  of  such  proof  by  a  defendant  must  also 
be  determined  in  view  of  any  other  facts  appearing  in  the  testimony  in 
addition  to  those  sufficient  to  give  rise  to  the  statutory  presumption, 
which  tend  to  show  negligence.     Unless  the  rebutting  evidence  as  to 


No.  769  PRESUMPTIONS  1121 

both  the  facts  and  the  inferences  reasonably  to  be  drawn  from  them 
is  conclusive,  the  question  is  for  the  jury.  Burud  v.  Great  Northern 
Ry.  Co.,  62  Minn.  243,  64  N.  W.  562.  .  .  . 

In  this  case,  plaintiffs  established  the  facts  sufficient  to  give  rise  to 
the  statutory  presumption.  To  rebut  this  presumption,  the  defence 
was:  First,  that  the  engine  was  equipped  with  the  best  approved  modern 
appliances  for  the  arrest  of  sparks  and  to  prevent  the  escape  of  cinders, 
all  of  which  were  in  the  best  condition;  second,  that  the  engine  was 
operated  not  only  by  men  of  unquestioned  skill,  but  in  such  manner,  at 
the  time  in  question,  as  to  reduce  the  discharge  of  sparks  to  a  minimum; 
third,  that  no  locomotive  can  be  so  constructed  and  practically  operated 
as  to  prevent  the  escape  of  fire  as  is  claimed  to  have  occurred  in  this  case. 
We  are  of  opinion  that  this  rebuttal  testimony  was  not  sufficient  to  have 
justified  the  trial  Court  in  taking  the  case  from  the  jury;  -because,  first, 
the  plaintiff  introduced  affirmative  circumstantial  evidence  of  negligence 
in  addition  to  proof  of  the  facts  essential  to  raise  the  statutory  presump- 
tion of  defendant's  negligence;  second,  the  rebuttal  testimony  depended 
in  part  on  evidence  of  witnesses  whose  credibility  was  for  the  jury; 
third,  it  consisted  largely  (1)  of  expert  testimony,  to  the  effect  that  no 
engine  could  be  practically  so  operated  as  not  to  start  fires  at  the  distance 
here  involved,  which  was  inconclusive  and  not  entirely  consistent,  and 
(2).  of  expert  testimony  that  the  engine  was  operated  in  a  careful  manner, 
which  was  based  upon  too  narrow  an  hypothesis.  ... 

The  order  of  the  Court  is  reversed,  and  a  new  trial  granted. 


769.   FOSS  V.  McRAE 

Supreme  Judicial  Court  of  Maine.     1909 

105  Me.  140;  73  Atl.  827 

Exceptions  from  Supreme  Judicial  Court,  Washington  County. 
Action  by  Mary  E.  Foss  against  Maurice  E.  McRae  and  others,  executors 
of  the  will  of  Asa  T.  McRae,  deceased.  Verdict  for  defendants,  and 
plaintiff  excepts.     Exceptions  overruled. 

Action  on  an  alleged  guaranty  by  the  defendants'  testator  of  the 
payment  of  some  fifty  overdue  promissory  notes  transferred  by  him  to  the 
plaintiff.  The  notes  were  given  by  the  various  promisors  to  Walter  H. 
Foss,  the  husband  of  the  plaintiff,  and  had  been  by  him  transferred  to 
the  defendants'  testator,  and  later  transferred  by  him  to  the  plaintiff 
in  settlement  of  matters  between  them.  The  record  does  not  disclose 
the  plea  nor  for  whom  was  the  verdict;  but  presumably  the  plea  was  the 
general  issue  and  that  the  verdict  was  for  the  defendants.  To  sustain 
her  allegations  the  plaintiff  offered  in  evidence  a  typewritten  instrument 
bearing  the  signature  of  the  defendants'  testator  of  the  following 
tenor : 


1122  BOOK  IV :     BURDENS   OF  PROOF;     PRESUMPTIONS      No.  769 

"Machias,  M.,  April  11,  1907. 

"This  is  to  certify  that  I  have  this  day,  in  a  settlement  of  business 
transacted  with  Mary  E.  Foss,  conveyed  and  sold  to  her  a  lot  of  notes 
for  which  I  have  received  payment  in  full.     And  will  guarantee  them. 

(Signed)  Asa  T.  McRae. 
Witness:  M.  E.  McRae." 

The  defendants  had  seasonably  given  written  notice  to  the  plaintiff 
of  their  denial  of  the  execution  of  this  instrument,  and  at  the  trial  the 
subscribing  witness,  who  was  one  of  the  defendants'  executors,  testified 
that  at  the  time  of  the  execution  and  delivery  of  the  instrument  it  did 
not  contain  the  last  four  words,  "and  will  guarantee  them."  There  was 
also  evidence  upon  both  sides  of  this  issue. 

The  plaintiff  contended  that  upon  this  issue  the  burden  of  proof  was 
upon  the  defendants;  but  the  presiding  justice  instructed  the  jury  as 
follows : 

"  So  the  question  is  narrowed  right  dow^n  to  this :  Were  those  words, 
the  final  four  words  in  this  paper,  written  on  there  when  Mr.  Asa  T.  McRae 
signed  that  paper?  And  the  burden  is  upon  the  plaintiff,  Mrs.  Foss,  or 
her  agents,  who  conduct  the  suit,  to  convince  you  by  the  evidence  that 
m  fact  and  in  truth  those  words  were  upon  that  paper  when  signed  by 
Asa  T.  McRae;  and  has  she  done  so?  She  claims  that  she  has,  and  she 
first  relies  upon  the  circumstances  that  the  words  are  found  to  be  on  the 
paper  now.  That  is  prima  facie  evidence  that  they  were  there  when  it 
was  signed,  but  only  prima  facie.  By  'prima  facie'  we  mean  that,  if 
nothing  more  appeared,  if  that  was  all  there  was,  just  the  paper  itself, 
with  no  contradictions,  it  would  be  taken  as  sufficient  evidence  that  they 
were  there  when  signed;  but,  it  appearing  that  it  is  disputed  that  they 
were  there,  and  there  being  some  evidence  to  the  contrary,  the  burden 
is  still  upon  the  plaintiff  throughout  to  convince  you  by  evidence  that, 
upon  the  whole,  you  believe  the  words  w^ere  there  when  signed." 

Argued  before  Whitehouse,  Savage,  Spear,  King,  and  Bird,  JJ. 

R.  J.  McGarrigle,  for  plaintiff.  John  F.  Lynch  and  //.  H.  Gray,  for 
defendants. 

Spear,  J.  (after  stating  the  case  as  above).  .  .  . 

The  instructions  were  correct.  The  plaintiff,  under  the  notice  and 
rule,  was  required  to  prove  the  execution  of  the  instrument  upon  which 
she  sought  to  recover.  To  accomplish  this  the  subscribing  witness  was 
put  upon  the  stand.  His  evidence  clearly  developed  the  real  issue  in 
the  case.  When  he  had  testified  to  the  execution  of  the  paper,  as  we 
presume  he  did  under  the  notice,  the  plaintiff  had  established  a  prima 
facie  case,  as  the  words  in  dispute  appeared  upon  the  face  of  the  paper 
whose  execution  had  been  proven.  Had  the  case  stopped  here,  the 
plaintiff  would  have  been  entitled  to  recover.  This  is  precisely  what  the 
presiding  justice  instructed  the  jury  at  this  stage  of  the  proceedings. 
But  the  case  did  not  stop  here.  The  very  witness  the  plaintiff  relied 
upon  to  prove  execution  testified  that  the  disputed  words — the  substance 


No.  770  PRESUMPTIONS  1123 

of  the  plaintiff's  case  —  were  not  upon  the  instrument  when  he  witnessed 
the  defendant's  signature.  Again,  it  is  apparent,  if  the  case  had  stopped 
at  this  point,  the  defendant  would  have  been  entitled  to  the  verdict,  as 
the  testimony  of  the  witness,  showing  a  material  alteration,  is  undisputed, 
and  must  therefore  prevail.  Hence  it  follows  that  it  was  incumbent 
upon  the  plaintiff,  to  entitle  her  to  recover,  to  proceed  further  and  intro- 
duce evidence  tending  to  overcome  the  testimony  of  the  attesting  witness. 
The  issue  of  alteration  now  having  been  raised,  it  became  her  duty  to 
assume  the  burden  upon  all  the  evidence  of  persuading  the  jury  that  the 
words  of  guaranty  were  upon  the  paper  when  it  was  executed. 

Now,  while  the  burden  of  evidence  may  be  said  to  have  shifted  from 
the  plaintiff  to  the  defendant,  when  she  had  made  out  a  prima  facie 
case,  and  from  the  defendants  to  the  plaintiff,  again,  when  their  evi- 
dence had  o\ercome  the  prima  facie  case,  the  burden  of  proof  had  not 
changed  at  all.  It  was  incumbent  upon  the  plaintiff,  in  the  end,  upon 
all  the  evidence,  however  it  may  have  shifted  from  one  side  to  the  other, 
to  establish  the  truth  of  the  allegation  upon  which  she  sought  to  recover, 
that  the  instrument  contained  the  disputed  words. 

"Burden  of  proof"  and  "burden  of  evidence"  are  often  confused. 
The  phrase  "burden  of  proof"  is,  in  fact,  more  philosophical  than  prac- 
tical. It  means  generally  that  a  plaintiff,  however  often  the  evidence 
shifts,  must,  upon  the  whole,  persuade  the  jury,  by  legal  e^'idence,  that 
his  contention  is  right.  The  risk  of  nonpersuasion  is  all  the  time  upon 
him.  If  he  fails  to  persuade,  he  loses  his  case.  The  risk  of  nonpersua- 
sion is  the  burden  which  he  must  assume.  Exceptions  overruled. 


770.   CARVER  v.   CARVER 

Supreme  Court  of  Indiana.     1884 

97  Ind.  497 

[Printed  jjost,  as  No.  779] 


BOOK  V.     OF  WHAT  FACTS  NO  EVIDENCE 
NEED    BE    PRESENTED 

TITLE  I.     JUDICIAL  ADMISSIONS 

773.  Chief  Baron  Gilbert.  Evidence.  (1726.  p.  103.)  The  consent  of  the 
parties  concerned  must  be  sufficient  and  concluding  evidence  of  the  truth  of  such 
fact;  for  they  [the  jury]  are  only  to  try  the  truth  of  such  facts  wherein  the  parties 
differ. 

774.  Paige  r.WiLLET.  (1868.  New  York.  38  N.  Y.  28,  31.)  A  party  who 
formally  and  explicitly  admits  by  his  pleading  that  which  establishes  the  plain- 
tiff's right  will  not  be  suffered  to  deny  its  existence  or  to  prove  any  state  of  facts 
inconsistent  with  that  admission. 

775.  New  York,  L.  E.  &  W.  R.  Co.'s  Petition.  (1885.  New  York.  98  N.Y. 
447,  453.)  (Stipulation  as  to  commissioners  of  valuation.)  Earl,  J.  —  Parties 
by  their  stipulations  .  .  .  may  stipulate  away  statutory,  and  even  constitu- 
tional rights;  ...  all  such  stipulations  not  unreasonable,  not  against  good 
morals  or  sound  public  policy,  have  been  and  will  be  enforced;  and  generally,  all 
stipulations  made  by  parties  for  the  government  of  their  conduct  or  the  control 
of  their  rights,  in  the  trial  of  a  cause  or  the  conduct  of  a  litigation,  are  enforced 
by  the  Courts.  ...  So  it  is  not  true  that  parties  cannot  enter  into  stipulations 
which  in  some  sense  will  bind  and  control  the  action  of  the  Courts. 


776.   PRESTWOOD  v.  WATSON 

Supreme  Court  of  Alabama.     1896 

111  Ala.  604;  20  So.  600 

Ejectment  by  E.  Watson,  as  administrator  of  the  estate  of  R.^  E. 
Jordan,  deceased,  against  J.  E.  Prestwood  and  A.  J.  Fletcher,  to  recover 
certain  lands,  specifically  described  in  the  complaint.  There  was  a 
judgment  for  plaintiff,  and  defendants  appeal.     Reversed.  .  .  . 

On  the  trial  of  the  cause  it  was  admitted  and  agreed  by  and  between 
the  attorneys  for  the  plaintiff  and  the  defendants  that  this  case  was 
tried  in  the  same  Court,  at  a  former  term  of  the  Court,  upon  an  agreed 
written  statement  of  facts;  that  said  wTitten  agreed  statement  of  facts 
upon  which  the  case  was  formerly  tried,  and  the  bill  of  exceptions  upon 
which  the  case  was  appealed,  were  lost  or  mislaid.  .  .  .  The  plaintiff 
offered  to  introduce  in  evidence  a  copy  of  the  agreed  statement  of  facts 
used  on  the  former  trial,  which  was  taken  from  the  report  of  the  case 


No.  776  JUDICIAL  ADMISSIONS  1125 

as  found  in  79  Ala.  417.  It  was  shown  by  the  testimony  of  John  Gamble 
that  the  foregoing  agreement  was  not  signed  by  the  parties  or  their 
attorneys,  and  was  made  only  for  that  trial,  and  that  several  years  ago 
(four  or  five  years)  the  counsel  of  defendants  notified  plaintiff  and  his 
counsel  that  defendants  would  not  abide  said  agreement  in  any  subse- 
quent trial.  The  defendants  objected  to  the  introduction  of  said  state- 
ment of  facts  upon  the  following  grounds:  (1)  Said  agreed  statement  of 
facts  was  never  signed  by  the  parties,  or  by  their  attorneys.  (2)  Said 
agjeed  statement  of  facts  was  not  shown  to  be  made  in  open  Court,  or 
indorsed  or  entered  on  the  minutes  or  record  of  the  Court.  (3)  Said 
agreed  statement  of  facts  was  not  admissible,  nor  could  the  same  be 
alleged  or  suggested  by  the  plaintiff,  against  the  defendants  in  this  cause, 
because  the  same  was  not  signed  by  the  party  to  be  bound  thereby. 
The  Court  overruled  each  of  the  foregoing  grounds  of  objections,  allowed 
said  agreed  statement  of  facts  to  be  introduced  as  evidence,  and  to  this 
ruling  the  defendants  duly  excepted.  .  .  . 

There  were  verdict  and  judgment  for  the  plaintiff.  The  defendant 
appeals,  and  assigns  as  error  the  several  rulings  of  the  trial  Court  to  which 
exceptions  were  reserved. 

John  Gamble  and  M.  E.  Milligan,  for  appellant.  .  .  .  The  agreed 
statement  of  facts  on  which  the  former  trial  of  the  cause  was  had  is 
not  admissible  on  a  subsequent  trial,  nor  was  it  conclusive  upon  the 
parties.  ... 

J.  D.  Gardner  and  P.  N.  Hickviafi,  contra. 

Brickell,  C.  J.  A  former  trial  of  this  case  was  had  in  the  Court 
below,  on  a  statement  of  facts  reduced  to  writing,  and  by  the  parties 
admitted  to  be  true,  in  open  Court. 

1.  The  primary  question  to  be  considered  is  whether,  on  a  subsequent 
trial,  this  statement  of  facts  was  admissible,  and  its  operation  and  effect 
as  evidence;  for,  if  it  was  admissible,  and  binding  and  conclusive  on  the 
parties,  a  consideration  of  many  of  the  exceptions  reserved  is  unnecessary. 
Agreements  of  this  character,  intelligently  and  deliberately  made,  — 
whether  made  by  the  parties  in  person,  or  by  their  attorneys  or  solicitors 
of  record,  —  are  encouraged  and  favored.  Their  purpose,  generally,  is 
to  save  costs,  and  to  expedite  trials,  by  relieving  from  rules  of  practice 
which  in  the  particular  case  are  deemed  mere  hindrances,  or  the  dispensa- 
tion with  mere  formal  proof,  or,  as  in  the  present  case,  the  admission  of 
uncontroverted  facts,  of  the  existence  of  which  the  parties  are  fully 
cognizant.  .  .  .  Such  agreements  are  sometimes  made  to  avoid  continu- 
ances, or  for  some  specific  purpose,  and,  by  their  terms,  are  limited  to 
the  particular  occasion  or  purpose,  and,  of  course,  lose  all  force  when  the 
occasion  has  passed,  or  the  purpose  has  been  accomplished.  But  if  by 
their  terms  they  are  not  limited,  and  are  unqualified  admissions  of  facts, 
the  limitation  is  not  implied,  and  they  are  receivable  on  any  subsequent 
trial  between  the  parties. 

2.  That  the  agreement  was  not  signed  by  the  parties  or  by  the  counsel 


1126  BOOK    V:     PROPOSITIONS   NOT   NEEDING   EVIDENCE     No.  776 

was  not  of  importance.  Their  signatures  were  not  necessary  to  impart 
to  it  validity.  Private  agreements  between  parties  or  their  attorneys, 
relating  to  the  proceedings  in  a  pending  case,  —  agreements  not  made  in 
the  presence  of  the  Court,  —  the  rules  of  practice  require,  shall  be  in 
writing,  and  signed  by  the  party  to  be  bound  thereby. 

3.  The  rule  has  never  been  supposed  to  have  any  application  to  agree- 
ments or  admissions  made  in  the  presence  of  the  Court.  Upon  such 
agreements  or  admissions,  made  verbally,  every  Court  is  necessitated 
to  act  daily.  The  refusal  to  recognize  and  act  upon  them  would  del^y 
the  transaction  of  business,  and  entail  upon  counsel  and  parties  much 
unnecessary  labor.  The  purpose  of  the  rule  is  to  relieve  such  admissions 
or  agreements  from  the  infirmative  considerations  attaching  to  mere 
oral  admissions  of  facts  imputed  to  the  one  party  or  the  other,  and  to 
avoid  the  unseemly  wrangles,  disputes,  and  contradictions  which  would 
ensue  if  they  rested  only  in  memory.  Where  the  agreement  or  admission 
is  made  in  the  presence  of  the  Court,  it  is  without  the  purpose  or  reason, 
if  not  without  the  letter,  of  the  rule.  And  when  made  in  open  Court,  and 
reduced  to  writing,  intended  to  be  used,  and  used,  as  an  instrument  of 
evidence,  and  is  without  limitation  as  to  time  or  occasion,  it  cannot  be 
withdrawn  or  retracted  at  the  mere  will  of  either  party.  The  presence 
of  witnesses  to  prove  the  facts  stated  is  waived.  If  the  witnesses  had 
been  produced  and  testified,  and  they  died,  or  became  insane,  or  removed 
without  the  jurisdiction  of  the  Court,  on  a  subsequent  trial  evidence  of 
their  testimony  would  be  admissible.  The  admission  of  the  facts  dispens- 
ing with  evidence,  if  it  could  be  disregarded  by  either  party  on  any 
subsequent  trial,  in  the  event  of  inability  to  produce  witnesses  to  establish 
them,  would  often  convert  such  admissions  into  instruments  of  fraud  and 
injury.  When  they  are  made  deliberately  and  intelligently,  in  the  pres- 
ence of  the  Court,  and  reduced  to  writing,  they  are  of  the  best  species  of 
evidence;  and  parties  cannot  be  permitted  to  retr.act  them,  as  they  are 
not  permitted  at  pleasure  to  retract  admissions  of  fact  made  in  any  form. 
If  they  are  made  improvidently  and  by  mistake,  and  the  improvidence 
and  mistake  be  clearly  shown,  the  Court  has  a  discretion  to  relieve  from 
their  consequences,  —  a  discretion  which  should  be  exercised  sparingly 
and  cautiously. 

There  was  no  application  by  either  party  for  relief  from  the  agree- 
ment, and  neither  party  should  have  been  bound  to  give  evidence  in 
controversy  of  the  facts  therein  stated.  The  loss  of  the  writing  rendered 
admissible  secondary  evidence  of  its  contents.  The  best  evidence  w^ould 
have  been  a  certified  copy  of  the  transcript  in  this  Court  on  the  former 
trial.  Unless  by  consent,  the  statement  found  in  the  published  report 
of  the  case  was  not  admissible. 

The  several  instructions  given  the  jury  in  reference  to  the  recovery 
of  damages  for  the  destruction  and  removal  of  timber  were  erroneous; 
compensation  for  use  and  occupation  is  the  full  measure  of  recovery  to 
which  the  plaintiff  was  entitled.  Reversed  and  remanded. 


No.   778  t      JUDICIAL   ADMISSIONS  1127 

777.  State  r.  Marx.  (1905.  Connecticut.  78  Conn.  18;  60  Atl.  690.)  Ham- 
EKSLEY,  J. :  ...  It  is  true  that  in  the  trial  of  capital  offences  the  Court  will  and 
should  exercise  care  and  discretion  in  respect  to  admissions  made  by  the  accused 
or  by  his  counsel  in  open  Court,  and  that  every  conviction  shoukl  be  supported 
by  some  evidence  produced  in  Court,  and  so  even  a  plea  of  guilty  will  not  ordi- 
narily be  accepted.  But  it  is  not  true  that  an  accused  cannot,  either  by  himself 
or  his  counsel,  in  his  own  interest,  admit  some  facts  which,  though  necessary  for 
the  State  to  establish,  may  be  consistent  with  his  innocence  and  the  defence  he 
maintains.  Subject  to  the  reasonable  discretion  of  the  Court  in  the  jjrotection 
of  the  accused  against  improvidence  or  mistake,  admissions  during  the  trial  by 
the  accused  or  his  counsel  as  to  the  genuineness  of  a  document;  admissions  as  to 
the  testimony  a  witness  not  produced  would  give  if  present,  or  the  fact  his  testi- 
mony would  establish,  voluntarily  made  for  the  purpose  of  preventing  a  post- 
ponement of  the  trial;  and  admissions  in  the  interest  of  the  accused  limiting  the 
issue  to  the  material  facts  upon  which  alone  his  successful  defence  depends,  have 
long  been  permitted  under  our  practice,  and  we  think  their  lawiulness  and  pro- 
priety rest  upcfn  sound  reason.  Oscanyan  r.  Arms  Co.,  103  U.  S.  261,  263; 
Commonwealth  v.  Desmond,  5  Gray  (Mass.)  80;  State  v.  Mortensen,  26  Utah 
312,  323;  State  r.  Fooks,  65  Iowa  452;  Rosenbaum  v.  State,  33  Ala.  354,  362; 
Commonwealth  r.  McMiu-ray,  198  Pa.  St.  51,  59. 


778.  Statutes.  England.  Rules  of  Practice,  Hilary  Term,  4  Wm.  IV  (10 
Bing.  456),  No.  20.  Either  party,  after  plea  pleaded,  and  a  reasonable  time 
before  trial,  may  give  notice  ...  of  his  intention  to  adduce  in  evidence  certain 
wTitten  or  printed  documents;  and  unless  the  adverse  party  shall  consent,  by 
indorsement  on  such  notice,  within  forty-eight  hours,  to  make  the  admission 
specified,  [the  offering  party  may  move  that  the  opponent  show  cause,  and]  the 
judge  shall,  if  he  think  the  application  reasonable,  make  an  order  that  the  costs 
of  proving  any  document  specified  in  the  notice,  which  shall  be  proved  at  the  trial 
to  the  satisfaction  of  the  judge  or  presiding  officer,  shall  be  paid  by  the  party  so 
required,  whatever  may  be  the  result  of  the  cause  [provided  that  the  judge] 
may  give  time  for  inquiry  or  examination  of  the  documents  intended  to  be  offered 
in  evidence,  and  give  such  directions  for  inspection  and  examination,  and  impose 
such  terms  upon  the  party  requiring  the  admission,  as  he  shall  think  fit;  [and  no 
costs  of  proving  a  document  shall  be  allowed]  to  any  party  who  shall  have  adduced 
the  same  in  evidence  on  any  trial,  unless  he  shall  have  given  such  notice  as  afore- 
said, and  the  adverse  party  shall  have  neglected  or  refused  to  make  such  admis- 
sion [or  the  judge  have  indorsed  the  application  as  not  reasonable  to  be  granted]. 

Illmois.  Revised  Statutes,  1874,  c.  110,  §  34,  Rev.  St.  1845,  p.  415,  §  14.  No 
person  shall  be  permitted  to  deny,  on  trial,  the  execution  or  assignment  of  an 
instrument  in  WTiting,  whether  sealed  or  not,  upon  which  any  action  may  have 
been  brought,  or  which  shall  be  pleaded  or  set  up  by  way  of  defence  or  set-off, 
or  is  admissible  under  the  pleadings  when  a  copy  is  filed,  unless  the  person  so 
denying  the  same  shall,  if  defendant,  verify  his  plea  by  affidavit,  and  if  plaintiff 
shall  file  his  affidavit  denying  the  execution  or  assignment  of  such  instrument; 
provided,  if  the  party  making  such  denial  be  not  the  party  alleged  to  have 
executed  or  assigned  such  instrument,  the  denial  may  be  made  on  the  informa- 
tion and  belief  of  such  party. 

New  York.     C.  C.  P.  1877,  §  735.     The  attorney  for  a  party  may,  at  any  time 


1128  BOOK   V:     PROPOSITIONS   NOT   NEEDIN^    EVIDENCE      No.   778 

before  the  trial,  exliitit  to  the  attorney  for  the  adverse  party  a  paper  material  to 
the  action,  and  request  a  written  admission  of  its  genuineness.  If  the  admission 
is  not  given,  within  four  days  after  the  request,  and  the  paper  is  proved  or  admitted 
on  the  trial,  the  expenses,  incurred  by  the  party  exhibiting  it,  in  order  to  prove 
its  genuineness,  must  be  ascertained  at  the  trial  and  paid  by  the  party  refusing 
the  admission;  imless  it  appears,  to  the  satisfaction  of  the  Court,  that  there  was 
a  good  reason  for  the  refusal. 


779.   CARVER  v.   CARVER 

Supreme  Court  of  Indiana.     1884 

97  hid.  497 

From  the  Madison  Circuit  Court. 

M.  S.  Robinson  and  J.  W.  Lovett,  for  appellants.  H.  D.  Thompson, 
T.  B.  Orr,  and  W.  March,  for  appellee. 

ZoLLARS,  J. —  Action  by  appellee  in  relation  to  real  estate;  verdict 
in  her  favor,  and  over  a  motion  for  a  new  trial  and  other  motions,  judg- 
ment upon  the  verdict  that  she  is  the  owner,  and  entitled  to  the  possession, 
of  the  undivided  one-third  of  the  real  estate,  and  for  S125  against  appel- 
lant William  Carver  for  the  detention  thereof.  .  .  .  This  brings  us  to 
the  question  of  the  sufficiency  of  the  paragraphs  of  the  complainant, 
as  against  any  of  the  defendants.  .  .  .  The  second  paragraph  is  quite 
lengthy,  tedious,  and  uncertain  in  detail.  The  substance  of  it  is  as 
follows:  In  1853,  appellee's  father  gave  to  her  lands  in  Rush  County, 
subject  to  a  small  encumbrance,  and  conveyed  it  to  a  trustee,  to  be  held 
by  him  until  her  husband  should  pay  off  the  encumbrance,  when  the 
trustee  should  convey  it  to  her.  In  1854,  the  trustee,  with  her  consent, 
sold  the  land  for  enough  to  pay  off  the  encumbrance  and  S2, 500  additional. 
In  the  same  year,  her  husband,  Ira  Carver,  and  appellant  William 
Carver,  purchased  land  in  Henry  County,  and  paid  for  the  same  with 
appellee's  1?2,500.  With  her  consent,  the  money  was  thus  applied  as 
an  investment  for  her.  The  land  in  Henry  County  having  been  sold, 
appellee's  husband,  acting  as  her  agent,  for  her  use  and  benefit,  purchased 
the  land  in  controversy,  and  paid  for  the  same  with  the  proceeds  of  the 
Henry  County  land.  By  mistake,  the  deed  for  this  land  was  not  made  to 
appellee,  but  to  her  husband.  In  1857,  her  husband  was  of  weak  mind 
and  financially  embarrassed.  Appellant  William  Carver,  with  knowledge 
of  the  husband's  condition,  mentally  and  financially,  and  that  appellee's 
money  paid  for  the  land,  and  wnth  the  intent  to  cheat  and  defraud  her 
out  of  the  land,  confederated  with  the  husband,  and  a  justice  of  the  peace, 
to  get  her  to  sign  a  deed  to  him,  William  Carver.  To  accomplish  this, 
they  and  each  of  them,  and  especially  W'illiam  Carver,  represented  to  her 
that  her  husband  was  overwhelmingly  in  debt,  and  that  his  creditors 
were  about  to  arrest  and  imprison  him;  that  he,  William  Carver,  was 
security  for  her  husband  for  a  large  amount;   that  if  she  would  execute 


No.  779  JUDICIAL   ADMISSIONS  1129 

to  him  a  mortgage  upon  the  land  to  secure  him,  he  would  save  her  husband 
from  arrest  and  imprisonment,  and  save  the  land  for  her  and  her  children, 
and  that  in  no  other  way  could  this  be  done.  Believing  and  relying  upon 
these  representations,  all  of  which  were  false,  and  known  to  the  parties 
to  be  false,  she  signed  what  they  told  her  was  a  mortgage.  She  never 
made  any  deed  to  William  Carver,  and  the  deed  under  which  he  claims 
to  hold  the  land  is  as  to  her  a  forgery.  During  all  this  time  she  was  the 
wife  of  Ira  Carver,  and  continued  to  be  and  to  live  with  him  as  such  until 
1875,  when  he  died.     She  had  no  knowledge  of  the  deed  until  1870.  .  .  . 

It  is  conceded  by  appellants  in  argument,  that  Ira  Carver,  husband 
of  appellee,  was  the  owner  of  the  land  described  in  the  second  paragraph 
of  the  complaint  and  in  the  judgment,  prior  to  the  20th  day  of  November, 
1857,  at  which  time  he  made  a  deed  for  the  same  to  appellant  William 
Carver.  Their  whole  claim  rests  upon  the  deed  from  him.  It  is  really 
conceded,  too,  and  shown  by  the  evidence,  that  appellee,  as  the  widow 
of  Ira  Carver,  who  died  in  1875,  if  she  did  not  join  in  that  deed,  is  the 
owner  of  and  entitled  to  the  possession  of  the  undivided  one-third  of  the 
said  real  estate,  except,  perhaps,  what  may  have  been  sold  by  Carver. 
It  is  contended,  however,  that  she  did  join  in  that  deed.  Whether  she 
did  or  not,  is  the  main  question  of  fact  in  the  cause. 

Prior  to  the  trial,  appellants  served  a  notice  on  appellee,  that  upon  the 
trial  they  would  introduce  in  evidence  the  said  deed,  which  bears  the 
names  of  appellee  and  her  husband  as  grantors.  Upon  the  service  of 
this  notice,  appellee  filed  her  affidavit  denying  the  execution  of  the  deed. 
•Proof  of  execution  having  been  made,  which,  to  the  trial  Court,  was 
sufficient  to  entitle  the  deed  to  be  read  in  evidence,  it  was  so  read.  The 
third  instruction  to  the  jury  was  as  follows:  "The  defendants  have  read 
in  evidence  a  deed  purporting  to  be  executed  by  Ira  Carver  and  plaintiff, 
Esther  J.  Carver,  conveying  said  real  estate  to  the  defendant  William 
Carver.  The  burden  of  proving  that  the  plaintiff  .  .  .  executed  said 
deed  is  upon  the  defendants,  and  if  the  defendants  have  not  proved  by  a 
preponderance  of  all  the  evidence  in  the  cause  that  said  plaintiff  did  sign 
her  name  to  said  deed,  the  plaintiff  is  entitled  to  a  verdict  in  her  favor,  no 
matter  how  innocent  the  defendants  may  have  been  in  their  purchase. 
If,  however,  you  find  that  Esther  J.  Carver  did  sign  her  name  to  said  deed, 
then  your  verdict  must  be  for  the  defendants,  whether  the  deed  bears 
the  true  date  of  its  execution  or  not;  and  this  must  be  your  verdict, 
though  the  plaintiff,  when  she  signed  said  deed,  believed  it  to  be  a  mort- 
gage. You  will  then  see  that  an  important  point  in  controversy  is  as  to 
whether  the  plaintiff  signed  said  deed,  and  this  you  will  determine,  as 
well  as  all  other  facts  submitted  to  you,  from  a  careful  consideration  of 
all  the  testimony  and  circumstances  in  evidence,  for  you  are  the  exclusive 
judges  of  the  evidence  and  the  credibility  of  the  witnesses,  and  determine 
from  the  evidence  what  it  proves  and  what  it  does  not  prove." 

Several  objections  are  urged  against  this  instruction.     As  related  to 
the  deed  the  argument  is,  first,  that  after  appellants  had  made  such  a 


1130  BOOK   V:     PROPOSITIONS  NOT  NEEDING   EVIDENCE      No.  779 

case  as  entitled  the  deed  to  be  read  in  evidence,  the  burden  of  proof 
was  shifted  to  appellee  to  prove  the  non-execution  of  the  deed;  second, 
that  as  the  execution  of  the  deed  seems  to  have  been  acknowledged 
before  an  officer  authorized  to  take  acknowledgments,  appellee  cannot, 
in  this  action,  dispute  the  execution.  These  two  objections  are  so 
related  that  we  consider  them  together. 

1.^  The  rule  is  well  settled  that  in  the  absence  of  statutes  upon  the 
subject,  the  grantee,  offering  a  deed  in  evidence,  must  prove  its  execution, 
whether  it  has  been  acknowledged  and  recorded  or  not ;  especially  is  this 
so  if  its  execution  is  put  in  issue  by  a  plea  of  "non  est  factum."  The 
statutes  of  this  State,  like  those  of  many  of  the  other  States,  have  made 
material  innovations  upon  this  rule.  The  code  of  1852,  in  force  when  this 
cause  was  tried,  provided  that  where  a  writing,  purporting  to  have  been 
executed  by  one  of  the  parties,  is  the  foundation  of,  or  is  referred  to  in 
any  pleading,  it  may  be  read  in  evidence  on  the  trial  of  the  cause  against 
such  party  without  proving  its  execution,  unless  its  execution  be  denied 
by  affidavit  before  the  commencement  of  the  trial,  or  unless  denied  by  a 
pleading  under  oath.  .  .  .  Section  304,  2  R.  S.  1876,  p.  158,  provided  as 
follows :  *'  If  either  party  at  any  time  before  trial  allow  the  other  an  inspec- 
tion of  any  ^\Titing,  material  to  the  action,  whether  mentioned  in  the 
pleadings  or  not,  and  deliver  to  him  a  copy  thereof,  with  notice  that  he 
intends  to  read  the  same  in  evidence  on  the  trial  of  the  cause,  it  may  be 
so  read,  without  proof  of  its  genuineness,  or  execution,  unless  denied  by 
affidavit  before  the  commencement  of  the  trial."  A  failure  to  deny  the 
execution  by  a  pleading  under  oath  has  been  held  to  be  so  far  an  admission 
of  the  genuineness  of  the  instrument  as  to  preclude  its  being  controverted 
by  proof.  This  rule  would,  perhaps,  apply  to  a  case  like  this  where  the 
denial  is  by  affidavit.  The  reason  of  this  ruling,  as  stated  in  the  earliest 
decision  upon  the  subject  under  these  statutes,  is  that  the  party  relying 
upon  the  instrument  has  a  right  to  be  forewarned  of  any  contemplated 
attack  upon  it.  .  .  .  These  statutes  clearly  include  deeds,  and  recognize 
the  rule  as  we  have  stated  it  to  be,  in  the  absence  of  statutes.  Their 
purpose  is  not  to  shift  the  burden  of  proof,  but  simply  to  relieve  the  party 
relying  upon  a  written  instrument  of  the  burden  of  making  proof  of  its 
execution,  unless  the  execution  be  denied  under  oath.  .  .  .  The  affidavit, 
or  plea  of  "  non  est  factum,"  throws  back  upon  the  other  party  the  burden 
of  proving  the  execution  of  the  instrument,  and  thus  the  parties  occupy 
the  position  they  would  have  occupied  were  there  no  statutes  upon  the 
subject. 

After  making  a  prima  facie  case  in  favor  of  the  execution  of  the  writ- 
ing, it  may  be  read  in  evidence.  The  party  making  such  proof  may  rely 
upon  it,  and  in  the  absence  of  countervailing  evidence,  it  w^ill  be  sufficient 
to  make  his  case.     This,  however,  does  not  shift  the  burden  of  the  issue 


^  [The  part  of  the  opinion  in  this  case  dealing  with  the  burden  of  proof  is  to  be 
considered  in  connection  with  Nos.  765-770  ante.  —  Ed.] 


No.  779  JUDICIAL  ADMISSIONS  1131 

to  the  party  denying  the  execution.  In  the  case  of  Fay  v.  Burditt,  81 
Ind.  433  (42  Am.  R.  142),  it  was  questioned,  whether  in  any  case,  it  is 
proper  to  say  that  the  burden  of  an  affirmative  issue  shifts  in  the  course 
of  a  trial  from  one  party  to  the  other.  We  think,  upon  further  considera- 
tion, that  there  is  no  hazard  in  saying  that  it  does  not  as  to  any  single 
proposition,  such  as  to  whether  or  not  a  written  instrument  was  in  fact 
executed  by  the  party  denying  the  execution.  When  the  execution  of 
an  instrument  is  thus  denied,  the  question  is.  Did  the  party  thus  denying 
in  fact  execute  it?  The  party  relying  upon  it  has  the  affirmative  of  that 
issue.  The  burden  is  upon  him  to  establish  that  affirmative,  and  that 
burden  will  remain  upon  him  until  he  establishes  it  to  the  satisfaction  of 
the  jury,  not  by  a  prima  facie  case  alone,  but  by  such  proof  as  will  with- 
stand and  overthrow  all  of  the  evidence  to  the  contrary.  There  must  be 
more  than  an  equipoise  of  the  testimony;  there  must  be  a  preponderance 
in  favor  of  the  execution.  If,  upon  the  making  of  a  prima  facie  case,  the 
burden  shifts  to  the  other  side,  then  it  would  follow  that  when  the  prima 
facie  case  is  overthrown  by  weightier  testimony,  the  burden  shifts  back 
again.  To  say  that  the  burden  thus  shifts,  is  to  say  that  it  is  constantly 
shifting  from  the  stronger  to  the  weaker  side,  as  the  testimony  may  make 
one  side  or  the  other  stronger.  Of  course,  when  a  prima  facie  case  is 
made  out  in  a  case  like  this,  the  burden  is  upon  the  other  side  to  meet  it, 
or  suffer  defeat.  .  .  .  This  imposition  of  the  burden  to  meet  a  prima  facie 
case,  or  to  show  matter  in  avoidance,  is  not  the  shifting  of  the  burden 
of  proof  as  to  the  fact  in  issue.  Appellants  made  their  defence  under 
the  general  denial,  as  they  had  a  right  to  do  under  the  statute.  By 
introducing  in  evidence  the  deed  from  William  to  Ira  Carver,  appellee's 
husband,  and  the  deed  which  purports  to  have  been  executed  by  appellee 
and  her  husband,  they  made  their  defence,  as  against  appellee's  claim, 
dependent  upon  the  validity  of  the  latter  deed.  The  defence  thus  took 
the  shape  of  an  affirmative  defence,  a  defence  of  confession  and  avoidance; 
a  confession  of  title  in  appellee  as  the  widow  of  Ira  Carver,  and  of  avoid- 
ance, by  the  deed  from  her  and  husband  to  appellant  W  illiam  Carver. 
By  the  notice  and  affidavit  in  relation  to  this  latter  deed,  the  burden  of 
proving  its  execution  was  clearly  thrown  upon  appellants,  and  was  not 
shifted  from  them  by  their  making  out  a  prima  facie  case. 

2.  The  deed  purporting  to  have  been  executed  by  appellee  and  her 
husband,  apparently,  was  properly  acknowledged  and  recorded.  We 
cannot  hold,  however,  that  the  certificate  of  acknowledgment  is  conclu- 
sive upon  appellee.  .  .  .  We  think,  however,  that  under  our  statutes 
since  1852,  a  certificate  of  acknowledgment  in  proper  form  makes  a 
prima  facie  case  in  favor  of  the  execution  of  the  instrument,  not  only  as  to 
innocent  third  parties,  but  as  to  the  parties  to  the  instrument  also.  The 
statutes  require  that  deeds  shall  be  acknowledged.  To  entitle  a  deed  to 
be  recorded  it  must  be  acknowledged.  ...  A  record  of  a  deed  without 
such  acknowledgment  is  not  competent  evidence  against  any  one.  An 
acknowledgment  is  not  essential  to  the  validity  of  a  deed,  as  between  the 


1132  BOOK  V:     PROPOSITIONS  NOT  NEEDING   EVIDENCE      No.  779 

parties  to  it,  but  it  is  apparent  upon  an  examination  of  the  statutes  that, 
as  to  all  parties,  it  is  a  very  important  matter.  It  is  essential  to  the  record 
of  a  deed,  and  thus  becomes  the  basis  of  notice  by  record.  The  deed  may 
be  recorded;  the  record  becomes  notice  to  the  world,  and  may  be  used  as 
evidence,  without  the  production  of  the  deed  or  proof  of  its  execution, 
because  the  acknowledgment  is  evidence  of  the  execution.  ...  It  is 
provided,  however,  that  neither  the  certificate  of  acknowledgment  of  a 
deed,  nor  the  record,  nor  the  transcript  of  the  record  thereof,  shall  be 
conclusive,  but  may  be  rebutted,  and  the  force  and  effect  thereof,  con- 
tested by  any  one  affected  thereby.  1  R.  S.  1876,  p.  368,  §  32;  §  2954, 
R.  S.  1881.  The  reasonable  construction  of  these  several  sections  of  the 
statute  is,  we  think,  that  the  certificate  of  acknowledgment  is  prima  facie 
evidence  of  the  execution  of  the  deed,  and  that  in  all  cases  where  the 
record  is  competent  evidence,  the  deed  is  also  competent,  without  further 
proof  of  its  execution. 

This,  however,  does  not  throw  the  burden  of  proof  upon  the  party 
denying  the  execution.  In  this  case  appellants  produced  the  deed,  assert- 
ing its  genuineness.  That  was  denied  by  appellee.  Appellants  had 
the  affirmative  of  the  issue,  and  were  bound  to  establish  it  by  a  prepon- 
derance of  testimony  or  suffer  defeat.  The  certificate  of  acknowledg- 
ment operated  as  evidence  in  support  of  the  genuineness  of  the  deed, 
and  made  a  prima  facie  case  for  appellants,  very  much  as  the  presumption 
of  sanity  operates  as  evidence  in  behalf  of  the  State  in  criminal  prosecu- 
tions. The  burden  was  upon  appellee  to  meet  and  overthrow  the  prima 
facie  case,  but  the  burden  was  not  upon  her  to  prove  the  non-execution 
of  the  deed.  The  Court  below  did  not  err,  therefore,  in  charging  the  jury 
that  the  burden  was  upon  appellants  to  prove  by  a  preponderance  of 
the  testimony  that  appellee  executed  the  deed. 


No.  783  JUDICIAL  NOTICE  1133 


TITLE  II.    JUDICIAL  NOTICE 

782.  Introductory.  There  are  various  senses  in  which  the  term  "Judicial 
Notice"  is  used.  In  the  orthodox  sense  above  noted,  it  signifies  that  there  are 
certain  "facta  probanda,"  or  propositions  in  a  party's  case,  as  to  which  he  will 
not  be  reciuired  to  offer  evidence;  these  will  be  taken  for  true,  provisionally,  by 
the  tribunal,  without  the  need  of  evidence.  This  general  principle  of  Judicial 
Notice  is  simple  and  natural  enough.  As  to  the  scope  of  such  facts,  they  include 
(1)  matters  which  are  so  notorious  that  the  production  of  eviflence  would  be 
unnecessary;  (2)  matters  which  the  judicial  function  supposes  the  judge  to  be 
acquainted  with,  either  actually  or  in  theory;  (3)  sundry  matters  not  exactly 
included  under  either  of  these  heads;  they  are  due,  for. the  most  part,  to  the 
consideration  that  though  they  are  neither  actually  notorious  nor  bound  to 
be  judicially  known,  yet  they  would  be  capable  of  such  instant  and  unques- 
tionable demonstration,  if  desired,  that  no  party  would  think  of  imposing  a 
falsity  on  the  tril)imal  in  the  face  of  an  intelligent  adversary. 

Anomalous  Meanings  of  the  Term  Judicial  Notice.  The  term  Judicial  Notice 
has  many  applications,  distinct  from  those  peculiar  to  the  present  purpose. 

(1)  A  usage  extending  far  back  in  our  annals  is  to  apply  the  term  where  the 
question  is  whether  a  certain  pleading,  or  a  certain  averment  in  a  lAeading,  or 
greater  particularity  of  averment,  is  necessary. 

(2)  Whether  a  Court,  for  the  piu"poses  of  ordering  a  new  trial  or  otherwise, 
may  give  effect  to  a  matter  capable  of  being  judicially  noticed  —  i.e.,  assumed 
without  evidence  —  but  not  referred  to  in  the  record,  or  falsely  alleged  in  the 
pleading,  is  a  question  of  the  power  and  duty  of  the  Court;  but  this  term  has 
been  applied  to  it. 

(3)  Whether  a  Court  will  take  judicial  notice  of  the  existence  of  a  foreign  State 
is  really  a  cjuestion  whether,  as  a  matter  of  substantive  law  and  judicial  functions, 
a  foreign  State  will  in  domestic  Covu-ts  be  treated  as  existing  only  so  far  as 
the  Executive  so  treats  it;  here  the  Executive's  recognition  is  the  determining 
element. 

(4)  Certain  r^des  of  evidence,  usually  known  under  other  names,  are  frequently 
referred  to  in  terms  of  judicial  notice.  Thus,  the  admissibility  of  almanacs  is 
mainly  a  cjuestion  whether  an  exception  to  the  Hearsay  rule  can  be  made  in  their 
favor;  but  a  Court  occasionally  makes  this  exception  by  saying  that  the  almanac 
is  to  be  judicially  noticed. 

(5)  Other  loose  applications  of  the  term,  sometimes  dealing  with  matters  of 
substantive  law,  sometimes  with  matters  of  procedure,  will  occasionally  be 
found.     It  is  unfortunate  that  the  phrase  should  be  so  often  loosely  employed. 

783.  James  Bradley  Thayer.  A  Preliminary  Treatise  on  Evidence.  (1898. 
p.  277.)  The  maxim  that  what  is  known  need  not  be  proved,  "manifesta"  (or, 
"notoria")  "non  indigent  probatione,"  may  be  traced  far  back  in  the  civil  and 
the  canon  law;  indeed,  it  is  probably  coeval  with  legal  procedure  itself.  We  find 
it  as  a  maxim  in  our  own  books, ^  and  it  is  applied  in  every  part  of  our  law.  It  is 
qvialified  by  another  principle,  also  very  old,  and  often  overtopping  the  former 

^  Bracton's  Note  Book,  supra  13  n.;  7  Co.  39  a-39  b;  11  Co.  25;  State  v. 
Intoxicating  Liquors,  73  Maine  278. 


1134  BOOK   V:     PROPOSITIONS   NOT   NEEDING   EVIDENCE      No.  783 


in  its  imjiortanre,  —  "non  refert  (juid  notuin  sit  judici,  si  notum  non  sit  in  forma 
jndicii."  ^  Tliese  two  maxims  seem  to  intimate  the  whole  doctrine  of  judicial 
notice.  It  has  two  aspects,  one  rcgardinji;  the  liberty  which  the  judicial  function- 
ary has  in  taking  things  for  granted,  and  the  other  the  restraints  that  limit  him. 

784.  LuMLEY  tf.  Gye.  (1853.  2  El.  &  Bl.  266.)  Coleridge,  J.:  Judges  are 
not  necessarily  to  be  ignorant  in  Court  of  what  everybody  else,  and  they  them- 
selves out  of  Court,  are  familiar  with;  nor  was  that  unreal  ignorance  considered 
to  be  an  attribute  of  the  Bench  in  early  and  strict  times.  We  find  in  the  Year 
Books  the  judges  reasoning  about  the  ability  of  knights,  esquires,  and  gentlemen 
to  maintain  themselves  without  wages;  distinguishing  between  private  chaplains 
and  parochial  chaplains  from  the  nature  of  their  employments;  and  in  later  days 
we  have  ventiu-ed  to  take  judicial  cognizance  of  the  moral  qualities  of  Robinson 
Crusoe's  "man  Friday"  (1  Dow,  P.  C.  672)  and  Aesop's  "frozen  snake"  (12 
Q.  B.  624). 

785.   FOX  V.   STATE 

Supreme  Court  of  Georgia.     1851 

9  Ga.    373 

At  the  July  Term,  1850,  of  Bibb  Superior  Court,  John  Fox  was 
placed  on  his  trial  for  larceny  from  the  house.  The  defendant  moved  for 
a  continuance  for  the  absence  of  a  witness,  William  Robards,  who  re- 
sided in  Decatur  County.  On  the  showing  for  a  continuance,  it  appeared 
that  the  witness  had  been  recognized  at  the  last  term  of  the  Court  to 
appear  and  testify  in  the  cause  for  the  defendant.  The  defendant 
stated  that  he  expected  to  prove  by  the  witness,  Robards,  that  he  (wit- 
ness) heard  one  Simpson,  upon  whose  testimony  the  defendant  under- 
stood the  State  would  mainly  rely  for  conviction,  say  "that  if  hard 
swxaring  would  send  the  defendant  to  the  penitentiary,  that  he  should 
go."  .  .  .  Robards  was  confined  in  jail  at  the  time  of  the  conversation, 
charged  with  stealing  a  horse  and  buggy.  .  .  .  The  motion  to  continue 
was  overruled  by  the  Court,  and  the  trial  ordered  to  progress.  The 
Jury  returned  a  verdict  of  guilty.  Whereupon,  counsel  for  defendant 
moved  the  Court  for  a  new  trial,  on  the  ground  that  the  Court  erred  in 
refusing  to  grant  the  continuance. 

The  Court  overruled  the  motion  for  a  new  trial,  and  remarked 
"  that  in  overruling  the  defendant's  showing  for  a  continuance,  he  did 
not  place  much  confidence  in  the  truth  of  the  defendant's  statements  — 
knowing,  as  he  had,  for  many  years,  the  witness,  Simpson,  whose  testi- 
mony was  sought  to  be  assailed,  and  having  no  special  reason  to  confide 
in  the  integrity  of  Fox,  he  thought  if  a  witness  intended  to  act  out  the 
corruption  ascribed  to  Simpson,  he  would  not  be  likely  to  declare  his 

^  Coke,  C.  J.,  in  an  action  of  slander,  Crawford  v.  BHsse,  2  Bui.  150  (1613) 
quotes  this  from  Bracton,  to  support  the  overstrained  doctrine  of  his  own  day 
about  taking  the  words  charged  "in  mitiori  sensu." 


No.  786  JUDICIAL  NOTICE  1135 

intentions  in  advance  in  tiie  presence  of  others,  and  the  facts  disclosed 
on  the  trial  left  his  preconceived  opinions  of  the  integrity  of  Fox  un- 
changed."    Counsel  for  the  defendant  excepted. 

NisBET,  J.  —  The  new  trial  ought  to  have  been  granted,  because  there 
was  error  in  not  allowing  the  continuance.  .  .  .  All  proper  diligence  was 
used  to  have  the  witness  at  the  trial.  It  is  clear  that  the  showing  for  a 
continuance  was  complete. 

Why,  then,  was  it  not  granted?  It  appears  from  the  record  before 
ine,  that  the  presiding  Judge  gave  as  reasons  for  refusing  the  new  trial, 
that  he  did  not  place  much  confidence  in  the  truth  of  the  defendant's 
statements.  .  .  .  They  are  not  only  not  sufficient,  but  develop  a  ground 
of  action  in  such  cases  not  warranted  by  the  law.  .  .  .  There  was,  as  we 
have  seen,  no  legal  objection  to  the  showing  for  a  continuance.  Can 
the  Court,  when  the  showing  is  sufficient,  refuse  it  on  account  of  his 
personal  knowledge  of  the  character  of  the  party  making  it,  and  of  the 
witness  whose  testimony  that  party  is  seeking  to  assail  —  a  knowledge 
not  drawn  from  evidence  before  the  Court,  but  from  his  private  sources 
of  information?  He,  beyond  all  controversy,  cannot.  He  has  no  dis- 
cretion to  act  upon  such  knowledge.  The  discretion  allowed  in  appli- 
cations for  a  continuance  must  be  within  the  law,  and  must  spring  out 
of,  and  be  bounded  by  what  transpires  in  the  case.  It  cannot  be  justi- 
fied upon  what  the  Court,  as  a  man,  may  or  may  not  know.  Justice 
is  administered  according  to  general  rules;  rules  which,  if  applicable  in 
a  single  case,  must  be  applicable  in  all  like  cases,  no  matter  who  are  the 
parties,  or  what  their  character.  If  the  Court  may  dispense  with  them 
because  of  this  personal  knowledge  of  the  character  of  the  parties  before 
him  in  one  case,  he  may  in  all  cases.  And  this  would  be  equivalent  to 
dispensing  with  them  altogether. 


786.   KILPATRICK  v.   COMMONWEALTH 

Supreme  Court  of  Pennsylvania.     1858 

31  Pa.  198 

Error  to  the  Oyer  and  Terminer  of  Philadelphia. 

The  plaintiff  in  error,  John  Kilpatrick,  was  indicted  in  the  Court 
below,  for  the  murder  of  John  McCracken,  on  October  20,  1857.  The 
prisoner  was  tried  on  March  10,  1858,  at  a  Court  of  Oyer  and  Terminer, 
held  by  the  Hon.  James  R.  Ludlow  and  the  Hon.  Joseph  Allison,  the 
two  associate  law  judges  of  the  Common  Pleas  of  Philadelphia,  under 
the  provisions  of  the  Act  of  February  3,  1843;  Judge  Ludlow  having 
been  duly  appointed  to  hold  the  Court,  for  th'e  trial  of  all  issues  pending 
therein.  On  March  13,  1858,  the  jury  found  theprisoner  guilty  of  murder 
in  the  first  degree;  and  on  May  1st,  a  motion  for  a  new  trial  having  been 
overruled,  sentence  of  death  was  passed  upon  the  defendant.  .    .  . 


1136  BOOK  V:     PROPOSITIONS   NOT   NEEDING   EVIDENCE       Xo.  786 

David  Paul  Brown,  Goforth,  and  Palethorp,  for  the  plaintiflf  in  error. 
—  The  Act  of  1<S43,  under  which  the  Court  was  held  by  the  two  associate 
judges,  is  in  confiiet  with  the  constitution,  Art.  5,  §  4,  which  provides 
"  that  the  judges  of  the  Courts  of  Common  Pleas  shall  be  justices  of  oyer 
and  terminer  and  general  jail  delivery,  for  the  trial  of  capital  and  other 
offenders  therein;  any  two  of  the  said  judges,  the  presidetit  being  one, 
shall  be  a  quorum."  .   .   . 

Loughcud  and  Mann,  District  Attorneys,  for  the  Commonwealth.  .  .  . 

The  opinion  of  the  Court  was  delivered  by 

Strong,  J.  —  This  record  presents  several  questions  of  the  gravest 
importance.  .  .  .  The  principal  questions  relate  to  the  constitution  of 
the  Court  in  which  the  indictment  was  tried,  and  to  the  instruction 
which  was  given  the  jury.  .  .  .  The  record  exhibits  that,  at  the  Court  of 
Oyer  and  Terminer  for  the  city  and  county  of  Philadelphia,  John  Kil- 
patrick,  the  defendant,  was  indicted,  tried,  convicted  of  murder  in  the 
first  degree,  and  sentenced.  The  first  assignment  of  error  i$  that  "  it 
appears  by  the  record  that  the  case  was  tried  by  the  Hon.  James  R. 
Ludlow  and  Joseph  Allison,  neither  of  whom  was  the  President  of  the 
Court  of  Common  Pleas;  and  therefore  the  said  judges  had  no  consti- 
tutional right  to  hold  said  Court  and  try  the  said  case;  and  that  the  entire 
proceedings  are  void  and  '  coram  non  juflice.'  " 

We  come  therefore  directly  to  the  incjuiry  whether  two  associate 
judges  of  the  Court  of  Common  Pleas  of  Philadelphia  —  commissioned 
as  such,  though  learned  in  the  law,  can  hold  a  Court  of  Oyer  and  Ter- 
miner within  that  county.  .  .  . 

1.  In  Commonwealth  v.  Zephon,  8  W.  &  S.  382,  the  enactment  was 
ruled  to  be  constitutional,  and  it  was  held,  that  in  the  city  and  county 
of  Philadelphia,  a  Court  of  Oyer  and  Terminer  may  be  properly  holden 
by  two  associate  judges  of  the  Court  of  Common  Pleas.  .  .  . 

2.  Upon  the  argument  in  this  Court  a  doubt  was  suggested,  whether 
this  question  is  raised  by  the  record.  The  doubt  was  not  without  reason. 
Personally  w^e  know  that  Judges  Ludlow  and  Allison  are  associate  justices 
of  the  Court  of  Common  Pleas,  learned  in  the  law,  and  that  neither  of 
them  is  the  president  of  that  Court.  Yet  can  we  judicially  take  notice 
of  the  fact,  that  neither  of  them  is  the  president  of  that  Court,  when  the 
defendant  did  not  deny  it  by  plea,  and  when  the  record  does  not  show  it; 
but,  on  the  contrary,  avers  that  the  trial  took  place  at  a  Court  of  Oyer 
and  Terminer?  Doubtless,  there  are  many  things  of  public  interest, 
things  which  ought  generally  to  be  known,  of  which  Courts  will  take 
notice  without  proof.  But  whether  a  Superior  Court  is  bound  to  know 
who  are  the  judges  of  subordinate  Courts,  and  what  is  the  nature  of  their 
commissions,  is  by  no  means  clearly  settled.  In  the  English  Courts  it 
has  been  held,  that  such  facts  a  Court  cannot  be  presumed  to  know.  .  .  . 
In  the  American  Courts  the  question  is  still  an  open  one,  though  it  has 
not  often  arisen.  .  .  .  Notwithstanding  the  doubts,  however,  which  have 
elsewhere  entertained  in  similar  cases,  we  are  disposed  to  take  judicial 


No.  787  JUDICIAL  NOTICE  1137 

notice  of  the  facts  that,  at  the  time  of  the  trial  in  the  Court  below,  Judge 
Thompson  was  President  Judge  of  tlie  ( "ourt  of  Common  Pleas  of  Phila- 
delphia county,  and  that  Judges  Ludlow  and  Allison,  though  justices 
learned  in  the  law,  were  only  associates.  The  rule  is,  that  Courts  will 
take  notice  of  what  ought  to  be  generally  known  within  the  limits  of 
their  jurisdiction.  There  seems  to  us,  to  be  as  much  reason  for  our 
having  knowledge  of  who  are  in  fact  the  judges  of  our  constitutional 
Courts,  as  for  our  having  judicial  knowledge  of  the  heads  of  departments, 
sheriffs,  etc.;    knowledge  of  whom  is  always  presumed. 

We  discover  no  error  in  this  record.     The  judgment  is  affirmed. 

Thompson,  J.,  dissented. 


787.   STATE  v.   MAIN 
Supreme  Court  of  Errors  of  Connecticut.     1897 

()9  Coiin.  123;  37  Atl.  80 

Information  for  a  violation  of  the  statute  relating  to  "peach  yel- 
lows," brought  to  the  Supreme  Court  in  New  London  County  and  tried 
to  the  jury  before  Shumway,  J.  Verdict  and  judgment  of  guilty,  and 
appeal  by  the  defendant  for  alleged  errors  in  the  rulings  and  charge  of 
the  Court.     No  error.  .  .  . 

Donald  G.  Perkins,  for  the  appellant  (defendant).  The  statute  in 
question  is  unconstitutional.  ...  If  the  defendant  is  right,  the  con- 
stitutionality of  the  law  in  this  particular  depended  upon  a  question  of 
fact  whether  diseased  trees  on  a  man's  land  caused  a  substantial  injury 
to  his  neighbor  of  such  a  nature  that  a  law  condemning  such  trees  was  a 
reasonable  exercise  of  the  police  power.  The  Court  erred  in  its  rulings 
on  evidence.  .  .  . 

Solomon  Lucas,  State's  Attorney,  for  the  appellee  (the  State).  .  .  . 
The  legislation  on  this  subject  in  other  States  shows  the  common  belief 
in  the  dangerous  nature  of  the  disease  known  as  "  peach  yellows."  Bulle- 
tin No.  11,  Dept.  of  Agriculture,  June,  1896.  .  .  . 

Baldwin,  J.  .  .  .  The  Superior  Court  was  also  right  in  refusing 
to  instruct  the  jury,  as  requested,  that  if  they  should  "find  that  the 
'Yellows'  is  not  a  contagious  disease  and  the  existence  of  the  disease  in 
one  tree  does  not  cause  it  to  spread  from  that  tree  to  other  trees,  and 
thus  endanger  other  trees,  the  property  of  others,  and  that  a  tree  so 
diseased  is  not  a  public  nuisance,  then  this  statute  ...  is  unconsti- 
tutional and  void." 

Whether  the  "yellows"  was  such  a  disease  as  to  justify  the  General 
Assembly'  in  enacting  the  statute  under  which  the  prosecution  was 
brought,  depended  on  the  existence  and  nature  of  the  disease,  and  also 
on  the  apprehension  of  danger  from  it  commonly  entertained  by  the 
public  at  large.     That  such  a  disease  existed,  and  was  one  of  a  serious 


1138  BOOK    V:     PROPOSITIONS   NOT   NEEDING   EVIDENCE       No.  787 

character,  ordinarily  resulting  in  the  premature  death  of  the  tree  affected, 
is  a  matter  of  common  knowledge,  of  which  the  Court  had  a  right  to 
take  judicial  notice.  Century  Diet.,  Peach-yellows,  and  Yellows; 
Webster's  Internat.  Diet.,  Yellows.  Such  a  disease  it  was  proper  for 
the  General  Assembly,  in  the  exercise  of  its  police  power,  to  endeavor 
to  suppress,  even  by  the  destruction  of  the  trees  attacked  by  it,  if  there 
was  a  reasonable  apprehension  of  substantial  danger  from  allowing 
them  to  live,  to  those  who  might  eat  their  fruit,  or  to  other  peach  or- 
chards. .  .  .  The  description  of  this  disease  given  in  standard  works  and 
government  publications,  and  the  legislation  in  regard  to  it  to  be  found  in 
the  statute  books  of  Delaware,  Maryland,  Michigan,  New  York,  Penn- 
sylvania, Virginia,  and  the  Province  of  Ontario,  are  amply  sufficient  to 
establish  as  a  matter  of  judicial  notice  the  possibility,  if  not  the  prob- 
ability, that  it  is  a  contagious  disease.  Grimes  v.  Eddy,  126  Mo.  168, 
28  Southwestern  Rep.  756.  .  .  . 

Judicial  notice  takes  the  place  of  proof,  and  is  of  equal  force.  As  a 
means  of  establishing  facts  it  is  therefore  superior  to  evidence.  In  its 
appropriate  field  it  displaces  evidence,  since,  as  it  stands  for  proof,  it 
fulfills  the  object  which  evidence  is  designed  to  fulfill,  and  makes  evi- 
dence unnecessary.  Brown  v.  Piper,  91  U.  S.  37,  43;  Commonwealth 
v.  Marzynski,  149  Mass.  68. 

"The  true  conception  of  what  is  judicially  known  as  that  of  something  which  is 
not,  or  rather  need  not,  unless  the  tribunal  wishes  it,  be  the  subject  of  either 
evidence  or  argument,  —  something  which  is  already  in  the  Court's  possession, 
or  at  any  rate  is  so  accessible  that  there  is  no  occasion  to  use  any  means  to  make 
the  Court  aware  of  it."     Thayer's  Cases  on  Evidence,  20. 

If,  in  regard  to  any  subject  of  judicial  notice,  the  Court  should  permit 
documents  to  be  referred  to  or  testimony  introduced,  it  would  not  be, 
in  any  proper  sense,  the  admission  of  evidence,  but  simply  a  resort  to  a 
convenient  means  of  refreshing  the  memory,  or  making  the  trier  aware 
of  that  which  everybody  ought  to  be  aware.  State  v.  Morris,  47  Conn. 
179,  180. 

The  defendant,  therefore,  had  no  right  to  have  the  jury  pass  upon 
the  danger  of  contagion  from  trees  affected  by  the  yellows,  as  a  means 
of  determining  the  constitutionality  of  the  statute,  by  such  verdict  as 
they  might  render  under  the  instructions  of  the  Court.  It  was  for  the 
Court  to  take  notice  that  it  was  a  disease  which  might  be  contagious. 
Norwalk  GasHght  Co.  v.  Norwalk,  63  Conn.  495,  525,  527.  This  being 
established,  the  validity  of  the  statute  became  a  matter  of  pure  law.  .  .  . 

There  is  no  error  in  the  judgment  appealed  from. 


No.   788  JUDICIAL   NOTICE  1139 

788.   WINN  V.   COGGINS 

Supreme  Court  of  Florida.     1907 

53  Fla.  337;  42  So.  897 

In  Banc.  Error  to  Circuit  Court,  Wakulla  County;  John  W. 
Malone,  Judge.  Action  by  James  W.  Coggins  and  others  against  A. 
B.  Winn  and  J.  D.  Cay,  partners  as  A.  B.  Winn  &  Co.  Verdict  for 
plaintiffs.  From  an  order  granting  a  new  trial,  defendants  bring  error. 
Reversed  and  remanded. 

The  defendants  in  error  brought  an  action  of  ejectment  on  August 
17,  1905,  in  the  Circuit  Court  for  Wakulla  county,  against  the  plaintiffs 
in  error,  to  recover  the  possession  of  lots  47  and  48  of  Hartfield's  survey, 
and  lots  97  and  98  of  Hopkins'  survey,  containing  1,440  acres,  more  or 
less,  in  Wakulla  county,  Fla.,  and  for  mesne  profits.  A  plea  of  not 
guilty  was  entered.  At  the  trial  the  jury  rendered  a  verdict  for  the 
defendants.  The  Court  granted  a  motion  for  a  new  trial,  the  defend- 
ants excepted  thereto,  and  by  writ  of  error  bring  the  order  granting  a 
new  trial  here  for  review.  .  .  . 

The  plaintiffs  then  offered  in  evidence  a  certified  copy  of  the  record 
of  a  deed  without  warranty  from  John  Beard,  receiver  of  the  Apalachi- 
cola  Land  Company,  purporting  to  convey  the  lands  in  controversy  to 
James  Coggins,  bearing  date  January  28,  1858,  "  pursuant  to  a  decree 
made  at  Tallahassee  on  the  eleventh  day  of  x^pril,  a.d.  1856,  by  the 
Honorable  J.  W.  Baker,  Judge  of  the  Circuit  Court  of  the  Middle  Circuit 
of  Florida,  in  chancery  sitting."  .  .  . 

The  defendants  then  objected  to  the  introduction  of  the  deed  on  the 
further  grounds:  ...  (4)  that  the  plaintiffs  have  not  shown,  as  a 
predicate  to  the  admission  of  the  deed,  the  authority  which  John  Beard, 
receiver,  had  to  execute  said  deed;  (5)  that  plaintiffs  have  not  shown  a 
valid  decree  of  court  authorizing  Beard,  as  receiver,  to  execute  said 
deed.  .  .  .  The  Court  overrruled  all  these  grounds  of  objection  to  the 
certified  copy  of  the  record  of  the  deed  except  the  fourth  and  fifth.  .  .  . 

George  B.  Perkins,  George  P.  Rancy,  and  Joseph  A.  Edmondson,  for 
plaintiffs  in  error. 

Nat.  R.  Walker  and  W.  C.  Hodges,  for  defendants  in  error. 

Whitfield,  J.  (after  stating  the  case  as  above) : 

If  a  deed  purports  to  have  been  executed  by  an  officer  of  Court  under 
a  decree,  and  it  is  sought  to  use  the  deed  in  evidence,  the  power  or  author- 
ity to  make  the  deed  must  be  shown,  unless  waived.  Simmons  v.  Spratt. 
20  Fla.  495;  McGehee  v.  Wilkins,  31  Fla.  83,  12  South.  228.  ...  The 
introduction  in  evidence  of  the  certified  copy  of  the  record  of  the  deed 
of  conversance  purporting  to  have  been  executed  under  a  decree  of  Court 
by  John  Beard,  receiver,  to  James  Coggins,  was  objected  to  on  the  ground 
that  the  authority  to  make  the  deed  as  receiver  was  not  shown;  and,  as 


1140  BOOK  V:     PROPOSITIONS  NOT  NEEDING   EVIDENCE      No.  788 

no  evidence  of  such  authority  was  offered,  the  certified  copy  of  the  record 
was  very  properly  not  admitted  in  evidence  as  title  to  the  lands.  In  the 
trial  of  this  cause  the  Court  could  not  take  judicial  knowledge  of  a 
decree  rendered  by  the  Court  of  another  county  in  another  cause.  See 
McNish  V.  State,  47  Fla.  69,  36  South.  176;  4  Wigmore  on  Evidence, 
§  2579.  .  .  . 

The  order  granting  the  new  trial  is  reversed.  .  .  . 

Taylor,  Cockrell,  Hooker,  and  Parkhill,  JJ.,  concur. 


789.   REA  V.   STATE 

Criminal  Court  of  Appeals  of  Oklahoma.     1909 

3  Okl.  Cr.  281 ;    105  Pac.  387 

Appeal  from  Pontotoc  County  Court;    Joel  Terrell,  Judge. 

W.  C.  Rea  was  convicted  of  unlawfully  selling  intoxicating  liquor, 
and  he  appeals.     .Affirmed. 

The  plaintiff  in  error,  hereinafter  designated  as  defendant,  was 
con\dcted  in  the  County  Court  of  Pontotoc  county,  on  an  information 
charging  that,  in  Pontotoc  county,  Okla.,  on  July  15,  1908,  the  said 
defendant  did  unlawfully  sell,  barter,  give  away,  and  furnish  one  AVes 
Hattox  intoxicating  liquor,  to-wit,  alcohol.  The  cause  came  on  for 
trial  on  the  4th  day  of  February,  1909,  which  resulted  in  a  verdict  of 
guilty.  .  .  .  The  defendant  appeals  to  this  Court,  .  .  .  first  because 
the  State  did  not  prove  the  alleged  sale  to  have  been  made  within  the 
period  of  the  statute  of  limitations.  .  .  . 

Bullock  &  Kerr  and  Galhraith  <£•  McKcoicn,  for  appellant. 

FuRMAN,  p.  J.  (after  stating  the  facts  as  above). 

Even  if  the  burden  of  proof  was  on  the  State  to  establish  the  com- 
mission of  the  offense  within  the  statute  of  limitations  beyond  a  reason- 
able doubt,  we  think  that  it  was  done  in  this  case.  The  evidence  is  as 
follows:  "Q.  —  Your  name  is  Wes  Hattox?  ^1. — Yes,  sir.  Q. — 
Where  do  you  live?  A.  —  At  Fitzhugh.  Q.  —  You  know  Will  Rea? 
A. — Yes,  sir.  Q. — What  business  is  he  in?  A.  —  Drug  business. 
Q. — Where?  A.  —  Roff.  Q. — Were  you  in  his  drug  store  in  July? 
A.  —  Yes,  sir.  Q.  —  Did  you  purchase  anything?  .4.  —  Yes,  sir. 
Q.  — What  was  it?  .4.  —  Alcohol.  Q.  —  Is  alcohol  intoxicating?  A. 
— Yes  sir;  I  suppose  it  is.  Q.  — That  was  in  Pontotoc  county,  Okl.? 
A.  —  Yes,  sir."  From  this  it  is  proven  that  the  sale  took  place  in 
Pontotoc  county,  Okla.  The  Court  takes  judicial  notice  of  the  fact 
that,  prior  to  the  incoming  of  Statehood,  on  November  16,  1907,  such 
county  as  Pontotoc  county,  Okla.,  was  not  in  existence.  Therefore  the 
sale  was  proven  to  have  been  made  subsequent  to  that  date.  Wigmore 
on  Evidence,  vol.  4,  §  2575,  says:  "Domestic  Political  Organization 
—  Boundaries,  Capitals,  etc.  —  So  far  as  the  facts  of  political  organiza- 


No.  790  JUDICIAL  NOTICE  1141 

tion  and  operation  of  the  State  are  determined  in  the  law,  they  are 
judicially  noticed  as  a  part  of  the  law." 

Therefore  the  contention  of  the  defendant,  that  the  case  should  be 
reversed  because  it  was  not  proven  that  the  sale  was  made  within  the 
period  of  the  statute  of  limitations,  is  not  supported  by  the  law  or  the 
evidence.  .  .  .  We  are  therefore  compelled  to  affirm  the  conviction. 

Affirmed. 

Doyle  and  Owen,  JJ.,  concur. 


790.   PEROVICH  v.   PERRY 

United  States  Circuit  Court  of  Appeals.     1909 

167  Fed.  789 

Appeal  from  the  District  Court  of  the  United  States  for  the  Third 
Division  of  the  District  of  Alaska. 

John  F.  Dillon,  T.  C.  l]'est,  and  Leroy  Tozicr,  for  appellant. 

Robert  T.  Devlin,  U.  S.  Attorney,  and  Benjamin  L.  McKinley,  Assist- 
ant U.  S.  Attorney,  for  appellee. 

Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 

Morrow,  Circuit  Judge.  —  This  is  an  appeal  from  a  judgment  of  the 
United  States  District  Court  for  the  Territory  of  Alaska,  rendered  on 
the  30th  day  of  January,  1908,  remanding  the  appellant  to  the  custody 
of  the  appellee  as  United  States  marshal,  to  be  dealt  with  according  to 
law,  and  dismissing  a  vrrit  of  habeas  corpus.  .  .  . 

In  the  assignment  of  errors  there  are  recitals  from  which  it  appears 
that  there  was  a  sentence  of  death  pronounced  against  the  appellant 
on  May  29,  1907;  that  application  was  made  to  the  President  of  the 
United  States  for  commutation  of  sentence,  and  that,  pending  the  de- 
termination of  the  application  by  the  President,  application  w-as  made 
to  the  Governor  of  Alaska,  for  a  reprieve,  which  was  granted,  and  the 
execution  of  the  sentence  was  stayed  to  February  1,  1908,  between  the 
hours  of  6  o'clock  a.m.  and  6  o'clock  p.m.;  and  that  prior  to  that  date 
the  President  denied  the  petition  for  a  commutation  of  sentence,  and 
the  defendant  in  error  was  about  to  execute  the  sentence  of  the  Court 
when  a  petition  was  presented  to  the  Court  for  a  writ  of  habeas  corpus. 
...  It  appears  that  the  decision  of  the  President  denying  the  appli- 
cation of  commutation  of  sentence  was  made  known  by  a  telegram 
signed  "  Bonaparte."  The  appellant  seeks  to  raise  the  question  whether 
this  notice  of  the  decision  of  the  President  was  sufficient  in  law.  The 
telegram  is  not  in  the  record,  and,  as  there  is  no  bill  of  exceptions,  this 
Court  would  be  justified  in  declining  to  consider  this  question;  but  in 
view  of  the  serious  character  of  the  case,  the  law^  upon  the  subject  will 
be  stated:  .  .  . 

Facts  which  are  so  generally  known  that  every  well-informed  person 


1142  BOOK   V:     PROPOSITIONS   NOT   NEEDING  EVIDENCE      No.   790 

knows  them,  or  ought  to  know  them,  need  not  be  proven  and  will  be 
judicially  recognized  without  proof.  ^Taylor  on  Evidence,  §  21,  Ameri- 
can Notes,  3(). 

These  rules  of  evidence  are  founded  upon  very  ancient  legal  maxims: 
"Lex  non  requirit  verificari  quod  apparet  curiae."  The  law  does  not 
require  that  to  be  verified  (or  proved)  which  is  apparent  to  the  Court. 
Baten's  Case,  9  Coke  54b.  ..."  Quod  constat  curiae  opere  testium  non 
indiget."  That  which  appears  to  the  Court  needs  not  the  aid  of  wit- 
nesses.    2  Inst.  (Coke)  6(32;    Best  on  Evidence,  §  252. 

The  incumbencies  of  the  more  important  and  notorious  offices  are 
judicially  noticed.  Wigmore  on  Evidence,  §  2570.  In  the  case  of  Jean 
Peltier,  28  Howell's  State  Trials,  p.  530,  the  defendant  was  indicted  for 
a  libel  on  Napoleon  Bonaparte,  First  Consul  of  the  French  Republic, 
and  was  tried  in  the  Court  of  King's  Bench  in  1803,  before  Lord  Ellen- 
borough  and  a  jury.     In  charging  the  jury.  Lord  Ellenborough  said: 

"That  Napoleon  Bonaparte  was  the  Chief  Magistrate  and  First  Consul  of 
France  is  admitted;  and  that  the  relations  of  peace  and  friendship  subsist  between 
us  and  the  French  Republic,  and  did  so  at  the  time  of  these  publications,  is  also 
admitted;  and,  indeed,  they  were  capable  of  easy  proof,  if  they  had  not  been  ad- 
mitted.    Their  notoriety  seems  to  render  all  actual  proof  very  unnecessary."  .  .  , 

The  President,  in  the  exercise  of  his  executive  power  under  the 
Constitution,  may  act  through  the  head  of  the  appropriate  department. 
The  heads  of  departments  are  his  authorized  assistants  in  the  perform- 
ance of  his  executive  duties,  and  their  official  acts,  promulgated  in  the 
regular  course  of  business,  are  presumptively  his  acts.  ...  It  is  gen- 
erally known  that  Charles  J.  Bonaparte  was  the  Attorney-General  of 
the  United  States  and  the  head  of  the  Department  of  Justice  at  the 
time  the  decision  of  the  President  was  made  known  in  this  case,  and  that 
through  that  department  the  decision  of  the  President  in  a  pardon  case 
would,  in  the  regular  course  of  business,  be  promulgated. 

In  the  absence  of  the  telegram  from  the  record,  it  will  be  presumed 
that  it  contained  all  the  usual  evidences  of  authenticity,  and  that  it 
contained  sufficient  information  to  enable  the  Court  to  ascertain  there- 
from that  the  President  had  denied  the  application  of  the  plaintiff  in 
error  for  a  commutation  of  sentence. 

The  judgment  of  the  Court  below  is  affirmed. 


791.   PEOPLE  V.  SCHMITZ 

Supreme  Court  of  California.     1908 

153  Cat.  xviii;   94  Pac.  419 

In  Bank.  Appeal  from  Superior  Court,  City  and  County  of  San 
Francisco;  Frank  H.  Dunne,  Judge.  Eugene  E.  Schmitz  having  been 
convicted   of  extortion,  and   the  conviction  having  been  reversed  by 


No.  791  JUDICIAL  NOTICE  1143 

the  District  Court  of  Appeals  on  his  appeal,  the  People  apply  to  the 
Supreme  Court  for  a  hearing  and  determination  of  the  appeal.  Appli- 
cation denied. 

Campbell,  Metson  &  Drew,  Charles  H.  Fairall,  and  John  J.  Barrett,  for 
appellant. 

U.  S.  Webb,  Attorney-General,  and  W.  H.  Langdoit,  District  At- 
torney, {Heney  &  Cobb  and  ./.  ./.  Divycr  of  counsel),  for  the  People. 

Per  Curiam.  This  is  an  application  by  respondent  for  a  hearing 
and  determination  of  this  appeal  by  this  Court,  after  decision  and  judg- 
ment by  the  District  Court  of  Appeal  for  the  First  District.  .  .  . 

The  Court  is  unanimous  in  the  opinion  that  the  District  Court  of 
Appeal  was  correct  in  its  conclusion  that  the  indictment  was  insufficient, 
in  that  it  did  not  show  that  the  specific  injury  to  the  property  of  the 
restaurant  keepers  threatened  by  the  defendant  was  an  "unlawful 
injury."  ...  §  520  of  the  Penal  Code  provides  that  the  threat  must  be 
such  as  is  mentioned  in  the  preceding  section,  and  the  preceding  section, 
in  subdivision  1  (the  only  subdivision  here  applicable),  says  that  the 
threat  must  be  one  "  to  do  an  unlatcful  injury  to  the  person  or  property 
of  the  individual  threatened,  or  to  any  relative  of  his,  or  member  of  his 
family."  .  .  .  What  is  meant  by  the  term  "unlawful  injury"  ?  Giving 
to  such  term  the  broadest  meaning  possible  under  the  authorities,  it 
can  include  no  injury  that  is  not  of  such  a  character  that,  if  it  had  been 
committed  as  threatened,  it  would  have  constituted  an  actionable 
wrong.  .  .  . 

Applying  this  to  the  case  at  bar: 

It  was  within  the  lawful  power  of  the  police  commissioners  of  San 
Francisco  to  withhold  from  the  restaurant  keepers  a  license  to  sell 
liquors  at  retail  in  their  restaurant,  no  matter  how  great  the  pecuniary 
loss  thereby  caused  to  the  business.  It  was  also  lawful  for  any  person, 
by  legitimate  persuasion  or  argument,  to  endeavor  to  prevail  upon  the 
commissioners  to  refuse  the  license,  although  such  person  was  actuated 
by  a  malicious  intent  to  injure  the  restaurant  keepers  and  cause  them 
pecuniary  loss.  The  conjunction  of  the  lawful  persuasion,  inducing 
the  lawful  refusal  of  the  license,  with  the  malicious  motive  instigating 
the  persuasion,  would  not  convert  the  lawful  act  of  refusing  the  license 
into  an  unlawful  one,  nor  make  the  resulting  injury  unlawful  or  action- 
able. .  .  . 

In  this  case  the  indictment  charges  that  the  defendant  threatened 
the  restaurant  keepers  that,  if  money  was  not  paid  him,  he  would  pre- 
vent them  from  obtaining  or  receiving  a  retail  liquor  license  and  thereby 
destroy  or  render  unprofitable  their  restaurant  business,  of  which  the 
sale  of  liquors  at  retail  formed  the  remunerative  part.  It  is  not  stated 
how  the  defendant  proposed  to  do  this,  or  how  it  was  understood  by  the 
parties  that  he  would  accomplish  it,  whether  by  fair  persuasion  and  law- 
ful influence  over  the  commissioners,  or  by  duress,  menace,  fraud,  or 
undue  influence  exercised  upon  them.     This  is  not  a  case  where  it  is 


1144  BOOK   V:     PROPOSITIONS   NOT   NEEDING    EVIDENCE       No.  791 

sufficient  to  charge  an  offense  in  the  language  of  the  statute  defining  it. 
The  Court  cannot  assume,  in  the  absence  of  any  averment  to  that  effect, 
that  Schmitz  was  mayor  of  the  city  and  as  such  in  a  position  to  exercise 
power  and  undue  infiuence  over  the  members  of  the  board  of  pohce  com- 
missioners; or  that  Ruef,  his  co-defendant,  was  a  person  in  practical 
control  of  thef  city  government  because  of  his  political  activity  and 
influence,  or  otherwise  able  to  exert  an  undue  influence  over  the  board; 
nor  can  it  be  inferred,  or  presumed,  when  it  is  not  so  charged,  that 
the  defendant  threatened  to  prevent  the  issuance  of  the  license  by 
unlawful  means,  and  not  solely  by  lawful  and  innocent  persuasion  and 
argument.  .  .  . 

The  attorneys  for  the  respondent  .  .  .  introduce  their  application 
with  the  statement  that  they  are  convinced  that  upon  a  full  discussion 
of  the  case  "it  will  be  found  and  decided  by  this  Court  that  levying 
blackmail  upon  licensed  businesses  by  the  mayor  and  the  political  boss 
of  a  metropolitan  community  is  a  crime  under  the  law  of  California, 
and  should  not  go  unwhipped  of  justice."  This  is  a  gross  misstatement 
of  the  case  and  of  the  question  to  be  decided,  as  presented  by  the  in- 
dictment. We  again  emphasize  the  fact  that  the  indictment  does  not 
aver  that  Schmitz  was  mayor,  or  that  Ruef  was  a  political  boss,  or  that 
either  of  them  had  any  power,  or  influence,  or  control  over  the  police 
commissioners,  or  that  they  threatened  to  use  such  power,  influence, 
or  control  in  preventing  the  issuance  of  a  license.  .  .  . 

The  application  for  a  hearing  and  determination  of  this  appeal  by 
this  Court,  after  decision  and  judgment  by  the  District  Court  of  Appeal 
of  the  First  District,  is  denied. 


792.    Letters  on  the  Case  of  PEOPLE  v.  SCHMITZ 

(1)  Chief  Justice  Beatty.  Letter  in  the  Sacramento  Bee  (April  29, 
1908).  .  .  .  Though  the  facts  that  Schmitz  was  Mayor  and  Ruef  the 
political  boss  of  the  city  may  have  been  as  notorious  in  San  Francisco 
as  the  fire  or  the  earthquake,  no  lawyer  would  contend  for  a  moment 
that  they  were  facts  of  which  a  Court  could  take  judicial  notice,  in  pass- 
ing upon  the  sufficiency  of  the  indictment. 

If  these  facts  [that  Schmitz  was  mayor  and  Ruef  the  political  boss] 
had  been  alleged  in  the  indictment,  then  indeed  the  Court  could  have 
considered  in  that  connection  the  provisions  of  the  charter  of  San  Fran- 
cisco which  empowered  the  mayor  to  appoint  and  remove  at  will  the 
members  of  the  board  of  police  commissioners,  and  which  invest  that 
board  with  discretion  to  issue  or  refuse  licenses  to  sell  liquors  at  retail. 
And  if  by  means  of  these  allegations  or  otherwise  it  had  been  made  to 
appear  that  the  defendants  had  caused  the  applicants  to  believe  that 
they  could  and  would  influence  the  police  commissioners  to  reject  their 
application  regardless  of  its  merits,   I  have  never  doubted  that  the 


No.  792  JUDICIAL  NOTICE  1145 

indictment  would  have  been  sufficient.  For  this  would  have  been  a 
threat  to  do  an  unhiwful  injury  —  an  injury  which  \)y  reason  of  the 
corrupt  abuse  of  official  power  employed  to  accomplish  it  would  have 
been  actionable. 

But  the  Court,  being  obliged,  as  I  have  shown,  to  look  exclusively 
to  the  force  of  the  indictment  in  determining  its  validity,  and  seeing  only 
a  charge  against  two  private  persons,  could  see  nothing  unlawful  in  the 
threatened  injury.  For  it  could  not  be  assumed  that  such  private 
persons  could  prevent  the  issuance  of  the  license  otherwise  than  by 
adducing  good  reasons  why,  in  the  exercise  of  their  discretion,  the  Police 
Commissioners  should  refuse  it,  —  as,  for  instance,  that  the  applicants 
were  unfit  persons,  or  their  house  an  improper  place.  To  oppose  and 
prevent  the  issuance  of  a  license  on  such  grounds  would  be  perfectly 
lawful,  in  the  absence  of  a  corrupt  or  malicious  motive.  And  therefore 
the  question  finally  resolved  itself  into  this:  Did  the  purpose  of  the 
threat  (the  extortion  of  money)  convert  into  an  unlawful  injury  that 
which  in  the  absence  of  such  motive  would  not  have  been  criminal  or 
actionable? 

IVIiy,  it  has  been  asked,  could  not  the  Court  have  taken  into  con- 
sideration the  notorious  facts  that  Schmitz  was  Mayor  of  the  city  and 
Ruef  the  political  boss  of  the  party  in  possession  of  the  city  government? 
The  answer  to  this  question  is  that  .  .  .  the  Legislature  of  California, 
by  a  constitutional  law,  has  enumerated  the  facts  of  which  Courts  may 
take  judicial  notice  in  the  absence  of  proof,  and  by  necessary  implica- 
tion has  excluded  all  others,  including  the  fact  that  any  particular 
person  is  Mayor  or  political  boss  of  any  particular  city.  Necessarily, 
facts  which  must  be  proved,  where  they  are  matters  of  proof,  must  be 
alleged  where  they  are  matter  of  allegation,  as  in  an  indictment. 

(2)  Fkancis  J.  Heney  (Assistant  District  Attorney  of  San  Francisco). 
Letter  in  the  San  Francisco  Bulletin  (October  31,  1908).  In  the  opinion 
of  Chief  Justice  Beatty  in  People  v.  Schmitz,  and  his  subsequent  letter, 
...  it  is  thus,  in  fact,  conceded  by  the  learned  Chief  Justice  that  if 
the  indictment  had  alleged  that  Schmitz  was  mayor,  it  would  have  been 
sufficient,  because  the  Court  could  then  have  taken  judicial  notice  in  that 
connection  of  the  influence  which  the  mayor  possesses  officially  over 
the  board  of  police  commissioners,  and  that,  therefore,  when  Schmitz 
threatened  the  French  restaurant-keeper  that  he  could  and  would  pre- 
vent him  from  securing  a  license,  the  intended  victim  was  justified,  as  a 
reasonable  man,  in  believing  that  Schmitz  possessed  the  power,  through 
his  official  position,  to  influence  the  police  commissioners,  whom  Schmitz 
had  appointed  and  o^Tr  whom  he  possessed  the  power  of  removal,  to 
reject  the  French  restaurant-keeper's  application  for  a  license,  regardless 
of  the  merits  of  the  application. 

Yet  the  Court's  refusal  to  take  notice  in  this  case  ignores  the  plain 
language  of  the  Code  of  Civil  Procedure,  §  1875,  subdiv.  5,  enumerating 


114G  BOOK    V:     PROPOSITIONS   NOT   NEEDING   EVIDENCE       No.  792 

the  kinds  of  facts  of  which  judicial  notice  may  be  taken:  "The  accession 
to  office  and  the  official  signatures  and  seals  of  office  of  the  principal 
officers  of  gocernvient  in  the  legislative,  executive  and  judicial  departments 
of  the  State  and  the  United  States."  The  Political  Code,  §  343,  provides, 
"  The  number  and  designation  of  the  civil  executive  officers  are  as  follows: 
A  go\ernor;  .  .  .  such  other  officers  as  fill  offices  created  by  or  under 
the  authority  of  general  laws  for  the  government  of  counties,  cities  and 
towns,  or  of  the  charters  and  special  laws  affecting  the  same."  Surely 
the  Mayor  of  the  City  and  County  of  San  Francisco,  the  largest  in  the 
State,  is  a  "principal  officer"  of  the  executive  department  of  this  State, 
as  thus  defined.  Moreover,  in  a  decision  of  this  Supreme  Court  rendered 
in  1896,  the  broad  principle  is  stated  that  "the  judicial  notice  which 
Courts  take  of  matters  of  fact  embraces  those  facts  which  are  within 
common  knowledge  of  all,  or  are  of  such  general  notoriety  as  to  need  no 
evidence  in  their  support."  ... 

F'urthermore,  the  opinion  of  the  Court  indicates  that  the  justices 
did  look  into  the  record  of  the  case  to  some  extent  and  consequently 
the  Court  must  have  known  that  the  defendant  Schmitz  was  fully 
apprised,  at  the  time  of  the  trial,  of  the  fact  that  he  was  charged  with 
having  used  the  prestige  of  his  official  position,  together  with  the  prestige 
of  Abe  Ruef  as  political  boss,  to  extort  money  from  the  French  restau- 
rant keepers  under  a  threat  to  prevent  them  from  securing  the  liquor 
licenses.  The  case  was  tried  on  behalf  of  the  defendant  by  able  and 
learned  attorneys  upon  this  very  theory.  It  cannot  be  possible,  there- 
fore, that  any  substantial  injustice  was  done  the  defendant  by  not 
alleging  these  evidentiary  facts  in  the  indictment.  Surely  no  substantial 
injustice  was  done  to  the  defendant  by  failing  to  inform  him  in  the  in- 
dictment that  he  was  the  mayor  of  this  city  and  county  at  the  time  he  is 
alleged  to  have  made  the  threat  and  to  have  extorted  the  money.  He 
could  not  have  been  taken  by  surprise  by  our  failure  to  allege  that  fact, 
for  he  is  presumed  to  be  sane  and  to  be  gifted  with  at  least  ordinary  senses 
of  sight  and  hearing  and  at  least  an  ordinary  memory. 

(3)  John  H.  Wigmore.  Letter  in  the  Liberator  (Vol.  I,  No.  8,  San 
Francisco,  Jan.  30,  1909).  I  have  read  the  letter  of  Mr.  Heney,  and 
the  letter  of  the  Chief  Justice,  and  have  re-read  the  opinion  of  the 
Court  in  People  v.  Schmitz.  The  Chief  Justice's  letter  and  Mr.  Heney's 
reply  turn  largely  on  the  legal  rule  of  judicial  notice.  The  learned  Chief 
Justice  finds  himself  iron-bound  by  the  rules  of  that  subject.  But  the 
whole  spirit  of  the  rules  is  misconceived  by  him.  Their  essential  and  sole 
purpose  is  to  relieve  the  party  from  proof,  —  that  is,  from  proof  of  facts 
which  are  so  notorious  as  not  to  need  proof.  When  a  party  has  not 
averred  or  evidenced  a  fact  which  later  turns  out,  in  the  Supreme  Court's 
opinion,  to  be  vital,  the  rule  of  judicial  notice  helps  out  the  judge  by 
permitting  him  to  take  the  fact  as  true,  where  it  is  one  so  notorious  that 
evidence  of  it  would  have  been  superfluous.     Now  these  helping  rules 


No.  792  JUDICIAL  NOTICE  1147 

are  not  intended  to  bind  him,  but  the  contrary,  i.e.,  to  make  him  free  to 
take  the  fact  as  proved  where  lie  knows  the  proof  was  not  needed.  More- 
over, it  follows,  since  these  rules  cannot  foresee  every  case  new  times  and 
new  conditions  will  create,  that  they  can  always  receive  new  applications. 
The  precedents  of  former  judges,  in  noticing  specific  facts,  do  not  restrict 
present  judges  from  noticing  new  facts,  provided  only  that  the  new  fact 
is  notorious  to  all  the  community.  P^or  example,  the  uncjuestioned 
election  of  \\  illiam  H.  Taft  as  President  of  the  United  States  is  notorious; 
but  no  man  named  William  H.  Taft  has  ever  been  elected  President,  and 
no  judicial  precedent  has  noticed  the  fact.  Yet  no  Court  would  hesi- 
tate to  notice  this  new  notorious  fact. 

The  principle  is  stated  in  masterly  form  by  Professor  James  Bradley 
Thayer,  in  his  "Preliminary  Treatise  on  Evidence"  (1898,  p.  300): 
"Practical  convenience  and  good  sense  demand  an  increase  rather  than 
a  lessening  of  the  number  of  instances  in  which  Courts  shorten  trials, 
by  making  prima  facie  assumptions,  not  likely,  on  the  one  hand,  to  be 
successfully  denied,  and,  on  the  other,  if  they  be  denied,  admitting 
readily  of  certification  or  disproof.  .  .  .  There  is  a  wide  principle,  cover- 
ing some  things  already  mentioned,  that  Courts  may  and  should  notice 
without  proof,  and  assume  as  known  by  others,  whatever,  as  the  phrase 
is,  everybody  knows.  The  application  of  such  a  principle  must,  as  I 
have  said,  leave  a  great  range  of  discretion  to  the  Courts;  only  in  a  large 
and  general  way  can  any  one  say  in  advance  what  are  and  what  are  not 
matters  of  common  knowledge.  .  .  . 

Courts  may  judicially  notice  much  which  they  cannot  be  required 
to  notice.  That  is  well  worth  emphasizing,  for  it  points  to  a  great 
possible  usefulness  in  this  doctrine,  in  helping  to  shorten  and  simplify 
trials;  it  is  an  instrument  of  great  capacity  in  the  hands  of  a  competent 
judge;  and  is  not  nearly  as  much  used,  in  the  region  of  practice  and 
evidence,  as  it  should  be.  This  function  is,  indeed,  a  delicate  one;  if 
it  is  too  loosely  or  ignorantly  exercised  it  may  annul  the  principles  of 
evidence  and  even  of  substantive  law.  But  the  failure  to  exercise  it 
tends  daily  to  smother  trials  with  technicality  and  monstrously  length- 
ens them  out." 

If,  then,  a  man  named  Schmitz  was  notoriously  Mayor  of  San  Fran- 
cisco, and  a  man  named  Ruef  was  notoriously  its  political  boss,  at  the 
time  in  question,  that  is  all  that  any  Court  needs;  and  the  doctrine  of 
judicial  notice  gives  it  all  the  liberty  it  needs.  It  is  conceivable  that  a 
trial  judge  might  sometimes  hesitate  in  applying  this  doctrine  of  noto- 
riety, because  the  trial  Court  might  fear  that  the  Supreme  Court  would 
not  perceive  the  notoriety.  But  there  never  need  be  any  such  hesitation 
in  a  Supreme  ('om-t,  if  that  Court  does  see  the  notoriety. 

And  this  is  just  where  the  learned  Chief  Justice  is  to  be  criticised. 

He  does  not  for  a  moment  ask  or  answer  the  question,  "  Did  we 
actually,  as  mien  and  officers,  believe  these  facts  to  be  notoriously  so?" 
but  refers  to  certain  mechanical  rules,  external  to  his  mind.     What  that 


1148  BOOK    V:     PROPOSITIONS   NOT   NEEDING    EVIDENCE       Xo.  792 

Supreme  Court  should  have  done  was  to  decide  whether  they  under  the 
circumstances  did  actually  believe  the  facts  about  the  status  of  Schmitz 
and  Ruef  to  be  notorious.  In  not  so  doing,  they  erred  against  the  whole 
spirit  and  principle  of  judicial  notice. 

And  Mr.  Heney's  demonstration  that  there  is  nothing  in  the  codes 
to  forbid  them  is  complete;  for,  of  course,  the  Code  of  Procedure,  in 
telling  them  (Section  1875)  that  "  the  Courts  take  judicial  notice  of  the 
following  facts,"  simply  gave  them  a  liberty  of  belief  as  to  those  specified 
facts,  and  did  not  take  away  their  liberty  as  to  other  unspecified  facts. 

But  there  is  a  deeper  error  than  this  in  the  learned  Chief  Justice's 
letter,  and  in  the  Com-t's  opinion.  The  letter  says:  "If  by  means  of 
these  allegations  or  otherwise  it  had  been  made  to  appear  that  the  de- 
fendants had  caused  the  applicants  to  believe  that  they  could  and  would 
influence  the  Police  Commissioners  to  reject  their  application  regardless 
of  its  merits,  I  have  never  doubted  that  the  indictment  would  have  been 
sufficient."  He  stakes  his  decision  on  this  point.  The  point  is  that, 
in  determining  the  fear  caused  by  the  threat,  which  constituted  extor- 
tion, the  belief  of  the  restaurant-keeper  as  to  Schmitz's  and  Ruef 's  power, 
and  not  their  actual  power,  was  the  essential  thing.  If  that  is  so,  then  of 
what  consequence  was  it  whether  one  or  the  other  was  Mayor  or  boss? 
And  of  what  consequence  was  it  whether  those  facts  were  averred  or 
judicially  noticed?  None  at  all.  The  indictment  alleged  that  the 
threats  were  made  to  use  influence  or  power  over  the  Commissioners, 
and  that  their  purpose  was  to  obtain  money  by  means  of  {i.e.,  through 
fear  of)  such  threats.  Obviously,  then,  the  actual  power  or  influence  was 
immaterial;  and  the  belief  of  the  restaurant-keeper,  the  only  material 
fact,  was  a  question  of  the  evidence  on  the  trial,  and  not  of  the  legal 
sufficiency  of  the  indictment.  All  the  lucubrations  about  judicial  notice 
were  therefore  beside  the  point. 

The  inconsistency  of  the  learned  Chief  Justice,  in  thus  taking  as 
essential  the  actual  status  of  Schmitz  and  Ruef,  is  further  seen  in  his 
next  paragraph.  There  he  declares  "  it  could  not  be  assumed  that  such 
private  persons  could  prevent  the  issuance  of  the  license  otherwise  than 
by  adducing  good  reasons."  But  why  does  he  assume  that,  on  the 
contrary,  a  threat  by  a  Mayor  or  a  boss  could  prevent  the  issuance  of 
the  license  otherwise  than  by  adducing  good  reasons?  He  says  that  if 
it  had  appeared  that  the  threats  were  made  by  a  Mayor  and  a  boss,  then 
this  would  have  sufficed,  because,  in  his  own  words,  their  influence  to 
reject  the  application  would  have  been  used  "regardless  of  its  merit." 
See  what  this  means.  Suppose  that  two  persons,  a  Mayor  and  a  private 
citizen,  tell  a  restaurant-keeper  that  they  will  do  all  they  can  to  induce 
a  Commissioner  to  revoke  the  license  unless  money  is  paid;  for  one  of 
these  persons  the  learned  Chief  Justice  immediately  assumes  that  he 
can  and  will  do  this  "regardless  of  its  merits";  for  the  other  he  says 
"it  cannot  be  assumed."  Why  not  for  one  as  much  or  as  little  as  the 
other?     He  does  not  say  that  the  private  person  could  not  possibly 


No.  792  JUDICIAL  NOTICE  1149 

succeed  in  influencing  tiie  Commissioner  corruptly  —  he  merely  says 
that  "it  cannot  be  assumed."  On  the  other  hand,  why  assume  it  for 
the  Mayor?  Surely  a  Mayor  might  fail  in  trying  to  influence  an  honest 
Commissioner  by  a  corrupt  threat  to  remove  him.  In  short,  either 
assume  that  on  the  facts  of  the  trial  a  private  person  might  have  power 
to  influence  corruptly  the  license;  in  which  case  an  allegation  of  his 
Mayoralty  would  be  superfluous.  Or  else  refuse  to  assume  that  a  Mayor, 
merely  as  such,  could  and  would  inevitably  influence  a  Commissioner 
corruptly;  in  which  case  the  mere  allegation  of  his  being  Mayor  would 
not  be  enough,  and  judicial  notice  would  not  cure.  But  the  Chief 
Justice  says  it  would  be  enough!     He  is  plainly  inconsistent. 

The  truth  is  that  the  learned  Chief  Justice,  in  endeavoring  to  support 
his  decision,  weaves  a  logical  web,  and  then  entangles  himself  in  it. 
We  do  not  doubt  that  there  are  dozens  of  other  Supreme  Justices  who 
would  decide,  and  are  to-day  deciding,  in  obscure  cases,  just  such  points 
in  just  the  same  way  as  the  California  case.  And  we  do  not  doubt  that 
there  are  hundreds  of  lawyers  whose  professional  habit  of  mind  would 
make  them  decide  just  that  way  if  they  were  elevated  to  the  bench  to- 
morrow in  place  of  those  other  jurists  who  are  now  there.  The  moral 
is  that  our  profession  must  be  educated  out  of  such  vicious  habits  of 
thought.  One  way  to  do  this  is  to  let  the  newer  ideas  be  dinned  into 
their  professional  consciousness  by  public  criticism  and  private  con- 
versation. 

Such  disputations  were  the  life  of  scholarship  and  of  the  law  three 
hundred  years  ago.  They  are  out  of  place  to-day.  There  are  enough 
rules  of  law  to  sustain  them,  if  the  Court  wants  to  do  so.  And  there 
are  enough  rules  of  law  to  brush  them  away,  if  the  Court  wants  to  do 
that. 

All  the  rules  in  the  world  will  not  get  us  substantial  jus- 
tice IF  THE  JUDGES  HAVE  NOT  THE  CORRECT  LIVING  MORAL  ATTITUDE 
TOWARD  SUBSTANTIAL  JUSTICE, 


BOOK  VI.  THE  SO-CALLED  PAROL 
EVIDENCE  RULES 

795.  Introductory,  i  At  the  outset  certain  discriminations  must 
be  kept  in  mind:  (1)  First  and  foremost,  the  rule  is  in  no  sense  a  rule  of 
evidence,  but  a  rule  of  substantive  law.  It  does  not  exclude  certain  data 
because  they  are  for  one  or  another  reason  untrustMorthy  or  undesir- 
able means  of  evidencing  some  fact  to  be  proved.  It  does  not  concern 
a  probative  mental  process,  • —  the  process  of  believing  one  fact  on  the 
faith  of  another.  What  the  rule  does  is  to  declare  that  certain  kinds 
of  fact  are  legally  ineffective  in  the  substantive  law;  and  this  of  course 
(like  any  other  ruling  of  substantive  law)  results  in  forbidding  the  fact 
to  be  proved  at  all.  But  this  prohibition  of  proving  it  is  merely  the  dra- 
matic aspect  of  the  process  of  applying  the  rule  of  substantive  law. 

(2)  Next,  the  matter  excluded  by  the  rule  is  not  inherently  or  even  most 
commonly  anything  that  can  he  properly  termed  "parol."  That  word  (in 
spite  of  its  numerous  other  derived  applications)  signifies  and  implies 
essentially  the  idea  "oral,"  i.e.  matter  of  speech,  as  contrasted  with 
matter  of  writing.  Now,  so  far  as  the  phrase  " parol-evidence  rule" 
conveys  the  impression  that  what  is  excluded  is  excluded  because  it  is 
oral  —  because  somebody  spoke  or  acted  other  than  in  writing,  or  is 
now  offering  to  testify  orally  — ,  that  impression  is  radically  incorrect. 
When  the  prohibition  of  the  rule  is  applicable,  what  is  excluded  may 
equally  be  WTitten  as  oral,  —  may  be  letters  and  telegrams  as  well  as 
conversations;  and  where  the  prohibition  is  applicable  on  the  facts  to 
certain  written  material,  nevertheless  for  the  very  same  transaction 
certain  oral  material  may  not  be  prohibited. 

(3)  There  is  no  one  and  undivided  parol-evidence  rule.  There  are  at 
least  four  distinct  principles  or  bodies  of  doctrine.  They  concern  a 
common  subject  —  legal  acts  — ■,  but  their  content  and  details  are  sepa- 
rate and  distinct.  The  case  lies  very  much  as  if  we  possessed  one  term 
"action"  for  all  the  various  forms  of  remedial  procedure. 

(4)  The  parol-evideyice  rule  is  not  the  only  rule  which  concerns  the  use 
of  tcritten  things.  There  are  several  other  rules,  with  which  it  has  noth- 
ing to  do,  that  also  have  something  to  say  about  writings,  —  the  chief 
of  which  are  the  rule  about  Producing  Documentary  Originals  and  the 
rule  about  Authenticating  Documents. 

(5)  Finally,  it  needs  to  be  insisted,  in  opposition  to  the  popular  and 
natural  view  which  tends  to  thrust  itself  forward  at  trials,  that  a  writing 

^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905,  Vol.  IV, 
§§  2400,  2401). 


No.  795  INTRODUCTORY  llol 

has  no  efficacy  per  se,  but  only  in  consequence  of  and  dependence  upon 
other  circumstances  external  to  itself.  The  exhibition  of  a  writing  is 
often  made  as  though  it  possessed  some  intrinsic  and  indefinite  power 
of  dominating  the  situation  and  quelling  further  dispute.  But  it  needs 
rather  to  be  remembered  that  a  writing  is,  of  itself  alone  considered, 
nothing  —  simply  nothing.  It  nmst  take  life  and  efficacy  from  other 
facts,  to  which  it  owes  its  birth;  and  these  facts,  as  its  creator,  have  as 
great  a  right  to  be  known  and  considered  as  their  creature  has.  Grant- 
ing that  there  is  a  writing  before  us:  Has  it  been  brought  home  to  any- 
body as  his  act?  Was  it  meant  so  supersede  other  materials?  Was 
it  essential  to  the  transaction?  What  external  objects  does  it  apply  to? 
These  are  questions  which  cannot  be  answered  without  looking  away 
from  the  writing  to  other  data;  and  until  they  are  answered  the  efficacy 
of  the  writing  is  merely  hypothetical.  There  is  no  magic  in  the  writing 
itself.  It  hangs  in  mid-air,  incapable  of  self-support,  until  some  founda- 
tion of  other  facts  has  been  built  for  it. 

In  short,  then,  (1)  the  parol-evidence  rule  is  not  a  rule  of  evidence; 
(2)  nor  is  it  a  rule  for  things  parol;  (3)  nor  is  it  a  single  rule;  (4)  nor  is 
is  all  of  the  rules  that  concern  either  parol  or  writing;  (5)  nor  does  it 
involve  the  assumption  that  a  writing  can  possess,  independently  of  the 
surrounding  circumstances,  any  inherent  status  or  efficacy, 

II.  What,  then,  is  the  Parol-Evidence  rule?  It  concerns  the  con- 
stitution of  legal  acts.  This  requires  a  brief  notice  of  the  nature  of  legal 
acts. 

Only  a  small  part  of  conduct  is  legal  conduct,  i.e.  conduct  having 
legal  effectiveness.  The  conduct  which  is  allowed  to  have  such  effect 
is  a  legal  act.^ 

For  the  purpose  of  specific  varieties  of  legal  acts  —  sale,  contract, 
release,  and  so  on  — ,  there  are  specific  requirements,  varying  according 
to  the  subject.  But  there  are  also  certain  fundamental  elements,  com- 
mon to  all,  and  capable  of  being  generalized.  These  elements  present 
problems  which  run  through  all  the  varieties  of  legal  acts,  and  must 
therefore  be  analyzed  and  discussed  in  union.  What  has  to  be  done, 
therefore,  is  to  compare  under  one  head  the  principles  common  to  all 
legal  acts,  and  to  take  account  of  the  specific  variations  for  specific  kinds 
of  acts.     This  is  what  the  "parol  evidence"  rule  does  in  our  law. 

These  principles  fall  into  four  groups,  marking  the  four  possible 
elements  of  every  legal  act:  (A),  The  Enaction,  or  Creation,  of  the  act; 
(B),  its  Integration,  or  embodiment  in  a  single  memorial,  when  desired; 

^  "There  is  a  very  important  class  of  acts  in  which  the  legal  result  follows 
because  that  result  was  itself  contemplated  and  desired  as  one  of  the  consequences 
of  the  act.  From  the  fact  that  legal  results  are  in  contemplation  in  this  class  of 
acts,  the  Germans  call  them  Rechtsgeschdfte,  Frenchmen  call  them  actes  juridiques. 
English  lawyers  have  not  yet  agreed  upon  any  name  for  them.  The  terms 
'juristic  acts'  and  'acts  in  the  law'  have  been  suggested"  (Markby,  Elements  of 
Law,  3d  ed.,  §  235). 


1152  BOOK  VI :  PAROL  EVIDENCE  RULES         No,  795 

(C),  its  Solemnization,  or  fulfilment  of  the  prescribed  forms,  if  any; 
and  (D),  the  Interpretation,  or  application  of  the  act  to  the  external 
objects  affected  by  it.  Of  these  four,  the  first  and  the  fourth  are  neces- 
sarily involved  in  every  legal  act;  the  second  and  the  third  may  or  not 
become  practically  important,  but  are  always  possible. elements. 

A.  The  Enaction,  or  Creation,  of  an  act  is  concerned  with  the  ques- 
tion whether  any  legal  act  at  all,  or  a  legal  act  of  the  alleged  tenor,  has  been 
consummated;  or,  if  consummated,  whether  the  circumstances  attend- 
ing its  creation  authorize  its  avoidance  or  annulment. 

B.  The  Integration  of  the  act  consists  in  embodying  it  in  a  single 
utterance  or  memorial,  —  commonly,  of  course,  a  written  one.  This 
process  of  integration  may  be  required  by  law,  or  it  may  be  adopted 
voluntarily  by  the  actor  or  actors;  and,  in  the  latter  case,  either  wholly 
or  partially. 

C.  The  Solemnization  of  the  act  concerns  the  forms  which  are 
required  by  law  to  attend  it  in  order  to  give  it  legal  effect.  There  is  no 
universal  formality  required  in  common  for  all  acts.  Thus  the  formali- 
ties of  attestation,  seal,  registration,  and  the  like  are  essential  for  some 
but  not  for  other  acts. 

D.  The  Interpretation  of  an  act  is  the  application  of  it  to  external 
objects,  in  the  process  of  defining  and  enforcing  the  right  or  obligation 
affected  by  its  terms.  The  words  of  a  legal  act  are  merely  the  symbols 
by  w^hich  the  actor  indicates  the  external  objects  which  the  act  is  ex- 
pected to  affect  —  a  lot  of  land  or  a  barrel  of  sugar  or  John  Doe  the 
legatee. 

For  these  four  elements  in  the  act,  the  principles  are  independent 
of  each  other,  —  so  independent,  indeed,  that  they  sometimes  appear 
to  be  contradictory;  and  the  chief  inherent  difficulty  in  their  applica- 
tion arises  from  the  necessity  of  distinguishing  which  element  and  which 
principle  is  really  involved. 


No.  796  ENACTION  OF  A  LEGAL  ACT  1153 


TITLE  I.    ENACTION  OF  A  LEGAL  ACT 

796.  History.^  The  two  chief  problems  have  been  that  of  the  finahty  of 
the  utterance,  and  that  of  the  correspondence  between  intent  and  expression,  i.e., 
how  far  a  formal  delivery  of  a  document  is  essential  and  decisive,  and  how  far  an 
unexpressed  intent  can  be  allowed  to  overthrow  the  outward  act. 

As  miglit  have  been  expected,  the  progress  has  been  from  a  strict  formalism 
to  a  liberal  and  flexible  practicality.  The  mark  of  primitive  legal  standards, 
throughout  all,  is  formalism,  —  a  characteristic  already  noted  here  in  its  effects 
upon  other  parts  of  the  law.  It  must  be  kept  in-  mind,  for  appreciating  the 
traditions  against  which  the  modern  law  has  had  to  struggle. 

In  earlier  times,  outward  technical  form  reigned  supreme. 

Thus  it  comes  down  to  the  succeeding  centuries  that  the  technical  and  un- 
varying symbol  of  finality  is  a  delivery  of  the  deed.  "Delivery,"  says  Chief 
Baron  Gilbert,  in  the  early  1700s,  "is  necessary  to  the  essence  of  a  deed,  and  the 
deed  takes  effect  from  the  delivery;  so  that  unless  the  delivery  be  proved,  there  is 
no  perfect  proof  of  the  deed."  The  first  signs  of  flexibility  are  seen  in  the  con- 
cession that  a  draft  deed  (an  "escrow,"  or  mere  scroll),  placed  in  the  hands  of  a 
second  person  for  subsequent  handing  to  the  grantee,  is  not  yet  effective.  This 
concession,  moreover,  is  still  refused  for  a  draft  deed  placed  directly  in  the  grantee's 
hands  in  anticipation  of  some  future  event  which  shall  make  it  effective;  there 
can  be  no  escrow  to  a  grantee,  it  was  said.  It  has  been  reserved  for  very  modern 
times  to  repudiate  this  last  relic  of  primitive  formalism. 

Passing  to  the  problem  of  intent  as  competing  with  expression,  it  is  equally 
plain  that  the  primitive  legal  conception  was  strictly  formalistic. 

"A  strictly  formal  system  of  law  knows  no  contrast  between  the  will  and  the 
utterance,  and  no  possibility  of  a  contradiction  between  the  two.  This  is  thor- 
oughly the  conception  of  the  Germanic  law.  The  utterance  is  the  law's  embodi- 
ment. No  more,  and  yet  no  less,  than  what  is  uttered  can  bind  or  loose.  Hence 
the  minute  precision  with  which  obligations  of  debt  were  A\Titten  out.  .  .  .  Hence 
the  legal  proverbs,  'one  man  one  word,'  'the  word  stands/  'words  make  the  bar^ 
gain,'  and  the  like.  A  necessary  result  is  that  mistake  in  contractual  relations 
receives  but  scanty  consideration.  .  .  .  All  that  a  man  does  is  judged  alone  by 
its  external  manifestations  and  its  objective  effect,  not  by  his  inward  motive."  ^ 
In  one  aspect  the  history  seems  to  have  begim  to  change  at  an  early  stage,  — - 
namely,  the  doctrine  of  mistake  as  applied  to  the  contents  of  the  writing.  That 
a  man  who  could  not  read  had  sealed  a  document  which  had  been  incorrectly 
read  over  to  him,  was  recognized,  before  the  1400s,  as  sufficient  to  relieve  him 
from  liability.  Perhaps  in  the  earlier  cases,  the  inclination  was  to  restrict  it  to 
instances  of  fraud  by  the  other  party  to  the  document,  and  the  Latin  maxims 
used  by  the  judges  suggest  that  they  had  borrowed  something  from  an  alien  and 
more  advanced  system.  But  by  the  1500s  it  appears  to  be  conceded  that  a  false 
reading  by  a  stranger  is  equally  fatal  to  the  deed;  and  the  only  controversy  then 
remaining  is  whether  the  deed  may  be  valid  as  to  the  part  correctly  read  while 


^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905,  Vol.  IV, 
§2405). 

^Professor  Andreas  Heusler,  Institutions  of  Germanic  Private  Law,  I,  60. 


1154  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  796 

void  as  to  the  part  falsely  read.  For  literate  persons,  there  seems  never  to  have 
been  any  doubt  that  a  mistake  of  intent  could  not  avail  to  avoid  the  document; 
and  the  doctrines  of  mutual  mistake  and  the  like  are  the  product  of  equity  and 
modern  rationalism. 


SUB-TITLE   I.     ACT   VOID   FOR  INCOMPLETENESS 

798.    THOROUGHGOOD'S  CASE  (1601.    9  Co-Rep.  137) 

If  A  makes  a  writing  to  B  and  seals  it,  and  delivers  it  to  B  as  an 
escrow,  to  take  effect  as  his  deed  when  certain  conditions  are  per- 
formed, it  has  been  adjudged  to  be  immediately  his  deed,  for  the  law 
respects  the  delivery  to  the  party  himself,  and  rejects  the  words  which 
will  make  the  express  delivery  to  the  party  upon  the  matter  no 
delivery.  .  .  .  And  therewith  agrees  the  report  of  19  H.  8.  8.  a.  and 
takes  the  difference  when  it  is  so  delivered  to  the  party  himself,  and 
when  to  a  stranger,  as  it  was  there  agreed. 


799.   PYM  V.   CAMPBELL 

Queen's  Bench.     1856 

6  E.  &  B.  370 

Action  on  a  contract  to  purchase  shares  in  an  invention.  The 
contract  was  dated  Jan.  17,  1854,  named  the  respective  shares  and 
prices,  and  was  signed  by  Campbell,  Pym,  Mackenzie,  and  Pritchard. 

The  defendants  gave  evidence  that,  in  the  course  of  the  negotiations 
with  the  plaintiff,  they  had  got  so  far  as  to  agree  on  the  price  at  which 
the  invention  should  be  purchased  if  bought  at  all,  and  had  appointed 
a  meeting  at  which-  the  plaintiff  was  to  explain  his  invention  to  two 
engineers  appointed  by  the  defendants,  when,  if  they  approved,  the 
machine  should  be  bought.  At  the  appointed  time  the  defendants  and 
two  engineers  of  the  names  of  Fergusson  and  Abernethie  attended;  but 
the  plaintiff  did  not  come;  and  the  engineers  w^ent  away.  Shortly  after 
they  were  gone  the  plaintiff  arrived.  Fergusson  was  found,  and  ex- 
pressed a  favorable  opinion;  but  Abernethie  could  not  then  be  found. 
It  was  then  proposed  that,  as  the  parties  were  all  present,  and  might 
find  it  troublesome  to  meet  again,  an  agreement  should  be  then  drawn 
up  and  signed,  which,  if  Abernethie  approved  of  the  invention,  should 
be  the  agreement,  but,  if  Abernethie  did  not  approve,  should  not  be 
one.  Abernethie  did  not  approve  of  the  invention  when  he  saw  it;  and 
the  defendants  contended  that  there  was  no  bargain.  The  Lord  Chief 
Justice  told  the  jury  that,  if  they  were  satisfied  that,  before  the  paper 
was  signed,  it  was  agreed  amongst  them  all  that  it  should  not  operate 
as  an  agreement  until  Abernethie  approved  of  the  invention,  they  should 


No.  799  ENACTION  OF  A  LEGAL  ACT  1155 

find  for  defendant  on  the  pleas  denying  the  agreement.     Verdict  for  the 
defendants. 

Thomas,  Serjt.,  in  the  ensuing  term,  obtained  a  rule  nisi  for  a  new 
trial  on  the  ground  of  misdirection. 

Watson  and  Manisty,  now  showed  cause. — The  direction  was  cor- 
rect. ...  If  the  defendants  had  signed  this  as  an  agreement,  they  could 
not  have  shown  that  the  agreement  was  subject  to  a  condition.  But 
they  may  show  that  the  writing  was  signed  on  the  terms  that  it  should 
be  merely  void  till  a  condition  was  fulfilled;  for  that  shows  there  never 
was  a  contract.  .  .  . 

Thomas,  Serjt.,  and  J.  H.  Hodgson,  contra.  —  The  very  object  of 
reducing  a  contract  to  writing  and  signing  it  is  to  prevent  all  disputes 
as  to  the  terms  of  the  contract.  Here  the  attempt  is  to  show  by  parol 
that  the  agreement  to  take  this  invention  was  subject  to  a  condition 
that  Abernethie  approved;   while  the  WTiting  is  silent  as  to  that. 

Erle,  J.  —  I  think  that  this  rule  ought  to  be  discharged.  The  point 
made  is  that  this  is  a  WTitten  agreement,  absolute  on  the  face  of  it,  and 
that  evidence  was  admitted  to  show  it  was  conditional;  and  if  that  had 
been  so  it  would  have  been  wrong.  But  I  am  of  opinion  that  the  evi- 
dence showed  that  in  fact  there  was  never  any  agreement  at  all.  The 
production  of  a  paper  purporting  to  be  an  agreement  by  a  party,  with 
his  signature  attached,  affords  a  strong  presumption  that  it  is  his  written 
agreement;  and,  if  in  fact  he  did  sign  the  paper  animo  contrahendi,  the 
terms  contained  in  it  are  conclusive,  and  cannot  be  varied  by  parol 
e\'idence.  But  in  the  present  case  the  defence  begins  one  step  earlier; 
the  parties  met  and  expressly  stated  to  each  other  that,  though  for  con- 
venience they  would  then  sign  the  memorandum  of  the  terms,  yet  they 
were  not  to  sign  it  as  an  agreement  until  Abernethie  was  consulted. 
I  grant  the  risk  that  such  a  defence  may  be  set  up  without  ground; 
and  I  agree  that  a  jury  should  therefore  always  look  on  such  a  de- 
fence with  suspicion;  but,  if  it  be  proved  that  in  fact  the  paper  was 
signed  with  the  express  intention  that  it  should  not  be  an  agreement,  the 
other  party  cannot  fix  it  as  an  agreement  upon  those  so  signing.  The 
distinction  in  point  of  law  is  that  evidence  to  vary  the  terms  of  an  agree- 
ment in  WTiting  is  not  admissible,  but  evidence  to  show  that  there  is  not 
an  agreement  at  all  is  admissil)le. 

Crompton,  J.  —  I  also  think  that  the  point  in  this  case  was  properly 
left  to  the  jury.  If  the  parties  had  come  to  an  agreement,  though  sub- 
ject to  a  condition  not  shown  in  the  agreement,  the}^  could  not  show  the 
condition,  because  the  agreement  on  the  face  of  the  WTiting  would  have 
been  absolute,  and  could  not  be  varied.  But  the  finding  of  the  jury  is 
.that  this  paper  was  signed  on  the  terms  that  it  was  to  be  an  agreement 
if  Abernethie  approved  of  the  invention,  not  otherwise.  I  know  of  no 
rule  of  law  to  estop  parties  from  showing  that  a  paper,  purporting  to  be 
a  signed  agreement,  was  in  fact  signed  by  mistake,  or  that  it  was  signed 
on  the  terms  that  it  should  not  be  an  agreement  till  money  was  paid,  or 


1156  BOOK    VI :     PAKOL   EVIDENCE    RULES  Xo.  799 

something  else  done.  When  the  instrument  is  under  seal  it  cannot  be  a 
deed  until  there  is  a  delivery;  and  when  there  is  a  delivery  that  estops 
the  parties  to  the  deed,  that  is  a  technical  reason  why  a  deed  cannot  be 
delivered  as  an  escrow  to  the  other  party.  But  parol  contracts,  whether 
by  word  of  mouth  or  in  writing,  do  not  estop.  There  is  no  distinction 
between  them,  except  that  where  there  is  a  writing  it  is  the  record  of  the 
contract.  The  decision  in  Davis  v.  Jones,  17  Com.  B.  625,  is,  I  think, 
sound  law,  and  proceeds  on  a  just  distinction;  the  parties  may  not  vary 
a  written  agreement;  but  they  may  show  that  they  never  came  to  an 
agreement  at  all,  and  that  the  signed  paper  was  never  intended  to  be  the 
record  of  the  terms  of  the  agreement;  for  they  never  had  agreeing  minds. 
Evidence  to  show  that  does  not  vary  an  agreement,  and  is  admissible. 


800.   BURKE  V.   DULANEY 

Supreme  Court  of  the  United  States.     1894 

153  U.  S.  228;   14  Sup.  816 

This  action  was  brought  by  the  testator  of  the  appellees,  upon  a 
writing  purporting  to  be  the  promissory  note  of  the  appellant  for  forty- 
three  hundred  and  eight  dollars  and  eighty  cents,  dated  Salt  Lake  City, 
Utah,  August  10,  1883,  and  payable  one  year  after  date,  for  value  re- 
ceived, at  the  bank  of  Wells,  Fargo  &  Co.  in  that  city,  with  interest  at 
the  rate  of  six  per  cent  per  annum  from  date  until  paid. 

The  defendant,  Burke,  denied  his  liability  upon  the  note,  and  at  the 
trial  below  was  sworn  as  a  witness  on  his  own  behalf.  In  support  of 
his  defence,  as  set  forth  in  the  answer  filed  by  him,  he  stated  the  circum- 
stances under  which  the  note  was  given.  He  said:  "Mr.  Dulaney 
bought  this  group  of  mines  —  the  Live  Yankee  and  the  Mary  Ellen. 
He  came  to  the  Walker  House  in  Salt  Lake,  and  wanted  me  to  run  them 
for  him.  I  said  I  would  not  do  it  unless  I  got  a  show  to  get  some  interest 
in  the  property.  He  says,  I  will  carry  an  interest  for  you,  and  you  can 
take  it  if  you  want  it,  and  if  not,  you  can  give  it  back  to  me  after  you 
see  the  property."  To  this  testimony  the  plaintiff  objected,  and  the 
defendant  admitting  that  the  agreement  referred  to  by  him  was  oral, 
the  objection  was  sustained.  To  this  ruling  he  excepted.  Being  asked 
what  he  did  after  giving  the  note  in  suit,  he  answered :  "  I  gave  the  note. 
I  worked  on  the  property,  which  was  done  some  time  in  September; 
worked  the  property  until  March;  settled  up  all  of  its  debts,  paid  them, 
notified  Dulaney  I  wanted  nothing  more  to  do  with  the  property;  that 
I  was  going  to  Idaho  Territory,  to  Coeur  d'  Alene  mines,  and  as  I  was. 
ready  to  give  him  a  deed  at  any  time  he  would  send  me  my  note.  That 
is  all."  Objection  being  made  by  the  plaintiffs  to  this  testimony,  the 
defendant  offered  to  prove  "that  at  the  time  of  the  giving  of  the  note 
and  prior  thereto,  Dulaney,  the  payee  of  the  note,  agreed  with  Mr. 


No.  800  ENACTION   OF  A    LEGAL  ACT  1157 

Burke,  the  maker  of  the  note,  that  the  note  should  be  given  to  represent 
the  price  of  the  interest  that  Mr.  Burke  was  to  have,  conditioned  upon 
his  demanding  it  after  an  inspection  of  the  mining  property  mentioned." 
He  offered  also  to  prove  that  after  inspecting  the  property  and  testing 
it,  the  defendant  notified  testator  that  he  did  not  want  the  interest;  that 
he  was  prepared  to  make  a  deed  for  the  interest  to  the  latter,  and  de- 
manded the  delivery  of  his  note. 

x\ll  this  evidence  was  excluded  by  the  Court  upon  motion  of  the 
plaintiff's,  to  which  ruling  the  defendant  excepted.  The  defendant  hav- 
ing stated  that  the  conversation  with  the  testator  above  referred  to, 
and  which  was  executed  by  the  Court,  took  place  prior  to  the  execution 
of  the  note,  he  offered  to  prove  that  at  the  time  the  note  was  made,  the 
same  agreement  was  made  orally  between  him  and  the  testator.  This 
testimony  was  also  excluded,  and  he  excepted.  ... 

Mr.  W.  B.  Hcyhurn,  for  appellant,  submitted  on  his  brief. 

Mr.  Lehigh  Robinson,  for  appellee.  It  is  not  easy  to  conceive  of  a 
more  complete  contradiction  and  variation  of  a  promissory  note  to  pay 
a  certain  sum,  to  a  certain  party,  than  the  contradiction  and  variation  and 
transformation  which  would  be  accomplished  by  the  admission  of  proof  to 
turn  a  precise  and  distinct  negotiable  note  into  an  option  to  purchase  real 
estate.  .  .  .  "It  is  a  firmly  settled  principle,  that  parol  evidence  of  an 
oral  agreement  alleged  to  have  been  made  at  the  time  of  the  drawing, 
making,  or  endorsing  of  a  bill,. cannot  be  permitted  to  vary,  qualify,  or 
contradict,  or  add  to  or  subtract  from  the  absolute  terms  of  the  written 
contract,"  Forsythe  v.  Kimball,  91  U.S.  291,  294.  ...  In  a  suit  at  law, 
by  the  payee  against  the  maker,  "  evidence  is  inadmissible  to  show  that 
the  note  was  not  intended  to  be  a  promissory  note,  but  was  given  as  a 
memorandum  not  to  be  enforced  against  the  maker."  Burnes  t.  Scott, 
117  U.  S.  582. 

Harlan,  J.  —  The  general  rule  that  a  written  contract  cannot  be 
contradicted  or  varied  by  evidence  of  an  oral  agreement  between  the 
parties  before  or  at  the  time  of  such  contract,  has  been  often  recognized 
and  applied  by  this  Court,  especially  in  cases  in  which  it  was  sought  to 
deprive  bona  fide  holders  of  or  parties  to  negotiable  securities  of  the 
rights  to  which  they  were  entitled  according  to  the  legal  import  of  the 
terms  of  such  instruments.  .  .  .  The  authorities  cited  do  not  determine 
the  present  case.  The  issue  here  is  between  the  original  parties  to  the 
note.  And  the  evidence  offered  by  the  appellant,  and  excluded  by  the 
Court,  did  not  in  any  sense  contradict  the  terms  of  the  writing  in  suit, 
nor  vary  their  legal  import,  but  tended  to  show  that  the  written  instru- 
ment was  never,  in  fact,  delivered  as  a  present  contract,  unconditionally 
binding  upon  the  obligor  according  to  its  terms  from  the  time  of  such 
delivery,  but  was  left  in  the  hands  of  Dulaney,  to  become  an  absolute 
obligation  of  the  maker  in  the  event  of  his  electing,  upon  examination 
or  investigation,  to  take  the  stipulated  interest  in  the  property  in  ques- 
tion.    In  other  words,  according  to  the  evidence  offered  and  excluded 


1158  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  800 

the  written  instrument,  upon  which  this  suit  is  based,  was  not  —  except 
in  a  named  contingency  —  to  become  a  contract,  or  a  promissory  note 
which  the  payee  could  at  any  time  rightfully  transfer.  Evidence  of 
such  an  oral  agreement  would  show  that  the  contingency  never  happened, 
and  would  not  be  in  contradiction  of  the  writing.  It  would  prove  that 
there  never  was  any  concluded,  binding  contract  entitling  the  party 
who  claimed  the  benefit  of  it  to  enforce  its  stipulations.  The  exclusion 
of  parol  evidence  of  such  an  agreement  could  be  justified  only  upon  the 
ground  that  the  mere  possession  of  a  written  instrument,  in  form  a  prom- 
issory note,  by  the  person  named  in  it  as  payee,  is  conclusive  of  his  right 
to  hold  it  as  the  absolute  obligation  of  the  maker.  While  such  possession 
is,  undoubtedly,  prima  facie,  indeed,  should  be  deemed  strong  evidence 
that  the  instrument  came  to  the  hands  of  the  payee  as  an  obligation  of 
the  maker,  enforcible  according  to  its  legal  import,  it  is  open  to  the  latter 
to  prove  the  circumstances  under  which  possession  was  acquired,  and 
to  show  that  there  never  was  any  complete,  final  delivery  of  the  writing 
as  the  promissory  note  of  the  maker,  payable  at  all  events  and  according 
to  its  terms.  The  rule  that  excludes  parol  evidence  in  contradiction 
of  a  written  agreement  presupposes  the  existence  in  fact  of  such  agree- 
ment at  the  time  suit  is  brought.  But  the  rule  has  no  application  if 
the  writing  was  not  delivered  as  a  present  contract.  .  .  . 

For  the  reasons  stated,  and  without  considering  the  case  in  other 
aspects,  we  are  of  opinion  that  it  was  error  to  exclude  the  evidence 
offered  by  the  defendant  tending  to  show  that  the  writing  sued  on  was 
not  delivered  to  or  received  by  Dulaney  as  the  promissory  note  of  the 
defendant,  binding  upon  him  as  a  present  obligation,  enforcible  accord- 
ing to  its  terms,  but  was  delivered  to  become  an  obligation  of  that 
character  when,  but  not  before,  the  defendant  examined  and,  by  work- 
ing them,  tested  the  mining  properties  purchased  by  the  plaintiff,  and 
elected  to  take  the  stipulated  interest  in  them. 


801.   STANLEY  v.   WHITE 

Supreme  Court  of  Illinois.     1896 

160  ///.  605;  43  A^  E.  729 

Appeal  from  the  Circuit  Court  of  Iroquois  county;  the  Hon.  Charles 
R.  Starr,  Judge,  presiding. 

This  was  a  bill  for  partition,  filed  by  Stanley  R.  White,  against  John 
Stanley  and  others,  in  the  circuit  court  of  Iroquois  county.  The  cause 
was  heard  upon  the  original  and  amended  bills  of  Stanley  R.  White,  the 
answers  thereto,  and  the  cross-bills  of  Jane  S.  Talliaferro,  Mark  A. 
Stanley  and  Dicie  A.  Warren,  and  the  answers  and  replications  thereto. 
The  testimony  was  taken  before  the  master  in  chancery,  and  upon  the 
filing  of  his  report  the  Court  found  all  the  allegations  in  complainant's 


No.  801  ENACTION  OF  A  LEGAL  ACT  1159 

bills  and  in  the  cross-bills  to  be  true,  and  that  partition  and  division 
ought  to  be  made  as  prayed  in  complainant's  bills,  and  rendered  a  decree 
accordingly.  From  that  decree  defendant,  John  Stanley,  prosecutes 
this  appeal.  He  objects  to  that  part  of  the  decree  awarding  partition 
of  the  north-east  quarter  of  the  southwest  quarter  of  section  33,  town- 
ship 27,  north,  range  12,  west  of  the  second  principal  meridian.  His 
contention  is,  that  Jane  Talliaferro,  Mark  Stanley  and  Dicie  Warren  have 
no  rights  in  said  land,  and  are  not  entitled  to  the  one-sixth  interest  each 
therein  ordered  by  said  decree  to  be  set  off  to  them.  He  claims 
that  their  interests  therein  they  had  conveyed  to  him  by  a  good  and 
sufficient  deed  prior  to  the  institution  of  this  suit,  and  he  asks  that 
the  decree,  as  to  that  part  of  it  awarding  to  said  Jane  Talliaferro, 
Mark  Stanley  and  Dicie  Warren  a  one-sixth  interest  each  in  said  land, 
be  reversed. 

The  evidence  shows  that  appellant  and  Jane  Talliaferro,  Dicie 
Warren,  Mark  Stanley  and  Joseph  Stanley,  children,  and  Stanley  R. 
White,  grandchild,  of  Micajah  Stanley,  who  died  intestate,  are  his  sole 
surviving  heirs.  Among  other  lands  of  which  he  died  seized  was  the 
land  above  described.  After  his  father's  decease,  appellant  desired  to 
obtain  a  conveyance  to  himself  of  the  interests  of  the  heirs  in  said  land. 
To  that  end  he  had  prepared  for  him  the  deed  here  in  controversy  which 
bears  the  date  of  March  15,  1889,  and  was  signed  by  Mark  A.  Stanley 
and  Jennie  E.,  his  wife,  Jane  S.  Talliaferro,  widow,  and  Dicie  A.  Warren 
and  George  E.,  her  husband,  all  of  whom  admit  that  they  signed  the 
deed  with  a  full  knowledge  of  its  contents.  Mark  A.  and  Jennie  E. 
Stanley  and  Jane  S.  Talliaferro  duly  acknowledged  the  deed  on  July  25, 
1889,  and  it  was  acknowledged  by  Dicie  A.  and  George  E.  Warren  on 
November  1,  1892.  The  evidence  shows  that  all  of  the  grantors  did  not 
sign  the  deed  at  the  same  time,  but  that  some  signed  at  one  time,  and 
others  at  other  times,  and  that  after  the  several  signings  the  deed  was 
each  time  returned  either  to  appellant  or  to  his  mother,  who  was  acting 
for  him.  The  deed  has  remained  under  his  control  ever  since  the  day 
it  bears  date.  The  grantors  do  not  contend  there  was  any  fraud,  duress 
or  undue  influence  used  to  induce  them  to  sign  the  deed.  Their  only 
claim  is,  that  it  was  the  understanding  between  them  and  appellant, 
at  the  time  the  deed  was  executed,  that  it  was  not  to  be  operative  unless 
signed  by  all  the  heirs  of  Micajah  Stanley. 

Morris  &  Hooper,  and  Robert  Doyle,  for  appellant:  Parties  lose  con- 
trol of  the  deed  by  leaving  it  with  the  grantee.  ...  A  part}^  is  not  al- 
lowed to  show  by  oral  evidence  that  the  delivery  was  conditional,  because 
this  would  be  to  permit  him  to  change  the  terms  of  a  written  instrument 
by  parol.  .  .  . 

Kay  &  Kay,  for  appellees:  John  Stanley  was  a  mere  agent  of  the 
grantors  to  procure  the  signatures  to  the  deed,  and  not  in  possession  of 
it  as  a  grantee.  It  never  came  into  his  possession  for  any  other  purpose 
on  the  part  of  the  grantors.  .  .  . 


1160  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  801 

j\lr.  Justice  Baker  (after  stating  the  case  as  above)  delivered  the 
opinion  of  the  Court  —  The  question  to  be  decided  is,  was  there,  or  was 
there  not,  a  delivery  of  this  deed  by  the  grantors  to  appellant?  The 
answer  depends  upon  the  answer  to  the  further  question,  what  was  the  in- 
tention of  the  parties  at  the  time  the  transaction  took  place?  If  the 
parties  intended  that  a  present  title  should  pass,  then  plainly  there  was 
a  delivery.  If,  after  appellees  had  signed  and  acknowledged  the  deed, 
they  had  merely  handed  it  to  appellant  for  the  purpose,  solely,  of  having 
him  get  the  signatures  of  the  other  heirs  thereto,  that  would  not  have 
constituted  a  delivery,  but  would  have  been  a  mere  manual  transfer  of 
possession,  and  would  not  have  passed  the  title.  If,  however,  the  deed 
being  ready  for  delivery,  they  had  given  it  to  him  intending  at  the  time 
to  pass  a  present  title,  but  with  the  mutual  verbal  understanding  that 
the  deed  should  subsequently  become  inoperative  and  void  if  the  other 
heirs  should  refuse  to  sign  it  when  requested  so  to  do,  then  there  would 
have  been  a  delivery  and  the  title  would  have  passed,  and  the  grantors 
could  not  thereafter  set  up  the  non-performance  of  the  condition  in 
order  to  defeat  the  deed,  but  would  be  concluded  by  its  terms.  (Steven- 
son V.  Crapnell,  114  111.  19;  McCann  v.  Atherton,  106  id.  31;  Weber  v. 
Christen,  121  id.  91.)  The  latter  hypothesis  presents  the  facts  shown 
by  the  record  in  this  case.  The  deed,  absolute  on  its  face,  was  properly 
signed  and  acknowledged.  The  grantors  were  acquainted  with  its 
contents,  and  they  deposited  it  with  the  grantee,  and  under  his  control 
it  has  remained  ever  since.  The  weight  of  the  evidence  shows  that 
when  the  grantors  gave  him  the  deed  they  thought  they  were  divesting 
themselves  of  the  title,  and  intended  so  to  do.  Their  only  concern  seems 
to  have  been  that  all  the  other  heirs  should  do  as  they  were  doing,  hence 
the  condition  was  added  that  if  the  other  heirs  refused  to  sign  the  deed 
it  should  become  void.  That  w^as  the  condition,  and  not  that  the  deed 
was  not  to  take  effect  unless  signed  by  the  other  heirs.  .  .  . 

Appellees  rely  upon  Roundtree  v.  Smith,  152  111.  493,  ...  as  sus- 
taining their  contention  that  there  was  here  no  delivery.  The  Round- 
tree  case  differs  from  the  case  at  bar  in  this:  that  there  the  deeds  were 
given  by  the  grantor  to  the  grantee  with  the  mutual  understanding  that 
they  were  not  to  take  effect  until  the  return  by  the  grantee  of  certain 
securities  to  the  grantor,  and  that  the  deeds  were  to  remain  subject  to 
the  latter's  control  until  the  securities  should  be  offered  and  accepted. 
The  securities,  however,  were  not  given.  We  said  there,  as  here,  that 
the  intention  must  govern,  and  held  that  there  was  no  delivery  because 
the  deeds  were  not  given  to  the  grantee  with  the  intention  of  then  pass- 
ing the  title;  that  the  grantor  had  never  parted  with  the  control  over 
them,  and  she  consequently  had  a  right  to  demand  them  back  at  any 
time  before  the  transaction  was  completed.  .  .  . 

We  are  of  the  opinion  that  appellant  is  entitled  to  the  estate  in  the 
land  in  controversy  which  the  deed  here  in  question  purports  to  convey 
to  him. 


No,  802  ENACTION   OF   A   LEGAL  ACT  1161 

802.  Smith  r.  Dotterweich.  (1911.  New  York.  200  N.  Y.  299;  93  N.  E. 
985.)  Werner,  J.  .  .  .  There  is  no  subtlety  or  ambiguity  in  the  law  of  the 
subject;  but  there  is  difficulty  in  applying  it  to  some  cases  in  which  there  may  be 
uncertainty  as  to  the  effect  of  oral  testimony  upon  contracts  which  are  wholly 
or  partly  reduced  to  ^\Titing.  When  the  oral  testimony  goes  directly  to  the 
question  whether  there  is  a  written  contract  or  not,  it  is  always  competent;  but 
when  the  effect  of  the  oral  testimony  is  to  establish  the  existence  of  a  written 
contract,  which  it  is  designed  to  contradict  or  change  by  parol,  then  the  spoken 
word  must  yield  to  the  ^^Titten  compact.  In  Benton  r.  Martin,  52  N.  Y.  570, 
574,  this  Court  very  clearly  enunciated  the  rule,  which  has  always  obtained  in  this 
State:  "Instruments  not  under  seal  may  be  delivered  to  the  one  to  whom  upon 
their  face  they  are  made  payable,  or  who  by  their  terms  is  entitled  to  some  interest 
or  benefit  under  them,  upon  conditions  the  observance  of  which  is  essential  to 
their  validity.  And  the  annexing  of  such  conditions  to  the  delivery  is  not  an  oral 
contradiction  of  the  WTitten  obligation,  though  negotiable,  as  between  the  parties 
to  it,  or  others  having  notice.  It  needs  a  delivery  to  make  the  obligation  oper- 
ative at  all;  and  the  effect  of  the  delivery  and  the  extent  of  the  operation 
of  the  instrument  may  be  limited  by  the  conditions  with  which  delivery  is  made. 
And  so  also,  as  between  the  original  parties  and  others  having  notice,  the  want  of 
consideration  may  be  shown."  This  quotation  sums  up  the  whole  of  the  law 
applicable  to  the  case  at  bar  in  its  present  state,  and  outlines  comprehensively 
the  ride  which  has  been  followed  in  Bookstaver  v.  Jayne,  60  N.  Y.  146;  Grierson 
r.  Mason,  60  N.  Y.  394;  Reynolds  v.  Robinson,  110  N.  Y.  654;  Schmittler  v. 
Simon,  114  N.  Y.  176,  and  other  cases,  under  a  variety  of  circumstances. 

The  case  of  Jamestown  Business  College  Assn.  v.  Allen,  172  N.  Y.  291,  is 
a  salient  illustration  of  the  converse  of  this  rule.  There  the  promissory  note  was 
rendered  effective  and  complete  by  an  unconditional  delivery.  The  payee  agreed 
to  release  the  maker,  and  to  cancel  the  note,  upon  a  future  contingency  which 
might  or  might  not  arise.  That  was  clearly  a  condition  subsequent  which 
brought  the  case  within  the  general  rule  that  a  contract  reduced  to  WTiting  and 
complete  in  its  terms,  cannot  be  varied  and  contradicted  by  oral  testimony. 
Eighmie  v.  Taylor,  98  N.  Y.  288;  Thomas  v.  Scutt,  127  N.  Y.  133;  StowellV 
Greenwich  Ins.  Co.,  163  N.  Y.  298;  Mead  v.  Dunlevie,  174  N.  Y.  108.  Thus,  to 
state  the  difference  most  concretely,  the  case  at  bar  is  one  in  which  the  oral 
testimony  tends  to  show  that  the  wTiting  purporting  to  be  a  contract  is  in  fact 
no  contract  at  all,  while  in  the  case  of  the  Jamestown  Business  College,  the  oral 
testimony  was  in  direct  contradiction  of  the  WTitten  contract  as  to  the  existence 
and  validity  of  which  there  was  no  controversy. 


1162  BOOK  VI :  PAROL  EVIDENCE  RULES  No.  804 


SUB-TITLE   II.     ACT  VOID  FOR  LACK  OF  INTENT 

804.  Thomas  Erskine  Holland.  Jurispnulence.  (1SS6.  3d  ed.,  99.)  It  was 
laid  down  by  Savigny  tliat,  in  order  to  the  production  of  a  juristic  act,  the  will 
and  its  expression  must  be  in  correspondence.  This  view  is  in  accordance  with 
the  prima  facie  interpretation  of  most  of  the  relevant  passages  in  the  Roman 
lawyers,  and  is  still  predominant  in  Germany,  but  certainly  cannot  be  accepted 
as  universally  true.  An  investigation  into  the  correspondence  between  the 
inner  will  and  its  outward  manifestations  is  in  most  cases  impossible,  and  where 
possible  is  in  many  cases  undesirable.  ...  Is  it  the  case  that  a  contract  is  not 
entered  into  unless  the  will  of  the  parties  are  really  at  one?  Must  there  be,  as 
Savigny  puts  it,  "a  union  of  several  wills  to  a  single,  whole,  and  undivided  will"? 
Or  should  we  not  rather  say  that  here,  more  even  than  elsewhere,  the  law  looks, 
not  at  the  will  itself,  but  at  the  will  as  voluntarily  manifested?  \Mien  the  law 
enforces  contracts,  it  does  so  to  prevent  disappointment  of  well-founded  expec- 
tations, which,  though  they  usually  arise  from  expressions  truly  representing 
intention,  yet  may  occasionally  arise  otherwise.  If,  for  instance,  one  of  the 
parties  to  a  contract  enters  into  it,  and  induces  the  other  party  to  enter  it,  resolved 
all  the  while  not  to  perform  his  part  under  it,  the  contract  will  siu-ely  be  good 
nevertheless.  Not  only  will  the  dishonest  contractor  be  unable  to  set  up  his 
original  dishonest  intent  as  an  excuse  for  non-performance,  but  should  he,  from 
any  change  of  circumstances,  become  desirous  of  enforcing  the  agreement  against 
the  other  party,  the  latter  will  never  be  heard  to  establish,  even  were  he  in  a 
position  to  do  so  by  irrefragable  proof,  that  at  the  time  when  the  agreement  was 
made  the  parties  to  it  were  not  really  of  one  mind.  .  .  . 

The  langviage  of  systems  of  positive  law  upon  the  point  is  generally  ambig- 
uous, nor  is  this  to  be  wondered  at.  The  cjuestion  is  practically  a  new  one.  The 
process  of  giving  effect  to  the  free  acts  of  the  parties  to  a  contract,  rather  than 
to  the  fact  that  certain  rigidly  defined  formalities  have  been  complied  with,  has 
lasted  so  long  that  legal  speculation  has  only  recently  begun  to  analyze  the  free 
act  itself  into  two  factors  of  an  inner  will  and  an  ovitward  expression,  and  to 
assign  to  one  or  to  the  other  a  dominant  place  in  the  theory  of  contract.  Just 
as  the  Romans  used,  without  analyzing  them,  the  terms  "velle,"  "concensus," 
"sententia,"  so  the  modern  Codes,  though  some  appear  to  look  rather  to  the 
inner  will,  others  rather  to  its  outward  expression,  as  a  rule  employ  language 
which  is  capable  of  being  interpreted  in  either  direction.  The  same  may  be  said 
of  the  English  cases.  In  these  one  constantly  meets  with  such  phrases  as  "be- 
tween him  and  them  there  was  no  consensus  of  mind,"  "with  him  they  never 
intended  to  deal;"  but  one  also  meets  with  much  that  supports  the  view  of  the 
question  which  we  venture  to  hope  may  ultimately  commend  itself  to  the  Coiu"ts 
as  being  at  once  the  most  logical  and  the  most  favorable  to  the  interests  of 
commerce.  ...  In  other  words:  the  legal  meaning  of  such  acts  on  the  part  of 
one  man  as  induce  another  to  enter  into  a  contract  with  him,  is  not  what  the 
former  really  intended,  nor  what  the  latter  really  supposed  the  former  to  intend, 
but  what  a  "reasonable  man,"  i.e.,  a  judge  or  jury,  would  put  upon  such  acts. 
This  luminous  principle  at  once  sweeps  away  the  ingenious  speculations  of  several 
generations  of  moralists,  while  it  renders  needless  long  lists  of  subtle  distinctions 
which  have  been  drawn  from  decided  cases. 


No.  805  ENACTION  OF  A  LEGAL  ACT  1163 

805.   FOSTER  v.   MACKINNON 

Common  Pleas.     1869 

L.  R.  4  C.  P.  704 

Action  by  indorsee  against  indorser  on  a  bill  of  exchange  for  3000^. 
drawn  on  the  6th  of  No^'eraber,  1867,  by  one  Cooper  upon  and  accepted 
by  one  Callow,  payable  six  months  after  date,  and  indorsed  successively 
by  Cooper,  the  defendant,  J.  P.  Parker,  T.  A.  Pooley  &  Co.,  and  A.  G. 
Pooley,  to  the  plaintiff,  who  became  the  holder  for  value  (having  taken 
it  in  part-payment  of  a  debt  due  to  him  from  A.  G.  Pooley)  before  it  be- 
came due,  and  without  notice  of  any  fraud.  The  pleas  traversed  the 
several  indorsements,  and  alleged  that  the  defendant's  indorsement 
was  obtained  from  him  by  fraud. 

The  cause  was  tried  before  Bovill,  C.  J.,  at  the  last  spring  assizes  at 
Guildford.  The  defendant,  who  was  a  gentleman  far  advanced  in  years, 
swore  that  the  indorsement  was  not  in  his  handwriting,  and  that  he  had 
never  accepted  nor  indorsed  a  bill  of  exchange;  but  there  was  e\'idence 
that  the  signature  was  his;  and  Callow,  who  was  called  as  a  witness 
for  the  plaintiff,  stated  that  he  saw  the  defendant  write  the  indorsement 
under  the  following  circumstances:  —  Callow  had  been  secretary  to  a 
company  engaged  in  the  formation  of  a  railway  at  Sandgate,  in  Kent, 
in  which  the  defendant  (who  had  property  in  the  neighborhood)  was 
interested;  and  the  defendant  had  some  ftme  p^e^^ously,  at  Callow's 
request,  signed  a  guarantee  for  3000/.,  in  order  to  enable  the  company 
to  obtain  an  advance  of  money  from  their  bankers.  Callow  took  the 
bill  in  question  (which  was  drawn  and  indorsed  by  Cooper)  to  the  de- 
fendant, and  asked  him  to  put  his  name  on  it,  telling  him  it  was  a  guar- 
antee; whereupon  the  defendant,  in  the  belief  that  he  was  signing  a 
guarantee  similar  to  that  which  he  had  before  given  (and  out  of  which 
no  liability  had  resulted  to  him),  put  his  signature  on  the  back  of  the 
bill  immediately  after  that  of  Cooper.  Callow  only  shewed  the  defend- 
ant the  back  of  the  paper;  it  was,  however,  in  the  ordinary  shape  of  a 
bill  of  exchange,  and  bore  a  stamp,  the  impress  of  which  was  visible 
through  the  paper. 

The  Lord  Chief  Justice  told  the  jury  that,  if  the  indorsement  was  not 
the  signature  of  the  defendant,  or  if,  being  his  signature,  it  was  obtained 
upon  a  fraudulent  representation  that  it  was  a  guarantee,  and  the  de- 
fendant signed  it  without  knowing  that  it  was  a  bill,  and  under  the 
belief  that  it  was  a  guarantee,  and  if  the  defendant  was  not  guilty  of 
any  negligence  in  so  signing  the  paper,  he  was  entitled  to  the  verdict. 
The  jury  returned  a  verdict  for  the  defendant. 

Sir  J.  D.  Coleridge,  S.  G.,  in  Eastern  Term  last,  obtained  a  rule  nisi 
for  a  new  trial,  on  the  grounds  of  misdirection  and  that  the  verdict  was 
against  evidence. 


1164  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  805 

Ballantinc,  Serjt.,  Brown,  Q.  C,  and  Archibald,  showed  cause.  Two 
questions  arise  here,  —  1.  Whether  there  was  any  neghgence  on  the 
part  of  the  defendant  in  signing  the  document  as  he  did.  2.  Whether, 
assuming  Callow's  evidence  to  be  true,  the  defendant  can  be  responsible 
upon  an  indorsement  so  fraudulently  obtained.  In  considering  the  first 
of  these  questions,  regard  must  be  had  to  the  age  and  condition  of  the 
party.  What  would  be  negligence  in  a  merchant  or  a  banker  would  not 
necessarily  be  negligence  on  the  part  of  a  gentleman  of  great  age  and 
impaired  physical  powers.  Negligence  must  in  all  cases  be  a  relative 
term:  Lynch  i'.  Nurdin  (1  Q.  B.  29).  Then,  as  to  the  second  question. 
It  is  essential  to  every  contract  that  there  be  volition.  A  man  cannot 
be  said  to  contract  when  he  signs  a  paper  upon  a  representation  and 
under  a  belief  that  he  is  signing  something  different  from  that  which  it 
turns  out  to  be;  to  make  n  valid  and  binding  contract,  the  mind  must 
go  with  the  act.  .  .  . 

Sir  J.  D.  Coleridge,  S.  G.  Sir  G.  Ilonyman,  Q.  C,  and  Talfourd  Salter, 
in  support  of  the  rule.  The  fact  that  the  defendant's  indorsement  on 
the  bill  was  obtained  by  a  fraudulent  representation  that  he  was  signing 
something  else,  is  no  answer  to  the  claims  of  a  bona  fide  holder  for  value 
without  notice  of  the  fraud.  No  doubt,  as  a  general  rule,  fraud  vitiates 
all  contracts.  But  ...  no  matter  how  a  bill  or  note  may  be  tainted 
with  fraud,  or  even  if  it  has  been  obtained  by  duress  or  by  felony,  that  is 
no  answer  to  an  action  at  the  suit  of  a  bona  fide  holder  for  value.  .  .  . 

(Byles,  J.  —  If  that  be  right,  it  can  only  be  with  reference  to  the  case 
of  a  complete  instrument;  it^an  hardly  be  applicable  to  the  case  where  a 
man's  signature  has  been  obtained  by  a  fraudulent  representation  to  a 
document  which  he  never  intended  to  sign.) 

Then,  the  verdict  was  clearly  against  the  weight  of  evidence  upon 
the  question  of  negligence.  .  .  . 

July  5.  The  judgment  of  the  Court  (Bovill,  C.  J.,  Byles,  Keat- 
ing, and  Montague  Smith,  JJ.)  was  delivered  by 

Byles,  J.  —  This  was  an  action  by  the  plaintiff  as  indorsee  of  a  bill 
of  exchange  for  3000/.,  against  the  defendant,  as  indorser.  The  defend- 
ant by  one  of  his  pleas  traversed  the  indorsement,  and  by  another  al- 
leged that  the  defendant's  indorsement  was  obtained  from  him  by  fraud. 
The  plaintiff  was  a  holder  for  value  before  maturity,  and  without  notice 
of  any  fraud.  ...  A  rule  nisi  was  obtained  for  a  new  trial,  first,  on  the 
ground  of  misdirection  in  the  latter  part  of  the  summing-up,  and  sec- 
ondly, on  the  ground  that  the  verdict  w^as  against  the  evidence. 

As  to  the  first  branch  of  the  rule,  it  seems  to  us  that  the  question 
arises  on  the  traverse  of  the  indorsement.  The  case  presented  by  the 
defendant  is,  that  he  never  made  the  contract  declared  on;  that  he 
never  saw  the  face  of  the  bill;  that  the  purport  of  the  contract  was 
fraudulently  misdescribed  to  him;  that,  when  he  signed  one  thing,  he 
was  told  and  believed  that  he  was  signing  another  and  an  entirely  differ- 
ent thing;   and  that  his  mind  never  went  with  his  act.     It  seems  plain, 


No.  805  ENACTION  OF  A  LEGAL  ACT  1165 

on  principle  and  on  authority,  that,  if  a  l>Hnd  man,  or  a  man  who  cannot 
read,  or  who  for  some  reason  (not  implyinf^  neghgence)  forbears  to  read, 
has  a  written  contract  falsely  read  over  to  him,  the  reader  misreading 
to  such  a  degree  that  the  written  contract  is  of  a  nature  altogether  differ- 
ent from  the  contract  pretended  to  be  read  from  the  paper  which  the 
blind  or  illiterate  man  afterwards  signs;  then,  at  least  if  there  be  no 
negligence,  the  signature  so  obtained  is  of  no  force.  And  it  is  invalid 
not  merely  on  the  ground  of  fraud,  where  fraud  exists,  but  on  the  ground 
that  the  mind  of  the  signer  did  not  accompany  the  signature;  in  pther 
words,  that  he  never  intended  to  sign,  and  therefore  in  contemplation 
of  law  never  did  sign,  the  contract  to  which  the  name  is  appended. 

The  authorities  appear  to  us  to  support  this  view  of  the  law.  In 
Thoroughgood's  Case  (2  Co.  Rep.  96),  it  was  held  that,  if  an  illiterate 
man  have  a  deed  falsely  read  over  to  him,  and  he  then  seals  and  delivers 
the  parchment,  that  parchment  is  nevertheless  not  his  deed.  In  a  note 
to  Thoroughgood's  Case,  in  Eraser's  edition  of  Coke's  Reports,  it  is 
suggested  that  the  doctrine  is  not  confined  to  the  condition  of  an  illiterate 
grantor.  .  .  .  The  position  that,  if  a  grantor  or  covenantor  be  deceived 
or  misled  as  to  the  actual  contents  of  the  deed,  the  deed  does  not  bind  him, 
is  supported  by  many  authorities.  .  .  .  Accordingly,  it  has  recently 
been  decided  in  the  Exchequer  Chamber,  that,  if  a  deed  be  delivered, 
and  a  blank  left  therein  be  afterwards  improperly  filled  up  (at  least  if 
that  be  done  without  the  grantor's  negligence),  it  is  not  the  deed  of  the 
grantor:  Swan  v.  North  British  Australasian  Land  Company  (2  H.  &  C. 
175).  These  cases  apply  to  deeds;  but  the  principle  is  equally  appli- 
cable to  other  written  contracts. 

Nevertheless,  this  principle,  when  applied  to  negotiable  instruments, 
must  be  and  is  limited  in  its  application.  These  instruments  are  not  only 
assignable,  but  they  form  part  of  the  currency  of  the  country.  A  quali- 
fication of  the  general  rule  is  necessary  to  protect  innocent  transferrees 
for  value.  If,  therefore,  a  man  write  his  name  across  the  back  of  a  blank 
bill-stamp,  and  part  with  it,  and  the  paper  is  afterwards  improperly 
filled  up,  he  is  liable  as  indorser.  If  he  write  it  across  the  face  of  the  bill, 
he  is  liable  as  acceptor,  when  the  instrument  has  once  passed  into  the 
hand  of  an  innocent  indorsee  for  value  before  maturity,  and  liable  to 
the  extent  of  any  sum  which  the  stamp  will  cover.  In  these  cases, 
however,  the  party  signing  knows  what  he  is  doing;  the  indorser  intended 
to  indorse,  and  the  acceptor  intended  to  accept,  a  bill  of  exchange  to  be 
thereafter  filled  up,  leaving  the  amount,  the  date,  the  maturity,  and  the 
other  parties  to  the  bill  undetermined.  But,  in  the  case  now  under 
consideration,  the  defendant,  according  to  the  evidence,  if  believed,  and 
the  finding  of  the  jury,  never  intended  to  indorse  a  bill  of  exchange  at 
all,  but  intended  to  sign  a  contract  of  an  entirely  different  nature.  It 
was  not  his  design,  and  if  he  were  guilty  of  no  negligence,  it  was  not  even 
his  fault  that  the  instrument  he  signed  turned  out  to  be  a  bill  of  exchange. 
It  was  as  if  he  had  written  his  name  on  a  sheet  of  paper  for  the  purpose 


1166  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  805 

of  franking  a  letter,  or  in  a  lady's  album,  or  on  an  order  for  admission 
to  the  Temple  Church,  or  on  the  fly-leaf  of  a  book,  and  there  had  already 
been,  without  his  knowledge,  a  bill  of  exchange  or  a  promissory  note 
payable  to  order  inscribed  on  the  other  side  of  the  paper.  .  .  .  The 
defendant  never  intended  to  sign  that  contract,  or  any  such  contract. 
He  never  intended  to  put  his  name  to  any  instrument  that  then  was  or 
thereafter  might  become  negotiable.  He  was  deceived,  not  merely  as 
to  the  legal  effect,  but  as  to  the  actual  contents  of  the  instrument.  .  .  . 

For  these  reasons,  we  think  the  direction  of  the  Lord  Chief  Justice 
was  right. 

With  respect,  however,  to  the  second  branch  of  the  rule,  we  are  of 
opinion  that  the  case  should  undergo  further  investigation.  We  abstain 
from  giving  our  reasons  for  this  part  of  our  decision  only  lest  they  should 
prejudice  either  party  on  a  second  inquiry. 

The  rule,  therefore,  will  be  made  absolute  for  a  new  trial. 


806.   McNAMARA  v.   BOSTON  ELEVATED  RAILW^\Y 
C0:\1PANY 

Supreme  Judicial  Court  of  Massachusetts.     1908 

197  Mass.  383;  83  A'.  E.  878 

Tort  for  personal  injuries  alleged  to  have  been  received  by  the 
plaintiff  while  a  passenger  on  an  electric  street  car  of  the  defendant. 
Writ  in  the  Superior  Court  for  the  county  of  Suffolk  dated  August  17, 
1905.  The  answer  of  the  defendant  alleged  that  the  plaintiff's  cause  of 
action  had  been  released  by  her  "  by  an  instrument  in  writing  over  her 
hand  and  seal." 

At  the  trial,  which  was  before  Dana,  J.,  the  plaintiff's  evidence 
tended  to  show  that  a  fuse  burned  out  upon  the  car  upon  which  she  was 
near  the  corner  of  W^ashington  and  Cobden  streets  in  the  Roxbury 
district  of  Boston  and  that,  in  the  rush  of  the  passengers  to  get  out  of 
the  car,  she  was  injured;  that  she  left  the  car  and  reached  the  sidewalk 
"in  a  very  weak,  hurt  condition"  and  walked  to  a  nearby  post,  by  which 
she  was  supported  until  she  took  another  car  to  the  Dudley  Street  trans- 
fer station,  transferred  there  to  the  elevated  train  to  Dover  street,  again 
transferred  there  to  a  South  Boston  car,  that  her  friends  accompanied 
her  to  C  street.  South  Boston,  but  that  she  went  the  rest  of  the  way  to 
her  home  at  702  East  Fifth  street  alone.  Her  testimony  as  to  what 
occurred  after  she  arrived  at  her  home  and  until  the  defendant's  agent 
came  is  stated  in  the  opinion. 

As  to  her  interview  with  the  agent  of  the  defendant,  she  testified: 
"Well,  I  opened  the  door  and  the  gentleman  v/alked  in  and  he  said  to 
me,  'Are  you  Mrs.  McNamara,'  and  I  said,  'Yes,  sir,'  and  he  said,  'You 
were  on  the  car  the  accident  happened,'  and  I  said,  'Yes,  sir,'  and  I 


No.  806  ENACTION   OF  A   LEGAL   ACT  1167 

can't  remember  what  he  was  saying;  all  I  remember  of  his  saying  was, 
'  Have  you  got  any  bones  or  Hmbs  broken,'  and  I  said,  'No,'  and  he  said, 
'Well,'  he  said,  'Are  you  going  to  sue  the  road  when  you  have  no  bones 
or  limbs  broken? '  and  I  said,  '  Well,  I  can't  tell  what  I  will  do  until  I  see 
the  doctor,'  I  said,  'I  can't  explain  my,  —  the  way  I  feel  to  you.'  And 
he  said  he  had  been  to  the  other  houses  and  they  all  signed  the  paper, 
and  handed  me  over  the  paper,  and  he  said,  '  You  sign  your  name  there,' 
and  he  said,  'Let  me  see,'  he  said,  'Has  that  paper  got  Margaret  Riley 
signed  in  it?'  and  I  returned  him  the  paper,  and  he  handed  it  back 
again,  and  I  said,  'Well,  now,  you  see  my  condition,  I  can't  sign  my 
name,'  and  he  said,  taking  the  paper  from  me,  and  putting  it  on  a  stiff 
envelope,  'Let  me  support  it  for  you.'  'Well,'  I  said,  'It  is  impossible,' 
I  said,  'I  feel  so  sick,'  and  I  remember  of  writing  my  name  the  best  I 
could.  .  .  .  He  asked  me  what  doctor  I  was  going  to  have  and  I  told 
him  my  family  physician.  He  put  his  hand  in  his  pocket  and  took  out 
a  $5  bill  and  gave  it  to  me,  and  I  said, '  What  is  this  for? '  he  said,  '  That 
will  pay  the  doctor.'  "  The  testimony  then  proceeded:  "Q. — ^  Now, 
did  he  say  anything  about  that  paper;  did  he  say  anything  about  that 
paper  being  a  release  of  all  your  claims  against  the  Boston  Elevated 
Railroad?  A.  —  I  can't  remember  of  him  saying  anything.  Q.  — 
Now,  did  you  read  that  paper?  A.  —  No;  I  don't  remember  of  reading 
it.  Q.  —  Did  he  read  it  to  you?  A.  —  I  don't  remember.  Q.  — 
Did  he  give  you  any  explanation  about  it  at  all?  A. — I  don't 
remember." 

At  the  close  of  the  evidence  a  verdict  was  directed  for  the  defendant 
on  the  ground  that  the  release  which  was  in  evidence  barred  the  action; 
and  the  plaintiff  excepted.     Other  facts  are  stated  in  the  opinion. 

William  J.  Sullivan  and  Jas.  A.  McGeough,  for  plaintiff.  Robert  G. 
Dodge  and  Alexander  Kendall,  for  defendant. 

LoRiNG,  J.  —  We  are  of  opinion  that  the  presiding  judge  was  right  in 
ruling  that  there  was  no  evidence  w^arranting  a  finding  that  the  release 
given  by  the  plaintiff  was  not  binding  on  her. 

It  is  settled  on  the  one  hand  that  it  is  no  defense  to  a  release  that 
the  person  signing  it  neither  read  it  nor  understood  its  contents.  Leddy 
V.  Barney,  139  Mass.  394,  396;  Rosenberg  v.  Doe,  146  Mass,  191,  193. 
This  is  but  an  application  of  the  broad  principle  applied  in  a  similar 
connection  in  Grace  v.  Adams,  100  Mass,  505.  On  the  other  hand  it  is 
also  settled  that  a  release  can  be  avoided  if  there  was  a  fraudulent  mis- 
representation as  to  its  contents,  and  if  the  party  signing  it  without 
reading  it  did  so,  relying  on  that  misrepresentation.  Bliss  v.  N.  Y.  C. 
&  H.  R.  R.  R.,  160  Mass  447;  Peaslee  v.  Peaslee,  147  Mass.  171.  Fur- 
ther, there  can  be  no  question  of  his  right  to  avoid  it  if  he  signed  it  when 
he  did  not  have  "legal  competency  to  act,"  as  it  was  put  by  Parker, 
C.  J.,  in  Farnam  v.  Brooks,  9  Pick.  212,  220. 

The  plaintiff's  evidence  here  did  not  go  far  enough  to  warrant  the 
jur}'  in  finding  that  the  release  signed  by  her  was  obtained  by  fraud, 


1168  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  806 

or  that  it  was  signed  by  her  when  she  was  in  such  a  condition  that  she 
did  not  understand  what  she  was  doing;  or,  as  Chief  Justice  Parker 
put  it,  when  slie  did  not  liave  "legal  competency  to  act."  A  fraudulent 
concealment  of  the  contents  of  a  release  is  not  per  se  enough  to  avoid 
it.  .  .  .  The  true  rule  is  laid  down  in  Freedley  v.  French,  154  Mass.  339, 
namely,  that  where  the  person  to  whom  the  release  is  given  undertakes 
to  state  the  contents  of  it  and  conceals  a  part  of  them,  a  fraudulent 
misrepresentation  is  made  out. 

1.  So  far  as  the  representation  goes  that  the  defendant's  agent  had 
been  to  the  other  houses  and  all  the  ladies  had  signed  the  paper,  or  that 
he  went  to  all  the  houses  and  they  signed  (it  was  put  both  ways  in  the 
testimony),  there  was  no  evidence  that  this  was  not  the  fact.  Four  of 
the  plaintiff's  fellow  passengers  who  were  put  on  the  witness  stand  by 
her  testified  that  they  had  signed  a  release.  So  far  as  appears,  therefore, 
this  statement  was  true.  The  statement  did  not  mean  that  all  the  other 
women  signed  the  identical  piece  of  paper  signed  by  the  plaintiff.  If  all 
of  them  had  signed  a  release  the  truth  of  this  statement  was  made 
out. 

2.  The  plaintiff  did  not  testify  that  the  defendant  undertook  to 
state  the  contents  of  the  release.  She  did  not  testify  that  the  S5  given 
her  was  paid  to  her  to  pay  her  doctor  and  so  bring  the  case  within  Bliss 
V.  New  York  Central-  &  Hudson  River  Railroad,  160  Mass.  447.  What 
the  plaintiff  testified  to  was  that  the  defendant's  agent  said  that  the  $5 
given  her  "will  pay  for  the  doctor,"  not  that  the  $5  was  given  her  to  pay 
the  doctor. 

3.  Lastly,  the  evidence  did  not  warrant  a  finding  that  when  she 
signed  the  release  the  plaintiff  did  not  know  what  she  was  about,  or,  as 
Chief  Justice  Parker  put  it,  that  she  did  not  have  "legal  competencj'" 
to  act."  .  .  . 

The  only  testimony  which  it  could  be  argued  went  far  enough  is  that 
of  the  plaintiff's  husband  that  when  he  came  home  "  somewhere  around 
5  o'clock"  his  wife  "was  hysterical  and  not  able  to  give  a  clear  story  of 
the  accident."  What  was  in  issue  was  whether  she  understood  what 
she  was  doing  when  she  took  S5  and  gave  a  release  at  about  4:15.  On 
the  stand  she  gave  an  intelligent  account  of  that  transaction;  her  hus- 
band testified  that  between  5  and  6  she  "told  the  doctor  how  she  got 
hurt,  describing  how  the  thing  happened."  She  did  not  testify  that  she 
did  not  understand  the  transaction;  the  farthest  that  her  testimony  went 
was  that  after  the  agent  left  she  was  "in  a  very  weak  condition." 

As  we  have  said,  the  evidence  did  not,  in  our  opinion,  go  far  enough 
to  warrant  a  finding  that  she  did  not  have  "legal  competency  to  act" 
when  she  signed  the  release.  Exceptions  overruled. 


No.  807  ENACTION  OF  A  LEGAL  ACT  1169 

807.   GRAY  V.  JAMES 

Supreme  Court  of  North  Carolina.     1909. 

151  N.  C.  80;   65  S.  E.  644 

Appeal  from  Cook,  J.,  April  Term,  1909,  of  Pitt.  This  action  was 
originally  tried  before  Lyon,  J.,  at  the  November  Term,  1907.  The 
action  was  instituted  by  plaintiff,  a  subsequent  purchaser  of  the  land 
now  in  controversy,  against  J.  II.  Jenkins,  mortgagee  of  this  and  other 
lands,  and  J.  I.  James,  mortgagor  and  owner,  and  his  wife,  Lucy,  et  al., 
to  enforce  a  sale  of  the  mortgaged  land  in  a  certain  order,  as  required  by 
the  rights  and  equities  of  plaintiff  as  subsequent  purchaser.  The  mort- 
gagee answered,  setting  up  his  indebtedness  and  the  mortgage  given  to 
secure  the  same  on  all  the  land  in  controversy  and  other  lands  not  em- 
braced in  plaintiff's  deed.  The  mortgagor  answered,  and,  among  other 
things,  alleged  that  the  plaintiff's  deed  included  more  land  than  the 
agreement  and  contract  between  them  authorized,  and  that  the  excess, 
to-wit,  all  that  portion  lying  outside  of  the  town  of  Oakley,  was  inserted 
in  the  instrument  by  reason  of  deceit  and  fraudulent  representations  on 
the  part  of  plaintiff. 

Among  other  things,  the  defendant  (the  plaintiff  in  the  issue)  testified 
that  he  had  bargained  with  the  plaintiff  Gray  concerning  the  land,  and 
had  agreed  to  sell  and  convey  to  him  all  that  portion  of  the  tract  of  land 
which  lay  within  the  boundaries  of  the  town  of  Oakley  for  .|600,  and  a 
store  account  amounting  to  about  $20;  and  that  some  time  after  that, 
when  the  defendant  and  his  wife  were  at  the  house  of  one  Williams,  some 
time  between  sundown  and  dark,  plaintiff  came  to  them  with  a  deed 
already  prepared,  and  a  justice  of  the  peace  with  him,  and  in  couA'ersa- 
tion  defendant  told  him  he  was  only  selling  the  land  in  town,  and  plain- 
tiff replied  the  deed  only  covered  the  land  in  town;  "said  it  was  only 
a  plain  deed,  like  we  had  agreed  upon.  There  was  no  reading  done. 
Gray  [the  plaintiff]  handed  me  the  deed;  I  read  the  deed  to  where  it 
mentioned  E.  R.  Mizell's  corner,  and  I  said  to  Gray,  'you  have  the 
initials  wrong,'  and  he  said,  'it  makes  no  difference;  it  is  nothing  but  a 
plain  deed;  I  am  in  a  hurry  to  get  back  to  the  store;  there  is  no  one 
there  but  Mr.  Rogers.'  I  handed  the  deed  to  Mr.  "WTnichard.  I  had 
confidence  in  him.  I  thought  he  would  tell  me  the  truth,  or  I  would  not 
have  signed  it.  Whichard  was  looking  over  the  deed,  and  the  plaintiff 
said  the  same  thing  to  him  —  that  he  was  in  a  hurry."  No  one  read  the 
deed  to  witness.  He  further  testified  that  he  did  not  know  the  deed 
embraced  any  land  outside  of  the  town,  or  he  would  not  have  signed  the 
deed. 

Mrs.  James,  wife  of  defendant,  gave  similar  testimony  as  to  what 
took  place  about  reading  the  deed  at  the  house,  of  the  execution,  and 
further  that  he  had  agreed  to  sign  a  deed  for  the  land  within  the  town, 


1170  BOOK   VI :     PAROL   EVIDENCE    RULES  No.  807 

and  said  so  at  the  time,  and  she  would  not  have  agreed  to  the  execution 
otherwise.  Mrs.  Wilhams,  sister  of  the  defendant,  testified  that  plain- 
tiff Gray  said  it  was  not  worth  while  to  read  the  deed ;  that  it  was  just  a 
plain  deed,  containing  what  he  bought. 

Plaintiff  further  testified  that,  some  time  after  executing  the  deed, 
he  discovered  that  it  was  not  restricted  to  the  land  within  the  town,  but 
convened  the  entire  tract  to  plaintiff,  and  same  was  worth  $1,000  to 
$1,200. 

On  issues  submitted,  the  jury  rendered  the  following  verdict: 

1.  "Did  defendants  agree  to  sell  and  convey  to  plaintiff  only  that 
portion  of  their  land  which  is  located  within  the  boundary  lines  of  the 
town  of  Oakley?"     Answ^er:    "Yes." 

2.  "Were  defendants  induced  to  execute  the  deed  of  November  16, 
1905,  containing  that  portion  of  their  land  lying  outside  the  boundary 
lines  of  the  town  of  Oakley,  by  the  deceit  and  false  and  fraudulent 
misrepresentations  of  the  plaintiff?"     Answer:    "Yes." 

3.  "Is  the  plaintiff  the  owner  and  entitled  to  the  possession  of  the 
land  described  in  the  complaint?"  Answer:  "  All  that  part  in  the  town 
of  Oakley." 

4.  "Does  the  defendant,  J.  I.  James,  unlawH^ully  withhold  the  pos- 
session of  said  land  from  the  plaintiff?"     Answer:    "Yes." 

5.  "What  is  the  annual  rental  value  of  said  land?"  Answer: 
"Thirty-six  dollars." 

On  such  verdict  judgment  was  rendered  reforming  plaintiff's  deed 
according  to  the  facts  established,  and  directing  a  sale  in  a  given  order, 
and  from  that  judgment  plaintiff  appealed.  .  .  . 

Jarvis  &  Blow  and  Moore  &  Long,  for  plaintiff.  Moore  &  Dunn  and 
Skinner  &  Whedhee,  for  defendant. 

Hoke,  J.  (after  stating  the  case).  The  objection  chiefly  urged  for 
error  is  the  refusal  of  the  Court  below  to  charge  the  jury  "  That  the 
evidence  in  the  case  does  not  tend  to  prove  facts  sufficient  to  constitute 
fraud  and  deceit,  and  the  jury  is  instructed,  upon  the  whole  evidence, 
if  they  believe  it,  to  find  the  first  and  second  issues  'No.'"  But  the 
objection,  in  our  opinion,  cannot  be  sustained.  .  .  .  We  think  it  clear 
that  the  prayer  of  plaintiff,  above  noted,  was  properly  refused  by  the 
judge  below. 

It  is  true  that  in  an  action  of  this  character,  the  false  statements 
must  be  such  that  they  are  reasonably  relied  upon  by  the  complaining 
party.  It  is  also  true  that  when  an  adult  of  sound  mind  and  memory, 
and  who  can  read  and  write,  signs  or  accepts  a  formal  written  contract, 
he  is  ordinarily  bound  by  its  terms.  Floars  v.  Ins.  Co.,  144  N.  C.  232. 
In  such  case  it  is  very  generally  held  that  a  man  should  not  be  allowed 
to  close  his  mind  to  facts  readily  observable  and  invoke  the  aid  of  Courts 
to  upset  solemn  instruments  and  disturb  and  disarrange  adjustments 
so  e\'idenced,  when  the  injury  complained  of  is  largely  attributable 
to  his  own  negligent  inattention. 


No.  808  ENACTION   OF  A   LEGAL  ACT  1171 

Older  cases  have  gone  very  far  in  upholding  defences  resting  upon 
this  general  principle,  and,  as  pointed  out  in  May  r.  Loomis,  140  N.  C. 
357-358,  some  of  them  have  been  since  disapproved  and  are  no  longer 
regarded  as  authoritative;  and  the  more  recent  decisions,  on  the  facts 
presented  here,  are  to  the  effect  that  the  mere  signing  or  acceptance  of  a 
deed  by  one  who  can  read  and  write  shall  not  necessarily  conclude  as  to 
its  execution  or  its  contents,  when  there  is  evidence  tending  to  show 
positive  fraud,  and  that  the  injured  party  was  deceived  and  thrown  off 
his  guard  by  false  statements  designedly  made  at  the  time  and  reason- 
ably replied  upon  by  him.  Some  of  these  decisions,  here  and  elsewhere, 
directly  hold  that  false  assurances  and  statements  of  the  other  party 
may  of  themselves  be  sufficient  to  carry  the  issue  to  the  jury  when  there 
has  been  nothing  to  arrest  attention  or  arouse  suspicion  concerning 
them.  Walsh  v.  Hall,  66  N.  C.  233;  Hill  v.  Brower,  76  N.  C.  124;  May 
V.  Loomis,  140  N.  C.  350;   Griffin  v.  Lumber  Co.,  140  X.  C.  514.  .  .  . 

In  Griffin  v.  Lumber  Co.,  supra,  the  Court  held  as  follows: 

"3.  Before' signing  a  deed,  the  grantor  should  read  it,  or,  if  unable  to  do  so, 
should  require  it  to  be  read  to  him,  and  his  faihire  to  do  so,  in  the  absence  of 
any  fraud  or  false  representation  as  to  its  contents,  is  negligence,  for  the  result 
of  which  the  law  affords  no  redress;  but  when  fraud  or  any  devise  is  resorted 
to  by  the  grantee  which  prevents  the  reading  or  having  read  the  deed,  the  rule  is 
different." 

And  like  decision  was  made  in  May  v.  Loomis,  supra. 

Under  these  authorities,  the  judge  below  correctly  ruled  that  the 
questions  at  issue  should  be  submitted  to  the  jury,  the  evidence  bringing 
the  case  clearly  within  the  principle  stated.  .  .  .  There  was  testimony 
on  the  part  of  plaintiff  in  denial  of  defendant's  claim;  but,  for  the  pur- 
pose of  the  exception,  the  evidence  of  defendant  must  be  taken  as  true, 
and,  as  stated,  presents  a  case  for  the  consideration  of  the  jury. 

The  exceptions  to  the  ruling  of  the  Court  in  questions  of  evidence 
are  without  merit,  and  the  judgment  for  defendant  is  affirmed. 

No  error. 


808.   ESSEX  V.   DAY 

Supreme  Court  of  Errors  of  Connecticut.     1885 

52  Conn.  483 

Suit  for  the  correction  of  certain  bonds  issued  by  the  plaintiffs, 
which  were  in  terms  payable  at  the  end  of  twenty  years  from  their  date, 
but  which  were  intended  to  be  issued  with  a  provision  that  the  town 
might  at  its  option  pay  them  in  ten  years  from  date;  brought  to  the 
Superior  Court  in  Middlesex  County.  The  following  facts  were  found 
by  a  committee:  On  the  25th  day  of  September,  1869,  the  town  of 
Essex  subscribed  for  four  hundred  and  eighty  shares  of  the  capital  stock 


1172  BOOK   VI :     PAROL   EVIDENCE   RULES  No.  808 

of  the  Connecticut  Valley  Railroad  Company,  and  on  the  27th  day  of 
April,  1870,  directed  the  issue  of  town  bonds  to  the  amount  of  $48,000 
to  pay  for  the  stock.  .  .  . 

At  a  special  meeting  held  on  the  27th  day  of  April,  1870,  a  committee 
had  made  the  following  report:  "That  the  town  issue  coupon  bonds  of 
the  denomination  of  one  thousand  dollars  each,  numbered  from  one  to 
forty-eight  consecutively,  to  be  payable  at  the  option  of  the  town  in 
ten  years  from  date,  and  due  in  twenty,  denominated  ten-twenty  bonds, 
bearing  interest  six  per  cent  per  annum;  the  interest  payable  semi- 
annually; .  .  ."  The  town  passed  the  resolution  recommended  and 
the  selectmen  at  once  entered  upon  their  duties  under  it.  They  did  not 
intend  to  have  the  bonds  printed  as  they  were  printed,  as  below  stated, 
but  did  intend  that  they  should  be  printed  so  as  to  be  payable  at  the 
option  of  the  town  in  ten  years  from  their  date. 

The  printing  of  the  bonds  was  procured  by  James  C.  Walkley,  the 
president  of  the  railroad  company,  who  attended  to  that  duty  for  Essex 
and  other  towns.  He  did  it  for  Essex  at  the  request  of  C.  O.  Spencer, 
agent  of  the  town,  who  gave  him  a  written  memorandum  which  Mr. 
Walkley  gave  to  the  Kellogg  &  Bulkeley  Printing  Company,  and.  which 
called  for  ten-twenty  bonds  only.  The  printing  company  consulted 
with  Mr.  Walkley  as  to  the  general  form  of  the  bonds,  and  showed  him 
blank  forms  of  bonds;  but  the  bonds  were  printed  twenty-year  bonds 
by  mistake  in  the  printing.  The  bonds  as  printed  were  returned  to  the 
agents  of  the  town,  and  "competent  authority"  appointed  by  the  select- 
men signed  them  and  they  were  then  left  with  the  town  treasurer  to  be 
sold.  There  were  in  all  forty-eight  bonds  of  81,000  each.  Of  these  bonds 
the  four  in  question  in  this  case  were  sold  about  January  1,  1870,  to  F.  A. 
Tiffany,  then  a  citizen  of  the  town  of  Essex.  Each  bond  had  attached 
interest  coupons  payable  every  six  months  through  the  twenty  years 
from  date.  ...  At  the  time  the  town  treasurer  signed  the  bonds  he 
signed  them  supposing  they  were  payable  at  the  option  of  the  town  in 
ten  years  from  their  date.  He  signed  them  all  without  reading  any 
of  them.  The  bonds  were  left  with  the  town  treasurer  for  delivery  to 
purchasers.  .  .  . 

At  the  time  TiflFany  bought  the  bonds  the  then  town  treasurer, 
Edward  W.  Redfield,  told  him  that  the  bonds  were  ten-twenty  bonds, 
and  at  the  option  of  the  town  could  be  called  in  and  paid  at  the  expira- 
tion of  ten  years  from  their  date,  and  that  such  was  the  vote  of  the  town 
in  authorizing  the  issue  of  the  bonds.  But  Tiffany  did  not  care  whether 
the  bonds  were  redeemable  in  five,  ten,  or  twenty  years,  and  would  have 
bought  them  as  readily  in  the  one  case  as  in  either  of  the  others.  Tiffany 
sold  these  bonds  in  the  autumn  of  1878  to  Daniel  S.  Swan.  Before 
Swan  bought  them  he  called  upon  the  then  to\\Ti  treasurer  in  relation 
to  the  bonds,  and  to"  know  what  the  action  of  the  town  would  be,  and 
the  treasurer  told  him  what  the  vote  of  the  town  was  in  authorizing  the 
issue  of  the  bonds,  and  that  the  town  would  call  them  in  at  the  expiration 


No.  808  ENACTION   OF  A   LEGAL  ACT  1173 

of  ten  years  from  their  date,  and  pay  them  up;  and  that  the  town  had 
already  called  them  in,  but  by  mistake  they  had  been  called  a  year  too 
soon.  Swan  sold  these  bonds  to  the  defendant  April  20,  1880,  at  a  pre- 
mium of  not  over  two  per  cent.  The  defendant  at  the  time  of  his  purchase 
had  full  knowledge  of  the  vote  of  the  town  in  relation  to  the  issue  of  the 
bonds,  and  that  the  town  had  called  them  for  payment.  .  .  .  On  the 
25th  of  February,  1880,  the  town  gave  notice  by  publication  in  various 
newspapers  that  the  bonds  would  be  paid  at  the  office  of  the  treasurer 
on  the  1st  of  April,  1880,  and  that  interest  upon  them  would  cease  at 
that  time.  None  of  the  agents  of  the  town  appear  to  have  had  any 
knowledge  that  there  had  been  a  mistake  in  the  issue  of  the  bonds  until 
the  town  was  informed,  after  February  25,  1880,  by  the  Chelsea  Savings 
Bank,  a  holder  of  some  of  them,  that  the  bonds  on  their  face  were  twenty 
year  bonds  and  not  redeemable  before.  .  .  .  Upon  these  facts  the  Court 
(Sanford,  J.)  rendered  judgment  for  the  plaintiffs  and  for  a  correction 
of  the  bonds  by  inserting  in  them  an  option  on  the  part  of  the  plain- 
tiffs to  pay  them  at  the  expiration  of  ten  years  from  their  date.  The 
defendant  appealed. 

G.  G.  Sill,  for  the  appellant.  1.  The  mistake  arose  from  the  gross 
negligence  of  the  plaintiffs,  and  equity  will  not  assist  a  person  whose 
condition  is  attributable  only  to  the  want  of  that  diligence  which  may 
fairly  be  expected  from  a  reasonable  person.  ...  2.  If  the  defendant 
had  the  information  that  could  be  obtained  from  inspecting  the  records 
of  the  town,  yet  he  had  a  right  to  rely  on  the  recitals  and  words  of  the 
bond.  .  .  . 

J.  Phelps  and  M.  E.  Culver,  for  the  appellees. 

LooMis,  J.  —  It  is  not  necessary  for  us  to  consider  in  this  case  whether 
the  bonds  issued  by  the  town  are  to  be  regarded  as  negotiable  and  there- 
fore protected  in  the  hands  of  a  bona  fide  holder  against  the  correction 
which  the  plaintiffs  seek  to  procure.  We  may  assume  for  the  purposes 
of  this  case,  that,  in  the  absence  of  notice  on  the  part  of  the  defendant 
of  the  error  claimed  by  the  plaintift's  to  have  intervened  in  the  printing  of 
the  bonds,  the  correction  could  not  be  made. 

Starting  with  this  assumption,  the  questions  which  present  them- 
selves for  consideration  are  the  following:  1.  Have  the  plaintiffs,  through 
their  agents,  been  guilty  of  such  negligence,  either  in  the  original  exe- 
cution and  issuing  of  the  bonds,  or  in  the  seeking  of  a  correction  of  the 
error  when  discovered,  as  precludes  them  from  the  equitable  relief  which 
they  seek?  2.  Did  the  first  purchaser  of  the  bonds,  and  afterwards  the 
purchaser  from  him,  and  finally  the  defendant  at  the  time  of  his  purchase, 
have  such  knowledge  of  the  error  in  the  bonds,  either  actual  or  to  be 
imputed,  as  gives  the  plaintiffs  a  right,  as  against  them,  to  the  equitable 
relief  which  they  seek?  3.  Was  the  error  one  of  such  a  character  that  it 
can  be  corrected  by  a  Court  of  equity?  .  .  . 

1.  And  first  —  have  the  plaintiffs  been  guilty  of  a  fatal  negligence? 
.  .  .  We  think  therefore  that  the  negligence  of  the  plaintiffs,  in  the 


1174  BOOK  VI:  PAROL  EVIDENCE  RULES        No.  808 

execution  and  issuing  of  the  bonds,  was  not  of  such  a  character  as  to 
preclude  all  equitable  relief  against  the  present  defendant.  .  .  . 

2.  Did  the  first  purchaser  of  the  bonds  in  question,  and  afterwards 
the  purchaser  from  him,  and  finally  the  defendant  at  the  time  of  his 
purchase,  have  such  knowledge  of  the  mistake,  either  actual  or  to  be 
imputed,  as  gives  the  plaintiffs  a  right,  as  against  them,  to  the  equitable 
relief  which  they  seek?  .  .  .  We  think  the  only  reasonable  view  of  the 
matter  is,  that  the  defendant  knew,  or  had  such  information  that  the 
law  would  impute  to  him  knowledge,  that  the  bonds  were  by  mistake 
issued  as  twenty  year  bonds  instead  of  ten-twenty  ones. 

3.  Was  the  mistake  one  of  such  a  character  that  it  can  be  corrected 
by  a  Court  of  equity?  It  is  claimed  by  the  counsel  for  the  defendant 
that  the  mistake,  in  such  a  case,  must  be  mutual,  and  the  cause  of  the 
agreement,  and  numerous  authorities  are  cited  in  support  of  the  propo- 
sition. This  rule,  within  the  limits  of  its  proper  application,  is  founded 
in  reason.  If  a  contract  is  corrected  by  a  Court  of  chancery  to  make  it 
conform  to  the  intention  of  one  of  the  parties,  it  is  of  course  forcing  a 
contract  upon  the  other  party  which  he  never  intended  to  make,  unless 
his  own  intent  concurred  with  that  of  the  other  party. 

But  this  case  is  not  that  of  that  character  nor  governed  by  that  rule. 
A  grantor  by  mistake  embraces  in  his  deed  a  parcel  of  land  that  neither 
party  intended  to  have  conveyed.  The  grantee  sees  his  mistake,  but 
does  not  call  the  attention  of  the  grantor  to  it,  and  afterwards  claims 
the  parcel  thus  accidentally  conveyed.  Or  a  person  offers  a  reward  of 
$100  for  the  detection  and  arrest  of  a  burglar,  but  by  mistake  and 
without  his  notice  it  is  printed  SI, 000.  A  man  who  knows  of  the  mis- 
take arrests  the  burglar  and  claims  the  $1,000.  In  each  of  these  cases 
the  error  is  not  mutual,  but  wholly  on  the  one  side.  What  is  there  on 
the  other?  Not  mistake,  but  fraud.  That  fraud  can  never  stand  for  a 
moment  in  a  Court  of  equity.  But  suppose  the  case  to  be  one  where, 
instead  of  actual  fraud,  there  is  merely  such  knowledge,  actual  or  impvited 
by  the  law,  as  makes  it  inequitable  for  the  purchaser  to  retain  his 
advantage.  The  Court  will  deal  as  summarily  with  that  inequitable 
position  of  the  party,  as  in  the  other  case  with  his  fraud.  .  .  . 

It  is  however  claimed,  on  the  part  of  the  defendant,  that  the  mis- 
take must  have  been  one  that  induced  the  contract  on  the  part  of  the 
purchaser;  that  is  to  say,  that  the  purchaser  must  have  taken  the  bonds 
for  the  very  reason  that  they  were  twenty  year  bonds  and  not  ten-twenty 
ones.  But  it  is  obvious  that  the  hardship  attending  the  correction 
of  a  contract  is  all  the  greater  where  the  other  party  accepted  the  con- 
tract for  the  reason  that  he  supposed  himself  to  be  acquiring  what  the 
correction  of  it  deprives  him  of.  But  supposing  the  purchasers  of  the 
bonds  in  question  had  taken  them  in  entire  indifference  as  to  whether 
they  were  twenty  year  or  ten-twenty  bonds,  and  that  the  defendant  was 
now  endeavoring  to  assert  rights  under  them  to  which  he  had  before 
been  indifferent,  would  there  be  no  remedy  in  equity?     Can  it  be  claimed 


No.  808  ENACTION   OF  A   LEGAL   ACT  1175 

for  a  moment  that  equity,  which  deals  with  substance  and  not  mere 
form,  which  appHes  reason  and  not  mere  arbitrary  rules,  would  see  no 
substantial  difference  between  the  case  of  a  party  who,  when  he  accepted 
the  contract,  was  indifferent  with  regard  to  a  known  mistake  and  so 
remained,  and  one  who,  at  first  indifferent,  was  now  trying  to  take  an 
unjust  advantage  of  the  mistake? 

We  conclude,  therefore,  that  there  was  nothing  in  the  nature  of  the 
mistake,  or  in  the  relation  of  the  parties  to  it,  that  should  lead  a  Court 
of  equity  to  refuse  the  relief  sought. 

There  is  no  error  in  the  judgment. 

In  this  opinion  Granger  and  Beardsley,  JJ,,  concurred. 

Carpenter,  J.  (dissenting).  ...  It  will  be  observed  that  the  nego- 
tiations related  to  existing  bonds,  and  not  to  bonds  to  be  subsequently 
prepared  pursuant  to  any  agreement  they  might  make.  There  was 
n.o  contract  that  the  bonds  should  be  of  a  certain  description.  Tiffany 
made  no  agreement  whatever  in  relation  to  that  matter.  As  to  that  he 
was  totally  indifferent.  The  town  simply  represented  that  an  article 
which  it  had  to  sell  was  of  a  certain  description.  Tiffany  neither  assented 
to  it  nor  denied  it,  as  it  was  of  no  consequence  to  him.  It  was  simply  a 
sale  of  the  bonds  as  they  were,  without  warranty  or  other  agreement.  .  .  . 
But  the  plaintiff  must  not  only  show  that  there  was  such  a  contract, 
but  also  that  Swan,  a  subsequent  owner  of  the  bonds,  and  the  defend- 
ant, had  notice  of  it  when  they  purchased.  In  respect  to  Swan.  .  .  . 
Here  is  no  verbal  agreement  between  Swan  and  the  to^wn,  and  there  is 
not  the  slightest  intimation  that  Swan  had  any  knowledge  whatever 
of  any  agreement  with  Tiffany.  How  is  it  with  the  defendant?  In 
respect  to  him  the  finding  is  as  follows:  "Swan  sold  these  bonds  to  the 
defendant  x\pril  20,  1880,  at  a  premium  of  not  over  two  per  cent.  The 
defendant  at  the  time  of  his  purchase  had  full  knowledge  of  the  vote  of 
the  town  in  relation  to  the  issue  of  the  bonds,  and  that  the  town  had 
called  them  for  payment."  What  is  the  effect  of  such  knowledge?  It 
gave  the  defendant  no  notice  of  any  contract  with  Tiffany,  and  there  is 
no  other  evidence  that  he  had  such  notice.  .  .  .  The  only  evidence  of 
such  circumstances  or  implied  agreement  is  the  extract  from  the  finding 
just  quoted.  If  found  there  it  is  because  the  defendant  then  knew  of 
certain  facts.  Now  it  is  true  that  mere  knowledge  will  often  subject  a 
man  to  pre-existing  equities;  but  how  it  can  be  regarded  as  sufficient 
evidence  of  a  contract,  or,  in  law,  as  the  equivalent  of  a  contract,  is 
beyond  my  comprehension.  .  .  .  These  bonds  had  been  in  existence  ten 
years;  he  found  them  in  the  market;  he  knew  the  claims  of  the  town 
in  respect  to  them;  but  he  knew  at  the  same  tiine  that  they  were  not 
in  fact  as  the  town  claimed  them  to  be.  Under  these  circumstances 
he  had  a  perfectly  legal,  equitable,  and  moral  right  to  purchase  them, 
relying  upon  the  liability  of  the  town  as  therein  expressed.  A  judicial 
decree  changing  them  to  his  prejudice  is  arbitrary  and  unwarranted, 
and  a  decree  for  which  I  am  sure  no  precedent  can  be  found. 


1176  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  808 

But  suppose  thiit  I  am  wrong  as  to  the  facts,  and  in  my  conclusions 
therefrom;  even  then  I  say  the  law  will  not  justify  such  a  decree.  .  .  . 
"  Mistake  in  matter  of  law  or  matter  of  fact,  to  be  a  ground  for  equitable 
relief,  must  be  of  a  material  nature,  and  must  be  the  determining  ground 
of  the  transaction.  ..."  It  cannot  be  said  that  the  mistake  concerned 
the  substance  of  the  transaction;  it  concerned  a  mere  incident,  and  that 
an  unimportant  one.  .  .  . 

But  I  go  further,  and  insist  that  the  probability  is  that  the  agents  of 
the  town  did  know  of  the  omission  before  the  bonds  were  sold,  and  that 
they  sold  them  knowingly  —  in  short,  that  there  was  no  mistake.  There 
is  no  direct  explicit  finding  that  there  was  a  mistake.  It  is  found  that  a 
mistake  occurred  in  printing  the  bond,  but  the  essential  thing  is,  and 
that  is  not  found,  that  the  mistake  was  unknown  when  the  bonds  were 
sold  and  the  money  received.  .  .  .  But  did  it  appear  in  evidence  that 
they  did  not?  That  is  the  important  inquiry;  and  the  report  gives  us 
no  answer,  except  by  its  silence.  And  such  ah  answer  must  be  regarded 
as  a  negative  one.  .  .  . 

But  suppose  that  I  am  wrong  in  this,  and  that  the  fact  was  clearly 
proved  and  expressly  found,  then  another  question  arises.  In  1  Story's 
Equity  Jurisprudence,  §  146,  this  rule  is  laid  down:  "It  is  not,  how- 
ever, sufficient  in  all  cases  to  give  the  party  relief  that  the  fact  is  mate- 
rial; but  it  must  be  such  as  he  could  not  by  reasonable  diligence  get 
knowledge  of,  when  he  was  put  upon  inquiry.  ..."  The  slightest  dili- 
gence would  have  disclosed  the  fact.  It  was  only  necessary  to  read 
the  bond  to  discover  the  omission.  A  want  of  slight  diligence  in  such 
matters  is  culpable  negligence. 

The  plaintiff  then  is  in  this  dilemma,  —  if  its  agents  read  the  bond 
they  had  knowledge  of  the  mistake  and  issued  the  bonds  understand- 
ingly,  and  that  is  fatal  to  the  case;  if  they  did  not,  they  were  guilty  of 
culpable  negligence,  and  that  is  equally  fatal. 

Fark,  C.  J.  (dissenting).  I  cannot  concur  in  the  result  to  which 
the  majority  of  the  Court  have  come  upon  the  question  whether  the 
plaintiff  town  exercised  its  optional  right  to  make  the  bonds  payable 
at  the  end  of  ten  years.  .  .  . 

I  think  there  is  error  in  the  judgment  appealed  from. 


809.   MEDLEY  v.   GERMAN  ALLIANCE  INSURANCE   CO. 

Court  of  x\ppeals  of  West  Virginia.     1904 

55  W.  Va.  342;  47  S.  E.  101 

Error  to  Circuit  Court,  Kanawha  County;   F.  A.  Guthrie,  Judge. 

Action  by  Lucy  A.  Medley  against  the  German  Alliance  Insur- 
ance Company.  Judgment  for  plaintiff,  and  defendant  brings  error. 
Reversed. 


No.  809  ENACTION   OF  A  LEGAL  ACT  1177 

Watts  &  Ashby  and  Chilton,  MacCurklc  &  Chilton,  for  plaintiff  in 
error.  A.  ]]\  McDonald,  Brown,  Jackson  &  Knight,  Linn,  Byrne  &  Cato, 
and  ^1.  B.  Littlcpagc,  for  defendant  in  error. 

PoFFENBARGER,  P.  The  German  Alliance  Insurance  Company 
complains  of  a  judgment  of  the  Circuit  Court  of  Kanawha  County  ren- 
dered against  it,  and  in  favor  of  Lucy  A.  Medley,  for  the  sum  of  SI, 732,  in 
an  action  of  assumpsit  upon  a  policy  of  insurance  upon  a  dwelling  house, 
and  personal  property  therein,  for  the  sum  of  81,500;  alleging  that  the 
Court  erred  in  overruling  its  motion  to  exclude  the  plaintiff's  evidence, 
made  at  the  conclusion  thereof,  and  its  motion  to  exclude  all  the  evidence 
and  direct  a  verdict,  made  after  all  the  evidence  had  been  introduced; 
in  giving  to  the  jury  five  several  instructions,  and  each  of  them;  in 
refusing  to  set  aside  the  verdict;   and  in  entering  judgment  thereon. 

One  of  the  principal  defences  to  the  action,  raised  by  a  proper  plea, 
and  which  forms  the  subject-matter  of  instructions  given  and  refused,  is 
the  alleged  breach  of  a  condition  of  the  policy  which  reads  as  follows: 
"This  entire  policy,  unless  otherwise  provided  by  agreement  endorsed 
hereon  or  added  hereto  shall  be  void  ...  if  the  interest  of  the  insured 
be  other  than  unconditional  and  sole  ownership;  or  if  the  subject  of 
insurance  be  a  building  on  ground  not  ovmed  by  the  insured  in  fee  simple." 
No  such  provision  was  indorsed  on  the  policy.  Mrs.  Medlej^'s  title  to 
the  land  on  which  the  building  stood  is  evidenced  by  a  deed  by  which 
the  Kanawha  Valley  Bank,  a  corporation,  "  doth  grant  and  convey  unto" 
her  the  lot  (describing  it,)  and  which  contains,  in  the  habendum  clause 
thereof,  the  following:  "And  it  is  fully  understood  and  agreed  between 
all  of  the  parties  herein  interested  that  the  said  lot  of  land  is  hereby 
conveyed  by  the  parties  of  the  first  part  to  the  party  of  the  second  part 
for  and  during  her  lifetime  and  at  and  after  her  death  the  title  to  the 
said  lot  is  to  pass  unto  and  vest  in  her  children  born  and  unborn." 

No  written  application  for  the  policy  was  made.  The  contract  of 
insurance  was  effected  by  Thomas  Popp,  on  behalf  of  the  company,  as 
its  agent,  and  G.  W.  Medley,  the  husband  of  the  plaintiff,  as  her  agent. 
The  insurance  was  solicited  by  the  company  through  Popp,  who  inquired 
of  Medley,  before  issuing  the  policy,  as  to  the  person  in  whose  name  the 
deed  was,  in  response  to  which  Medley  said:  "The  deed  is  deeded  to 
my  wife  and  her  heirs,  born  and  unborn."  George  Medley,  a  son  of  the 
insured,  says  his  father  told  Popp  the  property  was  deeded  to  his  mother 
and  her  heirs,  and  also  that  there  was  a  lien  upon  it  by  deed  of  trust  for 
S300  in  favor  of  Ben  Baer.  Both  father  and  son  say  the  agent  inquired, 
not  as  to  the  estate  or  interest  of  Mrs.  ISIedley  in  the  property,  but  as 
to  the  name  of  the  person  to  whom  it  was  deeded.  Popp's  testimony 
was  not  taken. 

The  policy  contained  the  following  additional  clause,  limiting  the 
authority  of  the  agent:  "This  policy  is  made  and  accepted  subject  to 
the  foregoing  stipulations  and  conditions,  together  with  such  other 
provisions,   agreements,  or  conditions  as  may  be  endorsed  hereon  or 


1178  BOOK    Vi:     PAROL   EVIDENCE    RULES  No.  809 

added  hereto,  and  no  officer,  agent,  or  other  representative  of  these 
companies  shall  have  power  to  waive  any  provision  or  condition  of  this 
policy  except  such  as  by  the  terms  of  this  policy  may  be  the  suVjject  of 
agreement  indorsed  hereon  or  added  hereto,  and  as  to  such  provisions 
and  conditions  no  officer,  agent,  or  representative  shall  have  such  power 
or  be  deemed  or  held  to  have  waived  such  provisions  or  conditions  unless 
such  waiver,  if  any,  shall  be  written  upon  or  attached  hereto,  nor  shall 
any  privilege  or  permission  affecting  the  insurance  under  this  policy 
exist  or  be  claimed  by  the  insured  unless  so  written  or  attached." 

1.  In  Wolpert  v.  Northern  Assur.  Co.,  44  W.  Va.  734,  this  Court 
held  that  "if  an  insurance  company  elects  to  issue  its  policy  of  insur- 
ance against  a  loss  by  fire  without  any  regular  application,  or  without 
any  representation  in  regard  to  the  title  to  the  property  to  be  insured, 
it  cannot  complain,  after  a  loss  has  occurred,  that  the  interest  of  the 
insured  was  not  correctly  stated  in  the  policy,  or  that  an  existing  in- 
cumbrance was  not  disclosed."  .  .  .  The  agent  of  an  insurance  com- 
pany, in  preparing,  or  directing  the  preparation  of,  an  application  for 
insurance,  acts  for  his  company,  and  not  for  the  applicant.  He  is  the 
agent  of  the  company,  and  not  the  agent  of  the  applicant,  and,  in  what 
he  does,  binds  the  company,  and  not  the  applicant,  if  he  acts  improperly. 

"Though  the  weight  of  the  modern  authorities,  as  well  as  reason,  in  my  judg- 
ment, leads  to  the  conclusion  that  where  an  application  for  a  policy,  which  is 
filled  up  by  an  agent  of  an  insurance  company,  and  signed  by  the  insured  on  the 
faith  that  it  has  been  properly  filled  up,  who  has  not  read  the  application,  though 
he  had  an  opportunity  to  do  so,  if  none  of  the  false  answers  were  given  by  him, 
but  were  inserted  by  the  agent  of  the  insurance  company  either  fraudulently  or 
by  mistake,  where  the  mistake  was  not  the  result  of  anything  said  or  done  by  the 
insured,  the  insured  or  assured  is  not  bound  by  such  false  answers  inserted  in 
the  application,  but  these  answers  should  be  regarded  as  the  act  of  the  insurance 
company,  by  its  agent,  and  not  as  the  act  of  the  insured.  It  is  true,  this  position 
is  still  controverted  by  respectable  authorities.  .  .  .  But  outside  of  INIassachu- 
setts  the  weight  of  authority  now  seems  to  be  in  favor  of  the  position  that,  under 
circumstances  above  stated,  false  answers  in  the  application  for  an  insurance  will 
not  forfeit  the  policy,  and  I  concur  in  this  view."  Green,  J.,  in  Schwarzbach  v. 
Insurance  Co.,  25  W.  Va.  622,  663. 

This  view  is  embodied  in  point  12  of  the  syllabus  of  said  case.  The 
same  doctrine  is  reiterated  in  Deitz 'U.  Insurance  Co.,  31  W.  Va.  851.  .  .  . 

2.  It  is  denied,  however,  that  this  law  is  applicable  to  the  case  in 
hand,  for  the  reason  that  the  policy  contains  a  clause  limiting  the  power 
of  the  company's  agent  to  waive  conditions  of  the  policy.  As  the  policy 
was  delivered  into  the  hands  of  the  insured  with  this  clause  plainly 
printed  in  it,  it  is  said  that  she  had  notice  of  it,  and  was  bound  to  know, 
whether  she  read  the  policy  or  not,  that  the  agent  had  no  power  to  issue 
a  policy  upon  any  other  conditions  than  those  stated  in  it. 

It  is  difficult  to  see  any  solid  ground  for  this  distinction.  .  .  . 
The  decisions  [supporting  it]  are  founded  largely  upon  that  of  the 


No.  809  ENACTION  OF  A  LEGAL  ACT  1179 

Supreme  Court  of  the  United  States  in  the  case  of  Insurance  Co.  v. 
Wilkinson,  13  Wall.  222,  in  which  Mr.  Justice  Miller,  delivering  the 
opinion,   said: 

"If,  however,  we  suppose  the  party  making  the  insurance  to  have  been  an 
individual,  and  to  have  been  present  when  the  application  was  signed,  and  solicit- 
ing the  assured  to  make  the  contract  of  insurance,  and  that  the  insurer  himself 
wrote  out  all  -these  representations,  and  was  told  by  the  plaintiff  and  his  wife 
that  they  knew  nothing  at  all  of  this  particular  subject  of  inquiry,  and  that  they 
refused  to  make  any  statement  about  it,  and  yet,  knowing  all  this,  wrote  the 
representation  to  suit  himself,  it  is  equally  clear  that  for  the  insurer  to  insist  that 
the  policy  is  void  because  it  contains  this  statement  would  be  an  act  of  bad  faith, 
and  of  the  grossest  injustice  and  dishonesty.  And  the  reason  for  this  is  that  the 
representation  was  not  the  statement  of  the  plaintiff,  and  that  the  defendant 
knew  it  was  not  when  he  made  the  contract,  and  that  it  was  made  by  the  defend- 
ant, who  procured  the  plaintiff's  signature  thereto.  .  .  .  The  powers  of  the 
agent  are  prima  facie  coextensive  with  the  business  intrusted  to  his  care,  and  will 
not  be  narrowed  by  limitations  not  communicated  to  the  person  with  whom  he 
deals." 

But  this  is  said  not  to  be  applicable  to  the  case  in  hand,  for  the  reason 
that  notice  of  the  agent's  want  of  authority  to  waive  conditions  was  not 
brought  home  to  the  applicant  in  that  case.  It  is  also  said  that  a  limi- 
tation in  the  policy  is  notice.  ...  It  is  further  said  that  subsequent 
decisions  of  the  Supreme  Court  of  the  United  States,  as  well  as  some 
prior  to  that  of  Insurance  Co.  v.  Wilkinson,  are  authority  for  the  posi- 
tion that  the  limitation  clause  in  the  policy  is  notice.  .  .  .  Another  one  is 
Assurance  Co.  v.  Building  Ass'n,  183  U.  S.  308,  relied  upon  by  this  Court 
as  authority  for  the  decision  in  Maupin  v.  Insurance  Co.  45  S.  E.  1003, 
and  it  does  actually  decide  as  follows:  "Where  fire  insurance  policies 
contain  provisions  whereby  agents  may,  by  writing  indorsed  upon  the 
policy  or  by  writing  attached  thereto,  express  the  company's  assent 
to  other  insurance,  such  limited  grant  of  authority  is  the  measure  of 
the  agent's  power.  WTiere  such  limitation  is  expressed  in  the  policy,  the 
assured  is  presumed  to  be  aware  of  such  limitation."  This  much  of  the 
decision  is  based  upon  the  prior  decisions  of  that  Court  hereinbefore 
referred  to  and  explained,  all  of  which  are  cases  showing  either  that  there 
was  notice  in  the  application  prior  to  the  issuance  of  the  policy,  or  that 
the  principle  had  only  been  applied  to  conditions  in  the  policy,  the  viola- 
tion of  which  subsequent  to  its  issuance  rendered  it  invalid  and  non- 
effective. Hence  it  is  clear  that  the  doctrine  has  been  extended  in  this 
last  case  to  limits  beyond  those  theretofore  defining  its  application.  .  .  . 
Moreover,  at  best,  it  is  only  presumptive,  not  conclusive  or  actual,  notice. 
In  the  case  last  cited,  the  Court  says  the  assured  is  presumed  to  be  aware 
of  such  limitation.  .  .  . 

A  large  number  of  the  States  hold,  for  one  reason  or  another,  that  the 
limitation,  expressed  in  the  policy,  of  the  authority  of  the  agent,  or  pro- 
hibition of  his  authority  to  waive  conditions,  has  no  application  to  those 


1180  BOOK   VI:     PAROL    EVIDENCE    RULES  No.  809 

conditions  which  relate  to  the  making  or  inception  of  the  contract,  but 
only  to  conditions  inserted  in  the  contract  as  actually  .made,  and  to 
be  thereafter  observed.  .  .  .  For  this  position,  decisions  by  the  Courts 
of  Georgia,  Kentucky,  Michigan,  Missouri,  New  York,  Pennsylvania, 
South  Carolina,  Texas,  Wisconsin,  and  West  Virginia  are  cited,  and 
there  are  others.  .  .  .  So,  in  Dewees  v.  Manhattan  Ins.  Co.,  35  N.  J. 
Law  366,  ...  it  appears  that  the  only  trouble  in  New  Jersey  as  to 
this  power  of  waiver  is  the  selection  of  the  proper  forum  in  which  to 
assert  it.  You  cannot  have  it  in  a  Court  of  law,  but  you  may  have  it  in 
a  Court  of  equity.  In  tliis  State  no  such  difliculty  exists.  This  Court 
has  not  been  turning  the  assured  round  to  a  suit  in  equity  to  have  refor- 
mation of  this  contract.  .  .  . 

3.  The  only  ground  upon  which  this  right  of  reformation  can  be 
denied  is  laches.  How  is  the  person  into  whose  hands  the  policy  of 
insurance  is  placed  to  know  whether  it  has  been  drawn  according  to  the 
verbal  understanding  of  the  parties,  until  after  he  has  read  it?  Is  he 
to  reject  it  upon  suspicion?  Has  he  not  the  right  to  assume  for  the  time 
being  that  it  has  been  properly  drawn?  As  a  matter  of  fact,  is  it  not 
common  knowledge  that  agents  are  relied  upon  to  properly  prepare 
the  policies,  and  that  they  are  scarcely  ever  critically  examined  before 
acceptance?  There  can  be  no  notice  until  after  the  reading,  and,  after 
the  acceptance  of  the  policy,  there  can  be  nothing  more  than  a  sort  of 
implied  notice;  and  a  Court  of  equity  will  not  hold  the  party  guilty  of 
laches  for  mere  negligence  to  actually  read  the  policy,  any  more  than  it 
will  in  the  case  of  a  deed.  .  .  . 

4.  The  only  new  element  in  this  case  wliich  could  possibly  distin- 
guish it  from  the  decisions  made  by  this  Court,  to  which  reference  has 
been  made  (as  holding  that  where  the  agent  of  the  company  issues  a 
policy  without  having  taken  any  written  application  therefor,  or,  ha^^ng 
taken  one,  has  incorrectly  stated  therein  the  information  given  to  him 
by  the  applicant,  the  company  is  estopped  from  relying  upon  facts, 
existing  at  the  time  the  contract  was  made,  differing  from  those  incor- 
rectly stated  in  the  application  for  the  policy)  is  the  alleged  notice  of 
want  of  authority  in  the  agent,  conveyed  by  incorporating  the  limitation 
clause  in  the  policy.  If  this  is  not  notice,  there  is  nothing  else  in  the 
case  which  forms  the  basis  of  even  a  pretence  that  it  is  to  be  distinguished 
from  the  other  cases.  Nothing  more  need  be  said  to  show  that  it  is 
not  conclusive,  actual  notice,  irrevocably  and  unalterably  binding  the 
insured.  To  say  so  would  be  to  take  a  position  inconsistent  ^\'ith 
the  law  relating  not  only  to  insurance  contracts,  but  all  other  kinds  of 
contracts.  .  .  . 

In  this  case  the  agent  of  the  insured,  when  solicited  to  take  insurance 
upon  the  property,  did  not  say  that  the  title  of  the  insured  was  the  fee- 
simple  estate  in  the  property.  He  said  either  "the  deed  is  deeded  to 
my  wife  and  her  heirs  born  and  imborn,"  or  that  "the  property  was 
deeded  to  Mrs.  Medley  and  her  heirs."     To  any  one  but  a  person  learned 


No.  809  ENACTION   OF  A   LEGAL   ACT  1181 

in  the  law,  this  would  hardly  be  taken  to  mean  the  fee-simple  title.  To 
the  layman  it  imports  an  estate  in  the  heirs.  Under  the  rule  in  Shelley's 
Case,  the  word  "heirs"  in  such  deed  is  a  word  of  limitation,  and  not 
of  purchase;  and  the  rule  involves  intricate  and  fine  distinctions,  incom- 
prehensible to  any  person  except  those  who  have  studied  the  law.  Upon 
this  information,  the  agent  assumed  to  write  in  the  policy  that  Mrs. 
Medley  owned  the  fee-simple  title  to  the  lot  on  which  the  building  stood. 
Had  he  put  upon  that  policy  the  words  actually  used  by  the  agent  of 
the  insured,  the  company  would,  no  doubt,  have  made  inquiries  which 
would  have  disclosed  the  actual  state  of  the  title.  If  the  company  has 
been  prejudiced,  the  fault  rests  with  its  own  agent.  Upon  the  principles 
hereinbefore  referred  to,  it  is  clear  that  no  advantage  of  it  can  be  taken 
by  the  company.  ... 

Hence  the  Court  did  not  err  in  refusing  to  give  defendant's  instruc- 
tions Nos.  3,  4,  and  9,  which  read  as  follows: 

"  (3)  The  jury  are  instructed  that  if  they  believe  from  the  evidence 
that  the  agent,  Thos.  Popp,  who  solicited  said  insurance,  inquired  of 
the  agent  and  husband  of  the  plaintiff  as  to  who  owned  the  property  to 
be  insured,  and  said  agent  stated  to  said  Popp,  in  answer  to  said  inquiry, 
that  the  deed  to  said  real  property  was  to  his  wife  and  her  heirs,  born 
and  unborn,  or  to  her  and  her  heirs,  then  the  plaintiff  is  not  entitled  to 
a  verdict  in  this  case.  .  .  . 

For  the  other  error  above  noted,  as  well  as  for  insufficiency  of  evi- 
dence to  support  the  verdict,  the  judgment  will  be  reversed,  the  verdict 
set  aside,  a  new  trial  granted,  and  the  case  will  be  remanded. 

Reversed. 

Note  by  Brannon,  J.  —  I  agree  to  the  judgment. 

1.  I  do  not  agree  to  the  opinion  excusing  one  from  reading  a  policy 
before  he  accepts  it,  and  excusing  him  from  its  conditions  because  he  did 
not  read  or  understand  it.  I  think  that  when  a  man  accepts  a  deed  he  is 
bound  by  its  terms.  If  it  departs  from  the  agreement,  and  he  accepts 
it,  he  waives  the  points  of  departure.  The  agreement  is  merged.  The 
deed  is  a  contract;  so  is  a  policy  of  insurance.  Weidert  v.  State  Ins.  Co., 
20  Am.  St.  R.  809.  I  do  not  agree  to  take  from  the  company  the  condi- 
tion that  the  policy  should  be  void,  if  the  insured  owned  less  than  a  fee. 
A  company  would  be  willing  to  take  a  risk,  if  the  insured  owned  a  fee, 
but  not  if  he  owned  only  a  life  estate.  .  .  .  The  insured  is  bound  to 
know  the  meaning  of  the  policy,  and  cannot  plead  ignorance  of  law. 

2.  I  do  not  agree  to  allow  oral  evidence  preliminary  to  the  contract 
to  change  its  terms.  The  authorities  given  in  Maupin  v.  Scottish  Union, 
45  S.  E.  1003  (.53  W.  Va.  557),  will  sustain  this  view.  That  oral  evi- 
dence is  that  the  agent  was  told  that  the  deed  was  to  Mrs.  Medley  and 
heirs.  That  in  law  meant  a  fee  simple,  just  as  the  policy  says.  So, 
the  agent  did  not  write  the  policy  different  from  the  statement,  in  the 
ej^e  of  the  law. 

3.  I  do  not  agree  that  the  disability  of  the  agent  to  waive  vital  con- 


1182  BOOK  VI :     PAROL   EVIDENCE   RULES  No.  809 

ditions  extends  only  to  things  occurring  subsequently  to  the  issue  of  the 
policy.  It  is  agreed  that  an  agent  may  not,  after  the  policy  issues, 
waive  conditions;  but  it  is  said  before  it  issues,  he  may  waive  the  duty 
of  the  insured  to  conform  thereafter  to  its  requirements,  and  may  waive 
the  presence  or  existence  of  essential  facts  at  the  date  of  issue,  for  in- 
stance, that  the  party  has  a  fee  simple.  That  is,  though  the  company 
is  willing  to  risk  only  on  the  basis  of  a  certain  state  of  things,  yet  the 
agent  in  every  place  can  waive  them,  and  accept  another  basis,  and  this 
in  the  face  of  the  policy  which  says  that  it  is  issued  on  the  faith  of  a 
certain  specified  basis,  and  further  that  no  agent  can  dispense  with  that 
basis.  This  seems  to  deny  right  of  contract  and  to  be  hard  and  unjust 
to  insurance  companies,  which  are  valuable  institutions  to  the  country. 
...  I  have  always  understood  that  a  purchaser  of  and  is  bound  to 
know,  whether  in  fact  he  does  or  not,  clauses,  conditions  and  limitations, 
not  only  in  the  last  instrument  in  the  chain  of  title,  the  deed  to  him, 
but  also  away  back  in  any  deed  in  the  chain ;  but  here  it  is  proposed  to 
release  a  party  from  a  condition  set  before  his  eyes  in  the  very  deed  to 
him.  Waldron  v.  Harvey,  46  S.  E.  603,  54  W.  Va.  608.  An  insurance 
company  deals  with  persons  far  off,  and  has  to  do  so  by  agents.  If 
bound  by  th^ir  waivers,  by  agreements  between  the  insured  and  the 
agents,  it  would  be  ruined.  It  would  be  subject  to  oral  evidence,  some- 
times true,  oftener  false.  It  is  absolutely  necessary  that  it  put  its  terms 
and  conditions  in  its  policy,  and  if  you  nullify  these,  it  has  no  protection. 
You  impair,  destroy  its  contracts.  .  .  . 

4.  As  to  the  argument  that  the  agent  was  told  one  thing  as  to  the 
title,  and  wrote  another  in  the  policy,  and  therefore  the  policy  can  be 
reformed,  so  as  to  conform  to  the  statement.  That  makes  it  conform 
to  what  the  one  side  agreed  to,  but  what  the  other  side  never  agreed  to. 
That  forces  on  the  company  a  contract  it  never  made.  Equity  never 
reforms  a  deed  except  to  correct  mutual  mistake.  Where  both  sides  do 
agree  to  the  same  particular  thing,  and  agree  to  have  an  instrument  drawn 
to  do  that  thing,  and  the  scrivener  fails  to  make  the  document  accom- 
plish what  both  parties  intended  it  to  do,  equity  will  reform;  but  not 
where  both  sides  never  agreed  to  do  that  same  thing.  In  the  one  case 
you  carry  out  the  intention  of  both  sides;  in  the  others,  you  carry  out 
the  intention  of  one  side,  but  defeat  the  intention  of  the  other,  and  make 
for  him  a  nev>^  agreement.  In  such  case  equity  will  rescind,  but  not 
reform.     Ferrel  v.  Ferrel,  53  W.  Va.  515. 

Some  of  our  decisions  may  seem  in  contrast  with  the  view  above 
expressed,  and  if  it  were  not  for  the  recent  labored  consideration  of  the 
whole  question  by  the  Supreme  Court  of  the  United  States  in  Northern 
Co.  V.  Grand  View,  183  U.  S.  308,  I  should  not  be  so  insistent  upon  the 
matters  above  discussed.  .  .  . 

Judge  Miller  concurs  in  this  note. 


No.  810  ENACTION  OF  A  LEGAL  ACT  1183 

810.   BAXENDALE  v.  BENNETT 

Queen's  Bench  Division.     1878 

L.  R.  3  Q.  B.  D.  525 

Action  commenced  on  the  10th  July,  1876,  on  a  bill  of  exchange, 
dated  the  Uth  of  March,  1872,  for  50/.  drawn  by  W.  Cartwright  and 
accepted  by  the  defendant,  and  of  which  the  plaintiff  was  the  holder, 
and  her  interest.  At  the  trial  before  Lopes,  J.,  without  a  jury,  at  the 
Hilary  Sittings  in  Middlesex,  the  following  facts  were  proved:  The 
bill  dated  the  11th  of  March,  1872,  on  which  the  action  was  brought, 
purported  to  be  drawn  by  one  \Y.  Cartwright  on  the  defendant,  payable 
to  order  at  three  months'  date.  It  was  indorsed  in  blank  by  Cartwright, 
and  also  by  one  H.  T.  Cameron.  The  plaintiff  received  the  bill  from 
Cameron  on  the  ^d  of  June,  1872,  and  was  the  bona  fide  holder  of  it, 
without  notice  of  fraud,  and  for  a  valuable  consideration.  One  J.  F. 
Holmes  had  asked  the  defendant  for  his  acceptance  to  an  accommoda- 
tion bill,  and  the  defendant  had  written  his  name  across  a  paper  which 
had  an  impressed  bill  stamp  on  it,  and  had  given  it  to  Holmes  to  fill  in 
his  name,  and  then  to  use  it  for  the  purpose  of  raising  money  on  it. 
Afterwards  Holmes,  not  requiring  accommodation,  returned  the  paper 
to  the  defendant  in  the  same  state  in  which  he  had  received  it  from  him. 
The  defendant  then  put  it  into  a  drawer,  which  was  not  locked,  of  his 
writing  table  at  his  chambers,  to  which  his  clerk,  laundress,  and  other 
persons  coming  there  had  access.  He  had  never  authorized  Cartwright 
or  any  person  to  fill  up  the  paper  with  a  drawer's  name,  and  he  believed 
that  it  must  have  been  stolen  from  his  chambers. 

On  these  facts  the  learned  judge  found  that  the  bill  was  stolen  from 
the  defendant's  chambers,  and  the  name  of  the  drawer  afterwards 
added  without  the  defendant's  authority;  but  that  the  defendant  had 
so  negligently  dealt  with  the  acceptance  as  to  have  facilitated  the  theft; 
he  therefore  ruled  upon  the  authority  of  Young  v.  Grote  (4  Bing.  253), 
and  Ingham  v.  Primrose  (7  C.  B.  (N.  S.)  82),  that  the  defendant  was 
liable,  and  directed  judgment  to  be  entered  for  the  plaintiff  for  50/. 
and  costs.  .  .  . 

May  4.  Bittleston  (Rolland,  with  him),  for  the  defendant.  The 
question  is,  whether  a  blank  acceptance,  lost  by  the  alleged  acceptor, 
before  its  delivery  to  any  one,  and  subsequently  filled  up  by  a  stranger 
and  put  into  circulation,  can  be  sued  on  by  a  bona  fide  holder  for  value. 
No  action  can  be  brought  on  such  an  instrument,  for  it  is  merely  an 
inchoate  bill;  and  there  can  be  no  implied  authority  to  any  one  to  make 
the  bill  complete,  for  it  was  never  intended  that  it  should  be  issued.  .  .  . 
Young  T.  Grote,  4  Bing.  253,  and  Ingham  v.  Primrose,  7  C.  B.  (N.  S.) 
82;  28  L.  J.  (C.  P.)  294,  will  be  relied  on  by  the  plaintiff,  but  in  those 
cases  the  documents  were  complete.     Awde  v.  Dixon,  6  Ex.  869,  is  in 


1184  BOOK   VI  :    PAROL   EVIDENCE    RULES  No.  810 

point  for  the  defendant.  There  is  no  evidence  of  neghgence  on  the  part 
of  the  defendant  to  make  him  Hable  to  the  plaintifi'.  .  .  .  Leaving  the 
blank  acceptance  in  an  unlocked  drawer  in  his  chambers  is  not  that 
species  of  negligence  which  disentitles  the  defendant  from  insisting  that 
the  bill  is  invalid.   .   .  . 

Jeune,  for  the  plaintiff.  The  defendant  having  been  guilty  of  negli- 
gence, the  plaintiff,  being  a  holder  for  value,  is  entitled  to  recover.  .  .  . 
In  Byles  on  Bills,  11th  ed.  at  p.  187,  the  author  seems  to  be  of  opinion 
that  the  writer  of  a  blank  acceptance  not  delivered,  but  lost  or  stolen 
without  any  negligence  on  his  part,  would  not  be  liable;  in  the  present 
case  the  defendant  has  been  guilty  of  such  negligence  as,  according  to 
Inghamv.  Primrose,  7  C.  B.  (N.  S.j  82;  28  L.  J.  (C.  P.)  294,  would  make 
him  liable.  In  that  case  the  defendant  gave  the  bill  to  M.  to  get  it 
discounted,  and  M.,  failing  to  do  so,  returned  it.  The  plaintiff  then 
tore  it  in  half  and  threw  it  into  the  street.  M.  picked  it  up,  joined  the 
pieces  together,  and  negotiated  it.  The  jury  found  that  the  defendant 
intended  to  cancel  the  bill;  he  was,  however,  held  liable  on  the  author- 
ity of  Young  V.  Grote,  4  Bing.  253,  on  the  ground  that  he  had  led  to  the 
plaintiff  becoming  the  holder  of  it  for  value. 

Bramwell,  L.  J.— I  am  of  opinion  that  this  judgment  cannot  be 
supported.  The  defendant  is  sued  on  a  bill  alleged  to  have  been  drawn 
by  W.  Cartwright  on  and  accepted  by  him.  In  very  truth  he  never 
accepted  such  a  bill;  and  if  he  is  to  be  held  liable,  it  can  only  be  on 
the  ground  that  he  is  estopped  to  deny  that  he  did  so  accept  such  a  l)ill. 
Estoppels  are  odious,  and  the  doctrine  should  never  be  applied  without 
a  necessity  for  it.  It  never  can  be  applied  except  in  cases  where  the 
person  against  whom  it  is  used  has  so  conducted  himself,  either  in  what 
he  has  said  or  done,  or  failed  to  say  or  do,  that  he  would,  unless  estopped, 
be  saying  something  contrary  to  his  foi:mer  conduct  in  what  he  had  said 
or  done,  or  failed  to  say  or  do.  Is  that  the  case  here?  Let  us  examine 
the  facts.  The  defendant  drew  a  bill  (or  what  would  be  a  bill  had  it 
had  the  drawer's  name)  without  a  drawer's  name,  addressed  to  himself, 
and  then  WTote  what  was  in  terms  an  acceptance  across  it.  In  this 
condition,  it,  not  being  a  bill,  was  stolen  from  him,  filled  up  with  a 
drawer's  name,  and  transferred  to  the  plaintiff,  a  bona  fide  holder  for 
value.  It  may  be  that  no  crime  was  committed  in  the  filling  in  of  the 
drawer's  name,  for  the  thief  may  have  taken  it  to  a  person  telling  him  it 
was  given  by  the  defendant  to  the  thief  with  authority  to  get  it  filled  in 
with  a  drawer's  name  by  any  person  he,  the  thief,  pleased.  This  may 
have  been  believed  and  the  drawer's  nam^  bona  fide  put  by  such  person. 
I  do  not  say  such  person  could  have  recovered  on  the  ImII  ;  I  am  of  opin- 
ion he  could  not;  but  what  I  wish  to  point  out  is  that  the  bill  might  be 
made  a  complete  instrument  without  the  commission  of  any  crime  in 
the  completion.  But  a  crime  was  committed  in  this  case  by  the  stealing 
of  the  document,  and  without  that  crime  the  bill  could  not  have  been 
complete,   and  no  one  could  have  been  defrauded.     AMiy  is  not  the 


No.  810  ENACTION   OF  A   LEGAL  ACT  1185 

defendant  at  liberty  to  show  this?  Why  is  he  estopped?  What  has  he 
said  or  done  contrary  to  the  truth,  or  which  should  cause  any  one  to  be- 
lieve the  truth  to  be  other  than  it  is?  Is  it  not  a  rule  that  every  one  has 
a  right  to  suppose  that  a  crime  will  not  be  committed,  and  to  act  on  that 
belief?  Where  is  the  limit  if  the  defendant  is  estopped  here?  Suppose 
he  had  signed  a  bUmk  cheque,  with  no  payee,  or  date,  or  amount,  and  it 
was  stolen,  would  he  be  liable  or  accountable,  not  merely  to  his  banker 
the  drawee,  but  to  a  holder?  If  so,  suppose  there  was  no  stamp  law, 
and  a  man  simply  wrote  his  name,  and  the  paper  was  stolen  from  him, 
and  somebody  put  a  form  of  a  cheque  or  bill  to  the  signature,  would 
the  signer  be  liable?     I  cannot  think  so. 

But  what  about  the  authorities?  It  must  be  admitted  that  the  cases 
of  Young  V.  Grote  and  Ingham  v.  Primrose  go  a  long  way  to  justify  this 
judgment;  but  in  all  those  cases,  and  in  all  the  others  where  the  alleged 
maker  or  acceptor  has  been  held  liable,  he  has  voluntarily  parted  with 
the  instrument;  it  has  not  been  got  from  him  by  the  commission  of  a 
crime.  This,  undoubtedly,  is  a  distinction,  and  a  real  distinction.  The 
defendant  here  has  not  voluntarily  put  into  any  one's  hands  the  means, 
or  part  of  the  means,  for  committing  a  crime.  But  it  is  said  that  he  has 
done  so  through  negligence.  I  confers  I  think  he  has  been  negligent; 
that  is  to  say,  I  think  if  he  had  had  this  paper  from  a  third  person,  as 
a  bailee  bound  to  keep  it  with  ordinary  care,  he  would  not  have  done 
so.  But  then  this  negligence  is  not  the  proximate  or  effective  cause  of 
the  fraud.     A  crime  was  necessary  for  its  completion.  .  .  . 

Brett,  L.  J. —  In  this  case  I  agree  with  the  conclusion  at  which  my 
Brother  Bramwell  has  arrived,  but  not  with  his  reasons.  ...  It 
seems  to  me  that  the  defendant  never  authorized  the  bill  to  be  filled  in 
with  a  drawer's  name,  and  he  cannot  be  sued  on  it.  .  .  .  In  this  case  it 
is  true  that  the  defendant  after  writing  his  name  across  the  stamped 
paper  sent  it  to  another  person  to  be  used.  When  he  sent  it  to  that 
person,  if  he  had  filled  it  in  to  any  amount  that  the  stamp  would  cover, 
the  defendant  would  be  liable,  because  he  sent  it  with  the  intention  that 
it  should  be  acted  upon;  but  it  was  sent  back  to  the  defendant,  and  he 
was  then  in  the  same  condition  as  if  he  had  never  issued  the  acceptance. 
The  case  is  this:  the  defendant  accepts  a  bill  and  puts  it  into  his  drawer, 
it  is  as  if  he  had  never  issued  it  with  the  intention  that  it  should  be 
filled  up;  it  is  as  if  after  having  accepted  the  bill  he  had  left  it  in  his 
room  for  a  moment  and  a  thief  came  in  and  stole  it.  He  has  never  in- 
tended that  the  bill  should  be  filled  up  by  anybody  and  no  person  was 
his  agent  to  fill  it  up.  Then  it  has  been  said  that  the  defendant  is  liable 
because  he  has  been  negligent;  but  was  the  defendant  negligent?  .  .  . 
He  put  the  bill  into  a  drawer  in  his  own  room;  to  say  that  was  a 
Avant  of  due  care  is  impossible;  it  was  not  negligence  for  two  rea- 
sons, first,  he  did  not  owe  any  duty  to  any  one,  and,  secondly,  he 
did  not  act  otherwise  than  in  a  way  which  an  ordinary  careful  man 
would  act.   ...    In  the  present  case  I  think  there  was  no  estoppel,  no 


1186  BOOK   VI :     PAROL   EVIDENCE    RULES  No.  810 

ratification,  and  no  negligence,  and  that  the  defendant  is  entitled  to 
our  judgment. 

Baggallay,  L.  J.,  concurred,  that  the  judgment  ought  to  be  entered 
for  the  defendant. 

811.   HUBBARD  v.   GREELEY 

Supreme  Judicial  Court  of  Maine.     1892 

84  Me.  340;  24  Atl.  799 

On  Report.  This  was  a  real  action  for  the  recovery  of  a  tract  of 
land  on  Mt.  Desert  Island,  containing  over  forty-six  acres,  and  called 
the  Smallidge  Lot.  Writ  dated  February  28,  1888.  The  defendants 
claimed  title  by  a  regular  chain  of  deeds,  all  seasonably  recorded.  Among 
other  deeds  they  introduced  one  from  Seavy  and  Clark  to  T.  and  R.  W. 
Boyd,  dated  January  26,  1878,  and  recorded  July  15,  1878,  which  the 
plaintiff  claimed  had  been  placed  in  escrow  and  was  improperly  delivered. 

The  plaintiff  claimed  title  from  deed  of  the  Boyds,  dated  May  27, 
1876,  recorded  September  24,  1887;  deed  of  Seavy  to  Crowell  dated 
September  15,  1874,  but  not  recorded;  deed  of  Clark  and  Crowell  to 
himself,  dated  October  1,  1878,  recorded  August  25,  1879;  and  deed 
from  Seavy  to  himself  dated  September  6,  1887,  recorded  September  9, 
1887. 

It  was  admitted  that  premises  in  1872  belonged  to  one  Swazey, 
under  whom  both  parties  claimed  title.  By  mesne  conveyances  the 
title  stood  February  12,  1874,  in  Seavy,  Clark  and  Boyds,  one-third  each. 
The  principal  issue  between  the  parties  turned  on  the  question  whether 
the  plaintiff  could  properly  show  that  the  deed  of  Clark  and  Seavy, 
dated  January  26,  1878,  had  been  placed  in  escrow  and  was  improperly 
delivered.  The  defendants,  claiming  that  they  were  bona  fide  pur- 
chasers for  value  and  without  notice,  objected  to  the  admission  of  the 
evidence  offered  by  the  plaintiff  on  this  point.  The  facts  are  found  in 
the  opinion. 

A  question  of  construction  of  this  deed  also  arose,  which  is  stated  in 
the  head  note,  relating  to  the  quantity  of  interest  in  the  land  conveyed. 
It  was  conceded  that  if  the  Court  decided  against  the  plaintiff  on  the 
first  question  and  in  favor  of  the  plaintiff  upon  the  second  cjuestion 
(one  half  of  the  "Smallidge"  lot  conveyed  by  that  deed,  making  five- 
sixths  in  the  Boyds),  the  plaintiff  would  be  entitled  by  reason  of  his 
conveyances  to  the  remaining  one-sixth.  .  .  . 

Wiswell,  King,  and  Peters,  for  plaintiff.  A  deed  delivered  without 
the  consent  of  the  grantor  is  absolutely  void ;  it  is  like  a  forged  or  a  stolen 
deed  and  passes  no  title  to  the  grantor  which  he  can  part  with.  The 
principle,  that  where  one  of  two  innocent  parties  must  suffer,  he  whose 
act  has  caused  the  loss  must  bear  it,  does  not  apply,  because,  princi- 
pally, the  depositary  is  not  the  agent  of  the  grantor  any  more  than  of 


No.  811  ENACTION  OF  A  LEGAL  ACT  1187 

the  grantee;  he  is  simply  a  person  agreed  upon  by  both  parties  to  hold 
the  escrow  until  the  happening  of  a  particular  event.  Even  if  he  was  the 
agent  of  the  grantor,  as  has  often  been  insisted  upon  in  argument,  but 
not  sustained  by  the  authorities,  he  would  be  an  agent  only  with  limited 
authority,  which  authority  is  particularly  understood  by  the  grantee. 
There  is  no  negligence  upon  the  part  of  a  person  in  placing  a  deed  as  an 
escrow  in  the  hands  of  a  responsible  person  agreed  upon  by  the  parties. 
There  is  no  more  equity  in  favor  of  the  innocent  purchaser  than  there  is 
in  favor  of  the  person  whose  deed  has  been  delivered  without  his  knowl- 
edge and  against  his  consent.  The  case  is  similar  to  that  of  a  person 
who  makes  a  deed,  executes  it,  and  keeps  it  in  his  possession  ready  for 
delivery  when  certain  conditions  have  been  complied  with.  If  such  a 
deed  should  be  stolen  for  or  by  the  grantor,  it  could  not  for  a  moment  be 
claimed  that  it  would  pass  any  title  to  the  grantee  which  he  could  convey 
to  an  innocent  purchaser. 

We  think  the  whole  distinction  lies  in  the  difference  between  a  void- 
able deed  and  a  void  deed.  If  a  deed  is  delivered  with  the  consent  of 
the  grantor,  even  if  that  consent  is  obtained  by  fraud  or  even  perhaps 
by  duress,  and  under  such  circumstances  that  the  grantor  could  reinvest 
himself  with  the  title,  yet  until  the  deed  is  avoided,  the  title  passes  and 
the  grantee  can  transfer  that  title  to  a  purchaser  for  value,  without 
notice,  who  can  hold  against  the  person  who  has  been  defrauded  of  his 
property;  this  is  not  true  as  to  a  forged  deed,  a  stolen  deed,  or  a  deed 
delivered  without  the  consent  of  the  grantor.  .  .  . 

Hale  and  Hamlin,  for  defendants. 

Walton,  J.  Whether  the  grantee  named  in  a  deed  delivered  as  an 
escrow,  who  has  wrongfully  obtained  it  and  put  it  on  record,  can  convey 
a  good  title  to  a  bona  fide  purchaser,  is  a  question  in  relation  to  which 
the  authorities  are  in  conflict.  In  Blight  v.  Schenck,  10  Pa.  St.  285,  the 
Court  held,  in  a  full  and  well-reasoned  opinion,  that  the  title  of  a  bona 
fide  purchaser  could  not  be  defeated  by  proof  that  one  of  the  deeds 
through  which  he  claimed  title  was  a  wrongfully  obtained  and  a  wrong- 
fully recorded  escrow.  The  Court  rested  its  decision  on  the  fact  that 
the  custodian  of  an  escrow  is  the  agent  of  the  grantor  as  well  as  the 
grantee,  and,  if  one  of  two  innocent  persons  must  suffer  by  the  wrongful 
act  of  the  agent,  he  who  employs  an  unfaithful  agent,  and  puts  it  in  his 
power  to  do  the  act,  must  bear  the  loss;  that  the  agent  has  the  power 
to  deliver  the  deed,  and,  if  he  delivers  it  contrary  to  his  instructions,  he 
will  be  answerable  to  his  principal ;  and  it  is  therefore  reasonable  that  the 
latter,  and  not  the  innocent  purchaser,  should  bear  the  loss.  In  Everts 
V.  Agnes,  4  Wis.  343,  the  contrary  was  held.  But  in  the  latter  case  the 
Court  appears  to  have  acted  in  ignorance  of  the  decision  in  the  former 
case,  and  in  ignorance  of  the  equitable  doctrine  upon  which  it  rests, 
although  the  former  decision  was  made  six  years  before  the  latter.  This, 
as  it  seems  to  us,  was  an  vmfortunate  oversight;  for  the  former  decision  is 
supported  by  reasoning  so  strong,  and,  as  it  seems  to  us,  so  satisfactory. 


1188  BOOK   VI :     PAROL    EVIDENCE    RULES  No.  811 

we  cannot  resist  the  conviction  that  if  the  attention  of  the  Court  had 
been  called  to  it,  and  the  principles  on  which  it  rests,  a  different  con- 
clusion would  have  been  reached;  and  the  subsequent  decisions,  which 
have  followed  the  lead  of  that,  would  have  no  existence. 

But  be  this  as  it  may,  the  authorities  all  agree  that  a  deed  cannot 
be  delivered  directly  to  the  grantee  himself,  or  to  his  agent  or  attorney, 
to  be  held  as  an  escrow;  that,  if  such  a  delivery  is  made,  the  law  will 
give  effect  to  the  deed  immediately,  and  according  to  its  terms,  divested 
of  all  oral  conditions.  The  reason  is  obvious.  An  escrow  is  a  deed 
deli\'ered  to  a  stranger,  to  be  delivered  by  him  to  the  grantee  upon  the 
performance  of  some  condition,  or  the  happening  of  some  contingency, 
and  the  deed  takes  effect  only  upon  the  second  delivery.  Till  then,  the 
title  remains  in  the  grantor.  And  if  the  delivery  is  in  the  first  instance 
directly  to  the  grantee,  and  he  retains  the  possession  of  it,  there  can  be 
no  second  delivery,  and  the  deed  must  take  effect  on  account  of  the  first 
delivery,  or  it  can  never  take  effect  at  all.  And  if  it  takes  effect  at  all, 
it  must  be  according  to  its  WTitten  terms.  Oral  conditions  cannot  be 
annexed  to  it.  It  will  therefore  be  seen  that  a  delivery  to  the  grantee 
himself  is  utterly  inconsistent  with  the  idea  of  an  escrow.  And  it  is 
perfectly  well  settled,  by  all  the  authorities,  ancient  and  modern,  that 
an  attempt  to  thus  deliver  a  deed  as  an  escrow  cannot  be  successful; 
that  in  all  cases  where  such  deliveries  are  made  the  deeds  take  effect 
immediately  and  according  to  their  terms,  divested  of  all  oral  conditions. 
And  it  is  equally  well  settled  that,  if  the  delivery  is  to  one  who  is  acting 
at  the  time  as  an  agent  or  attorney  of  the  grantee,  the  effect  is  the 
same.  .  .  . 

The  principal  contention  in  the  present  case  is  whether  one  of  the 
deeds  through  which  the  defendants  have  derived  their  title  was  legally 
delivered.  The  deed  is  from  George  E.  Seavy  and  Nathaniel  H.  Clark 
to  Thomas  Boyd  and  Robert  W.  Boyd.  It  is  dated  January  26,  1878, 
was  acknowledged  the  same  day,  and  recorded  July  15,  1878.  The 
plaintiff  claims  that  this  deed  was  delivered  as  an  escrow,  and,  although 
acknowledged  and  recorded,  never  became  operative.  Upon  the  proofs 
in  the  case,  we  do  not  think  such  an  attack  upon  the  defendants'  title 
is  permissible.  The  proof  is  that  the  deed  was  made  and  accepted  in 
part  payment  of  a  debt  owing  from  the  grantors  to  the  grantees,  and 
that  it  was  in  fact  delivered  to  one  G.  C.  Bartlette,  an  attorney  at  law, 
who  had  been  employed  by  the  grantees  to  collect  the  debt;  that  Bart- 
lette afterwards  sent  the  deed  by  mail  to  the  grantees,  and  that  they 
caused  it  to  be  recorded;  and  that,  at  the  time  of  the  defendant's  pur- 
chase, the  deed  had  been  on  record  for  more  than  eight  years,  its  validity 
apparently  uncontested  and  unchallenged.  And  it  is  admitted  that 
the  defendants  are  innocent  purchasers  for  value,  and,  at  the  time  of 
their  purchase,  had  no  notice  of  the  condition  of  the  title  other  than 
that  disclosed  by  the  record.  Under  these  circumstances,  and  for  the 
reasons  already  given,  we  think  the  plaintiff  is  estopped  to  deny  that 


No.  812  ENACTION  OF  A  LEGAL  ACT  1189 

the  deed  was  legally  delivered.  We  rest  our  decision  upon  the  ground 
that  the  deed  was,  in  fact,  delivered  to  the  grantees'  attorney  as  such, 
and  that  such  a  delivery  is  equivalent  to  a  delivery  to  the  grantee  him- 
self; and  that,  when  such  a  delivery  is  made,  it  is  not  competent  for  the 
grantor,  or  those  claiming  under  him  by  a  subsequent  conveyance,  to 
show  by  oral  evidence  that  a  condition  was  annexed  to  the  delivery,  for 
the  nonperformance  of  wliich  the  deed  never  became  operative. 

It  seems  to  us  that  to  hold  otherwise  would  render  all  deeds  of  little 
value  as  evidence  of  title.  Escrows  are  deceptive  instruments.  They 
are  not  what  they  purport  to  be.  They  purport  to  be  instruments 
which  have  been  delivered,  when  in  fact  they  have  not  been  delivered. 
They  clothe  the  grantees  with  apparent  titles  which  are  not  real  titles. 
Such  deeds  are  capable  of  being  used  to  enable  the  grantees  to  obtain 
credit  which  otherwise  they  could  not  obtain.  They  are  capable  of 
being  used  to  deceive  innocent  purchasers.  And  the  makers  of  such 
instruments  cannot  fail  to  foresee  that  they  are  liable  to  be  used.  And 
when  the  maker  of  such  an  instrument  has  \oluntarily  parted  with  the 
possession  of  it,  and  delivered  it  into  the  care  and  keeping  of  a  person 
of  his  own  selection,  it  seems  to  us  that  he  ought  to  be  responsible  for 
the  use  that  may  in  fact  be  made  of  it;  and  that  in  no  other  way  can 
the  public  be  protected  against  the  intolerable  evil  of  having  our  public 
records  encumbered  with  such  false  and  deceptive  instruments. 

Another  question  is,  w^hether  the  deed  conveys  the  whole  or  only 
an  undivided  half  of  the  grantor's  interest  in  the  dem.anded  premises. 
We  think  it  conveys  only  an  undivided  half.  .  .  . 

Judgment  for  plaintiff  for  one  undivided  sixth  part  of  the  demanded 
premises,  and  no  more. 

Peters,  C.  J.,  Virgin,  Emery,  Foster  and  Haskell,  JJ.,  concurred. 

812.  A.  M.  KiDD.  Delivery  in  Escrow.  (1907.  Illinois  Law  Review, 
IT,  110.)  Deeds  —  Deliverj'  in  Escrow.  —  As  one  ground  for  it  decision,  our 
Supreme  Court,  in  Blake  v.  Ogden,  223  111.  204,  seems  to  announce  the  rule  that 
if  A  executes  a  deed  in  which  B  is  grantee  and  then  delivers  the  deed  to  a  third 
person  upon  the  condition  expressed  dehors,  the  deed  itself  that  it  is  not  to  be 
delivered  to  B  until  the  death  of  the  grantor's  wife,  and  the  deed  is  delivered  to 
the  grantee  B  in  breach  of  the  condition,  B,  if  he  had  no  notice  of  the  condition, 
will  nevertheless  obtain  a  legal  title  unimpeachable  by  the  grantor  in  equity 
after  the  death  of  the  grantor's  wife,  although  B  was  a  mere  volunteer. 

IMany  States  hold  rigidly  to  the  view  that,  unless  there  is  a  deliver^'  by  the 
holder  in  escrow  according  to  the  terms  of  the  condition,  no  legal  title  passes  to 
the  original  grantee.  Therefore,  no  legal  title  can  pass  to  any  subsequent  grantee 
and  it  makes  no  difference  whether  the  original  grantee  or  any  subsequent  grantee 
is  a  bona  fide  purchaser  for  value  or  not  (Smith  r.  South  Royalton  Bank,  32  Vt. 
341;  Everts  v.  Agnes,  6  Wis.  453;  Gould  v.  Wise,  97  CaL^32;  Jackson  r.  Lynn, 
62  N.  W.  R.  704  (la.);  Harkreader  r.  Clayton,  §6  Miss.  383).  The  Supreme 
Court  should  perhaps  be  regarded  as  repudiating  this  view. 

Mr.  Wigmore  (4  Wigmore  on  Evidence,  § 2420)  takes  this  position:  "Whether 
the  act  has  been  completed,  or  delivered,  is  not  to  be  determined  by  the  actual 


1190  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  812 

intention  of  the  actor,  but  by  the  inquiry  whether  his  conduct  produced  as  a 
reasonable  consequence  the  appearance  of  finaUty  to  the  other  person."  In  short, 
the  negligent  conduct  of  the  grantor  may  be  made  the  substitute  for  an  actual 
intent  to  deliver  free  of  all  conditions.  It  logically  follows  that  "the  very 
same  conduct  may  constitute  a  valid  legal  act  as  against  one  person,  though  at 
the  same  time  not  as  against  another  person."  Such  a  principle,  however,  does 
not  seem  to  explain  tlie  language  used  in  the  principal  case;  because  there  was 
no  evidence  that  the  third  party  selected  as  the  holder  in  escrow  was  an 
improper  j^erson  or  that  the  grantor  was  in  any  degree  negligent  or  failed  to 
use  proper  precautions.  Mr.  Wigmore's  view  would  seem  to  apply  to  the 
principal  case  only  provided  it  were  ipso  facto  negligent  to  make  any  delivery 
at  all  to  a  third  party  on  condition.  Perhaps  some  cases  go  so  far.  (Schurtz  v. 
Colvin,  45  N.  E.  R.  527  (Ohio);  Quick  ».  Milligan,  108  Ind.  419.) 

It  is  true  that  the  cases  in  which  the  bona  fide  purchaser  is  protected  in  a 
legal  title  against  the  grantor  (Schurtz  v.  Colvin,  45  N.  E.  R.  527  (Ohio);  Blight 
V.  Shenck,  10  Pa.  St.  285;  Quick  v.  Milligan,  108  Ind.  419;  Hubbard  r.  Greeley, 
84  Me.  340)  might  proceed  (apart  from  Mr.  Wigmore's  theory)  upon  the  ground 
that  the  delivery  contrary  to  the  conditions  dehors  the  deed  imposed  by  the 
grantor  nevertheless  passes  the  legal  title  to  the  grantee,  which  the  grantee  may 
pass  on  to  others,  but  that  the  original  grantee  or  any  subsequent  purchaser  with 
notice  holds  the  legal  title  upon  a  constructive  trust  for  the  original  grantor.  In 
this  view  the  only  question  is,  what  facts  exist  which  cut  off  the  equity  of  the 
grantor.  Clearly  it  is  cut  off  if  the  grantee  or  any  subsequent  purchaser  from 
him  is  a  bona  fide  purchaser. 

In  the  case  at  bar,  however,  the  facts  do  not  come  up  to  that.  The  grantee 
is  innocent  of  any  delivery  in  breach  of  the  condition.  He  is  not  a  purchaser  for 
value,  but  a  mere  volunteer.  Ordinarily  this  is  not  enough  to  cut  off  an  equity. 
But  the  situation  here  is  peculiar.  The  event  upon  which  the  grantee  was  to 
take  was  sure  to  have  happened  sometime  and  has  in  fact  happened.  It  seems 
pretty  hard  to  say  that  because  of  the  act  of  the  escrowee  unknown  to  the  grantee 
to  be  improper,  the  grantee  is  to  be  entirely  deprived  and  the  grantor's  heir  let 
in.  And  yet  the  grantor  was  doing  what  he  wished  with  his  own,  and  however 
little  he  may  have  been  damaged  or  inconvenienced,  the  violation  of  his  expressed 
wishes  cannot  be  made  good  to  him.  The  breach  of  the  condition  is  nothing  that 
can  be  made  good  to  the  grantor  in  money.  In  this  respect  the  case  is  not  unlike 
that  where  there  is  a  breach  by  the  tenant  of  a  condition  to  keep  the  premises 
insured.  Equity  will  not,  under  those  circumstances,  relieve  the  tenant  from  a 
forfeiture  for  breach  of  the  condition,  although  the  tenant  Has  taken  out  insur- 
ance and  though  no  loss  has  occurred:  Rolf  v.  Harris,  2  Price  206;  Reynolds  v. 
Pitt,  19  Ves.  Jr.  134;  White  v.  Warner,  2  Meriv.  459;  Green  v.  Bridges,  4  Sim. 
96;  Meek  v.  Carter,  4  Jur.  N.  S.  992.  Then,  too,  if  there  be  an  equity  raised  in 
favor  of  the  grantor  in  any  case  where  the  escrowee  delivered  contrary  to  the 
condition,  it  might  seem  unadvisable  to  make  a  distinction  regarding  those  sorts 
of  conditions  the  breach  of  which  will  raise  a  constructive  trust  of  the  legal  title 
for  the  grantor  and  those  that  will  not. 

On  the  whole,  therefore,  the  declaration  of  the  Court  in  favor  of  the  grantee 
might  very  properly  have  been  reserved  for  fiu-tlier  consideration  in  a  case  where 
the  question  actually  arose. 

813.  Louis  M.  Greeley.  Unauthorized  Deliv.ery  of  Escrmv.  (1912.  Illinois 
Law  Review,  VI,  416.)     In  Forcum  v.  Ehvood,  251  111.  301,  the  Supreme  Court 


No.  814  ENACTION  OF  A  LEGAL  ACT  1191 

holds  that  where  the  grantor  turns  over  his  deed  to  a  real  estate  agent  to  deliver 
to  the  grantee,  the  agent  has  no  authority  to  ileliver  the  deed  to  a  third  person 
fraudulently  impersonating  the  grantee;  and  that  want  of  delivery  of  the  deed 
can  be  shown  to  defeat  the  title  of  one  purchasing  in  good  faith  and  for  value 
from  such  third  person.  The  law  is  clear  that  a  deed  delivered  by  a  depositary 
in  violation  of  the  terms  and  provisions  of  the  deposit  or  escrow  is  void  for  all 
purposes  and  that  such  unauthorized  delivery  may  be  shown  to  defeat  the  title 
of  a  bona  fide  purchaser  for  value  from  the  grantee  named  in  the  deed.  Everts 
V.  Agnes,  4  Wis.  343;  Jackson  i'.  Lynn,  94  Iowa  151;  Fearing  v.  Clark,  16  Gray 
74;   Devlin  on  Real  Estate  (3d  ed.),  §  322. 

It  is  of  interest  to  note  that  in  the  case  of  negotiable  paper  the  contrary  rule 
seems  to  prevail,  and  an  innocent  purchase  for  value  before  maturity  is  allowed 
to  recover,  though  the  instrument  was  originally  delivered  by  an  escrowee  in 
violation  of  the  escrow.  Fearing  v.  Clark,  16  Gray  74;  Vallette  v.  Parker,  6 
Wend.  615.  (Contra:  Chipman  v.  Tucker,  38  Wis.  43;  Roberts  v.  McGrath, 
38  Wis.  52;  Roberts  v.  Wood,  38  Wis.  60.)  Under  the  Uniform  Negotiable 
Instruments  Law,  §  16,  it  is  clear  the  unauthorized  delivery  by  the  escrowee  would 
be  no  defence  as  against  a  holder  in  due  com"se. 


814.   GUARDHOUSE  v.   BLACKBURN 

Probate  and  Divorce.     1866 

L.  R.l  P.  &  D.  109 

The  plaintiffs  were  residuary  legatees  under  a  will  of  Mrs.  Hannah 
Jameson,  who  died  on  August  23,  1863,  leaving  a  will  dated  May  30, 
1851,  and  a  codicil  dated  April  13,  1852.  The  defendants  were  the 
executors.  The  will  charged  the  testatrix'  tliree  estates  with  legacies 
to  the  amount  of  $1,300. 

The  plaintiffs  admitted  the  due  execution  of  the  will  and  codicil, 
and  the  only  question  raised  by  them  was  as  to  whether  the  words 
"therein  and,"  at  the  end  of  the  codicil,  were  entitled  to  probate.  By 
their  plea  they  denied  that  the  codicil,  as  executed,  expressed  the  wishes 
and  intentions  of  the  deceased;  and  alleged  that  she,  having  a  mind  to 
alter  her  will,  sent  for  William  Carrick,  her  solicitor,  and  gave  him 
instructions  for  a  codicil,  which  he  reduced  into  writing,  and  which 
instructions  were  pleaded;  which,  after  giving  and  revoking  the  legacies 
mentioned  in  the  codicil  as  executed,  concluded,  "  And  I  charge  all  the 
said  legacies  on  my  personal  estate."  That  the  said  William  Carrick, 
intending  to  prepare  the  said  codicil  for  execution,  and  to  make  a  few 
verbal  alterations  only,  wrote  out  the  paper  propounded,  but  that  he 
inadvertently,  or  by  mistake,  and  without  any  instructions  whatever 
to  that  effect  from  the  deceased,  wrote  the  words,  "  And  I  direct  all  the 
legacies  therein  and  herein  given  (and  not  revoked)  to  be  paid  out  of  my 
personal  estate,"  in  lieu  of  "and  I  charge  all  the  said  legacies  on  my 
personal  estate."  That  the  effect  of  the  said  words,  "therein  and," 
which  had  the  effect  of  discharging  the  estate  of  Scales  of  legacies  to  the 


1192  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  814 

amount  of  £500,  and  the  estate  of  Stainton  of  the  payment  of  legacies 
to  the  amount  of  £800,  was  not  observed  by  the  said  WiUiam  Carrick, 
nor  by  the  deceased,  when  she  executed  the  codicil,  and  that  the  said 
paper  writing,  containing  the  words  "therein  and,"  was  not  the  codicil 
of  the  said  deceased.  William  Carrick  said  in  examination:  He  took 
the  instructions  from  the  testatrix  by  word  of  mouth,  at  her  residence, 
and  wrote  them  down  in  her  presence  on  the  draft.  The  draft  was  in- 
tended to  be  copied  for  execution.  From  the  draft  he  prepared  in  her 
presence  a  copy  for  execution  for  her,  varying  in  a  few  particulars  from 
the  draft,  but  not  in  substance,  until  he  came  to  the  words  in  dispute. 
He  read  over  the  draft  to  her,  and  asked  if  it  was  as  she  intended  it. 
She  expressed  herself  satisfied  with  it.  He  read  the  copy  over  to  her, 
so  that  she  could  understand  it.  She  said  nothing,  but  proceeded  to 
execute  it.  He  retained  the  codicil  in  his  custody  until  the  deceased's 
death.  She  gave  him  no  instructions  to  discharge  the  real  estates  of 
Scales  and  Stainton  from  the  legacies  of  £1,300;  and  he  had  no  instruc- 
tions from  her  to  insert  the  words  "therein  and."  He  inserted  them  by 
inadvertence.  Her  attention  was  not  particularly  directed  to  them,  and 
his  attention  was  first  directed  to  them  after  her  death. 

Dr.  Deane,  Q.  C.  (Dr.  Tristram  with  him),  for  the  defendants,  con- 
tended :  First,  it  was  not  competent  to  the  Court  to  vary  a  will  by  parol 
evidence.  By  so  doing,  the  very  object  of  the  Wills  Act  would  be 
defeated,  which  was  to  do  away  with  all  evidence  except  that  which 
appeared  within  the  four  corners  of  the  will.  Secondly,  the  Court  was 
asked  to  do  what  the  deceased  could  not  have  done  for  herself  in  her 
lifetime.  If  she  had  inserted  these  words  "per  incuriam,"  and  had  after 
execution  struck  her  pen  through  them,  they  would  be  restored  to  pro- 
bate. Thirdly,  there  was  no  case  in  which  a  clause  had  been  expunged 
from  probate,  unless  it  had  been  inserted  by  fraud.  .  .  . 

Dr.  Spinks  (Mounsey  with  him),  for  the  plaintiffs,  submitted  there 
were  two  questions  for  the  consideration  of  the  Court.  First,  was  parol 
evidence  admissible  to  correct  the  mistake?  It  was  laid  down  in  1 
Williams  on  Executors,  p.  330,  5th  ed.,  that,  if  a  particular  clause  had 
been  inserted  in  a  will  by  fraud,  without  the  knowledge  of  the  testator 
in  his  lifetime,  it  ought  to  be  excluded  from  the  probate.  There  was  no 
distinction  in  principle,  and  there  ought  to  be  none  in  practice,  in  ex- 
punging a  clause,  whether  inserted  in  a  will  by  fraud  or  by  mistake. 
The  function  of  a  Court  of  Probate  was  to  ascertain  what  the  testator 
intended  to  constitute  as  his  will.  .  .  .  Secondly,  did  the  evidence  of 
Carrick  satisfy  the  Court  of  the  mistake?  It  was  submitted  it  was 
ample  to  do  so. 

Sir  J.  P.  Wilde.  —  The  plaintiffs  have  cited  the  defendants  to  bring 
in  the  probate  of  the  will  and  codicil  of  Mrs.  Hannah  Jameson,  that  it 
may  be  cancelled.  The  defendants  have  propoimded  these  papers  for 
probate;  and  the  plaintiffs  contend  that  the  words  "therein  and"  ought 
to  be  expunged  from  the  codicil  before  probate  is  granted  thereof.     The 


No.  814  •  ENACTION  OF  A  LEGAL  ACT  1193 

effect  of  these  words,  which  undoubtedly  appear  in  the  codicil,  and  were 
there,  it  is  admitted,  when  it  was  executed,  is  to  discharge  certain  por- 
tions of  the  real  estate  from  pecuniary  legacies  of  considerable  amount, 
with  which  they  were  charged  by  the  will.  The  ground  upon  which 
the  Court  is  asked  to  expunge  them  is,  that  they  were  inserted  by  the 
attorney  who  drew  the  codicil  by  mistake,  and  without  instructions. 
This  is  proven  to  be  the  fact  (if  the  evidence  is  admissible,  and  can  be 
relied  upon)  by  the  oath  of  the  attorney,  and  by  a  paper  which  he  swears 
to  have  been  the  rough  draft  of  the  codicil  made  by  him  in  the  presence 
of  the  testatrix,  and  from  her  verbal  directions.  ...  I  must  premise 
that  the  ^Yills  Act  has  worked  a  great  change  in  the  old  testamentary 
law,  as  administered  by  the  ecclesiastical  Courts  on  this  head.  Under 
that  law,  a  testamentary  paper  needed  not  to  have  been  signed,  provided 
it  was  in  the  testator's  writing;  and  all  papers  of  a  testamentary  purport, 
if  in  his  writing,  commanded  the  eciual  attention  of  the  Court,  save  so 
far  as  one,  from  its  date  or  form,  might  be  manifestly  intended  to  super- 
sede or  revoke  another,  as  a  will  superseding  instructions,  or  a  subse- 
quent will  revoking  a  former.  .  .  .  But  the  words  of  the  Wills  Act, 
"No  will  shall  be  valid"  unless  executed  in  a  certain  manner,  obviously 
exclude  the  probate  of  unexecuted  intructions  altogether,  and  have 
rendered  it  no  longer  possible  to  the  Court  of  Probate  to  treat  them  as 
part  of  a  will.  .  .  . 

But  then  comes  the  question,  if  the  Court  cannot  now,  as  it  could 
before  the  statute,  give  effect  to  any  provision  omitted  by  mistake  from 
the  will,  does  it  still  retain  the  power  to  strike  out  any  portion  of  the 
contents  of  a  duly  executed  paper  on  the  ground  that,  although  such 
portion  formed  part  of  the  paper  when  executed  by  the  testator,  it  was 
inserted  or  retained  by  mistake  or  inadvertence?  This  is  what  is  asked 
on  the  present  occasion.  Against  this  being  done,  it  was  strongly  argued 
that  the  Court  has  no  such  power.  The  argument  was  put  on  several 
grounds,  and,  amongst  others,  upon  the  ground  that  parol  evidence  was 
inadmissible  upon  the  question.  ... 

The  truth  is,  that  the  rules  excluding  parol  evidence  have  no  place 
in  any  inquiry  in  which  the  Court  has  not  got  before  it  some  ascertained 
paper  beyond  question  binding  and  of  full  effect.  Nor  indeed  are  these 
rules  pressed  in  the  Courts  either  of  law  or  equity  beyond  this  mark: 
For  if  the  written  document  is  alleged  to  have  been  signed  under  con- 
dition that  it  should  not  operate  except  in  certain  events,  parol  evidence 
has  been  admitted  at  law  to  prove  such  condition  and  the  breach  of  it: 
see  Pym  v.  Campbell,  6  E.  &  B.  370  [ante,  No.  799].  Or  if  (going  further 
still)  some  plain  and  palpable  error  has  crept  into  the  written  document, 
equity  formerly,  and  the  Courts  of  common  law  now,  sanction  the  ad- 
mission of  evidence  to  expose  the  error:  see  the  case  of  Wake  v.  Harrop, 
6  H.  &  N.  768.  .  .  .  Supposing,  then,  parol  evidence  to  be  admissible  in 
such  a  case  as  the  present,  the  question  recurs,  to  what  extent  is  it  still 
open  to  the  Court  since  the  statute,  to  act  upon  such  evidence,  for  the 


1194  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  814 

purpose  of  rejecting  the  whole  or  expunging  any  portion  of  the  WTitten 
testament  to  which  the  testator  has  duly  affixed  his  name?  .  .  . 

After  much  consideration  the  following  propositions  commend  them- 
selves to  the  Court  as  rules  which,  since  the  statute,  ought  to  govern 
its  action  in  respect  of  a  duly  executed  paper: 

First,  that  before  a  paper  so  executed  is  entitled  to  probate,  the 
Court  must  be  satisfied  that  the  testator  knew  and  approved  of  the  con- 
tents at  the  time  he  signed  it. 

Secondly,  that  except  in  certain  cases  where  suspicion  attaches  to  the 
document,  the  fact  of  the  testator's  execution  is  sufficient  proof  that  he 
knew  and  approved  the  contents. 

Thirdly,  that  although  the  testator  knew  and  approved  the  contents, 
the  paper  may  still  be  rejected,  on  proof  establishing,  beyond  all  possi- 
bility of  mistake,  that  he  did  not  intend  the  paper  to  operate  as  a  will. 

Fourthly,  that  although  the  testator  did  not  know  and  approve  the 
contents,  the  paper  may  be  refused  probate,  if  it  be  proved  that  any 
fraud  has  been  purposely  practiced  on  the  testator  in  obtaining  his 
execution  thereof. 

Fifthly,  that,  subject  to  this  last  preceding  proposition,  the  fact  that 
the  will  has  been  duly  read  over  to  a  capable  testator  on  the  occasion 
of  its  execution,  or  that  its  contents  have  been  brought  to  his  notice  in 
any  other  way,  should,  when  coupled  with  his  execution  thereof,  be  held 
conclusive  evidence  that  he  approved  as  well  as  he  knew  the  contents 
thereof. 

Sixthly,  that  the  above  rules  apply  equally  to  a  portion  of  the  will  as 
to  the  whole.  .  .  . 

It  remains  to  say  a  few  words  on  the  fifth  [proposition].  It  is  here 
that  the  right  to  derogate  from  the  force  of  an  executed  paper  approaches 
and  receives  its  limit.  And  it  is  obvious  enough,  that  if  the  Court  should 
allow  itself  to  pass  beyond  proof  that  the  contents  of  any  such  paper 
were  read  or  otherwise  made  known  to  the  testator,  and  suffer  an  inquiry 
by  the  oath  of  the  attorney  or  others  as  to  what  the  testator  really 
wished  or  intended,  the  authenticity  of  a  will  would  no  longer  repose  on 
the  ceremony  of  execution  exacted  by  the  statute,  but  would  be  set  at 
large  in  the  wide  field  of  parol  conflict,  and  confided  to  the  mercies  of 
memory.  The  security  intended  by  the  statute  would  thus  perish  at 
the  hands  of  the  Court.  ...  In  the  present  case,  the  codicil  was  proved 
to  have  been  read  over  to  the  testator  before  the  execution  thereof; 
she  duly  executed  the  same;  and  the  Court  conceives  it  to  be  beyond 
its  functions  or  powers  to  substitute  the  oath  of  the  attorney  who 
prepared  it,  fortified  by  his  notes  of  the  testator's  instructions,  for  the 
wTitten  provisions  contained  in  a  paper  so  executed.  The  probate  will, 
therefore,  be  delivered  out  to  the  plaintiffs  in  its  present  form. 


815.   Beaahsh  v.  Beamish.    (Chancery  Division,  Ireland,  1893.     (1894)  1  Ir. 
Rep.  7,  21.)     The  President:  This  principle  of  proving  knowledge  and  approval 


No.  815  ENACTION  OF  A  LEGAL  ACT  1195 

was  discussed  at  great  length  at  the  bar,  and  I  was  pressed  with  the  considera- 
tion that  there  was  never  a  presumption  de  jure  of  the  fact.  Many  authorities 
were  cited,  all  of  which  I  have  considered,  and  I  venture  to  state  the  following 
propositions : 

1.   Knowledge  and  approval  of  a  will  is  necessary,  and  must  be  proved. 

The  execution  of  a  will  by  a  competent  testator  is  presumptive  and  prima         ' 
facie  proof  of  the  fact. 

3.  If  the  competent  testator  has  read  the  will,  or  heard  it  read,  the  presump- 
tion is  strong  and  conclusive,  unless  there  are  special  circumstances  attending  the 
execution  of  the  will.  .  .  . 

4.  Among  such  special  circumstances  are  fraud,  as  explained  in  Fulton  v. 
Andrew,  L.  R.  7  H.  L.  448,  and  which  as  so  explained  includes  dereliction  of 
duty,  as  illustrated  in  that  case  and  Hegarty  v.  King,  7  L.  R.  Ir.  68.  .  .  . 

5.  Wliether  read  or  not,  if  in  any  way  the  contents  of  the  will  have  been 
brought  to  the  notice  of  the  testator,  the  effect  is  the  same:  Guardhouse  i'.  Black- 
burn, L.  R.  I.  P.  &  M.  116  [ante,  No.  814]  approved  in  Harter  v.  Harter,  L.  R. 
3  P.  &  M.  11. 

6.  Even  when  there  has  been  a  reading  of  the  will,  but  the  state  of  the  testa-       / 
tor  was  such  that  he  could  not  have  had  an  intelligent  appreciation  of  the  words, 

he  must  be  taken  to  have  known  and  approved  of  the  will  if  the  words  have  been 
bona  fide  used  by  a  person  whom  he  trusts  to  draw  it  up  for  him. 


1196  BOOK  VI :     PAROL   EVIDENCE   RULES  No.    816 

SUB-TITLE    III.     ACT    VOIDABLE 

816.   STATE  V.   CASS 

Supreme  Court  of  New  Jersey.     1889 

52  N.  J.  L.  77 

Certiorari  upon  a  judgment  for  the  plaintiff  Catherine  Cass,  in 
an  action  against  S.  Cummings  to  recover  8125,  the  price  paid  to  him 
for  a  horse,  sold  on  fraudulent  representations  as  to  his  speed.  Mr. 
Cass,  in  the  presence  of  his  wife,  the  plaintiff,  stated  to  the  defendant 
that  they  desired  a  horse  that  could  make  the  distance  between  Rockland 
and  Orange  Valley,  between  seven  and  eight  miles,  in  one  hour  or  one 
and  a  half  hours,  and  stated  that  if  the  horse  could  not  do  that  they 
didn't  want  to  buy  him;  to  which  the  defendant  replied  that  the  horse 
could  easily  do  that.  There  was  evidence  that  the  horse  was  not  able  to 
travel  seven  or  eight  miles  in  one  hour  or  in  one  hour  and  a  half,  and  was 
not  fit  for  the  purpose  for  which  he  had  been  bought.  It  appeared  on 
the  cross-examination  of  the  plaintiff  that  at  the  time  of  the  sale  a  written 
warranty  of  the  horse  had  been  given  in  the  following  form:  "Newark, 
April  6,  1887.  To  one  gray  horse  Charley,  which  I  warrant  to  be  sound 
and  kind  with  the  exception  of  straining  of  muscle  of  left  hind  leg."  The 
counsel  for  defendant  thereupon  moved  that  all  evidence  as  to  repre- 
sentations made  by  the  defendant,  other  than  those  contained  in  the 
written  warranty,  be  stricken  out,  on  the  ground  that  the  agreement  of 
the  parties  having  been  reduced  to  writing,  such  A\Titing  could  not  be 
varied  or  enlarged  by  parol  evidence.  The  Court  denied  the  motion, 
and  allowed  an  exception. 

Reed,  .J.  .  .  .  [The  parol  evidence  rule]  is  not  infringed  by  the  admis- 
sion of  parol  testimony  which  is  not  intended  as  a  substitution  for  or  an 
addition  to  a  written  contract,  but  which  goes  to  show  that  the  instru- 
ment is  void  or  voidable,  and  that  it  never  had  any  legal  existence  or 
binding  force,  either  by  reason  of  fraud,  or  for  want  of  due  execution 
and  delivery,  or  for  the  illegality  of  the  subject-matter  of  the  contract. 
Nor  is  the  admission  of  parol  evidence  for  the  purpose  of  avoiding  a 
written  contract  on  the  ground  of  fraud,  confined  to  such  testimony  as 
goes  to  show  that  a  party  was  lured  to  make  a  contract  other  than  that 
intended,  as  by  the  substitution  of  one  contract  for  another  by  trickery, 
or  by  misreading  a  contract  to  an  illiterate  person.  Parol  testimony 
may  be  admitted  to  show  that  the  execution  of  a  written  contract  was 
brought  about  by  a  fraudulent  representation.  .  .  .  The  elements  essen- 
tial to  constitute  such  fraudulent  representation  will  be  considered  later, 
and  it  is  now  necessary  only  to  remark  that  such  evidence  as  will  lay  a 
foundation  for  an  action  of  deceit  or  a  ground  for  the  recission  of  the  con- 
tract, is  always  receivable,  although  it  consists  of  oral  representations. 


No.  816  ENACTION    OF    A    LEGAL    ACT  1197 

This  point  was  strenuously  denied  in  the  arguments  submitted  by 
the  counsel  for  the  defendant.  His  contention  was,  that  fraud  in  the 
execution  of  the  instrument  could  be  shown,  but  that  oral  representations 
going  to  a  failure  of  consideration  only  could  not.  The  seeming  strength 
of  his  contention  lay  in  the  likeness  between  the  written  and  the  oral 
facts  in  the  present  case,  both  concerning  the  quality  of  the  animal 
sold.  The  written  warranty  applied  to  the  soundness  and  kindness  of 
the  horse,  and  the  oral  testimony  to  the  speed  of  the  animal.  The  dan- 
ger of  permitting  parol  declarations  to  be  proved,  which  were  so  nearly 
related  to  the  subject-matter  of  the  written  warranty,  was  strongly 
pressed  as  an  evil  which  the  rule  of  evidence  already  stated  seemed 
especially  designed  to  prevent.  But  the  distinction  between  such  repre- 
sentations as  add  to  the  contract  and  such  as  avoid  the  contract,  because 
of  their  fraudulent  character,  is  too  firmly  established  in  our  jurispru- 
dence to  be  now  shaken.  As  an  additional  warranty,  that  is,  an  addition 
to  the  contract,  the  present  representations  were  clearly  inadmissible. 
So  soon,  however,  as  they  displayed  such  features  as  went  to  show  that 
through  them  the  contract  had  been  fraudulently  induced,  and  so  was 
unenforceable  for  that  reason,  at  the  election  of  the  defrauded  party, 
the  rule  excluding  parol  testimony  to  enlarge  a  written  contract  became 
inoperatiA'e.  It  is  of  course  obvious,  that  the  fact  that  there  was  a  written 
warranty  in  respect  to  the  soundness  and  kindness  of  the  animal  would 
be  a  forcible  argument  that  no  other  representations  as  to  quality  were 
msRle.  The  existence  of  the  written  warranty  would  be  useful  in  de- 
termining the  probability  of  the  truth  of  the  counter  statements  of  the 
parties  as  to  the  existence  or  non-existence  of  the  parol  declaration. 
But  w^hen  the  fraudulent  affirmations  are  once  proven  to  exist,  the  written 
contract  becomes  unimportant.  This  seems  to  be  an  elementary  prin- 
ciple of  the  law  of  evidence.  The  right  to  prove  fraud,  in  whatever 
shape  it  may  exist,  to  avoid  written  contracts,  has  been  so  uniformly 
recognized  that  it  can  hardly  be  said  to  have  been  the  subject  of  serious 
judicial  discussion.  ...  I  conclude,  therefore,  that  if  the  evidence  estab- 
lished fraudulent  conduct  on  the  part  of  the  defendant,  the  testimony 
was  properly  admitted. 

This  conclusion  leads  to  the  consideration  of  the  testimony  received 
and  submitted  to  the  jury.  This  consideration  involves  two  questions: 
First,  Was  the  testimony  properly  submitted  to  the  jury  at  all?  Sec- 
ond, If  so,  was  it  submitted  under  proper  instructions?  ...  1  am 
convinced  that,  in  assuming  that  the  present  case  was  one  in  which  the 
falsity  of  the  representation  raised  the  legal  inference  of  fraud,  the  Court 
was  in  error.  .  .  . 

For  these  reasons,  I  think  the  judgment  below  should  be  reversed. 


1198  BOOK  VI:  PAROL  EVIDENCE  RULES         No.  817 


817.   FAIRBANKS  v.  SNOW 

Supreme  Judicial  Court  of  Massachusetts.     1887 

14.5  Mass.  153;   13  N.  E.  596 

This  is  an  action  upon  a  promissory  note  made  by  the  defendant 
and  her  husband  to  the  order  of  the  plaintiff.  The  defendant  alleges 
that  her  signature  was  obtained  by  duress  and  threats  upon  the  part  of 
her  husband.  The  judge  below  found  for  the  plaintiff.  .  .  .  The  judge 
refused  to  rule  that,  if  the  defendant  signed  the  note  under  duress,  it 
was  immaterial  whether  the  plaintiff  knew,  when  he  received  the  note, 
that  it  was  so  signed.     The  exception  is  to  this  refusal. 

Holmes,  J.  (after  stating  the  case  as  above).  No  doubt,  if  the 
defendant's  hand  had  been  forcibly  taken  and  compelled  to  hold  the 
pen  and  write  her  name,  and  the  note  had  been  carried  off  and 
delivered,  the  signature  and  delivery  would  not  have  been  her  acts; 
and  if  the  signature  and  delivery  had  not  been  her  acts,  for  whatever 
reason,  no  contract  would  have  been  made,  whether  the  plaintiff  knew 
the  facts  or  not.  There  sometimes  still  is  shown  an  inclination  to  put 
all  cases  of  duress  upon  this  ground.  Barry  v.  Equitable  Life  Assur- 
ance Society  (59  N.  Y.  587,  591).  But  duress,  like  fraud,  rarely,  if 
ever,  becomes  material  as  such,  except  on  the  footing  that  a  conti^ct 
or  conveyance  has  been  made  which  the  party  wishes  to  avoid.  It  is 
well  settled  that  where,  as  usual,  the  so-called  duress  consists  only  of 
threats,  the  contract  is  only  voidable.  .  .  .  This  rule  necessarily  excludes 
from  the  common  law  the  often  recurring  notion  just  referred  to,  and 
much  debated  by  the  civilians,  that  an  act  done  under  compulsion  is  not 
an  act  in  a  legal  sense.  "Tamen  coactus  volui"  (D.  4.  2.  21,  §  5;  see  1 
Windscheid,  Pandekten,  §  80). 

Again,  the  ground  upon  which  a  contract  is  voidable  for  duress  is  the 
same  as  in  the  case  of  fraud;  and  is,  that,  whether  it  springs  from  a  fear 
or  belief,  the  party  has  been  subjected  to  an  improper  motiv^e  for  action. 
But  if  duress  and  fraud  are  so  far  alike,  there  seems  to  be  no  sufficient 
reason  why  the  limits  of  their  operation  should  be  different.  A  party 
to  a  contract  has  no  concern  with  the  motives  of  the  other  party  for 
making  it,  if  he  neither  knows  them  nor  is  responsible  for  their  existence. 
It  is  plain  that  the  unknown  fraud  of  a  stranger  would  not  prevent  the 
plaintiff  from  holding  the  defendant.  .  .  .  The  authorities  with  regard 
to  duress,  however,  are  not  quite  so  clear.  It  is  said  in  Thorough  good's 
case,  2  Rep.  9,  that  "if  a  stranger  menace  A.  to  make  a  deed  to  B.,  A. 
shall  avoid  the  deed  which  he  made  by  such  threats,  as  well  as  if  B. 
himself  had  threatened  him,  as  it  is  adjudged  45  E.  3.  6."  .  .  .  But  in 
Y.  B.  43  E.  III.  6,  pi.  15,  which  we  suppose  to  be  the  case  referred  to,  it 
was  alleged  that  the  defendant  was  imprisoned  by  the  procurement  of  the 


No.  817  ENACTION   OF   A    LEGAL   ACT  1199 

plaintiff.  And  we  know  of  no  distinct  adjudication  of  binding  authority 
that  mere  threats  by  a  stranger,  made  without  knowledge  or  privity  of 
the  party,  are  good  ground  for  avoiding  a  contract  induced  by  them.  .  .  . 

On  the  case  as  it  is  presented  to  us,  we  are  of  opinion  that  the 
ruling  requested  was  WTong  upon  principle  and  authority. 

Exceptions  overruled. 

A.  Xorcross   d-  H.  C.  Hartwell,   (C.  F.  Baker  with  them,)  for  the 
defendant.     W.  Sj  B.  Ho^kms  &  S.  Haynes,  for  the  plaintiff. 


1200  BOOK   VI:     PAROL   EVIDENCE    RULES  No.  820 


TITLE  II.    INTEGRATION  OF  LEGAL  ACTS 

820.  History.^  The  history  here  falls,  by  a  rough  division,  into  three 
periods:  I,  from  primitive  times  till  the  vogue  of  the  seal,  in  the  1200s;  II,  then, 
on  English  soil,  till  the  statute  of  frauds  and  perjuries,  in  1678;  III,  and  thence, 
its  modern  recognition. 

I.  In  the  primitive  Germanic  notions,  at  the  time  of  the  barbarian  invasions 
and  under  the  Merovingian  and  Carlovingian  monarchies,  there  was  certainly  no 
notion  of  the  indisputability  of  the  terms  of  a  document.  The  document,  even 
in  its  most  definite  type  ("carta"),  is  in  the  Germanic  system  merely  one  of  the 
symbols  that  entered  into  the  formalism  of  the  transaction,  and,  like  the  wand, 
the  glove,  and  the  knife,  has  an  efficacy  independent  of  its  written  tenor,  — 
which  indeed  could  mean  nothing  to  the  parties  who  employed  it.  In  this  stage 
the  "carta"  merely  plays  a  convenient  part,  first,  by  enabling  the  formal  delivery 
of  the  land  to  be  made  symbolically  away  from  the  premises,  and,  next,  by  pre- 
serving against  future  forgetfulness  the  names  of  the  witnesses.  The  important 
and  unquestionable  fact  is  that  the  tenor  of  the  writing  does  not  legally  and  hind- 
ingly  establish  anything.  If  the  truth  of  its  statement  is  disputed  —  tbe  amount 
of  money  loaned,  the  area  of  land  conveyed,  the  conditions  of  tenure  annexed 
—  the  terms  of  the  transaction  may  and  must  be  proved  by  calling  the  witnesses 
to  it,  regardless  of  any  contradiction  of  the  writing.  The  attendant  witnesses 
continued  to  be,  as  they  had  been,  the  main  reliance  for  the  proof  of  a  disputed 
transaction.  The  procedure  for  disputing  by  the  witnesses'  oaths  the  correctness 
of  the  document  was  elaborate  and  well-settled,  and  its  ultimate  settlement 
might  turn  upon  a  wager  of  battle. 

II.  The  rise  of  the  seal  brings  a  new  era  for  written  documents,  not  merely 
by  furnishing  them  with  a  means  of  authenticating  genuineness  {ante.  No.  552), 
but  also  by  rendering  them  indisputable  as  to  the  terms  of  the  transaction  and 
thus  dispensing  with  the  summoning  of  witnesses.  The  vogue  of  the  seal  and  of 
the  transaction-witness  wax  and  wane,  the  one  relatively  to  the  other. 

This  legal  value  of  the  seal  was  the  result  of  a  practice  working  from  above 
downwards,  from  the  King  to  the  people  at  large.  It  is  invoK-ed,  in  the  begin- 
ning, with  the  Germanic  principle  that  the  King's  word  is  undisputable.  Who 
gives  him  the  lie,  forfeits  life.  The  King's  seal  to  a  document  makes  the  truth 
of  the  document  incontestable.  This  leads,  along  another  line,  to  the  modern 
doctrine  of  the  verity  of  judicial  records,  —  to  be  noticed  later.  Here,  for  private 
men's  documents,  its  significance  is  that  the  indisputability  of  a  document  sealed 
by  the  King  marked  it  with  an  extraordinary  (juality,  much  to  be  sought  after. 
As  the  habitual  use  of  the  seal  extends  downwards,  its  valuable  attributes  go  with 
it.  First,  a  few  coimts  and  bishops  acquire  seals;  and  then  their  courtesies  are 
sought  in  lending  the  impress  and  guarantee  of  their  seal  to  some  dociunent  of  an 
inferior  person,  as  serving  him  in  future  instead  of  witnesses.  Finally,  the  ordi- 
nary freeman  comes  usually  to  have  a  seal;  and  his  seal  too  makes  a  document 
indisputable  —  at  least,  by  himself.  This  extension  of  the  seal  begins  in  the 
1000s,  and  is  completed  by  the  1200s.  Thus  the  old  regime  of  proof  by  trans- 
action-witnesses  disappears    by  degrees;    by  the  1300s  they  are  almost  super- 

^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905.      Vol. 
IV,  §2426). 


No.  820  INTEGRATION  OF  LEGAL  ACTS  1201 

fluous.  This  means  that  when  a  transaction  has  been  made  by  wTitinj^,  the 
parties  rely  for  tlieir  future  proof  no  longer  on  witnesses  called  in  at  the  time  of 
the  transaction,  but  on  the  ()j)ponent's  seal  found  affixed  to  the  document,  which 
thereby  makes  its  terms  indisputable  by  him  as  representing  the  actual  terms 
of  the  transaction  between  the  parties. 

The  tool  for  shaping  the  new  doctrine  had  now  been  supplied ;  and  it  remained 
to  develop  and  extend  the  doctrine.  By  the  time  of  Coke's  commentary  upon 
Littleton  and  of  Sheppard's  Touchstone  —  by  the  1600s,  on  the  whole  —  the 
modern  rule  of  indisputability  is  established  for  all  transactions  affecting  realty. 
A  general  policy  of  regard  for  the  trustworthiness  of  writing,  as  against  the  shifti- 
ness of  mere  testimonial  recollection,  was  beginning  to  be  consciously  avowed, 
irrespective  of  any  discrimination  against  the  jury.  This  is  a  distinctly  modern 
attitude,  but  it  emerges  as  one  of  the  considerations  that  finally  tended  to  fix  the 
rule.  "Thus  you  would  avoid  a  matter  of  record  by  simple  surmise,"  says 
Paston,  J.,  in  1430.  Coke,  of  course,  furnishes  such  reflections  in  plenty,  by  the 
time  of  the  1600s;  "it  would  be  full  of  great  inconvenience  that  none  should  know 
by  the  WTitten  words  of  a  will  what  construction  to  make  or  advice  to  give  but  it 
should  be  controlled  by  collateral  averments."  Thus  a  judicial  legislative 
policy  comes  to  reinforce  the  other  influences. 

But,  meantime,  what  of  the  theory  of  the  rule? 

(1)  At  first,  the  new  principle  appears  merely  as  a  tvarver  of  ordinary  proof,  * 
permitting  the  substitution  of  another.     The  man  who  has  sealed  a  document 
is  not  allowed  to  bring  his  transaction-witnesses  or  his  compurgators  to  prove 
what  the  transaction  really  was;  he  has  in  advance  waived  this  right. 

(2)  Alongside  of  this  theory,  but  playing  gradually  a  more  important  partJ 
was  the  theory  that  a  transaction  of  one  "nature"  cannot  be  overturned  by  anyX 
thing  of  an  inferior  "nature."  This  is  the  real  lever  which  helps  on  the  progress! 
to  the  modern  idea.  The  notion  that  the  document  "determines"  and  merges! 
the  whole  transaction  is  winning  its  way.  For  two  centuries  to  come  this  mode 
of  speech  —  that  the  writing  "dissolves,"  "discharges,"  "determines,"  or  "de- 
stroys" all  other  prior  or  coexisting  transactions  —  is  predominant  in  expounding 
the  theory  of  the  rule.  The  way  is  thus  prepared  for  the  modern  idea  of  opera- 
tiveness,  forming  the  third  stage  of  the  rule's  history. 

III.  However,  one  step  still  remains  to  be  taken.  As  yet  —  say,  in  the  loOOs 
—  this  theory  is  applicable  to  "matter  of  a  higher  nature,"  i.e.,  specialties,  sealed 
documents,  and  not  to  writings  as  such.  How  and  when  did  this  last  extension 
of  ideas  occur? 

The  Statute  of  Frauds  and  Perjuries,  in  1678,  seems  to  note  the  modern 
epoch's  full  beginning.  By  the  first  and  third  sections  the  estate  was  spoken  of 
as  "i:)ut  in  writing,"  and  as  "assigned,  granted,  or  surrendered,  ...  by  deed 
or  note  in  tcriting."  Here  were  two  notal)le  features,  practically  novel  in  this 
relation.  The  legal  act  was  to  be  constituted,  not  merely  proved,  by  the  docu- 
ment, and  the  document  might  be  an  ordinary  writing,  not  necessarily  a  "deed," 
i.e.,  under  seal..  The  significance  of  the  statute  for  the  present  purpose  was  in 
the  main,  first,  that  it  abolished  the  practice  of  creating  estates  of  freehold  by 
oral  livery  of  seisin  only,  and,  secondly,  that  it  permitted  the  recjuired  document 
(for  leases)  to  be  a  writing  without  seal.  By  the  former,  it  emphasized  the  con- 
stitutive (as  opposed  to  the  testimonial)  nature  of  the  docimient;  by  the  latter, 
it  extended  the  conception  of  constitutive  documents  beyond  sealed  ones  to 
include  all  writings. 

The  important  consequence  was,  that  for  that  great  mass  of  transactions 


\ 


1202  BOOK  VI :  PAROL  EVIDENCE  RULES        No.  820 

which  were  not  affected  by  the  statute,  but  were  none  the  less  put  in  A\Titing 
vohintarily  by  the  parties,  though  not  sealed  —  i.e.,  transactions  for  which  by 
the  older  idea  the  WTiting  would  merely  have  been  "evidence," — the  wTiting 
now  came  to  be  treated  and  spoken  of  as  the  constitutive  thing.  The  modern 
view  had  come  into  complete  existence.  A  legal  transaction  when  reduced  in 
writing  was  now  to  be  conceived  of  as  constituted,  not  merely  indisputably  proved, 
by  the  writing,  —  and  this  whether  the  writing  was  a  requirement  of  law  or  merely 
voluntary,  and  whether  it  was  sealed  or  unsealed.  The  reminiscence  of  the  older 
idea,  in  the  use  of  the  term  "parol  evidence,"  to  designate  that  which  was  legally 
inoperative,  still  persisted  as  a  convenient  term  of  discussion. 


No.  824  INTEGRATION  OF  LEGAL  ACTS  1203 

SUB-TITLE  I.     ORDINARY  TRANSACTIONS 
Topic  1.     In  General 

821.  Lilly.  Practical  Register.  (1719,  fol.  48;  as  quoted  in  Viner's  Abridg- 
ment, "Contract,"  G.  IS.)  If  an  agreement  made  by  parol  to  do  anything  be 
afterwards  reduced  into  writing,  the  parol  agreement  is  thereby  discharged;  and 
if  an  action  be  brought  for  the  non-performance  of  this  agreement,  it  must  be 
brought  upon  the  agreement  reduced  into  writing,  and  not  upon  the  parol  agreement; 
for  both  cannot  stand  together,  because  it  appears  to  be  but  one  agreement,  and 
that  shall  be  taken  which  is  the  latter  and  reduced  to  the  greater  certainty  by 
writing;   for  "vox  emissa  volat  litera  scripta  manet." 

822.  Knight  v.  Barber.  (1846.  Exchequer.  16  M.  &  W.  66.)  (The  plain- 
tiff and  the  defendant  had  made  an  oral  agreement  for  the  sale  of  shares;  on  the 
same  afternoon  the  defendant  signed  a  memorandum,  which  was  then  handed 
to  the  plaintiff,  reciting  the  sale,  the  price,  etc. ;  it  was  held  that  this  memorandum 
should  have  borne  a  stamp.)  Parke,  B. — With  respect  to  the  first  point  made 
by  Mr.  Baines  [for  the  plaintiff],  that  there  was  a  distinct  parol  contract  between 
these  parties  before  the  memorandum  was  signed,  if  that  memorandum  was 
afterwards  made  and  signed  by  the  defendant,  and  was  intended  to  contain  the 
terms  of  the  contract  and  to  be  acted  upon  by  the  plaintiff,  it  became,  when  it 
was  so  acted  upon,  the  real  contract  between  the  parties.  The  parol  agreement' 
goes  for  nothing,  if  it  was  intended  that  it  should  be  reduced  into  writing  and/ 
this  is  afterwards  done.  ' 

823.  Van  Syckel  v.  Dalrymple.  (1880.  New  Jersey.  32  N.  J.  Eq.  233.) 
Van  Fleet,  C.  —  What  was  said  diu-ing  the  negotiation  of  the  contract  or  at  the 
time  of  its  execution  must  be  excluded,  on  the  ground  that  the  parties  have  made 
the  writing  the  only  repository  and  memorial  of  the  truth,  and  whatever  is  not 
found  in  the  writing  must  be  understood  to  have  been  waived  and  abandoned. 


1] 


824.   BROSTY  v.  THOMPSON 

Supreme  Court  of  Errors  of  Connecticut*     1906 

79  Conn.  133;   64  Atl.  1 

Action  for  the  conversion  of  live  stock  and  other  personal  property,  \ 
brought  to  and  tried  by  the  Court  of  Common  Pleas  in  Fairfield  County, 
Curtis,  J.;   facts  found  and  judgment  rendered  for  the  defendant,  and 
appeal  by  the  plaintiffs.     No  error. 

Clitus  H.  King  and  Henri/  Grrenstine,  for  the  appellants  (plaintiffs). 
Edward  F.  Hall,  for  the  appellee  (defendant). 

Torrance,  C.  J.  —  The  plaintiffs  and  the  defendant  entered  into  an 
oral  agreement  relating  to  the  sale,  by  the  plaintiffs  to  the  defendant,! 
of  a  farm  and  of  certain  personal  property  used  thereon.  Subsequently 
they  executed  a  written  contract  embodying  the  terms  of  the  oral  agree- 


1204  BOOK   VI :     PAROL   EVIDENCE   RULES  No.  824 

ment  as  to  the  sale  of  the  farm,  which  was  silent  as  to  the  personal 
property  agreed  to  be  sold  under  the  oral  agreement;  and  the  question, 
upon  the  present  appeal  is,  whether  the  prior  oral  agreement  for  the  sale 
of  the  personal  property  is  available  to  the  defendant  upon  the  facts 
found.  These  facts  may  be  summarized  as  follows:  The  plaintiffs  in 
April,  1905,  owned  a  farm  in  this  State  on  which  was  used  the  personal 
property  described  in  the  complaint,  which  personal  property  was  less 
than  S300  in  value.  The  plaintiffs  placed  the  farm  and  said  personal 
property  in  the  hands  of  a  broker  to  sell,  and  he  offered  it  for  sale  to  the 
defendant  for  the  lump  sum  of  S3, 600.  The  defendant  and  the  broker 
visited  the  farm,  and  examined  it  and  said  personal  property,  and  the 
defendant  then  told  the  broker  that  he  would  buy  the  farm  and  the 
personal  property  for  S3,600,  but  that  all  he  could  pay  down  was 
$300.  Subsequently,  in  the  early  part  of  April,  1905,  the  plaintiffs  and 
the  defendant  agreed  to  the  following  terms  proposed  by  the  broker: 
the  plaintiff's  to  deliver  the  farm  and  said  personal  property  to  the 
defendant  on  ISIay  1,  1905,  the  personal  property  to  be  the  defend- 
ant's absolutely,  and  the  real  estate  to  be  delivered  to  the  defendant 
under  a  contract  of  sale,  the  terms  of  which  were  subsequently  embodied 
by  the  broker  in  a  writing  called  Exhibit  A,  executed  by  the  parties  on 
April  18th,  1905.  In  said  writing  the  plaintiffs  agreed  to  convey  the 
farm  to  the  defendant  by  a  suitable  deed, "  upon  the  following  conditions," 
which  may  be  summarized  as  follows:  (1)  the  defendant  was  to  pay  to 
the  plaintiffs,  upon  the  execution  of  the  writing,  8300;  (2)  he  was  to  pay 
to  them  $30  on  the  first  day  of  May,  1905,  and  a  like  sum  on  the  first  day 
of  every  month  thereafter,  until  the  sum  of  SI, 700  should  be  paid  in  full; 
(3)  he  was  to  assume  and  pay  the  mortgage  on  the  farm,  and  the  interest 
thereon  as  it  fell  due ;  (4)  he  was  to  pay  all  taxes  assessed  upon  the  farm 
and  to  keep  the  buildings  insured  for  a  specified  amount;  and  (5)  he  was 
to  pay  interest  upon  the  unpaid  portion  of  the  81,700  at  an  agreed  rate; 
and  finally  he  was  to  forfeit  all  claims  to  the  farm  and  to  all  money  paid 
under  the  agreement,  if  he  failed  to  make  any  of  the  agreed  payments. 

Upon  the  execution  of  the  writing  the  defendant  paid  to  the  plaintiffs 
$300  as  agreed,  also  S20  in  payment  of  the  interest  due  upon  the  mortgage 
to  July  1,  1905.  The  writing  was  silent  as  to  the  sale  or  disposition  of  the 
personal  property.  In  this  entire  transaction  the  defendant  did  not 
meet  the  plaintiffs  but  dealt  exclusively  with  the  broker.  On  May  1, 
1905,  the  plaintiffs  delivered,  and  the  defendant  took,  possession  of  the 
farm  and  of  the  personal  property  under  the  foregoing  agreement;  and 
shortly  thereafter  he  sold  said  personal  property  for  SI 94;  notified  the 
broker  that  he  abandoned  the  contract,  and  made  no  further  payments 
thereon. 

Upon  the  trial  the  plaintiffs  admitted  that  the  personal  property 
was  part  of  the  subject-matter  of  the  oral  agreement  between  the  parties, 
but  claimed  that  by  that  agreement  the  title  to  the  personal  property 
was  to  remain  in  the  plaintiffs  until  the  title  to  the  farm  passed  to  the 


No.  82G  INTEGRATION   OF   LEGAL   ACTS  1205 

defendant.  The  evidence  of  the  e.xistence  and  terms  of  the  prior  oral 
agreement  for  the  purchase  and  sale  of  the  farm  and  the  personal  property, 
came  in  without  objection,  apparently;  but  after  it  was  in,  the  plaintiffs 
claimed  tJiat  "  the  Court  should  disregard  the  evidence,  and  treat  the 
written  agreement  as  the  entire  contract  between  the  parties."  This 
claim  the  Court  overruled,  and  from  all  the  evidence  in  the  case  found  the 
facts  aforesaid,  and  that  the  parties  did  not  intend  to  embody  the  entire 
oral  agreement  in  the  written  one. 

The  evidence  is  not  before  us,  but  upon  the  record  as  it  stands  we 
must  assume  that  it  warranted  the  Court  in  finding  as  it  has. 

The  plaintiffs  claim  that  the  existence  of  the  written  agreement 
rendered  the  prior  oral  agreement  between  the  parties,  for  the  purchase 
and  sale  of  the  personal  property,  of  no  avail  to  the  defendant.  This 
claim  is  based  upon  the  so-called  "  parol  evidence  rule,"  that  where  parties 
merge  all  prior  negotiations  and  agreements  in  a  writing,  intending  to 
make  that  the  repository  of  their  final  understanding,  evidence  of  such 
prior  negotiations  and  agreements  will  be  rejected  as  immaterial.  The 
rule  itself  is  firmly  established;  Galpin  v.  Atwater,  29  Conn.  93,  97; 
Averill  v.  Sawyer,  62  Conn.  560,  568;  Caulfield  v.  Hermann,  64  Conn. 
325,  327;  and  the  only  question  is  whether  it  is  applicable  in  this  case. 

We  think  it  is  not.  Whether  the  parties  intended  the  writing  to 
embody  their  entire  oral  agreement,  or  only  a  part  of  it,  was  a  question 
for  the  trial  Court,  to  be  determined  from  the  conduct  and  language  of 
the  parties  and  the  surrounding  circumstances;  and  that  Court  has 
found  that  the  parties  had  no  such  intent,  and  there  is  nothing  in  the 
record  to  show  that  the  Court,  in  reaching  that  conclusion,  erred  either 
in  law  or  in  logic.  4  Wigmore  on  Evidence,  §  2430.  Where  the  parties 
do  not  intend  to  embody  their  entire  oral  agreement  in  the  writing,  the 
rule  invoked  by  the  plaintiffs  does  not  apply.  Collins  v.  Tillou,  26  Conn. 
368;  Clarke  v.  Tappin,  32  id.  56;  Hall  v.  Solomon,  61  Conn.  476,  482; 
Averill  v.  SaAvyer,  62  Conn.  560;  Chapin  v.  Dobson,  78  N.  Y.  74.  That 
rule  does  not  apply  in  this  case.     There  is  no  error. 

In  this  opinion  the  other  judges  concurred. 


Topic  2.     Sundry  Applications  of  the  Rule 

826.   RAMSDELL  v.   CLARK 

Supreme  Court  of  Montana.     1897 

20  Mont.  103;  49  Pac.  591 

This  action  was  upon  a  lease  entered  into  between  the  respondent 
(plaintiff  below)  and  appellant  (defendant  below),  on  October  20,  1887. 
Under  the  terms  of  the  lease,  defendant  was  to  take  possession  of  a 
certain  mine,  situated  in  Silver  Bow  county,  and  to  work  and  mine  the 
same  in  "  a  good  workmanlike,  and  substantial  manner,  and  to  the  best 


1206  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  826 

advantage,"  for  one  year,  unless  he  negotiated  a  sale  of  the  said  property 
within  that  period.  He  was  to  "reduce  and  smelt  the  ore  therefrom, 
and  concentrate  the  same,"  at  his  own  expense,  and  sell  the  products, 
and,  after  deducting  all  expenses,  he  was  to  pay  one-half  the  net  proceeds 
to  the  plaintiff.  Defendant  took  possessioA  of  the  mine  on  the  day  of 
the  execution  of  the  lease,  but  worked  the  same  for  a  period  of  six  months 
only.  Plaintiff  instituted  an  action  against  defendant  in  the  district 
court  of  Silver  Bow  county  on  January  30,  1892.  The  complaint  alleged 
three  breaches  of  the  covenants  contained  in  the  lease.  As  the  first 
breach  it  averred  that  defendant  had  worked  the  mine  for  six  months, 
but  had  failed  to  pay  over  to  plaintiff  one-half  of  the  net  proceeds  realized 
from  the  ores  extracted.  As  a  second  breach  it  alleged  that  defendant 
had  failed  to  work  the  mine  in  a  good,  workmanlike,  and  substantial 
manner  during  said  six  months,  to  the  damage  of  plaintiff  in  a  certain 
sum.  The  third  breach  set  forth  was  that  the  defendant  had  failed  to 
work  the  mine  at  all  after  the  expiration  of  said  six  months,  to  the  damage 
of  plaintiff  in  a  certain  sum.  The  defendant  answered  the  complaint, 
denying  certain  of  the  allegations  therein.  He  also  averred  that  the  terms 
of  the  lease  had  been  modified  as  to  accounting  in  respect  to  concentrates. 
As  a  defense  to  the  first  breach,  it  was  alleged  that  an  accounting  had 
been  had  with  plaintiff  under  the  lease,  as  modified  on  July  10,  1888, 
and  that  he  (plaintiff')  had  been  paid,  and  had  accepted,  in  full  settlement 
of  his  claims,  what  was  found  to  be  due  him.  A  replication  was  inter- 
posed, which,  among  other  denials,  set  forth  that  there  had  never  been 
an  accounting,  and  that  the  plaintiff  had  never  been  paid,  and  had  never 
accepted,  any  sum  in  full  settlement  for  what  was  due  him  by  reason  of 
the  first  breach  of  the  lease.     The  case  was  tried  to  a  jury. 

Upon  the  trial  the  defendant  introduced  in  evidence  the  following 
receipt:  "Dec.  6, '94.  G.H.M.  Office  of  W.  A.  Clark,  Butte,  Montana, 
7-10,  1888.  Received  of  Ramsdell  Parrott  lease,  at  the  hands  of  W.  A. 
Clark,  five  hundred  and  sixty  and  79-100  dollars,  payment  in  full  for 
balance  of  royalty  on  ore  and  supplies.  $560.79.  [Signed]  Joseph  Rams- 
dell." The  jury  returned  a  verdict  in  favor  of  defendant.  A  motion  was 
made  for  a  new  trial,  which  was  granted.  The  appeal  is  from  the  order 
granting  the  motion  for  a  new  trial.  .  .  . 

Corbett  &  Wellcome,  for  appellant.  J.  W.  Cotter  and  Win.  Scallon, 
for  respondent. 

Buck,  J. — The  appellant  .  .  .  objects,  however,  to  the  alleged  orders 
in  so  far  as  it  grants  a  new  trial  as  to  the  first  and  third  breaches  of  the 
lease.  .  .  .  Did  the  lower  Court  err  in  granting  a  new  trial  as  to  the  first 
cause  of  action  set  forth  in  plaintiff's  complaint?  In  this  connection  it 
becomes  necessary  to  investigate  the  law  as  to  the  force  and  effect  of  a 
receipt  for  money  paid. 

Parsons,  in  his  work  on  Contracts  (8th  ed.,  1893,  vol.  2,  p.  671),  says: 

"A  receipt  for  money  is  peculiarly  open  to  evidence.  It  is  only  prima  facie 
evidence  either  that  the  sum  stated  has  been  paid,  or  that  any  sum  whatever 


No,  826  INTEGRATION  OF  LEGAL  ACTS  1207 

was  paid.  It  is  in  fact  not  regarded  as  a  contract,  and  hardly  as  an  instrument 
at  all,  and  has  but  little  more  force  than  the  oral  admission  of  the  party  receiving. 
But  this  is  true  only  of  a  simple  receipt.  It  often  happens  that  a  paper  which 
contains  a  receipt  or  recites  the  receiving  of  money  or  of  goods,  contains  also 
terms,  conditions,  and  agreements  or  assignments.  Such  an  instrument,  as  to 
everything  but  the  receipt,  is  no  more  to  be  affected  by  extrinsic  evidence  than  if 
it  did  not  contain  the  receipt;  but,  as  to  the  receipt  itself,  it  may  be  varied  or 
contradicted  by  extrinsic  testimony  in  the  same  manner  as  if  it  contained  nothing 
else." 

Bishop  expresses  a  similar  view  in  his  book  on  Contracts  (enlarged 
ed.,  1887,  Sec.  176). 

From  general  expressions  as  to  the  rules  governipg  a  receipt  in  many 
opinions,  it  would  seem  that  some  of  the  Courts  have  overlooked  this 
dual  character  of  which  a  receipt  is  capable.  Thus,  it  is  frequently 
asserted  a  receipt  is  not  a  contract;  a  receipt  for  money  is  only  prima 
facie  evidence  of  the  truth  of  the  statements  therein  contained;  the 
signer  of  a  receipt  is  not  estopped  by  it;  and  no  qualification  is  suggested 
or  distinction  expressed  as  to  any  contractual  feature  it  may  possess. 
This  naturally  gives  rise  to  confusion  on  the  subject.  We  shall  quote 
from  some  of  the  opinions  which  have  discussed  the  law  pertaining  to 
receipts,  particularly  as  to  what  recitals  therein  may  be  varied  or  con- 
trolled by  extrinsic  evidence.  .  .  . 

CowEN,  J.,  in  M'Crea  v.  Purmort,  16  Wend.  460,  473  (1836):  "A  release  can- 
not be  contradicted  or  explained  by  parol,  because  it  extinguishes  a  pre-existing 
right.  But  no  receipt  can  have  the  effect  of  destroying  2>^r  se  any  subsisting 
right;  it  is  only  evidence  of  a  fact.  The  payment  of  the  money  discharges  or 
extinguishes  the  debt;  a  receipt  for  the  payment  does  not  extinguish  the  debt; 
it  is  only  evidence  that  it  has  been  paid.  Not  so  of  a  written  release;  it  is  not 
only  evidence  of  the  extinguishment;   but  it  is  the  extinguisher  itself." 

It  can  be  seen  from  these  quotations,  supra,  that,  even  keeping  in 
mind  the  distinction  between  a  receipt  regarded  as  a  mere  acknowledg- 
ment, and  as  possessing  a  contractual  feature,  still  the  rule  of  law  is  not 
absolutely  clear  when  it  is  to  be  applied  to  the  language  of  each  particular 
receipt.  .  .  .  All  these  cases  we  have  cited,  however,  recognize  the  dis- 
tinction given  by  Parsons  and  Bishop.  The  mere  expression  contained 
in  a  receipt  "in  full  payment"  does  not  necessarily  render  the  paper  a 
contract  in  the  nature  of  a  release  or  waiver.  Whether  a  receipt  possesses 
any  contractual  feature  or  not  must  often  be  determined  from  its  entire 
language,  and  also,  at  times,  from  the  language  in  connection  with  the 
circumstances  under  which  it  was  given.  If  A,  to  whom  B  is  indebted  in 
the  undisputed  sum  of  $200,  is  paid  by  the  latter  $100,  and  signs  a  receipt 
for  the  sum  of  $200,  or,  mentioning  the  sum  paid,  acknowledges  payment 
in  full  of  the  debt,  nevertheless  A,  in  an  action  against  B  for  the  unpaid 
balance,  without  showing  any  fraud,  mistake,  or  other  excuse  for  having 
signed  the  receipt,  can  contradict  it  by  extrinsic  evidence,  and  show  that 
only  $100  was  paid.     It  would  only  be  evidence  of  B's  having  paid  the 


1208  BOOK   VI :     PAROL   EVIDENCE    RULES  Xo.  826 

debt  just  as  an  oral  admission  proved  against  A  would  be.  If,  however, 
B  has  been  indebted  to  A  on  an  account  the  amount  of  which  has  been 
in  dispute  between  them,  a  receipt  by  A  definitely  specifying  the  entire 
account,  and  acknowledging  a  sum  received  as  payment  in  full  of  the 
same,  would  possess  a  contractual  feature;  and,  in  order  to  contradict 
or  vary  the  terms  of  it  by  extrinsic  evidence  in  so  far  as  it  would  be  a 
contract,  A  would  be  required  to  observe  the  rules  of  law  applicable  to 
contracts,  and  could  not  treat  it  in  evidence  against  him  as  if  it  were  of 
no  greater  weight  than  a  mere  oral  admission  on  his  part. 

Let  us  apply  these  principles  to  the  receipt  given  by  the  plaintiff, 
and  relied  upon  by  the  defendant,  in  the  case  before  us.  As  to  the  cir- 
cumstances under  which  it  was  given,  Wethey,  a  witness  for  defendant, 
testified  that  there  had  been  a  dispute  between  plaintiflF  and  defendant 
as  to  one  or  two  items  of  the  account  due  under  the  terms  of  the  Ramsdell- 
Parrott  lease,  and  that  the  last  settlement  had  between  them  was  subse- 
quent to  the  expiration  of  the  six  months  during  which  the  defendant 
had  worked  the  mine.  The  receipt  specifies  the  lease,  and  recites  that  a 
certain  sum  has  been  received  by  plaintiff  as  "payment  in  full  for  the 
balance  of  royalty  on  ore  and  supplies."  The  literal  terms  of  the  paper 
stand  admitted,  and  Wethey's  testimony  as  to  it  is  uncontradicted. 
It  is  not  suggested  that  the  plaintiff  did  not  actually  receive  the  sum  of 
money  specified  therein.  After  the  admission  in  evidence  of  this  testi- 
mony and  the  receipt,  the  defendant  had  established  a  prima  facie 
defense  as  to  the  first  cause  of  action.  The  burden  was  then  upon  the 
plaintiff  to  destroy  the  effect  of  this  receipt.     He  failed  to  do  so.  .  .  . 

At  the  close  of  the  trial,  so  far  as  the  evidence  was  concerned,  the 
defendant  was  entitled  to  a  peremptory  instruction  that  the  jury  should 
find  in  his  favor  as  to  the  first  cause  of  action. 


827.   BAUM  V.   LYNN 

Supreme  Court  of  Mississippi.     1895 

72  Mm.  932;   18  So.  428 

From  the  Chancery  Court  of  Warren  county.  Hon.  Claude  Pin- 
TARD,  Chancellor.  Bill  for  accounting  by  Mary  Grace  Devine  Lynn 
against  the  executrix  of  John  A.  Klein  and  others.  From  a  decree  for 
plaintiff,  defendant,  Ellen  Baum,  executrix  of  J.  F.  Baum,  appeals.  In 
May,  1873,  John  A.  Klein  was  appointed  guardian  to  the  appellee  by  the 
chancery  court  of  ^Yar^en  county,  and  gave  bond  as  guardian  in  the 
penalty  of  $2,000,  with  George  IM.  Klein  and  J.  F.  Baum,  appellant's 
testator,  as  sureties.  .  .  .  The  prayer  is  that  the  executrix  of  the  guardian 
be  required  to  render  his  final  account  as  guardian.  .  .  .  Decrees  were 
made  against  George  M.  Klein  and  Ellen  Baum,  executrix  of  J.  F.  Baum, 
for  $2,000.  .  .  . 


No.  827  INTEGRATION   OF   LEGAL  ACTS  1209 

The  objection  most  strenuously  urged  to  the  decree  rests  upon  the 
following  facts,  proved  or  offered  to  be  proved  by  appellant:  The 
guardian  had  loaned  a  part  of  his  ward's  money  to  Mrs.  Mary  Irving. 
In  June,  1884,  the  guardian  being  then  dead,  and  his  estate  hopelessly 
insolvent,  the  appellee,  who  then  resided  in  the  State  of  Texas,  came  to 
this  State  to  look  after  the  estate.  On  the  16th  of  June,  Mrs.  Irving 
made  to  her  conveyance  in  the  following  language: 

"This  indenture,  made  and  entered  into  this  day,  the  16th  of  June,  1884,  by 
and  between  Mary  Irving,  of  the  city  of  Vicksburg,  county  of  Warren,  and  state 
of  Mississippi,  party  of  the  first  part,  and  Mary  Grace  Lynn,  of  the  state  of  Texas, 
party  of  the  second  part,  witnesseth:  That  whereas,  John  A.  Klein,  late  of  said 
city  of  Vicksburg,  did,  on  or  about  the  14th  day  of  February,  1874,  loan  the  said 
Mary  Irving  certain  moneys  then  in  his  hands  as  guardian  of  the  said  Mary 
Grace  Lynn,  then  Mary  Grace  Devine,  and  whereas,  the  said  Mary  Irving  now 
desires  to  settle  in  full  any  balance  that  may  be  due  by  her:  Now,  therefore,  for 
and  in  consideration  of  the  premises,  and  the  consideration  of  the  full  acquittal, 
discharge  and  release  of  the  said  Mary  Irving  from  any  and  all  liability  to  the 
said  John  A.  Klein  as  guardian,  or  the  said  Mary  Grace  Lynn  for  and  on  account 
of  said  loans,  and  the  further  consideration  of  ten  dollars  in  hand  paid,  the  receipt 
of  which  is  hereby  acknowledged,  the  said  party  of  the  first  part  does  hereby 
convey  and  warrant  to  the  party  of  the  second  part,  her  heirs  and  assigns,  in  fee 
simple,  the  following  described  real  estate  in  the  said  city  of  Vicksbiu-g," 

describing  the  property,  and  concluding  with  the  usual  habendum. 
The  appellant  took  the  deposition  of  Mr.  Irving,  who  was  the  husband  of 
the  grantor,  she  being  now  dead,  and  that  of  George  M.  Klein,  and  of 
Mr.  Smith,  the  attorney  who  prepared  the  conveyance,  all  of  whom  testi- 
fied that  the  conveyance  was  made  by  Mrs.  Irving,  and  accepted  b}'  Mrs. 
Lynn,  in  full  satisfaction  and  settlement  not  only  of  the  debt  due  by  Mrs. 
Irving  to  Klein  as  guardian,  but  also  in  discharge  and  settlement  of  lia- 
bility on  the  part  of  the  guardian  to  his  ward,  which  liability  Mrs.  Lynn 
agreed  to  discharge  and  release  as  a  part  of  the  consideration  for  the 
conveyance.  The  complainant  moved  to  suppress  these  depositions, 
and  objected  to  tliem  when  offered  in  evidence,  upon  the  ground  that  it 
was  incompetent  to  vary  by  parol  proof  the  written  contract  of  the  parties 
as  shown  by  the  deed.     The  depositions  were  not  admitted. 

M.  Marshall,  for  appellant.  The  recital  of  the  consideration  in  the 
deed  is  always  open  to  parol  proof.  Besides,  John  A.  Klein  W'as  not  a 
party  to  the  conveyance,  and  was  at  liberty  to  show  its  true  consideration. 

L.  ]V.  Magr^Lider,  for  appellee.  Parol  testimony  cannot  be  admitted 
if  the  statement  as  to  the  consideration,  from  its  terms  and  context, 
manifestly  embraces,  or  is  intended  to  embrace,  the  whole  agreement; 
or,  if  it  forms  a  part  of  the  contract,  it  cannot  be  varied.  In  this  case, 
the  consideration  is  a  release  of  a  pre-existing  debt.  It  is  like  a  convey- 
ance by  her  of  her  property,  and  it  is  apparent,  from  the  deed,  what 
debt  is  released.  The  distinction  is  clearly  stated  in  Cocke  v.  Blackburn, 
58  Miss.  537. 


1210  BOOK   VI :     PAROL  EVIDENCE   RULES  No.  827 

Cooper,  C.  J.  (after  stating  the  case  as  above).  In  Gully  v.  Grubbs. 
1  J.  J.  Marsh.  387,  Judge  Robertson  in  an  admirable  and  concise  manner 
states  the  true  principle  upon  which  is  based  the  rule  of  permitting  oral 
evidence  to  be  introduced  to  show  the  true  consideration  of  a  deed  in 
opposition  to  that  recited,  as  well  as  the  limitation  of  the  rule.  .  .  .  Judge 
Robertson  illustrates  his  own  views  by  noting  the  difference  between  the 
mere  statement  of  a  fact  (e.  g.  the  admission  of  the  receipt  of  the  purchase 
price)  and  the  vesting,  creating,  or  extinguishing  a  right  (e.g.  by  the  exe- 
cution of  a  release),  in  the  following  language: 

"A  i)arty  is  estopped  by  his  deed.  He  is  not  to  be  permitted  to  contradict 
it.  So  far  as  the  deed  is  intended  to  pass  a  right,  or  to  be  the  exclusive  evidence 
of  a  contract,  it  concludes  the  parties  to  it.  But  the  principle  goes  no  further.  A 
deed  is  not  conclusive  evidence  of  everything  it  may  contain.  For  instance,  it 
is  not  the  only  evidence  of  the  date  of  its  execution,  nor  is  its  omission  of  a  con- 
sideration conclusive  evidence  that  none  passed,  nor  is  its  acknowledgment  of 
a  particular  consideration  an  objection  to  other  proof  of  other  and  consistent 
considerations;  and,  by  analogy,  the  acknowledgment  in  a  deed  is  not  conclusive 
of  the  fact.'  This  is  bvit  a  fact,  and  testing  it  by  the  rationality  of  the  rule  we  have 
laid  down,  it  may  be  explained  or  contradicted.  It  does  not  necessarily  and 
undeniably  prove  the  fact.  It  creates  no  right;  it  extinguishes  none.  A  release 
cannot  be  contradicted  or  explained  by  proof,  because  it  extinguishes  a  pre- 
existing right.  But  no  receipt  can  have  the  effect  of  destroying  per  se  any 
subsisting  right.  It  is  only  evidence  of  a  fact.  The  payment  of  the  money 
discharges  or  extinguishes  the  debt.  A  receipt  for  the  payment  does  not  pay 
the  debt.  It  is  only  evidence  that  it  has  been  paid.  Not  so  of  a  wTitten 
release.  It  is  not  only  evidence  of  the  extinguishment,  but  is  the  extinguish- 
ment itself." 

The  deed  now  under  examination  contains,  as  is  clearly  to  be  seen, 
no  mere  recital  of  a  consideration  paid  or  to  be  paid.  Its  recital  is  only 
of  the  facts  necessary  to  be  stated  to  intelligently  apply  the  contract  of 
the  parties  to  the  subject  matter.  Having  set  out  the  relationship  of 
debtor  and  creditor,  and  the  history  of  the  transaction  from  which  it 
arose,  the  deed  then  proceeds  to  state  what  the  parties  agreed,  contracted, 
and  did  in  reference  to  the  dissolution  of  the  relationship.  Mrs.  Irving 
did  something.  She  conveyed  the  land  to  Mrs.  Lynn.  Mrs.  Lynn  did 
something.  She  released  the  debt  to  Mrs.  Irving.  One  transferred  a 
right;  the  other  released  a  right.  If  it  be  said  that  the  release  was  a 
mere  recited  consideration  for  the  conveyance,  it  may  with  equal  accuracy 
be  replied  that  the  conveyance  was  a  mere  recited  consideration  for  the 
release;  and  therefore,  if  one  of  the  terms  of  the  contract  may  be  varied 
by  parol,  because  it  is  a  consideration,  so  also  may  the  other  for  the 
same  reason,  and  by  this  process  a  solemn  and  executed  written  contract 
would  be  totally  eaten  away.  The  true  rule  is  that  a  consideration 
recited  to  have  been  paid  or  contracted  for  may  be  varied  by  parol,  while 
the  terms  of  a  contract  may  not  be,  though  the  contract  they  disclose 
may  be  the  consideration  on  which  the  act  or  obligation  of  the  other 
party  rests.  .  .  .  Appeal  dismissed. 


No.  828  INTEGRATION  OF  LEGAL  ACTS  1211 

828.   LESE  V.   LAMPRECHT 

Court  of  Appeals  of  New  York.     1909 

196  N.  Y.  32;   89  X.  E.  365 

Action  by  Louis  Lese  against  Anna  Lamprecht,  individually,  and 
as  executrix  of  Hugo  Lamprecht,  From  a  judgment  of  the  Appellate 
Division  (123  App.  Div.  919,  107  N.  Y.  Suppl.  1132),  affirming  a  judg- 
ment of  dismissal,  plaintiff  appeals.     Reversed  and  new  trial  granted. 

This  action  was  hrouglit  to  compel  the  specific  performance  of  a 
written  contract  made  by  the  defendant's  testator  in  his  lifetime  with  the 
plaintiff,  by  which  he  agreed,  at  a  place  and  on  a  day  and  hour  therein 
named,  to  convey  to  the  plaintiff  a  certain  piece  of  real  property  for  the 
consideration  of  .§7,500.  The  contract  provided  that  the  plaintiff  should 
pay  "  Five  hundred  dollars  on  the  execution  of  this  (said)  agreement  .  .  . 
seven  thousand  dollars  in  cash  on  the  delivery  of  the  deed,  ..."  and  said 
testator  agreed,  upon  receiving  such  payment,  to  deliver  to  the  plaintiff 
"  A  full  covenant  warranty  deed  for  the  conveying  and  assuring  to  him 
.  .  .  the  fee  simple  of  said  premises  free  from  all  incumbrances  .  .  .  and 
subject  to  a  party  wall  agreement  recorded  in  the  office  of  the  register  of 
the  county  of  New  York  in  Liber  859  of  Conveyances  at  page  375."  On 
the  day  and  hour  mentioned  in  said  contract  a  further  contract  in  writing 
was  entered  into  by  and  between  the  same  parties,  adjourning  the  time 
for  closing  the  title  under  the  original  contract  to  November  3,  1905,  at 
11  o'clock  A.  M.,  at  a  place  therein  named,  and  said  contract  also  pro- 
vided :  "  It  is  understood  and  agreed  that  the  vendee  wull  pay  interest 
on  the  balance  of  the  purchase  money  from  the  date  hereof  to  November 
3,  1905,  and  that  the  vendor  can  remain  in  possession  of  the  said  premises 
from  November  3,  1905  to  December  1,  1905,  as  a  tenant  at  a  rental  of 
one  dollar  ($i:00),  title  to  be  closed  as  of  October  5,  1905." 

On  November  3d,  at  11  o'clock  A.  M.,  as  provided  in  said  further 
contract,  the  parties  met  at  the  place  in  said  further  contract  provided. 
It  then  appeared  that  the  title  to  the  real  property  mentioned  in  the 
contract  was  being  examined  by  a  well-known  firm  of  attorneys  in  the  city 
of  New  York  for  the  purpose  of  making  a  loan  thereon  to  the  vendee, 
and  that  the  searches  therefor  had  been  made  by,  but  not  returned  from, 
the  Lawyers'  Title  Insurance  &  Trust  Company,  and  the  plaintiff  asked 
that  the  closing  of  title  be  held  open  or  adjourned  until  a  later  hour  of 
the  day,  or  until  the  following  day.  The  defendant's  testator  refused  to 
further  adjourn  the  time  for  closing  title,  whereupon,  it  appearing  that 
there  was  a  mortgage  on  the  property  held  by  a  savings  bank,  the  plaintiff 
stated  that  if  the  defendant's  intestate  would  procure  a  release  of  the 
mortgage,  he  would  pay  the  consideration  named  in  the  contract  without 
further  delay.  The  defendant's  intestate  then  tendered  a  deed  without 
including  therewith  a  cancellation  of  said  mortgage,  and  demanded  the 


1212  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  828 

consideration  named  in  the  contract,  which  being  refused,  he  left  the 
office  where  the  contract  was  to  be  closed.  A  few  days  thereafter,  when 
this  action  was  about  to  be  commenced,  the  attorney  for  the  defendant's 
intestate  said  that  he  would  endeavor  to  close  the  title,  and  arranged 
for  a  meeting  of  the  plaintiff  and  his  client  at  8  o'clock  in  the  evening  of 
the  day  in  question.  The  plaintiff  and  his  attorney  were  eight  minutes 
late  in  meeting  said  engagement,  and  the  defendant's  intestate  refused 
to  consummate  the  transaction,  although  he  said  that  he  would  have 
done  so  if  tiie  plaintiff  had  met  him  at  an  earlier  hour. 

The  trial  Court  found:  "Third,  That  on  the  5th  day  of  October, 
1905,  the  parties  met  according  to  the  terms  of  said  contract,  and  the 
defendant  then  agreed  to  extend  the  time  for  closing,  at  the  request  of 
the  plaintiff,  to  November  3,  1905,  at  11  o'clock  at  the  same  place,  and 
that  defendant  appeared  on  said  adjourned  day  November  3d  at  the 
appointed  place  ready  and  willing  to  make  title,  and  did  then  and  there 
tender  a  duly  executed  full  covenant  warranty  deed  in  accordance  with 
the  terms  of  said  contract,  and  that  the  plaintiff,  through  his  attorneys 
and  representatives,  requested  a  further  adjournment,  which,  however, 
was  refused  by  the  defendant  through  his  attorney.  Fourth.  That  on 
October  5,  1905,  as  a  condition  for  the  granting  of  the  adjournment  until 
November  3,  1905,  it  was  agreed  that  no  further  adjoiu-nment  should  be 
granted  to  the  plaintiff,  and  that  the  title  should  close  absolutely  on  that 
day,  and  that  no  other  agreement  to  close  at  any  other  or  future  date 
was  entered  into  by  the  defendant  either  personally  or  through  or  by  his 
attorney.  Fifth.  That  the  case  is  without  proof  that  consent  was  ob- 
tained for  the  closing  on  any  other  date  than  November  3,  1905,  at  which 
time  defendant  was  ready  and  willing  to  convey." 

The  third  and  fourth  findings  are  each  based  in  a  material  part  upon 
oral  testimony  received,  subject  to  objection  and  exception,  to  the  effect 
that  prior  to,  and  contemporaneous  with,  the  making  of  the  original 
written  contract  the  plaintiff  agreed  with  the  defendant's  testator  to 
accept  the  title  to  said  real  property  without  a  previous  discharge  of  the 
savings  bank  mortgage  thereon,  and  to  retain  a  sufficient  portion  of  the 
consideration  specified  in  the  contract  to  pay  said  mortgage  thereafter, 
and  also  that  prior  to  and  contemporaneous  with  the  making  of  the 
further  contract  adjourning  the  closing  of  said  title  from  October  5th  to 
November  3d  it  was  orally  agreed  that  no  further  adjournment  should 
be  granted  to  the  plaintiff,  and  in  substance  that  the  time  mentioned  in 
the  contract  be  made  of  the  essence  thereof. 

John  D.  Connolly,  for  appellant.  As  it  was  not  expressly  stipulated 
in  the  contract  that  time  was  of  its  essence;  as  the  subject  of  the  sale  did 
not  fluctuate  in  value,  and  there  had  been  no  change  of  circumstances, 
and  the  delay,  if  any,  did  not  involve  the  vendor  in  any  loss,  and  every 
act  of  the  vendee  was  in  affirmance  of  the  contract,  specific  performance 
should  have  been  decreed.  .  .  .  The  Court  below  improperly  admitted 
oral  testimony  to  vary  the  terms  of  the  written  contract.  .  .  . 


No.  828  INTEGRATION   OF   LEGAL   ACTS  1213 

Arthur  J.  Westermayr,  for  respondent.  The  time  for  closing  the  title 
was  adjourned  from  October  5,  1905,  to  November  3,  1905,  upon  the 
positive  understanding  that  the  title  would  be  closed  on  that  date.  As 
a  condition  for  the  adjournment,  time  was  made  the  essence  of  the  con- 
tract (Dwark  V.  Weinberg,  139  N.  Y.  S.  R.  504).  The  Court  below 
properly  admitted  testimony  as  to  the  mortgage  on  the  property  and  as 
to  time  being  of  the  essence  of  the  contract,  although  no  provisions  as 
to  the  same  were  contained  in  the  written  adjournment.  .  .  . 

Chase,  J.  (after  stating  the  case  as  above).  We  are  of  the  opinion 
that  such  testimony  was  improperly  received.  The  general  rule  that 
oral  testimony  cannot  be  received  to  vary  a  written  contract  is  well 
established  and  generally  conceded.  It  has  become  a  rule  of  substantive 
law.  It  stands  as  a  bar  against  using  oral  testimony  to  overthrow  a 
solemn  and  deliberate  contract,  and  arises  from  the  presumption  that 
the  parties  to  a  contract  by  placing  their  engagement  in  Avriting  intend 
to  avoid  the  consequences  arising  from  defects  of  man's  memory  and  the 
possibly  prejudiced  statements  of  interested  witnesses. 

Contracts  are  frequently  made  that  are  collateral  to,  but  independent 
of,  a  written  contract,  and  they  can  be  properly  established  by  oral 
testimony.  Evidence  of  such  contracts  is  sometimes  referred  to  as  an 
exception  to  said  general  rule.  It  is  more  accurate  to  say  that  collateral 
and  independent  contracts  can  be  shown  by  oral  testimony,  because  it 
was  not  the  intention  of  the  parties  thereto  to  include  such  contracts  in 
the  writing.  Collateral  contracts  are  thus  frequently  established  by 
oral  testimony,  because  they  are  collateral;  and  ambiguous  written 
contracts  are  explained  by  oral  testimony,  because  they  are  ambiguous. 
The  value  and  integrity  of  a  written  instrument  is  largely  dependent  upon 
the  fact  that  it  cannot  be  broken  down  or  modified  by  a  statement  of 
alleged  conversations  and  occurrences  leading  up  to  its  execution.  Where 
a  written  contract  is  clear  in  its  terms,  and  purports  to  express  the  entire 
arrangement  of  the  parties,  and  to  direct  upon  all  the  questions  under 
consideration,  it  conclusively  determines  the  rights  of  the  parties,  and 
can  neither  be  contradicted,  varied,  nor  explained.  Thomas  v.  Scutt, 
127  N.  Y.  133;  Stowell  v.  Greenwich  Ins.  Co.,  163.  N.  Y.  298;  Corse  v. 
Peck,  102  N.  Y.  513;  Brantingham  v.  Huff,  174  N.  Y.  53;  House  v.  Walch, 
144  N.  Y.  418;   Dady  v.  O'Rourke,  172  N.  Y.  447. 

In  deciding  whether  a  particular  promise  or  agreement  is  collateral 
and  independent  of  the  principal  and  written  contract  it  is  necessary  to 
determine  whether  the  parties  to  the  written  contract  intended  to  include 
therein  all  of  the  promises  relating  to  the  subject-matter  under  considera- 
tion.    Professor  Wigmore,  in  his  work  on  Evidence,  says: 

"In  deciding  upon  this  intent,  the  chief  and  most  satisfactory  index  for  the 
judge  is  found  in  the  circumstance  whether  or  not  the  particular  element  of  the 
alleged  extrinsic  negotiation  is  dealt  with  at  all  in  the  ■s\Titing.  If  it  is  mentioned, 
covered,  or  dealt  with  in  the  writing,  then  presumably  the  \\Titing  was  meant  to 
represent  all  of  the  transaction  on  that  element;    if  it  is  not,  then  probably  the 


1214  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  828 

WTiting  was  not  intended  to  embody  that  element  of  the  negotiation.  This  test 
is  the  one  used  by  the  most  careful  judges,  and  is  in  contrast  with  the  looser  and 
incorrect  inciuiry  whether  the  alleged  extrinsic  negotiation  contradicts  the  terms 
of  the  writing."     Wigmore  on  Evidence,  §  2430. 

The  written  contract  between  the  parties  now  before  us  provided  for 
a  deed  free  from  all  incumbrances.  It  expressly  specified  one  exception 
to  such  covenant  without  including  in  the  written  contract  a  further 
exception  to  the  effect  that  the  property  could  be  transferred  subject 
to  the  savings  bank  mortgage.  Again  the  written  contract  adjourning 
the  time  of  closing  the  title  included  express  agreements  binding  upon 
the  parties,  in  connection  with  the  adjournment  without  expressly 
making  the  time  to  which  the  closing  of  title  was  adjourned  of  the  essence 
of  the  contract.  In  each  case  the  subject-matter  upon  which  the  parties 
contracted  included  the  matter  sought  to  be  established  by  oral  testimony. 
In  each  case  the  subject-matter  was  within  the  consideration  of  the  parties 
in  making  the  written  contracts;  and,  in  the  absence  of  fraud,  it  is  con- 
clusively presumed  that  the  contracts  as  written  include  an  accurate  and 
full  statement  of  the  intention  of  the  parties.  Where  a  contract  is  made 
for  the  sale  of  real  property,  and  the  time  for  closing  the  transaction  is 
not  expressly  made  of  the  essence  of  the  contract,  and  where  it  does 
not  appear  from  the  contract  itself  and  the  surrounding  circumstances 
that  a  delay  of  a  few  hours  or  days  would  essentially  affect  carrying  out 
the  intention  of  the  parties.  Courts  of  equity  may  in  their  discretion  com- 
pel the  specific  performance  of  the  contract,  even  although  the  party 
asking  for  such  specific  performance  has  failed  to  perform  his  part  of  the 
contract  in  the  exact  time  specified  therein,  providing  such  failure  has 
not  arisen  from  bad  faith  or  inexcusable  delay.  Pomeroy's  Equity 
Jurisprudence  (2d  Ed.)  §  1408;  Kahn  v.  Chapin,  152  N.  Y.  305;  Hun  v. 
Bourdon,  57  App.  Div.  351,  68  N.  Y.  Supp.  112. 

The  judgment,  therefore,  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 

CuLLEN,  C.  J.,  and  Gray,  Edward  T.  Bartlett,  Haight,  Vann, 
and  WiLLARD  Bartlett,  JJ.,  concur.  Judgment  reversed,  etc. 


829.  HEITMAN  v.  COMMERCIAL    BANK  OF  SAVANNAH 

Court  of  Appeals  of  Georgia.     1909 

6  Ga.  App.  584;  65  S.  E.  590 

Error  from  City  Court  of  Savannah ;   Davis  Freeman,  Judge. 

Action  by  the  Commercial  Bank  of  Savannah  and  others  against  J.  H. 
Heitman  and  others.  Judgment  for  plaintiffs,  and  defendants  Heitman 
and  certain  others  bring  error.     Aifirmed. 

The  Commercial  Bank  of  Savannah  sued  O'Connell,  Tietjen,  Goette, 
Fetzer,  Manning,  Heitman,  Whatley,  Knight,  and  Koneman,  setting  up 


No.  829  INTEGRATION   OF   LEGAL   ACTS  1215 

its  cause  of  action  in  two  counts.  The  first  count  proceeded  against 
O'Connc'll  as  maker  and  the  other  defendants  as  sureties  on  the  following 
promissory  note:  "$15,000.00.  Savannah,  Ga.,  Feb.  7,  1908.  Four 
months  after  date  I  promise  to  pay  to  the  order  of  the  Commercial  Bank 
fifteen  thousand  dollars,  with  interest  from  January  1,  1908,  at  7  per  cent, 
per  annum  at  any  bank  in  Savannah,  Ga.  Value  received."  O'Connell 
signed  apparently  as  a  maker,  while  the  others  signed  apparently  as  in- 
dorsers.  In  the  second  count  it  is  alleged  that  all  of  the  parties  whose 
names  appear  on  the  note  "signed  their  names  to  the  said  note  before 
the  same  was  delivered  to  your  petitioner  with  the  intention  of  binding 
themselves  to  pay  the  amount  therein  named  with  interest  to  your  peti- 
tioner, and,  after  so  signing  their  names,  they  delivered  the  said  note  to 
your  petitioner  in  payment  of  an  indebtedness  of  theirs  to  your  petitioner, 
and  for  a  consideration  paid  them  by  your  petitioner  as  per  a  letter 
written  by  them  to  your  petitioner  dated  February  7,  1908,  a  copy  of 
which  is  hereto  attached,  and  they  received  from  your  petitioner  the 
consideration  mentioned  in  the  said  letter,  and  delivered  the  said  note 
with  their  names  thereon  to  your  petitioner  as  makers,  and  with  the  in- 
tention and  for  the  purpose  of  making  themselves  liable  to  your  petitioner 
upon  the  said  note  as  makers  thereof."  The  letter  to  which  reference 
is  made  is  as  follows:  "Savannah,  Ga.,  February  7,  1908.  To  the  Com- 
mercial Bank,  City.  Gentlemen:  In  reference  to  the  security  notes 
given  by  Mr.  G.  B.  Whatley  to  your  bank  and  which  were  indorsed  by 
directors  of  the  Sand  Lime  Brick  Company,  we  beg  to  state  that  we  have 
been  unable  to  get  all  the  old  indorsers  to  indorse  a  new  paper,  and 
we  therefore  request  you  to  accept  the  note  indorsed  by  us  and  inclosed 
herewith,  in  payment  of  the  old  notes,  and  turn  over  the  same  to  us  so 
that  we  can  bring  suit  to  determine  the  liability  of  all  the  indorsers 
thereon."  The  names  appended  to  the  letter  are  the  same  as  those  ap- 
pended to  the  note,  and  the  same  as  those  of  the  original  defendants  in 
the  court  below. 

The  only  defendants  who  appeared  in  any  way  before  final  judgment 
were  Heitman,  Goette,  Manning,  and  Knight.  Goette  ha\'ing  died 
pending  the  action,  the  suit  as  to  him  was  voluntarily  discontinued 
without  objection  from  the  other  defendants.  The  three  above-named 
defendants  filed  in  due  time  an  answer,  in  which  the  jurisdiction  of  the 
Court  was  admitted,  as  was  also  the  fact  that  they  executed  the  note  sued 
on  as  indorsers,  that  the  plaintiff  bank  was  the  lawful  holder  thereof  and 
had  duly  protested  it  for  nonpayment,  but  each  and  every  other  allegation 
of  each  and  every  other  paragraph  of  the  petition  was  denied.  This 
answer  further  set  up  "  that  heretofore  [the  exact  date  whereof  defendants 
cannot  say]  they  executed  as  indorsers  a  note  payable  to  the  plaintiff 
for  the  sum  mentioned  in  the  plaintiff's  petition,  to  wit,  $15,000;  that  it 
was  understood  between  plaintiffs  and  these  defendants  that  they  were 
not  accommodation  indorsers  or  sureties  upon  said  notes,  but  indorsers 
pure  and  simple,  neither  of  defendants  receiving  any  consideration  there- 


1216  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  829 

from.  Plaintiff  is  a  chartered  hank,  and,  when  said  note  became  due 
and  was  not  paid,  it  failed  and  neglected  to  protest  said  note,  whereby 
the  indorsers  upon  the  same  were  released.  In  addition  to  the  parties 
defendant  hereto,  H.  H.  Peeples,  J.  S.  Howkins,  Henry  Henkin,  and  E. 
M.  O'Brien  were  indorsers  upon  said  note.  After  said  note  became  due, 
plaintiff*,  well  knowing  that  these  defendants  were  released  by  reason  of 
its  failure  to  protest  said  notes,  undertook  to  procure  defendants  to  in- 
dorse the  renewal  of  said  notes.  These  defendants  agreed  to  and  indorsed 
a  renewal  upon  the  condition  well  understood  by  plaintiff  that  each  of  the 
indorsers  on  the  old  notes  would  indorse  the  new  one,  and  that  their  said 
indorsement  was  not  to  be  effective  or  binding  unless  each  of  said  indorsers 
indorsed  the  same.  Three  of  said  original  indorsers,  to  wit,  E.  M. 
O'Brien,  J.  S.  Howkins,  and  Henry  W.  Henkin,  without  the  knowledge 
of  these  defendants,  failed  and  refused  to  indorse  said  renewal.  Plaintiff, 
instead  of  canceling  said  note,  kept  the  same,  and  the  note  was  renewed 
several  times,  these  defendants  at  all  times  believing  that  all  of  the  orig- 
inal indorsers  were  indorsing  the  renewal  notes,  and  plaintiff  knowing 
at  all  times  that  they  had  not  indorsed  and  were  not  indorsing  the 
renewals  and  concealing  these  facts  from  these  defendants.  On  or  about 
the  7th  day  of  Februar}',  1908,  these  defendants  learned  for  the  first  time 
that  E.  M.  O'Brien,  Henry  Henkin  and  J.  S.  Howkins  had  not  indorsed 
the  first  or  succeeding  renewal  notes,  and  plaintiff  requested  defendants 
to  sign  the  letter  attached  as  an  exhibit  to  plaintiff's  petition  and  the 
renewal  note  attached  to  said  petition.  Defendants  signed  said  letter 
and  said  note  upon  the  distinct  understanding  and  agreement  that  plain- 
tiff should  procure  the  indorsement  thereon  of  each  of  the  indorsers  on 
the  renewal  notes,  and  plaintiff  accepted  their  signatures  to  said  letter 
and  indorsements  on  said  note  on  the  condition  and  distinct  understanding 
that  it  was  to  procure  the  indorsement  of  each  of  said  indorsers,  includ- 
ing H.  H.  Peeples,  and  that  said  indorsement  should  not  be  binding  unless 
such  complete  indorsement  should  be  obtained.  H.  H.  Peeples  refused 
and  failed  to  indorse  said  notes.  Plaintiff  did  not  advise  defendants  of 
this.  It  kept  said  note,  and,  when  payment  was  refused  at  maturity, 
protested  the  same.  Defendants  say  that  said  note  was  an  incomplete 
paper,  and  defendants  were  not  bound  as  indorsers  or  as  sureties  or  in 
any  manner  whatsoever;  that  they  had  never  become  liable  upon  said 
notes  or  bound  to  pay  the  same;  and  that  they  did  not  promise  plaintiff 
that  the  sums  named  in  said  petition  or  any  other  sums  should  be  paid, 
their  indorsement  having  been  conditional  and  the  conditions  having 
never  been  complied  with."  Pending  the  argument  on  a  motion  to 
strike  the  foregoing  answer  on  the  ground  that  it  set  forth  no  sufficient 
legal  defense,  the  defendants  offered  the  following  amendment  thereto: 
"  That  the  preparation  of  the  note  sued  upon  and  the  letter  attached  to 
the  petition  was  plaintiff's  undertaking;  that  it  undertook  to  procure 
said  papers  for  its  own  profit  and  benefit;  that  these  defendants  signed 
said  note  and  said  letter  on  the  distinct  understanding  and  condition 


No.  S29  INTEGRATION   OF   LEGAL  ACTS  .  1217 

understood  and  assented  to  by  plaintiff  that  neither  the  letter  nor  the 
note  was  to  be  complete  and  binding  until  H.  H.  Peeples  had  signed  the 
letter  and  signed  the  note  as  indorscr;  that  plaintiff  procured  the  signa- 
ture and  indorsement  of  all  the  parties  whose  signature  and  indorsement 
it  undertook  to  procure  except  that  of  H.  H.  Peeples.  It  did  not  procure 
his  signature  and  indorsement  as  it  had  expressly  agreed  to  do,  and, 
because  of  its  failure  to  comply  with  this  condition  precedent,  neither 
the  note  nor  the  letter  ever  became  effective  or  binding."  The  court 
refused  to  allow  the  amendment,  and  granted  a  motion  striking  the  answer 
on  the  ground  that  no  legal  defense  was  set  forth  therein.  This  is  the 
first  assignment  of  error  in  the  bill  of  exceptions.  Thereafter,  during 
the  same  term,  which  was  the  first  term  after  the  suit  was  filed,  the  Court 
rendered  one  judgment  against  all  the  defendants  for  the  full  amount 
sued  for.  Four  days  after  this  judgment  was  rendered  the  defendant 
Fetzer  came  into  court  for  the  first  time,  and  moved  the  court  to  open 
the  judgment  which  had  been  rendered  and  allow  him  to  demur  and  plead. 
He  offered  to  pay  the  costs,  but  gave  no  reason  for  his  failure  to  appear 
earlier.  The  Court  overruled  the  motion,  and  Fetzer  assigns  error 
thereon,  also  excepting  to  the  judgment  rendered  four  days  prior  thereto. 
The  ansAver  which  he  offered  to  file  was  the  same  as  that  which  had  been 
filed  by  the  three  other  defendants  and  which  had  been  stricken  on  general 
demurrer. 

Osbonic  d'  Lawrence,  for  plaintiffs  in  error.  U.  H.  McLaivs,  Adams  & 
Adams,  G.  B.  Whatley,  and  J.  R.  Cain,  for  defendants  in  error. 

Russell,  J.  (after  stating  the  facts  as  above).  .  .  . 

This  brings  us  to  a  consideration  of  the  orders  of  the  Court  striking 
the  answer  filed  by  Heitman,  Manning,  and  Knight,  and  in  refusing  to 
allow  the  amendment  thereto. 

1.  Attention  is  called  to  the  fact  that  the  second  count  is  a  suit  against 
all  the  defendants  as  makers,  and  the  note  and  the  letter  are  set  forth 
as  constituting  one  contract.  The  letter  is  as  much  a  part  of  the  con- 
tract as  the  note  itself;  and  the  terms  of  the  contract  created  by  the 
two  papers  taken  together  cannot  be  altered,  varied,  or  contradicted 
by  parol  evidence  of  prior  or  contemporaneous  agreements  as  to  matters 
covered  therein.  Ordinarily,  however,  there  can  be  no  doubt  that  parol 
or  other  extrinsic  evidence  is  admissible  to  show  that  a  writing  bearing 
every  earmark  of  a  complete  and  perfect  contract  is  not  in  fact  a  con- 
tract at  all  because  of  the  nonperformance  of  a  condition  precedent  as  to 
which  the  writing  is  silent.  This  is  not  var^dng  the  terms  of  a  written 
contract  by  extrinsic  evidence,  for  the  simple  reason  that  it  shows  that 
there  is  no  contract  in  existence;  that,  therefore,  there  is  nothing  to 
which  to  apply  the  excluding  rule.  The  so-called  parol  evidence  rule 
presupposes  the  existence  of  a  valid  contract;  and,  on  the  questions  as 
to  whether  or  not  a  valid  contract  is  in  existence  or  has  been  created, 
generally  parol  or  other  evidence  dehors  the  writing  is  always  competent 
and  legal.     Accordingly,  it  may  be  shown  by  extrinsic  evidence  that  the 


1218         .   BOOK  VI :  PAROL  EVIDENCE  RULES         No.  829 

writing  involved  is  not  a  valid  or  enforceable  legal  obligation  for  the 
reason  that  it  does  not  possess  finality  of  utterance;  that  there  never 
has  been  an  agreement  that  the  writing  is  a  completed  and  finally  uttered 
embodiment  of  all  the  terms  of  a  contract  presently  operative  and 
binding. 

A  few  cases  will  illustrate  and  delimit  this  principle.  In  the  great 
leading  case  of  Pym  «.  Campbell,  6  E.  &  B.  370  [ante,  No.  799],  it  was 
held  that  the  defendant  could  show  by  extrinsic  evidence  that  the  writing 
sued  on  (on  its  face  a  complete  and  perfect  contract  for  the  sale  of  an 
interest  in  a  patent)  was  not  binding  for  the  reason  that  it  was  signed  on 
an  express  mutual  understanding  that  it  was  not  to  become  operative 
until  A.  was  consulted  and  approved,  and  that  A.  did  not  approve.  The 
writing  did  not  in  any  way  refer  to  the  necessity  for  the  performance 
of  this  condition  precedent.  In  Ware  v.  Allen,  128  U.  S.  590,  a  writing 
absolute  on  its  face  and  signed  by  both  parties  was  shown  by  parol 
evidence  to  have  been  signed  on  condition  that  it  was  not  to  become 
operative  as  a  presently  binding  contract  until  an  attorney  had  been 
consulted  and  had  approved.  ...  In  Wilson  v.  Powers,  131  Mass. 
540,  a  payee  of  a  promissory  note  was  allowed  by  extrinsic  evidence  to 
prove  that  a  writing  signed  by  him  and  by  the  maker  of  the  note  extend- 
ing the  time  of  payment  was  not  to  become  binding  until  assented  to  by 
the  surety.  ...  In  Blewitt  v.  Borum,  142  N.  Y.  357,  a  contract,  relating 
to  the  right  to  sell  and  manufacture  a  binder  for  books,  admitted  by  the 
defendant  to  have  been  signed  by  him  and  handed  to  the  plaintiff,  was 
defeated  by  proof  of  a  parol  condition  that  it  was  not  to  become  operative 
until  the  plaintiff  acquired  the  interest  of  a  third  person,  which  condition 
the  plaintiff  had  never  performed  nor  had  its  nonperformance  been 
waived  by  the  defendant.  ...  In  Burke  v.  Dulaney,  153  U.  S.  228, 
[ante,  No.  800],  the  maker  of  a  promissory  note,  given  for  the  purchase 
price  of  an  interest  in  a  mine,  was  allowed  to  show  by  parol  that  he  de- 
livered the  note  to  the  payee  on  condition  that  it  was  not  to  be  binding 
until  he  (the  maker)  had  inspected  the  mine  and  approved  it;  that  he 
had  inspected  the  mine  and  disapproved  it,  and  had  demanded  back  the 
note. 

It  will  be  noted,  however,  that  in  none  of  the  cases  just  mentioned 
was  the  condition  covered  by  the  writing  involved.  There  is  a  plain 
difference  between  showing  by  extrinsic  evidence  the  nonperformance  of 
a  condition  precedent  as  to  which  the  writing  is  silent,  and  showing  by 
extrinsic  evidence  that  the  writing  is  incomplete  or  not  finally  uttered 
because  of  the  nonperformance  of  a  condition  stated  in  the  writing  to 
have  been  performed  or  to  have  been  agreed  upon  as  unnecessary.  In 
the  former  case  the  writing  is  not  contradicted;  in  the  latter  it  is.  If, 
therefore,  due  consideration  be  given  to  the  reasons  which  justify  the 
existence  of  the  parol  evidence  rule,  the  principle  which  was  the  founda- 
tion of  the  decisions  in  those  cases  must  be  limited  to  the  extent  that 
where  the  contract  itself  as  written,  agreed  ypon,  and  signed  specifically 


No.  829  INTEGRATION   OF  LEGAL  ACTS  1219 

states  that,  upon  the  performance  of  a  certain  condition  precedent,  the 
contract  shall  become  complete  and  binding,  and  that  after  that  time 
nothing  shall  remain  to  be  done  by  either  party  preliminary  to  the  com- 
plete and  final  utterance  of  the  writing  as  a  presently  binding  and  all- 
comprehensive  embodiment  of  the  entire  agreement,  then  extrinsic 
evidence  of  an  agreement  as  to  other  conditions  would  be  incompetent. 
For  example,  if  the  written  instrument,  as  agreed  upon  and  signed  by 
both  parties,  contains  a  stipulation  that  it  is  not  to  be  binding  until  it  is 
signed  by  a  certain  number  of  persons  named  therein,  and  that  the  signa- 
tures of  these  and  these  only  are  to  be  attached  thereto,  it  would  be  a 
violation  of  the  so-called  parol  evidence  rule  to  allow  parol  evidence  of 
an  agreement  that  other  signatures  than  the  ones  named  in  the  contract 
were  to  be  secured  as  a  condition  precedent  to  its  final  utterance  as  a 
completed  legal  act.  This  would  be  an  attempt  to  contradict  a  written 
expression  of  intention  by  a  less  trustworthy  method  of  proof. 

And,  after  all,  the  real  raison  d'etre  of  the  rule  excluding  parol  or 
other  extrinsic  evidence  which  contradicts  or  alters  a  written  agreement 
is  to  be  found  in  the  elementary  legal  principle  that  the  law  looks  to 
express  and  not  abstract  inteht,  and  holds  a  man  to  the  natural  and 
probable  consequences  of  what  he  has  said,  and  not  what  he  thinks  he 
has  said.  Words,  whether  oral  or  written,  are  but  vehicles  for  conveying 
ideas;  and  language,  whether  communicated  orally  or  in  writing,  is  the 
best  means  we  have  yet  devised  whereby  men  may  express  to  one  another 
their  ideas  and  intentions.  This  being  so,  the  law  concerns  itself  only 
with  the  language  used,  and  not  with  abstract  states  of  mind  wholly 
uncommunicated.  When  a  man's  abstract  intention  is  contradictory  of 
his  expressed  intention  (whether  expressed  verbally  or  by  written  sym- 
bols), it  is  legally  immaterial.  So,  where  a  written  expression  of  inten- 
tion fairly  construed  is  unambiguous,  the  writer  is  bound  by  the  language 
he  has  used,  and  cannot  show  that  he  has  an  abstract  idea  in  mind  at 
variance  with  such  language.     As  has  been  so  ably  said  by  Mr.  Wigmore : 

"We  are  to  fix  the  person  with  such  expressed  consequences  as  are  the  reason- 
able result  of  his  volition.  In  other  words,  the  act  legally  efi'ective  will  be  de- 
termined, in  respect  to  the  three  elements  of  subject,  terms,  and  finality,  by  that 
expression  of  it  which  results  to  the  other  person  in  the  transaction  as  the  conse- 
quence reasonably  to  have  been  anticipated  imder  all  the  circumstances  of  the 
volition  of  the  actor."     4  Wigmore  on  Evidence,  §  2413. 

When  a  man  has  put  his  signature  to  a  writing  expressing  his  assent  to 
the  terms  thereof,  he  has  done  an  act  to  which  the  law  attaches  conse- 
quences just  as  definite  and  ascertainable  as  if  he  had  committed  some  act 
in  the  domain  of  torts.  Having  led  the  other  party  to  naturally  believe 
that  he  has  fully  assented  to  the  terms  of  the  writing,  he  cannot  show  that 
he  had  in  his  mind  a  different  idea.  Unless  this  were  true,  it  would  be 
impossible  for  parties  to  put  their  agreements  in  writing  in  such  manner 
as  that  they  would  possess  comprehensiveness  and  finality  —  elements 
so  very  necessary  and  important  in  this  day  and  time  when  we  have 


1220  BOOK  VI:  PAROL  EVIDENCE  RULES         No.  829 

removed  the  common-law  rule  which  disqualified  parties  as  witnesses 
in  their  own  behalf,  but  as  yet  have  been  unable  to  perfect  human 
recollection  or  remedy  the  impairment  thereof  created  by  self-interest. 
The  written  embodiment  of  the  agreement  is  the  very  res  gestae  of  the 
transaction,  so  to  speak,  and  is  more  reliable  than  the  subsequent  recol- 
lection of  interested  witnesses. 

2.  We  come  now  to  the  exact  question  in  this  case,  which  is  within  a 
narrow  compass,  to  wit,  whether  the  plea  and  the  proffered  amendment 
alleged  the  nonperformance  of  a  condition  precedent  which  contradicts 
either  the  note  or  the  letter  or  the  contract  created  by  both  of  them  to- 
gether. The  plea  and  the  proffered  amendment  allege,  in  substance,  that 
the  nine  defendants  and  four  other  persons,  to  wit,  Peeples,  Howkins, 
Henkin,  and  O'Brien,  were  indorsers  on  a  note  of  a  corporation  of  which 
all  of  them  were  directors;  that  the  nine  defendants  and  Peeples  indorsed 
a  renewal  of  this  note  on  the  distinct  understanding  that  all  of  the  old 
indorsers  would  indorse  the  new  note  before  it  should  be  binding  or 
complete;  that  three  of  the  original  indorsers,  to  wit,  O'Brien,  Howkins, 
and  Henkin,  did  not  sign  the  renewal  note,  but  that  nevertheless  the  bank, 
concealing  the  fact  from  the  defendants  who  had  signed,  kept  the  renewal 
note  and  procured  several  other  renewals  thereof,  all  the  while  concealing 
from  the  defendants  signing  that  all  the  old  indorsers  were  not  signing; 
that  as  soon  as  the  nine  defendants  ascertained  that  all  the  old  indorsers 
were  not  signing  the  new  notes,  to  wit,  on  February  7,  1908,  the  bank 
requested  them  to  sign  the  letter  prepared  by  it,  and  the  note  sued  on 
and  referred  to  in  the  letter;  that  defendants  signed  the  letter  and  the 
note  on  the  distinct  mutual  understanding  that  neither  the  note  nor  the 
letter  would  be  effective,  complete,  or  binding  until  the  bank  had  pro- 
cured the  signature  of  Peeples  (who  had  been  signing  every  renewal  note 
up  to  that  time)  to  both  the  letter  and  the  note,  and  that  the  bank  had 
never  performed  this  condition  precedent.  Let  it  be  noted  right  here 
that  the  amended  answer  does  not  attempt  to  set  up  that  the  signatures 
of  all  the  indorsers  of  the  original  note  were  to  be  obtained  to  the  note 
and  the  letter  as  a  condition  precedent  to  the  finality  of  their  utterance 
as  complete  presently  binding  legal  obligations.  Such  a  defense  would 
have  been  defective  in  that  it  would  have  sought  to  set  up  the  nonper- 
formance of  a  condition  precedent  the  necessity  for  the  performance  of 
which  is  negatived  by  the  contract  itself,  and  would  therefore  have 
violated  the  rule  which  has  been  discussed  above.  The  language  of  the 
letter  is :  "  We  beg  to  state  that  we  have  been  unable  to  get  all  the  old 
indorsers  to  indorse  a  new  paper,  and  we  therefore  request  you  to  accept 
the  note  indorsed  by  us  and  inclosed  herewith  in  payment  of  the  old 
notes."  To  prove  by  extrinsic  evidence  that  all  the  original  indorsers 
were  to  sign  the  note  would  be  directly  in  the  teeth  of  the  letter  which 
states  to  the  contrary. 

But,  according  to  the  answer  and  the  amendment,  all  the  original 
indorsers  were  not  to  sign,  but  all  the  indorsers  of  the  renewal  notes: 


No.  829  INTEGRATION   OF   LEGAL   ACTS  1221 

that  is  to  say,  all  the  original  13  indorsers,  except  Howkins,  Henkin, 
and  O'Brien.  Does  this  contradict  anything  either  in  the  letter  or  in 
the  note?  The  words  "all  the  old  indorsers"  appearing  in  the  letter 
mean  the  13  original  indorsers,  and  not  the  10  indorsers  who  had  signed 
the  renewal  note  immediately  preceding  the  one  in  suit.  This  is  evident 
from  the  allegation  in  the  plea  that  the  letter  was  signed  at  the  request 
of  the  bank  as  soon  as  the  defendants  discovered  that  three  of  the  original 
indorsers  had  not  been  signing  any  of  the  renewal  notes.  Peeples  had 
been  signing  every  renewal  note  up  to  that  time.  The  language  used  in 
the  letter  is  consistent  with  the  idea  that  its  purpose  was  merely  to  cover 
definitely  the  question  which  had  been  mooted  up  to  that  time,  namely, 
that  in  future  it  was  definitely  understood  that  Howkins,  Henkin,  and 
O'Brien  were  not  to  sign  the  note  or  the  contract.  The  word  "  we  "  used 
in  the  letter  is  not  defined  therein  otherwise  than  by  the  exclusion  of 
the  idea  that  all  of  the  13  indorsers  were  to  sign;  and  does  not  exclude  the 
idea  that  Peeples  was  to  sign.  Suppose  Peeples  had  signed,  still  the  words 
in  the  letter,  "we  have  been  unable  to  get  all  the  old  indorsers  to  sign," 
would  have  been  true.  If  the  letter  had  stated  specifically  that  "  we  have 
been  unable  to  get  Peeples,  Howkins,  Henkin  and  O'Brien,  indorsers  on 
former  notes,  to  sign  a  renewal  note,  and  we  inclose  herewith  a  note 
signed  by  us,"  then  the  idea  that  Peeples  was  to  sign  could  not  be  set  up 
by  extrinsic  evidence.  Since,  however,  the  fact  as  to  whether  or  not 
Peeples  was  to  sign  does  not  appear  from  the  letter  or  the  note,  proof  by 
extrinsic  evidence  that  he  was  to  sign  as  a  condition  precedent  to  the 
final  utterance  of  the  written  documents  as  completed  legal  obligations 
does  not  alter,  vary,  or  contradict  the  terms  of  the  written  contract,  but 
shows  that  there  never  has  been  a  written  contract  —  possessing  the 
element  of  finality  of  utterance  —  made  between  the  parties. 

But,  say  counsel  for  the  bank:  "If  this  letter  means  anything,  it 
means  that  the  parties  inclose  this  note  to  the  bank  requesting  that  it 
be  accepted,  although  all  had  not  signed.  It  was  offered  as  the  complete 
contract,  as  the  final  and  complete  arrangement.  It  shows  that  the 
WTiters  had  undertaken  to  get  all  to  sign,  and  is  utterly  inconsistent 
with  the  idea  that  the  bank  assumed  this  obligation.  According  to  the 
letter,  these  parties  unite  in  this  letter,  which  they  send  or  deliver  to 
the  bank  inclosing  the  note  sued  on,  and  state  to  the  bank,  in  effect, 
that  some  of  the  former  parties  have  not  signed  and  are  not  going  to 
sign.  'We  have  been  unable  to  get  them  to  sign,  but  all  have  signed 
who  are  going  to  sign,  and  we  request  you  to  accept  this  note  as  it  is. 
We  inclose  it  with  this  request.  It  is  complete  so  far  as  we  are  able  or 
expect  to  complete  it.'"  The  fallacy  in  this  argument,  as  we  see  it,  is 
that  it  assumes  that  the  letter  was  sent  or  delivered  to  the  bank'  uncon- 
ditionally. The  letter  speaks  only  from  the  time  that  it  was  finally  and 
unconditionally  delivered,  which  time  according  to  the  plea  has  never 
arrived.  If  the  letter  was  complete,  the  note  was  complete;  but,  if  the 
letter  was  not  complete,  there  is  nothing  to  show  that  the  note  was 


1222  BOOK  VI :    parol  evidence  rules  No.  829 

complete.  Suppose  only  two  of  the  signatures  of  the  13  old  indorsers 
were  attached  to  the  note  and  the  letter,  and  that  the  bodies  of  these 
documents  were  in  every  respect  like  they  are  at  present.  Could  not 
the  2  indorsers  who  had  signed  set  up  by  parol  that  they  signed  on  the 
express  mutual  understanding  that  the  note  and  the  letter  were  not  to  be 
complete  until  other  signatures  had  been  obtained,  and  that  both  the 
letter  and  the  note  were  delivered  to  the  bank  on  this  condition?  Does 
the  letter  in  its  body  negative  the  idea  that  more  than  2  of  the  13  old 
indorsers  were  to  sign  it?  If  not,  how  does  it  negative  the  idea  that  10 
of  the  13  old  indorsers  were  to  sign  it?  The  body  of  the  letter  is  entirely 
consistent  with  the  idea  that  any  number  less  than  all  of  the  13  old 
indorsers  were  to  sign  it  before  it  should  be  complete  and  binding  — 
before  it  should  speak  as«the  obligation  of  those  who  had  signed.  " '  All' 
means  every  one,  or  the  whole  number  of  particulars."  1  Words  & 
Phrases,  312.  Therefore,  when  the  letter  says  in  its  body  that  not  all 
were  to  sign,  this  means  simply  that  not  ev^ery  one  was  to  sign  it,  but  is 
consistent  with  the  idea  that  every  one  except  one  was  to  sign  it.  The 
only  difference  between  this  promissory  note  and  all  the  other  promissory 
notes  in  the  cases  cited  above  in  which  the  parol  condition  of  additional 
signatures  was  allowed  is  that  here  we  have  a  letter.  But  the  plea  says 
there  is  no  letter  for  the  reason  that  it  was  never  complete  as  a  letter, 
that  it  was  delivered  to  the  bank  on  a  condition  to  be  performed  by  the 
bank,  and  that  the  bank  has  never  performed  this  condition. 

3.  Nor  does  the  fact  that  there  had  been  a  manual  tradition  of  the 
documents  to  the  bank  affect  the  result.  Every  case  to  which  reference 
has  been  made  in  this  opinion  fully  recognizes  the  rule  that  there  may  be  a 
conditional  delivery  of  a  contract,  such  as  this  one,  to  the  obligee,  and 
that  proof  of  failure  to  perform  a  condition  attached  to  the  act  of  delivery 
will  invalidate  the  contract.  Take,  for  example,  the  case  of  Moore  v. 
Farmers'  Mutual  Ins.  Co.,  107  Ga.  199.  -  The  policy  of  insurance  there 
had  been  handed  over  to  the  insured,  and  it  was  in  his  possession,  bearing 
every  earmark  of  a  complete  and  perfect  contract,  and  yet  the  Court 
allowed  proof  of  a  parol  condition  unperformed  to  defeat  recovery  on  the 
policy.  So  in  the  case  of  Burke  v.  Dulane}',  153  U.  S.  234,  the  promissory 
note  was  in  the  manual  possession  of  the  payee  possessing  all  the  ordinary 
elements  of  a  complete  and  perfect  contract  of  that  kind,  and  yet  parol 
proof  that  delivery  was  made  on  a  condition  which  had  never  been  per- 
formed was  held  to  defeat  a  recovery  on  the  note.  The  rule  of  the  com- 
mon law,  still  of  force  in  this  State,  that  there  could  be  no  delivery  in 
escrow  of  a  deed  to  the  grantee,  does  not  apply  to  the  species  of  contract 
involved  in  this  case.  In  olden  times,  when  form  was  everything  and 
substance  nothing,  and  the  only  method  of  transferring  title  to  land  was 
by  feoffment  with  livery  of  seisin,  the  transfer  of  title  was  accomplished 
by  formal  ceremony  alone.  Usually  the  transferor  and  the  transferee 
would  go  together  upon  the  land,  and  the  former  would  hand  to  the  latter 
a  piece  of  soil,  or  place  in  his  hand  the  hasp  or  ring  of  the  door,  or  a  rod, 


No.  829  INTEGRATION   OF   LEGAL   ACTS  1223 

or  perhaps  a  glove.  This  ceremony  was  symbolic  of  delivery  of  the  land 
itself.  Thereafter  the  transferee  or  feofee  had  been  invested  with  livery 
of  seisin,  and  he  was  the  owner  of  the  land.  2  Pollock  &  Maitland, 
History  of  the  English  Law,  82.  When  in  later  times  the  art  of  writing 
gained  headway,  and  came  into  general  use  in  legal  proceedings,  the  law 
sanctioned  the  transfer  of  title  to  land  by  a  grant  or  a  deed.  Much  of 
the  older  ceremony  formerly  attending  the  transfer  of  title  by  feoffment 
witli  livery  of  seisin  clung  to  the  new  method  of  transfer  by  grant  or  deed. 
The  formal  act  of  delivering  the  deed  to  the  grantee  was  a  mark  of  finality 
back  of  which  the  law  would  not  look.  Delivery  to  the  grantee  must  be 
absolute,  and  not  conditional.     To  quote  again  from  Mr.  Wigmore: 

"A  conditional  delivery  in  escrow  to  the  grantee  has  come  down  to  us  tra- 
ditionally as  a  complete  act;  the  condition  being  deemed  vain.  But  this  is  an 
arbitrary  distinction.  No  reason  and  no  policy  justifies  it.  In  England  the  older 
rule,  as  handed  down  in  Coke's  treatises,  has  for  more  than  two  generations 
been  repudiated.  In  the  United  States  it  has  been  generally  trenched  upon  so 
far  as  to  recognize  an  escrow  to  a  co-obligor  as  incomplete.  In  other  respects 
it  is  maintained  by  the  authority  of  the  older  decisions  in  most  jurisdictions. 
Ikit  it  is  being  gradually  cut  away,  sometimes  by  subtly  recasting  the  definition 
of  a  delivery;  and  the  solid  establishment  of  the  contrary  rule  for  contracts  and 
writings  in  general  {i.e.,  other  than  sealed  instruments  —  bonds  and  land  deeds, 
will  ultimately  efface  this  last  tradition  of  formalism."  4  Wigmore  on  Evidence, 
§  2408.  .  .  . 

There  was  no  error  in  entering  up  one  judgment  against  all  the  defend- 
ants after  the  plea  was  stricken.  In  the  second  count  they  were  sued  as 
makers  of  one  contract,  and  judgment  could  properly  be  entered  up 
against  them  accordingly. 

Judgment  reversed  as  to  Heitman,  Knight,  and  Manning,  and 
affirmed  as  to  Fetzer. 

Hill,  C.  J.  (dissenting).  —  I  cannot  fully  concur  in  the  opinion  of  the 
majority  of  the  Court  deli\^ered  herein.  My  dissent  is  not  from  any 
proposition  of  law  announced,  but  from  what  I  conceive  to  be  an  errone- 
ous construction  of  the  contract  sued  on  in  connection  with  the  allegations 
of  the  original  plea  and  the  amendment  thereto.  .  .  .  The  question  of 
difference  between  the  majority  of  the  Court  and  myself  is  therefore 
within  a  narrow  compass,  and  depends  upon  the  interpretation  of  the 
terms  of  the  contract  and  the  allegations  of  the  original  answer  and 
the  amendment. 

I  do  not  care  to  go  into  any  extended  argument  in  the  attempt  to 
show  the  incorrectness  of  the  views  of  the  majority  of  the  Court  or  the 
soundness  of  my  own.  The  question  must  be  determined  by  reference 
to  the  terms  of  the  contract  and  the  allegations  of  the  answer  and  the 
amendment.  To  my  mind  it  is  perfectly  manifest  that  the  note  sued  on 
was  offered  to  the  bank  by  the  makers  thereof  as  their  final  and  complete 
contract,  and  was  so  accepted  by  the  bank,  and  the  language  of  the 
letter  which  accompanied  the  note  is  utterly  inconsistent  with  the  sugges- 


1224         BOOK  VI :  parol  evidence  rules      No.  829 

tion  that  the  bank  assumed  any  obhgation  with  reference  to  the  note. 
The  makers  of  this  note  had  undertaken  to  secure  the  indorsement  of 
all  those  who  had  signed  the  original  note.     They  had  failed  to  do  so, 
and  therefore  requested  the  bank  to  accept  the  note  indorsed  by  them, 
and  which  was  inclosed  with  their  letter,  as  their  complete  contract,  in 
lieu  of  the  original  note;  and,  if  anything  further  was  necessary  to  make 
clear  the  intention  of  the  makers  of  the  note  and  the  writers  of  the  letter 
that  the  bank  should  accept  the  note  as  their  final  and  complete  contract 
than  the  express  request  that  it  would  do  so,  it  was  the  additional  request 
that  the  bank  would  send  to  them  the  former  note  in  order  that  they  might 
bring  suit  to  determine  the  liability  of  all  the  indorsers  thereon.     The 
defense,  therefore,  that  the  bank  undertook  to  secure  the  indorsement 
of  Peeples  on  the  note  as  a  condition  precedent  to  its  completion  as  a 
l)inding  contract  upon  those  who  had  signed  it,  and  who  sent  it  to  the 
bank  with  the  request  that  it  be  accepted  without  such  indorsement,  is  a 
contradiction  of  the  plain  meaning  of  the  contract.     If  the  letter  inclosed 
to  the  bank  had  expressly  stated  that  Peeples  was  not  to  sign  the  note 
and  the  bank  was  asked  to  accept  it  without  the  signature  and  the  bank 
did  so  accept  it,  it  certainly  could  not  be  contended  that  the  makers  of 
the  note  who  had  made  this  request  could  subsequently  be  heard  to  set 
up  the  defense  that  Peeples  had  not  signed  the  note.     The  letter  accom- 
panying the  note  does,  in  substance,  state  this  fact,  and  make  this  request. 
The  writers  say:    "We  have  been  unable  to  get  all  the  old  indorsers  to 
indorse  a  new  paper  ['all  the  old  indorsers'  included  Peeples],  and  we, 
therefore,  request  you  to  accept  the  note  indorsed  by  us  and  inclosed 
herewith  [although  Peeples  has  not  signed  it],  in  payment  of  the  old 
note,"  etc.     After  the  bank  had  accepted  the  note  without  the  signature 
of  Peeples  and  accepted  it  at  the  request  of  the  makers  of  the  note,  who 
called  attention  to  the  fact  that  Peeples  as  one  of  the  old  indorsers  had 
not  signed  the  note,  it  certainly  would  be  a  defense  inconsistent  with  their 
contract  as  evidenced  by  the  note  and  the  letter  to  allow  them  to  make 
the  defense  that  the  contract  was  not  complete  because,  in  fact,  the  bank 
had  undertaken  to  secure  the  signature  of  Peeples  to  the  note  and  Peeples 
in  fact  had  not  signed  it. 

I  think  the  Court  did  right  in  refusing  to  allow  the  amendment  to  the 
answer  and  in  striking  the  original  answer.  It  was  clearly  and  manifestly 
an  effort  to  ingraft  upon  the  plain,  unambiguous  terms  of  a  written 
contract  a  parol  condition  wholly  inconsistent  therewith  and  expressly 
negatived  thereby.  While  the  rule  is  well  recognized  that  a  written 
document  may  be  shown  by  parol  or  other  extrinsic  evidence  not  to  be  a 
contract  because  of  a  nonperformance  of  a  condition  precedent  as  to 
which  the  writing  is  silent,  yet  the  essential  premise  must  be  clearly  es- 
tablished before  the  conclusion  is  permitted.  The  rule  should  not  be 
extended,  but  strictly  applied.  It  should  not  be  allowed  as  a  loophole 
through  which  to  escape  contract  obligations,  and  should  be  construed 
so  as  not  to  destroy,  but  to  preserve,  that  great  safeguard  which  the 


No.  830  INTEGRATION   OF   LEGAL  ACTS  1225 

law  from  the  earliest  times  has  thrown  around  written  contracts: 
"  Parol  evidence  is  inadmissible  to  add  to,  take  from,  or  vary  a  written 
contract." 

830.   ADAMS   v.   GILLIG 

Court  of  Appeals  of  New  York.     1910 

199  A'.  )'.  314;   92  N.  E.  670 

Appeal  from  Supreme  Court,  Appellate  Division,  Fourth  Depart- 
ment. 

Action  by  Catherine  Adams  against  Alexander  L.  Gillig  and  others, 
doing  business  under  the  firm  name  and  style  of  George  Kempf's  Sons. 
From  a  judgment  of  the  Appellate  Division  (131  App.  Div.  494,  1 15  N.  Y. 
Supp.  999),  affirming  a  judgment  for  plaintiff,  defendants  appeal. 
Affirmed. 

The  defendant  Gillig  is  the  person  to  whom  the  deed  hereinafter 
mentioned  was  given.  The  defendants  Frank  C.  Kempf  and  Nicholas 
Kempf  are  contractors,  who  at  the  time  of  the  commencement  of  this 
action  were  under  contract  with  the  defendant  Gillig  to  do  certain  work 
upon  the  real  property  described  in  said  deed.  When  the  defendant  is 
hereinafter  referred  to,  the  defendant  Gillig  is  intended. 

On  and  prior  to  June  2,  1908,  the  plaintiff  was  the  owner  in  fee  simple 
of  a  lot  of  land  100  feet  front  and  al)out  160  feet  in  depth,  situated  on  the 
east  side  of  Elmwood  Avenue  in  the  city  of  Buffalo,  and  also  of  two  other 
lots  of  land  fronting  on  Highland  Avenue  in  said  city,  and  which  run  back 
to  and  adjoin  the  first-mentioned  lot.  The  lots  fronting  on  Highland 
Avenue  had  houses  on  them,  and  the  lot  fronting  on  Elmwood  Avenue 
was  vacant.  The  immediate  neighborhood  of  said  lots,  so  far  as  the  same 
have  been  built  upon,  is  devoted  exclusively  to  residences.  The  defend- 
ant sought  to  purchase  a  portion  of  the  plaintiff's  lot  fronting  on  Elm- 
wood Avenue,  and  stated  that  he  desired  to  purchase  the  same  for 
residence  purposes.  The  negotiations  were  carried  on  with  the  plaintiff's 
agents,  and  the  defendant  stated  to  the  representative  of  the  plaintiff's 
agents,  and  also  to  the  agents  themselves,  that  he  intended  to  build 
dwellings  upon  the  lot  if  purchased.  The  plaintiff's  agents  communi- 
cated to  her  the  statement  of  the  defendant  and  his  offers,  and  she  asked 
her  agents  if  they  were  sure  the  sale  would  not  affect  the  \'alue  of  the 
remaining  vacant  lot,  and  she  was  told  by  her  agents  that  the  defendant 
would  build  either  single  or  double  houses  upon  the  lot  so  to  be  purchased. 
The  representations  of  the  defendant  that  he  intended  to  build  dwellings 
on  the  lot  to  be  purchased  by  him  were  false  and  fraudulent  and  made 
with  the  intent  to  deceive  the  plaintiff.  The  plaintiff  relied  upon  the 
representations  of  the  defendant  that  he  intended  to  build  dwellings  upon 
the  lot  when  purchased,  and,  believing  such  statements  to  be  true,  exe- 
cuted and  delivered  to  him  a  deed  of  65  feet  front  and  160  feet  in  depth 
in  consideration  of  $5,525. 


1226  BOOK  VI :  parol  evidence  rules  No.  830 

During  all  the  time  that  the  defendant  was  negotiating  for  the  pur- 
chase of  the  lot  in  question,  he  intended  to  build  a  public  automobile 
garage  thereon,  which  fact  was  unknown  to  the  plaintiff,  and  which  the 
defendant  fraudulently  concealed  from  her.  On  the  day  following  the 
purchase  of  said  lot,  the  defendant  instructed  his  architect  to  prepare 
plans  for  a  garage  to  be  built  thereon  to  cover  substantially  the  entire 
lot,  and  in  less  than  two  weeks  thereafter  he  entered  into  a  contract  for 
the  erection  of  such  garage.  The  plaintiff  without  delay  communicated 
with  the  defendant  and  offered  to  procure  another  site  for  his  garage, 
pay  all  the  expenses  he  had  incurred  up  to  that  time,  and  restore  the 
consideration  he  had  paid  for  the  property  if  he  would  reconvey  the 
property  to  her.  This  the  defendant  refused  to  do.  The  plaintiff  was 
deceived  by  said  misrepresentations  of  the  defendant,  and  the  construc- 
tion of  the  proposed  garage  will  greatly  damage  the  remaining  property 
belonging  to  the  plaintifp.  It  will  decrease  the  value  of  the  remaining 
vacant  lot  on  Elmwood  Avenue  about  one-half,  and  the  value  of  her  lots, 
with  houses  fronting  on  Highland  Avenue,  about  one-fourth.  The  referee 
found  in  favor  of  the  plaintiff,  and  directed  a  reconveyance  of  the  property. 
From  the  judgment  entered  upon  the  report  of  the  referee  an  appeal 
was  taken  to  the  Appellate  Division  of  the  Supreme  Court,  where  it  was 
affirmed  by  a  divided  Court. 

Horace  McGuire,  V.  H.  Riordan  and  Paul  J.  Baft,  for  appellant. 
The  referee's  conclusion  of  law  that  the  plaintiff  was  entitled  to  a  rescis- 
sion of  the  contract  and  deed  constituted  error.  .  .  . 

Adelbert  Moot,  Helen  Z.  M.  Rogers  and  James  W.  Persons,  for  respond- 
ent. The  conclusion  of  law  that  plaintiff  was  entitled  to  a  rescission  of 
the  contract  and  deed  was  the  necessary  and  logical  result  of  the  facts 
found.  .  .  . 

Chase,  J.  —  Any  contract  induced  by  fraud  as  to  a  matter  material  to 
the  party  defrauded  is  voidable.  There  are  many  rules  as  to  what  con- 
stitutes an  inducement  by  fraud,  and  also  affecting  the  general  statement 
that  any  contract  will  be  set  aside  for  fraud,  that  have  been  established 
as  necessary  to  protect  the  rights  of  all  the  parties  to  a  contract,  which 
need  not  be  stated  in  this  discussion,  except  so  far  as  they  affect  the 
particular  transaction  under  consideration.  It  may  be  assumed  that 
promises  of  future  action  that  are  a  part  of  the  contract  between  the 
parties,  to  be  binding  upon  them,  must  be  stated  in  the  contract.  An 
oral  restrictive  covenant,  or  any  oral  promise  to  do  or  refrain  from  doing 
something  affecting  the  property  about  which  a  WTitten  contract  is  made 
and  executed  between  the  parties,  will  not  be  enforced,  not  because  the 
parties  should  not  fulfill  their  promises  and  their  legal  and  moral  obliga- 
tions, but  because  the  covenants  and  agreements  being  promissory  and 
contractual  in  their  nature  and  a  part  of,  or  collateral  to,  a  principal 
contract,  the  entire  agreement  between  the  parties  must  be  deemed  to 
have  been  merged  in  the  writing.  The  value  of  a  writing  would  be  very 
seriously  impaired  if  the  rule  mentioned  in  regard  to  including  the  entire 


No.  830  INTEGRATION  OF  LEGAL  ACTS  1227 

agreement  in  such  writing  is  not  enforced.  .  .  .  The  rule  is  quite  universal 
that  statements  promissory  in  their  nature  and  relating  to  future  actions 
must  be  enforced  if  at  all  by  an  action  upon  the  contract.  .  .  . 

It  is  not  claimed  on  this  appeal  that  the  defendant  made  promises 
which  became  a  part  of  the  contract,  or  that  the  deed  could  be  reformed 
by  including  therein  restrictive  covenants.  The  rule  in  regard  to  including 
the  entire  agreement  between  the  parties  in  the  writing  does  not  take  away 
or  detract  from  the  general  rule  by  which  a  contract  can  always  be  set 
aside  for  fraud  affecting  the  transaction  as  to  a  material  fact  that  is  not 
promissory  in  its  nature.  Any  statement  of  an  existing  fact  material  to  the 
person  to  whom  it  is  made  that  is  false  and  known  by  the  person  making 
it  to  be  false  and  which  is  made  to  induce  the  execution  of  a  contract, 
and  which  does  induce  the  contract,  constitutes  a  fraud  that  will  sustain 
an  action  to  avoid  the  contract  if  the  person  making  it  is  injured  thereby. 

We  have  in  this  case  findings  by  the  trial  Court  sustained  by  the 
record,  which  show  that  the  defendant  purposely,  intentionally,  and 
falsely  stated  to  the  plaintiff  that  he  desired  to  purchase  a  portion  of  her 
vacant  lot  for  the  purpose  of  building  a  dwelling  or  dwellings  thereon. 
He  must  have  known  that  if  he  thereby  induced  her  to  convey  to  him 
such  portion  of  the  lot,  and  his  intention  was  carried  out,  it  would  injure 
her  to  an  extent  in  excess  of  the  full  consideration  to  be  paid  by  him  to 
her  for  such  lot.  .  .  . 

The  simple  question  in  this  case  is  therefore  whether  the  alleged 
intention  of  the  defendant  to  build  a  dwelling  or  dw^ellings  upon  the  lot 
which  he  sought  to  purchase  is  such  a  statement  of  an  existing  material 
fact  as  authorizes  the  Court  to  cancel  the  deed  because  of  the  fraud. 
The  distinction  between  a  collateral  agreement  as  a  part  of  a  contract 
to  do  or  not  to  do  a  particular  thing  and  a  statement  and  representation 
of  a  material  existing  fact  made  to  induce  the  contract  may  be  further 
profitably  considered.  A  promise  as  such  to  be  enforceable  must  be 
based  upon  a  consideration,  and  it  must  be  put  in  such  form  as  to  be 
available  under  the  rules  relating  to  contracts  and  the  admission  of 
evidence  relating  thereto.  It  may  include  a  present  intention,  but  as  it 
also  relates  to  the  future  it  can  only  be  enforced  as  a  promise  under  the 
general  rules  relating  to  contracts.  A  mere  statement  of  intention  is  a 
different  thing.  It  is  not  the  basis  of  an  action  on  contract.  It  may  in 
good  faith  be  changed  without  affecting  the  obligations  of  the  parties. 
A  statement  of  intention  does  not  relate  to  a  fact  that  has  a  corporal  and 
physical  existence,  but  to  a  material  and  existing  fact,  nevertheless  not 
amounting  to  a  promise,  but  which,  as  in  the  case  under  discussion, 
affects  and  determines  important  transactions. 

The  question  here  under  discussion  is  not  affected  by  the  rules  relating 
to  the  admission  of  testimony.  As  it  was  not  promissory  and  contractual 
in  its  nature,  there  is  nothing  in  the  rules  of  evidence  to  prevent  oral 
proof  of  the  representations  made  by  the  defendant  to  the  plaintiff. 
In  an  action  brought  expressly  upon  a  fraud,  oral  evidence  of  facts  to 


1228        BOOK  VI :  parol  evidence  rules      No.  830 

show  the  fraud  is  admissible.  Pomeroy's  Equity  Jurisprudence,  §  889. 
This  case  stands  exactly  as  it  would  have  stood  if  the  plaintiff  and  defend- 
ant before  the  execution  and  delivery  of  the  deed  had  entered  into  a 
writing  by  which  the  defendant  had  stated  therein  his  intention  as  found 
by  the  Court  on  the  trial,  and  the  plaintiff  had  stated  her  acceptance  of 
his  offer  based  upon  her  belief  and  faith  in  his  statement  of  intention, 
and  it  further  appeared  that  the  statement  was  so  made  by  the  defendant 
for  the  purpose  of  inducing  the  plaintiff  to  sell  to  him  the  lot,  and  that 
such  statement  was  so  made  by  him  falsely,  fraudulently,  and  purposely 
for  the  purpose  of  bringing  about  such  sale.  .  .  . 

Unless  the  Court  affirms  this  judgment,  it  must  acknowledge  that 
although  a  defendant  deliberately  and  intentionally,  by  false  statements, 
obtained  from  a  plaintiff  his  property  to  his  great  damage,  it  is  wholly 
incapable  of  righting  the  wrong,  notwithstanding  the  fact  that  by  so 
doing  it  does  in  no  way  interfere  with  the  rules  that  have  grown  up  after 
years  of  experience  to  protect  written  contracts  from  collateral  promises 
and  conditions  not  inserted  in  the  contract.  We  are  of  the  opinion  that 
the  false  statements  made  by  the  defendant  of  his  intention  should  under 
the  circumstances  of  this  case  be  deemed  to  be  a  statement  of  a  material, 
existing  fact  of  which  the  Court  will  lay  hold  for  the  purpose  of  defeating 
the  WTong  that  would  otherwise  be  consummated  thereby.  We  have 
not  overlooked  the  many  authorities  called  to  our  attention  by  the  appel- 
lant. In  Wilson  V.  Deen,  74  N.  Y.  531,  Kley  v.  Healy,  127  N.  Y.  555,  561, 
Gray  v.  Palmer,  2  Rob.  500,  affirmed  41  N.  Y.  620,  Lexow  v.  Juhan,  21 
Hun  577,  affirmed  86  N.  Y.  638,  Gallager  v.  Brunei,  6  Cow.  346,  Gage  v. 
Lewis,  68  111.  604,  Haenni  v.  Bleisch,  146  111  262,  and  many  other  cases 
in  this  and  other  States,  the  Court  had  under  consideration  representa- 
tions that  were  promissory  and  contractual  in  their  nature,  and  which, 
if  enforced  at  all,  could  only  be  enforced  under  the  rules  relating  to 
contracts.  .  .  . 

It  is  said  that  this  decision  will  open  the  door  to  other  litigation. 
If  that  is  the  effect  of  it,  then,  so  far  as  the  decision  asserts  power  in 
the  Court  to  prevent  dishonesty,  false  dealing,  and  bad  faith  in  business 
transactions,  it  should  be  welcomed.  It  is  not  the  intention  of  the  Court 
to  extend  the  effect  of  this  decision  by  implication,  or  to  a  case  other  than 
one  where  the  facts  are  clearly  found  against  the  defendant.  .  .  .  We  do 
not  concede  the  accuracy  of  the  statement  made  before  us  on  behalf  of 
the  defendant  to  the  effect  that  false  statements  similar  to  the  one  made 
by  the  defendant  to  induce  the  execution  of  the  deed  by  the  plaintiff  are 
common  in  business  transactions.  But  if  true,  and  controversies  arise 
over  the  retention  of  the  fruits  of  such  frauds,  and  the  fraudulent  induce- 
ment is  conceded  or  proven  beyond  reasonable  controversy,  the  transac- 
tions will  not  have  the  approval  and  sanction  of  the  Courts. 

The  judgment  should  be  affirmed,  with  costs. 

CuLLEN,  C.  J.,  and  Gray,  Vann,  Werner,  Willard  Bartlett, 
and  HiscocK,  JJ.,  concur.  Judgment  affirmed. 


No.  833  INTEGRATION  OF  LEGAL  ACTS  1229 


SUB-TITLE  II.     JUDICIAL  RECORDS 
Topic  1.     In  General 

832.  Sir  F.  Pollock  and  Professor  F.  W.  Maitland.  History  of  the  English 
Law.  (1895.  II,  666.)  The  distinction  that  we  still  draw  between  "courts  of 
record"  and  courts  that  are  "not  of  record"  takes  us  back  to  very  early  times 
when  the  King  asserts  that  his  own  word  as  to  all  that  has  taken  place  in  his 
presence  is  incontestible.  Tliis  privilege  he  communicates  to  his  own  special 
coiu"t;  its  testimony  as  to  all  that  is  done  before  it  is  conclusive.  If  any  ques- 
tion arises  as  to  what  happened  on  a  previous  occasion  the  justices  decide  this 
by  recording  or  bearing  record  ("recordantur,"  "portant.recordum").  Other 
courts,  as  we  have  lately  seen,  m^y  and,  upon  occasion,  must  bear  record;  but 
their  records  are  not  irrefragable;  the  assertions  made  by  the  representative 
<loomsmen  of  the  shire-moot  may  be  contested  by  a  witness  who  is  ready  to  fight. 
We  easily  slip  into  saying  that  a  coiu-t  whose  record  is  incontrovertible  is  a  court 
which  has  record  ("habet  recordum")  or  is  a  coiu-t  of  record,  while  a  court  whose 
record  may  be  disputed  has  no  record  ("non  habet  recordum")  and  is  no  court  of 
record.  In  England  only  the  King's  court  —  in  course  of  time  it  becomes  several 
coiu-ts  —  is  a  eoiu"t  of  record  for  all  purposes,  though  some  of  the  lower  courts 
"have  record"  of  some  particulars,  and  sheriffs  and  coroners  "have  record"  of 
certain  transactions,  such  as  confessions  of  felony. 

In  the  old  days,  when  as  yet  there  were  no  plea  rolls,  the  justices  when  they 
bore  record  relied  upon  their  memories. '^  From  Normandy  we  obtain  some 
elaborate  rules  as  to  the  manner  in  which  record  is  to  be  borne  or  made;  for 
example,  a  record  of  the  Exchequer  is  made  by  seven  men,  and,  if  six  of  them 
agree,  the  voice  of  the  seventh  may  be  neglected.  In  England  at  a  yet  early 
time  the  proceedings  of  the  royal  court  were  committed  to  -oTiting.  Thencefor- 
ward the  appeal  to  its  record  tended  to  become  a  reference  to  a  roll,  but  it  was 
long  before  the  theory  was  forgotten  that  the  rolls  of  the  court  were  mere  aids 
for  the  memories  of  the  justices;  and  as  duplicate  and  triplicate  rolls  were  kept 
there  was  always  a  chance  of  disagreement  among  them.  A  line  is  drawn  between 
"matter  of  record"  and  "matter  in  pays"  or  matter  which  lies  in  the  cognizance 
of  the  country  and  can  therefore  be  established  by  a  verdict  of  jiu-ors. 

833.  Sir  Edward  Coke.  Cominentaries  upon  Littleton.  (1628  p.  260.)  "Re- 
cordum" is  a  memorial  or  remembrance  in  rolles  of  parchment  of  the  proceedings 
and  acts  of  a  coiu"t  of  justice.  .  .  .  And  the  rolles,  being  the  records  or  memo- 
rialls  of  the  judges  of  courts  of  record,  import  in  them  such  incontrollable 
credit  and  veritie  as  they  admit  no  averment,  plea,  or  proofs  to  the  contrarie; 
.  .  .  and  the  reason  hereof  is  apparent,  for  otherwise  (as  our  old  authors  say, 
and  that  truly)  there  should  never  be  any  end  of  controversies;  which  should 
be  inconvenient. 


^  ["Recordari"  =  remember,  recall  to  mind.] 


1230  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  834 

834.   SAYLES  v.   BRIGGS 

Supreme  Judicial  Court  of  Massachusetts.     1842 

4  Mete.  421 

Trespass  upon  the  case  for  malicious  prosecution.  The  declaration 
contained  three  counts,  charging  three  distinct  prosecutions  of  the  plain- 
tiff by  the  defendant.  ... 

To  support  the  third  count,  the  plaintiff  gave  in  evidence  a  complaint 
/  to  a  magistrate,  signed  and  sworn  to  by  the  defendant,  charging  the 
plaintiff  with  forging  a  record  of  a  magistrate;  but  he  did  not  give  in 
evidence  any  warrant  issued  on  said  complaint,  nor  prove  that  he  was 
arrested  and  held  to  answer  to  the  complaint,  except  by  parol  testimony. 
The  plaintiff  was  arraigned  before  a  justice  of  the  peace,  who  made  the 
following  record,  and  no  other,  of  the  proceedings  before  hirn :  "  Berkshire 
ss.  At  a  justice's  court  holden  before  me,  at  house  of  Franklin  Bartlett, 
in  Adams,  on  Wednesday,  13th  day  of  February  1839,  at  one  of  the  clock 
in  the  afternoon.  Commonwealth  vs.  Franklin  O.  Sayles,  on  the  complaint 
of  Peter  Briggs,  Esq.,  for  forgery.  After  full  hearing  in  the  case,  the  com- 
plainant withdrew  his  prosecution,  and  it  was  thereupon  ordered  by  me 
the  said  justice,  that  the  said  Franklin  O.  be  discharged."  The  plaintiff 
offered  parol  testimony  of  the  said  justice  and  others,  that  he  was 
arraigned  on  all  the  aforesaid  complaints,  and  pleaded  to  the  same,  and 

I  that  a  hearing  thereon  was  had  before  said  justice,  who  discharged  the 
plaintiff. 

\  The  defendant  objected  to  the  admission  of  this  testimony.  But, 
as  it  appeared  that  no  record  had  been  made,  by  said  justice,  of  the 
proceedings  had  before  him,  except  that  above  set  forth;  and  as  it  fur- 
ther appeared  that  said  justice  was  no  longer  a  justice  of  the  peace 
under  the  commission  held  by  him  at  the  time  of  the  trial  and  hear- 
ing of  said  cases  before  him,  and  that  he  had  declined  to  qualify  him- 
self as  a  justice  under  a  new  commission  which  he  had  since  received, 
1  and  had  also  declined  to  make  any  further  record  in  relation  to  said 
\-  proceedings ;  the  judge,  before  whom  the  trial  was  had,  ruled  that  it  was 
competent  for  the  plaintiff  to  introduce  parol  evidence,  if  not  contra- 
dictory to  said  record,  to  prove  the  issuing  of  the  warrant  on  the  third 
complaint,  and  also  that  the  plaintiff  was  arraigned  on  all  said  complaints, 

I  and  pleaded  to  the  same,  and  that,  upon  a  hearing  before  said  justice, 
he  was,  by  said  justice,  discharged  therefrom.  The  proposed  evidence 
was  thereupon  admitted,  and  a  general  verdict  was  returned  for  the 
plaintiff,  which  is  to  be  set  aside,  and  a  new  trial  granted,  if  said  ruling 
was  erroneous. 

Porter  &  Rockxccll,  for  the  defendant.  Bishop  &  Byington,  for  the 
plaintiff. 

Hubbard,  J. — To  sustain  an  action  for  malicious  prosecution,  it  is 


No.  834  INTEGRATION   OF   LEGAL  ACTS  1231 

necessary  for  the  plaintiff  to  give  evidence,  by  the  production  of  the 
record,  or  a  true  copy  of  it,  of  the  proceedings  and  an  acquittal  of  the 
charge,  with  the  further  proof  that  tlie  accusation  was  malicious  and 
without  probable  cause.  Bui.  N.  P.  13-15.  Stone  v.  Crocker,  24  Pick. 
87.  In  the  present  case,  .  .  .  the  parol  evidence,  which  was  admitted 
to  prove  the  issuing  of  the  third  warrant,  the  arraignment  on  all  the 
complaints,  and  the  discharge  therefrom,  was  objected  to  by  the  defend- 
ant, and  the  question  for  consideration  is,  whether  it  was  properly 
admitted.  The  ground  of  the  admission  was,  that  it  was  not  contra- 
dictory to  the  record. 

A  record  is  a  memorial  or  history  of  the  judicial  proceedings  in  a  case, 
commencing  with  the  writ  or  complaint,  and  terminating  wnth  the 
judgment,  and  the  design  is,  not  merely  to  settle  the  particular  question 
in  difference  betw^een  the  parties,  or  the  government  and  the  subject, 
but  to  furnish  fixed  and  determinate  rules  and  precedents  for  all  future 
like  cases.  A  record,  therefore,  must  be  precise  and  clear,  containing 
proof  within  itself  of  every  important  fact  on  which  the  judgment  rests; 
and  it  cannot  exist  partly  in  writing  and  partly  in  parol.  Its  allegations 
and  facts  are  not  the  subject  of  contradiction.  They  are  received  as  the 
truth  itself,  and  no  averment  can  be  made  against  them  nor  can  they  be 
varied  by  parol.  .  .  . 

But  records,  like  other  documents,  are  exposed  to  casualties,  and, 
like  them,  may  also  be  misplaced  or  lost;  or  owing  to  the  accidents  which 
continually  occur,  the  record  may  not,  in  a  given  instance,  have  been 
extended  from  the  minutes  of  the  proceedings.  And  the  cases  are  abun- 
dant to  show  that  a  lost  record,  like  a  lost  deed,  may  be  proved  by  parol; 
and  that  the  minutes  may  be  introduced,  where  the  record  has  not  been 
drawn  out  "in  extenso,"  as  containing  the  elements  of  the  record,  and, 
in  truth,  for  the  time  being,  the  record  itself.  .  .  .  But  in  the  present 
case,  no  facts  or  circumstances  were  introduced  tending  to  prove  either 
the  loss  of  records,  or  the  existence  of  any  other  record  than  the  one 
produced;  nor  any  minutes,  from  which  another  record  might  be  com- 
pleted. On  the  other  hand,  it  appears  that  no  record,  other  than  the 
one  in  evidence,  was  ever  made,  and  that  no  minutes  w'ere  taken,  at  the 
time  of  the  alleged  trial,  from  which  such  further  record  could  be  made. 
It  is  impracticable,  therefore,  to  support  the  introduction  of  this  testi- 
mony on  the  ground  that  the  record  or  a  part  of  it  w^as  lost. 

Again,  it  is  argued  that  this  testimony  should  be  received  from 
necessity,  as  there  is  no  w^ay  by  which  the  plaintiff  can  obtain  redress, 
and  that  this  is  the  best  evidence  which  now  exists.  But  in  my  judgment 
It  will  be  productive  of  far  less  mischief  for  an  individual  to  suffer  from 
the  neglect  or  misfortune  of  an  officer  in  not  making  a  judicial  record 
than  to  establish  a  precedent  that  the  record  itself  or  a  part  of  it  may  be 
proved  by  parol,  —  that  it  may  speak  one  language  today  and  another 
tomorrow,  depending  on  the  different  witnesses  w^ho  are  called  or  on 
their  changing  recollections.     And  without  prescribing  a  rule  for  a  case 


1232  BOOK  VI :   parol  evidence  rules  No.  834 

where  a  magistrate  might  by  the  act  of  God  be  deprived  of  the  oppor- 
tunity of  making  even  any  minutes  of  proceedings  before  him  from  which 
a  record  could  be  made  (if  such  a  case  should  ever  occur),  we  are  of  opinion 
that  the  want  of  a  judicial  record  cannot  be  supplied  by  parol  evidence; 
and  that  the  rules  which  apply  to  the  admission  of  testimony  to  prove  the 
contents  of  a  lost  record,  or  to  the  introduction  of  minutes  by  which  the 
record  may  be  extended,  have  no  real  bearing  on  a  case  like  the  present, 
where  no  such  loss  ever  took  place  and  no  such  minutes  ever  were  made. 
A  party  who  is  to  be  affected  by  the  record  will  in  the  exercise  of  ordinary 
care  see  that  it  is  correctly  made  up;  and  if  the  officer  should  neglect  or 
refuse  to  perform  his  duty,  he  can  be  compelled  by  mandamus  to  make 
a  true  record. 

There  is,  then,  no  record  of  an  acquittal  on  the  charge  contained  in 
the  second  count,  nor  of  the  issuing  of  a  warrant,  or  of  an  acquittal,  on 
the  third  count;  and,  for  the  reasons  given,  the  want  of  such  a  record 
cannot  be  supplied  by  parol  proof. 

As  the  parol  testimony  ought  not  to  have  been  admitted,  the  verdict 
must  be  set  aside,  and  a  new  trial  granted. 


835.   HUGHES  v.   PRITCHARD 

Supreme  Court  of  North  Carolina.     1910 

153  N.  C.  23;  68  S.  E.  906 

Appeal  from  Superior  Court,  Camden  County;  Ferguson,  Judge. 
Proceedings  by  M.  E.  Hughes,  Sr.,  against  D.  T.  Pritchard  to  establish 
a  division  line.  From  a  judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 

This  is  a  proceeding  which  was  instituted  for  the  purpose  of  establish- 
ing the  dividing  line  between  a  tract  of  land  alleged  by  the  plaintiff  to 
be  the  homestead  of  the  defendant,  and  an  adjoining  tract,  which  was 
purchased  by  the  plaintiff  at  a  sale  under  an  execution  issued  against 
the  defendant.  In  his  deed  the  sheriff  conveyed  to  the  plaintiff  the  tract 
of  land  upon  which  he  had  levied  under  the  execution,  but  excepted 
therefrom  the  homestead  of  the  defendant. 

It  appeared  that  the  report_of  the  appraisers,  whoset  apart  the 
homestead  to  the  defendant,  could  nol-after-^iilfgeTiTTearch  be  found  in 
\  the  "clerk's  ofhce"  Therewas  evidence  tending  to  show  that  an  allotment 
of  the  homeste"a3~"had  been  made  by  three  appraisers,  at  the  request  of  the 
sheriff,  and  that  their  report  was  prepared  and  signed  by  them.  This 
report  was  seen  in  the  clerk's  office  among  the  papers  in  the  judgment 
\  roll  of  the  case  in  which  the  execution  had  been  issued.  A  copy  of  the 
report  was  made,  and,  after  proving  the  loss  of  the  original  report,  the 
plaintiff  proposed  to  prove,  by  oral  e\'idence  and  by  the  copy,  the  con- 
tents of  the  original  report,  for  the  purpose  of  showing  the  boundaries  of 


No.  836  INTEGRATION  OF  LEGAL  ACTS  1233 

the  homestead  and  the  proper  location  of  the  disputed  Hne.     This  testi- 
mony was  objected  to  by  the  defendant,  but  admitted  by  the  Court. 

W.  A.  Worth  and  H.  S.  Ward,  for  appellant.     E.  F.  Aydlett,  J.  C.  B. 
Ehringhaus,  and  Pruden  &  Prudcn,  for  appellee. 

Walker,  J.  (after  stating  the  case  as  above).  The  testimony  was 
clearly  competent.  The  defendant's  objection  was  based  upon  the 
ground  that  oral  evidence  cannot  be  received  to  prove  the  contents  of  a/ 
judicial  record,  unless  in  a  proceeding  brought  to  establish  the  lost  or 
destroyed  record,  under  chapter  II  of  the  Revisal,  and  that  the  record 
thus  restored  by  proof  and  the  judgment  of  the  Court  is  the  only  evidence 
admissible  to  show  the  contents  of  the  lost  record.  This  is  a  m.isappre- 
hension  of  the  meaning  and  scope  of  that  enactment.  It  is  an  enabling 
act,  and  it  was  not  intended  to  exclude  oral  evidence,  which  was  admis- 
sible at  common  law  to  prove  the  contents  of  a  lost  instrument,  whether 
a  deed  or  the  record  of  a  Court.  This  has  been  well  settled  by  the  deci- 
sions of  this  Court.  Mobley  v.  Watts,  98  N.  C.  284;  and  cases  cited  in 
the  annotated  edition;  Cox  v.  Lumber  Co.,  124  N.  C.  80;  Aiken  v.  Lyon, 
127  N.  C.  175;  Jones  v.  Ballou,  139  N.  C.  526;  Wells  v.  Harrell,'l52 
N.  C.  218.  In  this  case  the  plaintiff  did  not  depend  altogether  upon 
the  memory  of  a  witness  as  to  the  contents  of  the  report,  but  introduced 
an  examined  copy,  or  one  which  had  been  compared  with  the  original 
and  found  to  be  correct.  This  is  the  principal  exception  of  the  defendant, 
and  in  passing  upon  it  we  must  sustain  the  ruling  of  the  Court  below\  .  .  . 

No  error. 


836.   COTE  V.   NEW  ENGLAND  NAVIGATION  CO. 

Supreme  Judicial  Court  of  Massachusetts.     1912 

213  Mass.  177;  99  A'.  E.  972 

Exceptions  from  Superior  Court,  Bristol  County;  Jabez  Fox, 
Judge. 

Action  by  Edmond  Cote  against  the  New  England  Navigation  Com- 
pany. There  was  a  verdict  for  plaintiff,  and  defendant  brings  excep- 
tions.    Overruled. 

Arthur  8.  Phillips,  of  Fall  River,  for  plaintiff.  Arthur  W.  Blackman, 
of  Boston,  for  defendant. 

RuGG,  C.  J.  —  This  is  an  action  of  contract.  The  declaration  alleges 
that  the  defendant  as  common  carrier  received  a  log  of  veneer  of  the 
value  of  S62  shipped  to  the  plaintiff,  which  it  failed  to  deliver.  The 
only  defence  now  material  is  that  the  plaintiff  has  sued  the  New  York, 
New  Haven  &  Hartford  Railroad  Company  for  the  same  cause  of  action, 
wherein  the  plaintiff  recovered  judgment  which  had  been  satisfied. 
The  defendant  admitted  that  it  transported  the  veneer.  It  was  undis- 
puted that  prior  to  the  present  action  the  plaintiff  had  brought  action' 


1234        BOOK  VI :  parol  evidence  rules      No.  836 

against  the  New  York,  New  Haven  &  Hartford  Railroad  Company,  in 
which  the  declaration  was  in  three  counts,  the  first  in  contract  alleging 
failure  as  a  common  carrier  to  deliver  to  the  plaintiff  the  log  of  veneer 
valued  at  $62,  the  second  count  also  in  contract  for  failure  as  common 
carrier  to  transport  oak  stain  to  the  value  of  $13.50,  and  (the  plaintiff 
alleging  doubt  as  to  whether  his  action  sounded  in  tort  or  contract)  a 
third  count  in  tort  alleging  conversion  of  both  the  log  of  veneer  and  the 
wood  stain,  the  respective  values  of  which  were  averred  to  be  the  same 
as  in  the  contract  counts.  The  log  of  veneer  referred  to  in  that  declara- 
tion was  the  same  as  that  which  is  the  subject  of  the  present  action. 

The  defendant  offered  in  evidence  the  full  record  of  the  earlier  action, 
which  showed  judgment  for  the  plaintiff  in  the  sum  of  $13.50,  and  judg- 
ment satisfied.  The  plaintiff  called  as  a  witness  the  magistrate,  before 
whom  that  action  was  tried.  Subject  to  the  exception  of  the  defendant, 
he  read  from  a  paper  in  his  possession,  which  was  a  motion  by  the  plaintiff 
to  discontinue  his  action  set  forth  in  the  first  count,  and  testified  that  the 
paper  was  left  with  him  by  the  plaintiff's  attorney  at  the  trial  of  the  action. 
Ascertaining  on  June  17,  1912,  that  this  paper  bore  no  file  mark,  hedirected 
the  clerk  of  the  Court  to  file  the  paper,  and  caused  the  docket  to  be 
amended  accordingly,  and  that  the  paper  was  in  truth  filed  on  June  19, 
1911,  which  was  the  date  of  the  trial  of  that  action.  The  duly  certified 
copy  of  the  record  in  evidence  did  not  show  the  filing  or  allowance  of  any 
such  motion  or  any  other  motion  affecting  the  declaration  or  the  plaintiff's 
claims  under  it  at  the  trial.  It  is  to  be  observed  that  this  testimony  did 
not  relate  to  the  matters  actually  tried  out  and  decided  in  the  action, 
but  merely  to  the  Court  record.  Plainly,  the  admission  of  this  evidence 
I  was  improper.     It  was  said  in  Wells  v.  Stevens,  2  Gray  117: 

"No  principle  is  more  firmly  established  than  that  which  excludes  oral  testi- 
mony when  offered  to  vary  or  contradict  wTitten  judicial  records.  The  record 
of  a  Court  of  competent  jurisdiction  imports  incontrovertible  verity  as  to  all  the 
proceedings  which  it  sets  forth  as  having  taken  place,  and  is  of  so  high  a  nature 
that  no  averment  can  be  made  against  it." 

The  record  failed  to  show  the  presentation  or  allowance  of  the  motion, 
and  no  parol  evidence  was  admissible  to  amplify,  modify,  or  contradict 
it.  This  rule  is  based  upon  considerations  of  public  policy,  and  is  too 
well  established  to  require  discussion.  Kelley  v.  Dresser,  11  Allen  31; 
Lund  V.  George,  1  Allen  403;  Sayles  v.  Briggs,  4  Mete.  421  [ante,  No.  834]; 
Speirs  Fish  Co.  v.  Robbins,  182  Mass.  128,  65  N.  E.  25. 

But  the  defendant  fails  to  show  that  it  has  suffered  injury.  The 
defendant  in  support  of  its  plea  of  former  judgment  and  satisfaction, 
offered  no  other  evidence  except  the  record.  From  this  it  appeared  that 
the  action  was  not  between  the  same  parties  as  those  to  the  present  action. 
Hence  the  general  rule,  that  a  judgment  on  its  merits  in  a  former  action 
between  the  same  parties  is  a  bar,  as  to  every  issue  which  in  fact  was  or 
in  law  might  have  been  litigated,  to  later  action  upon  the  same  cause, 


No.  836  INTEGRATION  OF  LEGAL  ACTS  1235 

has  no  application.  There  is  nothing  to  indicate  that  the  present  defend- 
ant is  a  privy  of  the  defendant  in  the  earHer  action.  Apparently  they  are 
strangers.  The  defence  is  different  in  kind,  and  is  founded  on  another 
rule,  to  the  effect  that  a  plaintiff  cannot  obtain  twice  satisfaction  for  the 
same  debt  or  wrong.  The  plaintiff  as  a  shipper  of  merchandise  can  have 
but  one  satisfaction  of  the  debt  or  claim  due  to  him  for  the  failure  to 
deliver  his  property,  which  the  defendant  undertook  to  transport  as  a 
common  carrier.  .  .  .  New  York  Bank  Note  Co.  v.  Kidder  Press  Mfg. 
Co.,  192  Mass.  391,  408;  Crow  v.  Bowlby,  68  111.  23;  Jenners  v.  Oldham, 
6  Blackf .  (Ind.)  235.  The  defence  that  the  plaintiff  had  already  received 
satisfaction  of  his  debt  or  claim  was  an  affirmative  one,  and  the  burden 
of  proving  it  rested  on  the  defendant.  All  it  did  was  to  introduce  the 
record  of  an  action,  in  which  the  present  plaintiff  was  the  plaintiff  and 
another  common  carrier  was  the  defendant,  and  in  which  the  declaration 
sufficiently  alleged,  by  two  separate  counts  in  contract,  failure  to  deliver 
two  distinct  articles  of  merchandise  and  alternatively  by  one  count  in 
tort  conversion  of  the  same  articles,  in  which  the  judgment  was  general 
and  in  which  there  was  satisfaction.  One  only  of  these  articles  was  the 
same  as  the  subject  of  the  present  action.  This  evidence  did  not  sustain 
the  burden  of  proof  as  to  the  issue  raised  by  the  defendant.  It  did  not 
show  that  the  plaintiff  had  already  received  payment  of  the  claim  sought 
to  be  enforced  against  the  defendant.  It  well  might  have  been  that  the 
only  issue  tried  and  settled  in  the  earlier  case  related  to  the  other  articles 
of  merchandise  and  not  to  that  now  in  litigation.  So  far  as  the  exceptions 
show  anything  touching  that  matter,  they  indicate  that  the  value  of  the 
log  of  veneer  was  not  recovered  in  the  earlier  case.  .  .  .  When  the  second 
action  is  not  between  the  same  parties  or  does  not  relate  to  exactly  the 
sam.e  claim  or  demand,  then  the  effect  of  the  prior  judgment  and  its 
satisfaction  can  extend  no  further  than  the  issue  in  fact  litigated  and 
determined.  When  the  record  does  not  demonstrate  what  issues  actually 
were  tried  and  decided,  they  may  be  shown  by  extrinsic  evidence.  .  .  . 
Sometimes  this  may  appear  on  the  record  itself.  But  it  does  not  in  the 
present  case.  The  party  upon  whom  rests  the  burden  of  proof  must 
introduce  evidence  to  show  that  the  matters  in  truth  tried  and  settled 
in  the  earlier  case  were  the  same  as  those  sought  to  be  tried  again  in  the 
second  case,  before  it  can  be  said  that  the  satisfaction  of  the  earlier  judg- 
ment proves  or  warrants  a  finding  that  the  plaintiff  has  been  paid  for 
the  claim  sought  to  be  recovered  in  the  second  action.  .  .  .  Newhall  v. 
Enterprise  Mining  Co.,  205  Mass.  585;  Virginia-Carolina  Chemical  Co. 
V.  Kirven,  215  U.  S.  252,  and  cases  cited  at  257. 

The  result  is  that  the  defendant  failed  to  make  out  anj^  defence  under 
its  answer  of  satisfaction  of  judgment  for  the  same  claim,  and  hence 
suffered  no  injury  by  the  error  in  admission  of  CAidence. 

Exceptions  overruled. 


1236  BOOK   VI :     PAROL  EVIDENCE   RULES  No.  837 


Topic  2.     Jury's  Verdict 

837.  Vaise  v.  Delaval.  (1785.  1  T.  R.  11.)  Motion  by  Law  for  a  rule  to 
set  aside  a  verdict,  upon  an  affidavit  of  two  jurors,  who  swore  that  the  jury, 
being  divided  in  their  opinion,  tossed  up,  and  that  the  plaintiff's  friends  won. 

Lord  Mansfield,  C.  J.  —  The  Court  cannot  receive  such  an  affidavit  from  any 
of  the  jurymen  themselves,  in  all  of  whom  such  conduct  is  very  high  misdemeanor. 
But  in  every  such  case  the  Court  must  derive  their  knowledge  from  some  other 
source ;  such  as  from  some  person  having  seen  the  transaction  through  a  window, 
or  by  some  such  other  means. 

838.  Owen  v.  Warburton.  (1807.  1  B.  &  P.  N.  R.  326,  329.)  Mansfieu), 
C.  J.  —  The  affidavit  of  a  juryman  [to  a  jury's  misconduct]  cannot  be  received.  It 
is  singular  indeed  that  almost  the  only  evidence  of  which  the  case  admits  should 
be  shut  out ;  but  considering  the  arts  which  might  be  used  if  a  contrary  rule  were 
to  prevail,  we  think  it  necessary  to  exclude  such  evidence.  If  it  were  understood 
to  be  the  law  that  a  juryman  might  set  aside  a  verdict  by  such  evidence,  it  might 
sometimes  happen  that  a  juryman,  being  a  friend  to  one  of  the  parties,  and  not 
being  able  to  bring  over  his  companions  to  his  opinion,  might  propose  a  decision 
by  lot,  with  a  view  afterwards  to  set  aside  the  verdict  by  his  own  affidavit,  if  the 
decision  should  be  against  liim. 


839.   ROBBINS  v.  WINDOVER 

Supreme  Court  of  Vermont.     1802 

2  Tijl.  11 

Motion  for  new  trial,  stating  that  some  of  the  jurors  of  the  jury  who 
tried  the  cause,  after  the  cause  was  submitted  to  them,  witnessed  or 
related  to  others  of  the  panel  certain  matters  and  things  in  relation  to 
the  issue  not  witnessed  or  related  on  the  trial  of  the  cause  in  Court.  .  .  . 

Chauncey  Langdon,  for  defendant,  offered  to  read  the  affidavit  of 
one  of  the  jurors.  To  the  reading  of  this  affidavit  an  objection  was 
taken.   .  .  . 

Tyler,  Assistant  Judge,  the  Chief  Judge  being  absent,  delivered  the 
opinion  of  the  Court. 

The  defendant  rests  his  motion  on  two  grounds:  The  first  is,  that 
certain  jurors  of  the  panel  who  tried  the  cause,  witnessed  or  related  cer- 
tain matters  and  things,  in  relation  to  the  issue,  to  others  of  the  panel 
after  the  cause  was  submitted  to  them,  not  witnessed  on  the  trial  of  the 
cause  in  Court. 

It  may  be  observed  here,  that  it  is  not  alleged  that  these  matters  and 
things  had  any  effect  in  determining  the  verdict;  and  the  Court  will  not 
in  any  case  set  aside  a  verdict  by  intendment,  where  it  appears  that 
substantial  justice  has  been  done.  But  the  previous  question,  whether 
the  affidavit  of  one  of  the  jurors  shall  be  admitted,  to  show  what  passed 


No.  839  INTEGRATION   OF   LEGAL  ACTS  1237 

during  the  investigation  of  the  cause  in  the  jury  room,  renders  any 
further  observation  upon  what  would  have  been  the  effect  of  such  testi- 
mon;^',  if  admitted,  unnecessary. 

Upon  the  point  in  question,  the  Court  are  decidedly  of  opinion,  that 
the  affida\it  cannot  be  admitted  to  be  read.  The  common  law  requires 
that  the  twelve  jurors  shall  unite  in  a  verdict.  Whoever  considers  the 
variety  and  intricacy  of  causes  they  have  to  determine,  the  difficulty  of 
bringing  twelve  persons  of  different  habits  and  modes  of  thinking,  and  of 
unequal  abilities,  fortuitously  elected,  to  concur  in  opinion,  will  perceive 
the  wisdom  of  the  Legislature  in  directing  that  their  deliberations  should 
be  secret;  for  it  was  to  be  expected,  that  in  bringing  about  a  union 
of  sentiment  in  the  panel,  the  subject  under  consideration  would  be 
presented  in  various  lights;  that  futile  objections  would  be  met  with 
inconclusive  arguments,  theory  opposed  to  practice,  and  legal  science  to 
common  sense;  that  the  reputations  of  witnesses  would  be  scanned,  the 
character  of  parties  too  often  adverted  to,  and  the  whole  investigation 
illustrated  by  relations  of  what  each  juror  had  heard  or  known  in  cases 
supposed  similar;  that  the  warmth  of  debate  would  excite  an  obstinacy 
of  opinion,  and  a  reluctant  and  tardy  assent  to  the  verdict,  perhaps 
drawn  from  some  one,  which,  on  after  reflection,  might  leave  in  the 
juror's  mind  a  doubt  of  its  rectitude.  It  would  be  of  dangerous  tendency 
to  admit  jurors  by  affidavit  to  detail  these  deliberations  of  the  jury  room, 
to  testify  to  subjects  not  perfectly  comprehended  at  the  time,  or  but 
imperfectly  recollected.  From  a  natural  commiseration  for  the  losing 
party,  or  a  desire  to  apologize  for  the  discharge  of  an  ungrateful  duty, 
after  the  juror  had  been  discharged  from  office,  he  would  be  too  apt  to 
intimate,  that  if  some  part  of  the  testimony  had  been  adverted  to,  or 
something  not  in  evidence  omitted,  his  opinion  would  have  been  other- 
wise, whilst  others  of  the  panel,  with  different  impressions  or  different 
recollections,  might  testify  favorably  for  the  prevailing  party.  This 
would  open  a  novel  and  alarming  source  of  litigation,  and  it  would  be 
difficult  to  say  when  a  suit  was  terminated. 

We  learn  by  the  cases  cited  from  the  books,  and  from  others  within 
the  recollection  of  the  Court,  that  the  English  judges  consider  the  ad- 
mission of  such  affidavits  as  not  common,  and  of  dangerous  tendenc^^ 
.  .  .  But  whatever  may  have  been  the  opinions  of  the  English  jiirists 
on  this  point,  the  Court  consider  that  the  mode  of  our  trials  affords  so 
many  opportunities  for  a  losing  party  to  have  his  cause  reconsidered  by 
Court  and  jury,  unknown  in  the  mother  country,  that  the  reasons  opera- 
tive there,  if  any  exist,  for  the  admission  of  affida^•its  of  jurymen,  exhib- 
iting the  deliberations  of  the  jury  room,  cannot  apply  here.  .  .  .  The 
affidavit  of  the  jurymen  cannot  therefore  be  read  in  evidence,  and  con- 
sequently the  defendant  cannot  rest  on  the  first  ground  of  his  motion.  .  .  . 

Motion  dismissed,  with  costs. 

Landgon,  for  defendant.     Darivs  Chipman,  for  plaintiffs. 


1238  BOOK  VI :    parol  evidence  rules  No.  840 

840.   WRIGHT  v.   TELEGRAPH   CO.  • 
Supreme  Court  of  Iowa.     1866 
20  la.  195 

Suit  to  recover  damages  for  the  injury  sustained  by  him  on  account 
of  the  casualties  aforesaid.  The  cause  was  tried  to  a  jury  and  resulted 
in  a  verdict  of  three  hundred  and  forty -five  dollars  and  sixty-six  cents  for 
plaintiff. 

The  defendant  moved  for  a  new  trial,  based  mainly  upon  alleged 
erroneous  giving  and  refusing  instructions,  misconduct  of  the  jury,  and 
newly  discovered  evidence.  In  support  of  the  alleged  misconduct  of  the 
jury,  the  defendant  filed  the  affidavits  of  four  of  the  jurors  who  tried  the 
cause.  Each  affidavit  stated,  in  substance,  that,  in  order  to  arrive  at 
the  plaintiff's  damages,  it  was  agreed  that  each  juror  should  mark  down 
such  sum  as  he  thought  proper  to  allow;  that  the  aggregate  should  be 
divided  by  twelve,  and  the  quotient  should  be  the  verdict;  which  agree- 
ment was  carried  out  by  each  juror,  and  the  quotient  thus  obtained  was 
returned  to  the  Court  as  the  verdict  of  the  jury.  The  plaintiff  then 
moved  to  strike  the  affidavits  of  the  jurors  from  the  files,  because  they 
could  not  be  read  as  evidence  in  support  of  the  motion  for  a  new  trial. 
This  motion  to  strike  was  sustained  and  the  motion  for  a  new  trial 
overruled.     The  defendant  excepted  and  appeals. 

C.  Baldwin,  for  the  appellant.     Clinton  &  Sapp,  for  the  appellee. 

Cole,  J.  —  The  first  question  presented  by  the  transcript,  and  argued 
by  the  counsel,  is,  whether  affidavits  of  jurors  may  be  read  in  support  of  a 
motion  for  a  new  trial,  based  upon  the  alleged  misconduct  of  the  jury, 
in  the  manner  of  arriving  at  the  verdict.  .  .  . 

[After  reviewing  the  Iowa  decisions,]  This  want  of  entire  or  perfect 
consistency  in  our  own  Court,  naturally  stimulates  an  inquiry  as  to  the 
course  pursued  by  other  Courts  upon  the  same  question.  ...  A  brief 
review  of  them,  in  view  of  the  importance  and  frequent  recurrence  of 
the  question,  seems  a  plain  duty.  .  .  . 

It  was  shown  in  Aylett  v.  Jewel,  2  W.  Black.  1299,  by  the  affidavit  of 
defendant's  attorney,  that  some  of  the  jury  had  confessed  to  him  that,  not 
being  able  to  agree  on  their  verdict,  all  the  names  were  written  on  separate 
papers,  and  shook  together  in  a  hat,  and  it  was  agreed  that  a  majority  of 
the  six  names  first  drawn  should  decide  the  verdict,  and  it  was  so  done; 
but  the  Court  refused  to  interfere,  because  there  was  no  affidavit  by  the 
jurors,  but  only  hearsay  evidence.  See  also,  to  same  effect,  Clark  v. 
Stevenson,  2  W.  Black.  803;  Mellish  v.  Arnold,  Bunbury  51;  Straker  v. 
Graham,  4  M.  &  W.  721;  s.  c,  7  Dowl.  P.  C.  223;  Burgess  v.  Langley, 
5  M.  &  G.  722.  But  see,  contra,  Addison  v.  Williamson,  5  Jur.  (Exch.) 
466.  In  Rex  v.  Simmons,  Sayre  35,  s.  c.  Wils.,  329,  the  jury  were 
directed  to  inquire  as  to  two  matters  —  the  act  and  the  intent,  but  unless 


No.  840  INTEGRATION   OF   LEGAL  ACTS  1239 

they  found  the  defendant  guilty  of  both  they  should  acquit.  On  the 
coming  in  of  tlie  jury,  who  only  had  found  the  defendant  guilty  of  the 
act,  the  judge  understood  them  to  declare  their  verdict  to  be  guilty, 
although  one  of  the  jurors  said  at  the  time,  "No  intent,  no  intent." 
There  was  much  noise  in  the  court  room  at  the  time.  The  affidavits 
of  jurors  were  afterwards  received,  in  explanation  of  the  whole  matter, 
and  thereon  the  verdict  was  set  aside  upon  the  ground  that  it  was  con- 
trary to  the  directions  of  the  judge  in  a  matter  of  law.  See,  also,  Sargent 
V.  Deniston,  5  Cow.  106;  and  Ex  parte  Caykendall,  6  Ibid.,  53.  There 
were  two  different  issues  in  Cogan  v.  Ebden,  1  Burr.  383,  and  the  jury 
agreed  to  find  for  plaintiff  on  one  issue,  and  for  defendant  on  the  other; 
but  the  foreman  gave  a  general  verdict  for  defendant.  The  mistake  was 
discovered  by  the  jurors  about  an  hour  afterwards,  but  not  till  after  the 
judge  had  gone  to  his  lodgings.  The  affidavits  of  eight  of  them  were 
received  as  a  basis  for  a  rule  to  show  cause  why  the  verdict  should  not  be 
amended.  In  King  v.  Woodfall,  5  Burr.  2661,  it  was  held  that,  when  there 
is  a  doubt  upon  the  judge's  report,  as  to  what  passed  at  the  time  of 
bringing  in  the  verdict,  affidavits  of  jurors  may  be  received  upon  a  motion 
for  a  new  trial;  but  an  affidavit  of  a  juror  cannot  be  read,  as  to  what  he 
then  thought  or  intended.  ...  In  Little  v.  Larrabee,  2  Greenl.  34,  the 
action  was  a  writ  of  entry,  and  the  Court  received  the  affidavits  of  jurors 
to  show  that  they  intended  to  find  for  the  tenant,  whereas,  by  mistakes 
in  the  legal  terms,  they  returned  a  verdict  for  demandant,  and  thereon 
set  the  verdict  aside.  .  .  .  That  affidavits  of  jurors  will  not  be  received 
to  show  that  the  verdict  was  obtained  by  each  juror  marking  down  and 
dividing  aggregate  by  twelve,  or  by  lot,  etc.,  was  decided  in  the  following 
cases:  Vaise  v.  Delaval  [a7ite.  No.  837];  Owen  v.  Warburton  [ante,  No. 
838];  Dana  i\  Tucker,  4  Johns.  487.  That  affidavits  of  jurors  will  not 
be  received  to  show  the  detail  of  the  deliberations  of  the  jury,  or  that 
they  or  one  or  more  of  them  misunderstood  the  evidence  or  instructions, 
etc.,  or  did  not  agree  to  the  verdict,  etc.,  see  Robbins  v.  Windover,  2  Tyler 
11  [ante,  No.  839].   .   .   . 

It  is  very  apparent  from  this  review  of  the  avithorities,  that  each  case 
has  been  decided,  not  on  any  recognized  or  fixed  principle,  but  upon  its 
own  supposed  merits,  according  to  individual  views  of  the  judge  deliver- 
ing the  opinion  of  the  Court  deciding  the  case;  and  although  previous 
cases  are  sometimes  cited,  the  cjuestion  seems  very  often  to  have  been 
treated  as  one  of  first  impression,  lender  such  circumstances,  it  is,  of 
course,  impossible  to  deduce  a  general  rule  from,  or  state  one  that  will 
be  consistent  with,  all  the  cases. 

While  we  do  not  feel  entirely  confident  of  its  correctness,  nor  state  it 
without  considerable  hesitation,  yet  we  are  not  without  that  assurance 
which,  under  the  circumstances,  justifies  us  in  laying  down  the  following 
as  the  true  rule:  That  affidavits  of  jurors  may  be  received  for  the  purpose 
of  avoiding  the  verdict,  to  show  any  matter  occurring  during  the  trial 
or  in  the  jury  room,  which  does  not  essentially  inhere  in  the  verdict  itself, 


1240  BOOK   VI:     PAROL  EVIDENCE   RULES  Xo.  840 

as  that  a  juror  was  improperly  approached  by  a  party,  his  agent,  or  attor- 
ney; that  witnesses  or  others  conversed,  as  to  the  facts  or  merits  of  the 
cause,  out  of  Court  and  in  the  presence  of  jurors;  that  the  verdict  was 
determined  by  aggregation  and  average  or  by  lot,  or  game  of  chance  or 
other  artifice  or  improper  manner;  but  that  such  affidavit  to  avoid  the 
verdict  may  not  Ije  received  to  show  any  matter  which  does  essentially 
inhere  in  the  verdict  itself,  as  that  the  juror  did  not  assent  to  the  verdict; 
that  he  misunderstood  the  instructions  of  the  Court;  the  statements  of 
the  witnesses  or  the  pleadings  in  the  case;  that  he  was  unduly  influenced 
by  the  statements  or  otherwise  of  his  fellow  jurors,  or  mistaken  in  his 
calculations  or  judgment,  or  other  matter  resting  alone  in  the  juror's 
breast.  That  the  verdict  was  obtained  by  lot,  for  instance,  is  a  fact 
independent  of  the  verdict  itself,  and  which  is  not  necessarily  involved  in 
it.  While  every  verdict  necessarily  involves  the  pleadings,  the  evidence, 
the  instructions,  the  deliberation,  conversations,  debates,  and  judgments 
of  the  jurors  themselves;  and  the  effect  or  influence  of  any  of  these  upon 
the  juror's  mind,  must  rest  in  his  own  breast,  and  he  is  and  ought  to 
be  concluded  thereon  by  his  solemn  assent  to  and  rendition  of  the  verdict 
(veredictum  —  a  true  declaration).  To  allow  a  juror  to  make  affidavit 
against  the  conclusiveness  of  the  verdict  by  reason  of  and  as  to  the  effect 
and  influence  of  any  of  these  matters  upon  his  mind,  which  in  their  very 
nature  are,  though  untrue,  incapable  of  disproof,  would  be  practically 
to  open  the  jury  room  to  the  importunities  and  appliances  of  parties  and 
their  attorneys,  and,  of  course,  thereby  to  unsettle  verdicts  and  destroy 
their  sanctity  and  conclusiveness.  But  to  receive  the  affidavit  of  a  juror 
as  to  the  independent  fact  that  the  verdict  was  obtained  by  lot,  or  game 
of  chance,  or  the  like,  is  to  receive  his  testimony  as  to  Ja  fact,  which,  if 
not  true,  can  be  readily  and  certainly  disproved  by  his  fellow  jurors ;  and 
to  hear  such  proof  would  have  a  tendency  to  diminish  such  practices 
and  to  purify  the  jury  room,  by  rendering  such  improprieties  capable  and 
probable  of  exposure,  and  consequently  deterring  jurors  from  resorting 
to  them.  .  .  . 

While  it  is  certainly  illegal  and  reprehensible  in  a  juror,  to  resort  to 
lot  or  the  like  to  determine  a  verdict,  which  ought  always  to  be  the  result 
of  a  deliberate  judgment,  yet  such  resort  might  not  evince  more  turpitude 
tending  to  the  discredit  of  his  statement  than  would  be  evinced  by  a 
person  not  of  the  jury,  in  the  espionage  indicated  by  Lord  Mansfield 
and  necessary  to  gain  a  knowledge  of  the  facts  to  enable  him  to  make  the 
affidavit.  At  all  events  the  superior  opportunities  of  knowledge  and  less 
liability  to  mistake,  which  the  juror  has  over  the  spy,  would  entitle  his 
statement  to  the  most  credit.  And  if,  as  is  universally  conceded,  it  is 
the /ad  of  improper  practice,  which  avoids  the  verdict,  there  is  no  reason 
why  a  Court  should  close  its  ears  to  the  evidence  of  it  from  one  class  of 
persons,  while  it  will  hear  it  from  another  class,  which  stands  in  no  more 
enviable  light  and  is  certainly  no  more  entitled  to  credit. 

Nor  does  the  consideration  of  the  affidavits  of  jurors,  for  the  purposes 


No.  841  INTEGRATION   OF   LEGAL   ACTS  1241 

stated,  contravene  sound  public  policy.  It  is  true,  however,  that  public 
polic;s'  does  require  that  when  a  juror  has  discharged  his  duty  and  rendered 
a  verdict,  such  verdict  should  remain  undisturbed  and  unaffected  by  any 
subsequent  change  of  opinion  upon  any  fact  or  pretext  whatever;  and, 
therefore,  a  juror  should  not  be  heard  to  contradict  or  impeach  that  which, 
in  the  legitimate  discharge  of  his  duty,  he  has  solemnly  asseverated.  But 
when  he  has  done  an  act  entirely  independent  and  outside  of  his  duty  and 
in  violation  of  it  and  the  law,  there  can  be  no  sound  public  policy  which 
should  prevent  a  Court  from  hearing  the  best  evidence  of  which  the 
matter  is  susceptible,  in  order  to  administer  justice  to  the  party  whose 
rights  have  been  prejudiced  by  such  unlawful  act.  In  other  words, 
public  policy  protects  a  juror  in  the  legitimate  discharge  of  his  duty, 
and  sanctifies  the  result  attained  thereby;  but  if  he  steps  aside  from  his 
duty,  and  does  an  unlawful  act,  he  is  a  competent  witness  to  prove  such 
fact,  and  thereby  prevent  the  sanction  of  the  law  from  attaching  to  that 
which  would  otherwise  be  colorably  lawful. 

We  are,  therefore,  of  the  opinion  that  the  District  Court  erred  in 
striking  from  the  files  and  refusing  to  consider  the  affidavits  of  the  four 
jurors,  that  the  verdict  was  determined  by  each  juror  marking  down 
such  sum  as  he  thought  fit,  and  dividing  the  aggregate  by  twelve  and 
taking  the  quotient  as  their  verdict,  pursuant  to  a  previous  agreement 
to  accept  it  as  such.  These  affidavits,  uncontradicted,  are  sufficient  to 
sustain  the  motion  to  set  aside  the  verdict  and  grant  a  new  trial. 


841.   CAPEN  X.   STOUGHTON 

Supreme  Judicial  Court  of  Massachusetts.     1860 

16  Gray  364 

Petition  entered  at  April  term  1858  of  the  Court  of  Common  Pleas 
in  Norfolk,  setting  forth  that  in  November  1856  a  town  way  was  laid  out 
over  the  land  of  the  petitioners  in  Stoughton,  and  damages  assessed 
therefor,  by  which  the  petitioners  were  aggrieved,  and  the  county  com- 
missioners, upon  their  application  and  after  due  notice,  issued  a  warrant 
for  a  reassessment  of  the  damages  by  a  jury;  that  a  jury  was  empanelled 
and  the  case  tried  before  them ;  that  blank  forms  of  verdict  for  the  peti- 
tioners and  for  the  respondents  were  handed  to  them  by  the  sheriff;  that 
the  jury  agreed  upon  and  filled  out  a  verdict  for  the  petitioners,  but 
through  mistake  omitted  to  sign  it,  and  signed  a  verdict  for  the  respond- 
ents; that  both  verdicts  were  sealed  up  in  one  envelope  and  returned 
into  the  Court  of  Common  Pleas ;  that  the  petitioners  received  information 
from  some  of  the  jurors  that  the  verdict  returned  was  in  their  favor,  and 
so  told  their  counsel,  and  he,  relying  on  this  information,  without  inspect- 
ing the  verdict,  moved  the  Court  at  December  term  1857  to  accept  it, 
and  it  was  accepted  and  ordered  to  be  certified  to  the  county  commis- 


1242         BOOK  VI :  parol  evidence  rules      No.  841 

sioners.  The  prayer  of  the  petition  was  that  this  judgment  should  be 
vacated,  the  case  brought  forward  on  the  docket,  and  leave  given  the 
petitioners  to  sue  out  a  writ  of  review.  Sanger,  J.,  ruled  that,  assuming 
all  the  facts  stated  in  the  petition  to  be  true,  the  petitioners  were  not 
legally  entitled  to  the  relief  prayed  for,  and  the  Court  had  no  discretionary 
power  to  grant  it;  and  dismissed  the  petition.  The  petitioners  alleged 
exceptions,  which  were  argued  in  January  1859,  and  sustained,  and  the 
case  remitted.  .  .  . 

A  hearing  was  had  in  the  Court  of  Common  Pleas  at  April  term  1859, 
at  which  Aiken,  J.,  against  the  objection  of  the  respondents,  allowed  three 
of  the  persons  who  had  composed  the  sheriff's  jury  to  testify  that,  after 
agreeing  on  a  verdict  for  the  petitioners  and  filling  up  a  blank  form 
accordingly,  the  jury  by  mistake  signed  the  form  of  ^•erdict  for  the 
respondents;  and  ordered  the  former  case  to  be  brought  forward  on  the 
docket,  and  the  acceptance  of  the  verdict  to  be  vacated  as  prayed  for. 
The  respondents  alleged  exceptions  to  the  admission  of  the  testimony 
of  the  jurors.  .  .  . 

BiGELOW,  C.  J.  .  .  .  We  think  this  case  differs  essentially  from  those 
cited  by  the  counsel  for  the  respondents,  in  which  it  has  been  held,  that 
the  testimony  of  jurors  is  inadmissible  in  support  of  a  motion  to  set  aside 
a  verdict  on  the  ground  of  mistake,  irregularity,  or  misconduct  of  the 
jury,  or  of  some  one  or  more  of  the  panel.  It  has  been  settled  upon 
sound  considerations  of  public  policy  that  mistake  of  the  testimony, 
misapprehension  of  the  law,  error  in  computation,  irregular  or  illegal 
methods  of  arriving  at  damages,  unsound  reasons  or  improper  motives, 
misconduct  during  the  trial  or  in  the  jury  room,  cannot  be  shown  by  the 
evidence  of  the  jurors  themselves,  as  the  ground  of  disturbing  a  verdict, 
duly  rendered.  .  .  . 

But  in  the  present  case  the  mistake  which  is  proved  by  the  testimony 
of  the  jurors  is  of  a  different  character.  It  is  not  one  connected  with 
the  consultations  of  the  jury,  or  the  mode  in  which  the  verdicts  were 
arrived  at  or  made  up.  No  fact  or  circumstance  is  offered  to  be  proved, 
which  occurred  prior  to  the  determination  of  the  case  by  the  jury  and 
their  final  agreement  on  the  verdict  which  was  to  be  rendered  by  them. 
But  the  evidence  of  the  jurors  is  offered  only  to  show  a  mistake,  in  the 
nature  of  a  clerical  error,  which  happened  after  the  deliberations  of 
the  jury  had  ceased,  and  they  had  actually  agreed  on  their  verdict.  The 
error  consisted,  not  in  making  up  their  verdict  on  wrong  principles  or 
on  a  mistake  of  facts,  but  in  an  omission  to  state  correctly  in  writing  the 
verdict  to  which  they  had,  by  a  due  and  regular  course  of  proceeding, 
honestly  and  fairly  arrived.  .  .  .  No  considerations  of  public  policy 
require  that  the  uncontradicted  testimony  of  jurors  to  establish  an  error 
of  this  nature  should  be  excluded.  Its  admission  does  not  in  any  degree 
infringe  on  the  sanctity  with  which  the  law  surroimds  the  deliberations 
of  juries,  or  expose  their  verdicts  to  be  set  aside  through  improper  in- 
fluences, or  upon  grounds  which  might  prove  dangerous  to  the  purity 


No.  842  INTEGRATION  OF  LEGAL  ACTS  1243 

and  steadiness  of  the  administration  of  jjublic  justice.  On  the  contrary, 
it  is  a  case  of  manifest  mistake,  of  a  merely  formal  and  clerical  character, 
which  the  Court  ought  to  interfere  to  correct,  in  order  to  prevent  the 
rights  of  parties  from  being  sacrificed  by  a  blind  adherence  to  a  rule  of 
evidence,  in  itself  highly  salutary  and  reasonable,  but  which  upon  prin- 
ciple has  no  application  to  the  present  case.  Exceptions  overruled. 


842.   KOCH  V.   STATE 

Supreme  Court  of  Wisconsin.     1906 

126  Wis.  470;   106  N.  W.  531 

Error  to  Municipal  Court,  Milwaukee  County;  A.  C.  Brazee, 
Judge. 

Edward  Koch  was  convicted  of  larceny  from  the  person,  and  he 
brings  error.     Reversed. 

Plaintiff  in  error  was  tried  jointly  with  one  Meyers  upon  an  informa- 
tion for  robbery  and  larceny  from  the  person  under  §  4378,  Rev.  St. 
1898.  At  the  close  of  the  testimony  on  the  evening  of  November  18, 
1904,  both  parties  stipulated,  before  the  jury  retired  to  deliberate  on 
their  verdict,  that  should  they  agree  during  the  night  and  after  the  ad- 
journment of  Court,  they  might  write  out  their  verdict,  date  it,  and  the 
foreman  sign  it,  inclose  it  in  an  envelope,  seal  it  up,  and  the  foreman  take 
it  wnth  him,  and  the  jury  retire  from  the  jury  room  and  return  their 
verdict  into  Court  at  the  opening  thereof  the  following  morning.  The 
jury  were  also  told,  before  retiring,  that  they  were  not  at  liberty  to  state 
to  any  person  what  their  verdict  was,  until  they  had  delivered  it  into 
Court.  Before  they  retired,  the  Court  submitted  to  them  the  following 
forms  of  verdict:  (1)  "We  find  the  defendants  guilty  as  charged.  (2)  We 
find  the  defendants  guilty  of  larceny  from  the  person.  (3)  We  find  the 
defendants  guilty  of  assault,  or,  if  you  find  one  guilty  and  one  not  guilty, 
then  you  will  so  pronounce  by  your  verdict.  (4)  We  find  the  defendants 
not  guilty.  The  jury  retired  at  5:  30  p.m.  and  at  about  8:  45  p.m.  agreed 
upon  a  verdict,  which  was  reduced  to  writing,  sealed  in  an  envelope,  and 
placed  in  possession  of  the  foreman,  and  the  jury  then  dispersed,  and 
were  discharged  from  the  custody  of  the  sheriff  who  had  charge  of  them 
while  deliberating.  At  the  opening  of  Court  on  the  following  morning, 
they  entered  the  box  and  delivered  to  the  Court  the  following  verdict: 
"Milwaukee,  Nov.  18,  1904.  We,  the  jury,  find  defendant,  Mr.  Meyers, 
guilty  as  charged.  We,  the  jury,  find  the  defendant,  Mr.  Koch,  guilty 
for  larceny  and  also  recommend  the  Court  to  be  lenient  with  Mr.  Koch. 
F.  A.  Woodford,  Foreman."  Counsel  for  plaintiff  in  error  moved  that 
the  verdict  be  recorded  as  read;  whereupon  the  Court  replied  that  it 
would  be  recorded,  but  not  until  the  Court  had  requested  the  jury  as  to 
what  their  intentions  w^ere  when  they  found  plaintiff  in  error  guilty  of 


1244        BOOK  VI :  parol  evidence  rules      No.  842 

larceny.  Counsel  for  plaintiff  in  error  also  objected  to  the  jury  being 
permitted  to  orally  contradict  their  written  verdict,  which  objection  was 
overruled,  and  exception  taken.  The  Court  then  asked  the  jury  if  they 
meant  to  find  plaintiff  in  error  guilty  of  plain  larceny,  or  larceny  from  the 
person,  and  the  foreman  answered :  "Guilty  of  larceny  from  the  person, 
is  the  way  I  understand  it."  The  Court  then  instructed  the  clerk  to 
ask  each  juror  whether  he  meant  to  find  plaintiff  in  error  guilty  of  larceny, 
or  larceny  from  the  person,  and  upon  being  asked  the  question  by  the 
clerk,  each  juror  answered  that  he  meant  to  find  him  guilty  of  larceny 
from  the  person,  to  all  of  which  counsel  for  plaintiff  in  error  objected, 
and  excepted  to  the  proceedings  and  rulings  of  the  Court. 

Motion  for  new  trial  was  made  and  denied,  and  the  Court  sentenced 
Meyers  and  plaintiff  in  error  each  to  a  term  of  one  year  in  the  Wisconsin 
State  Reformatory;  from  which  judgment  and  conviction  plaintiff  in 
error  sued  out  his  writ  of  error. 

W.  B.  Rubin,  for  plaintiff  in  error.  L.  M.  Sturdevant,  Atty.-Gen., 
and  A.  C.  Titus,  Asst.  Atty.-Gen.,  for  the  State. 

Keravin,  J.  (after  stating  the  facts).  The  errors  assigned  raise  the 
following  questions  for  review :  .  .  .  third  whether  error  was  committed 
in  receiving  and  changing  the  written  verdict.  ...         » 

3.  Error  is  assigned  because  the  verdict  received  was  a  nullity,  and 
could  not  be  amended  after  the  jury  had  separated.  The  sealed  verdict 
returned  into  court  found  the  plaintiff  in  error  guilty  of  larceny  only. 
There  w^as  no  finding  that  he  was  guilty  of  larceny  from  the  person,  nor 
of  the  value  of  the  property  taken.  It  is  clear  this  finding  was  not 
suflScient  to  support  the  conviction.  McEntee  v.  State,  24  Wis.  43; 
La  Tour  v.  State,  93  Wis.  603,  67  N.  W.  1138;  Allen  v.  State,  85  Wis. 
22,  54  N.  W.  999.  The  question,  therefore,  arises  whether  the  verdict 
could  have  been  amended  upon  the  facts  heretofore  stated.  It  is  con- 
tended on  the  part  of  the  State  that  it  was  not  error  to  permit  the 
jury,  even  after  separation,  to  correct  and  explain  their  verdict,  and 
several  cases  are  cited,  civil  and  criminal,  which,  it  is  claimed,  sup- 
port this  position.  In  State  ex  rel.  Town  of  White  Oak  Springs  v. 
Clementson,  69  Wis.  628,  35  N.  W.  56,  it  was  held  that  the  jury  may, 
after  announcing  a  verdict,  if  they  see  fit  and  before  they  are  dis- 
charged, change  the  same  and  render  a  different  one,  and  that  w^here 
the  jury  have  manifestly  made  an  omission  or  mistake  in  their  verdict, 
the  presiding  judge  may  call  their  attention  to  that  fact,  and  return  it  to 
them  for  correction.  In  Victor  S.  M.  Co.  et  al.  v.  Heller,  44  Wis.  265, 
after  the  jury  had  returned  their  verdict,  the  judge  told  them  they  were 
discharged,  but  immediately  and  before  they  left  their  seats  or  com- 
municated with  any  one  called  their  attention  to  imperfections  in  the 
verdict  and  put  it  in  the  form  which  they  affirmed  was  intended,  and  it 
was  signed  by  the  foreman  and  declared  by  the  jury  to  be  their  verdict; 
it  was  held  that,  it  being  clear  that  the  verdict  entered  was  the  one 
intended,   there  was  no  error.  ...  In  these  cases  the  jury  had  not 


No.  842  INTEGRATION   OF   LEGAL   ACTS  1245 

separated  during  their  deliberations;  the  changes  in  the  verdicts  being 
made  during  the  time  of  deHberation,  and  before  discharged  or  separa- 
tion, and  while  the  jury  were  still  together  as  such.  .  .  .  These  cases 
are  mainly  relied  upon  here  by  counsel  for  the  State.  But  it  will  be  seen 
from  a  careful  examination  of  them  that  they  do  not  reach  the  question 
before  us. 

The  cases,  however,  are  not  altogether  uniform  upon  this  subject. 
Respectable  authority  may  be  found  holding  that  verdicts  in  criminal, 
as  well  as  civil,  cases,  can  be  amended  after  separation  of  the  jury.  .  .  . 
In  Allen  v.  State,  85  Wis.  22,  54  N.  W.  999,  it  was  held  that  a  defective 
verdict  in  a  murder  case  could  not  be  corrected  either  by  the  Court  or  by 
reassembling  the  jury  after  they  had  been  discharged.  In  Illinois  and 
Massachusetts,  it  has  been  held  that  in  a  prosecution  for  felony  it  is  error 
for  the  Court  to  allow  the  verdict  to  be  corrected  or  amended  in  matter  of 
substance  after  it  has  been  agreed  upon,  signed  and  sealed,  and  the  jury 
has  separated.  Farley  et  al.  v.  People,  138  111.  97,  in  a  trial  on  charge  of 
larceny,  the  Court,  with  the  consent  of  defendants'  counsel,  given  in  open 
Court,  directed  that  the  jury  be  permitted  to  seal  their  verdict  when 
arrived  at  and  return  the  same  into  Court  at  the  opening  session  the 
following  day,  and  on  the  same  afternoon  the  jury  separated  and  went  to 
their  respective  homes;  returning  into  Court  the  following  morning  and 
producing  what  they  intended  as  a  sealed  verdict  of  guilt}'  as  to  both 
defendants.  The  verdict,  however,  failed  to  fix  the  term  of  imprisonment 
of  one  defendant.  Thereupon  the  Court  directed  them  to  again  retire 
and  complete  their  verdict.  Defendant  objected,  which  was  overruled. 
After  some  delay,  the  jury  brought  in  a  second  verdict,  finding  defendants 
guilty  and  fixing  the  punishment.  Judgment  was  entered  on  the  last 
verdict,  and  reversed  on  appeal  on  the  ground  that  after  the  jury  had 
separated  they  had  no  further  power  over  their  verdict.  The  Court 
distinguished  the  case  from  separation  during  the  trial,  and  said : 

"This  is  not  the  case  of  a  jury  having  been  allowed  to  separate  during  the 
progress  of  a  trial,  or  coming  in  contact  with  the  people  generally,  in  which  case 
it  must  appear  that  some  injury  resulted  to  the  defendant,  and  therefore  the 
authorities  cited  by  counsel  for  the  people  have  no  application."  .  .  . 

In  Commonwealth  v.  Tobin,  125  Mass.  206,  in  a  prosecution  for  felony, 
the  Court  said : 

"When  the  jury  have  been  permitted  to  separate  after  agreeing  upon  and 
sealing  up  a  verdict,  there  is  this  difference  between  civil  and  criminal  cases: 
In  a  civil  action,  if  the  WTitten  verdict  does  not  pass  upon  the  whole  case,  or  the 
jury  refuse  to  affirm  it,  the  Coiu-t  may  send  them  out  again,  and  a  fuller  or  differ- 
ent verdict  afterwards  retiu-ned  will  be  good.  But  in  a  criminal  case,  the  oral 
verdict  pronounced  by  the  foreman  in  open  Coiu"t  cannot  be  received,  unless  it  is 
shown  to  accord  substantially  with  the  form  sealed  up  by  the  jury  before  their 
separation." 

We  believe  the  rule  in  Illinois  and  Massachusetts,  above  cited,  is  best 
calculated  to  elevate  the  standard  of  jury  trials  and  preserve  the  purity 


1246        BOOK  VI :  parol  evidence  rules      No.  842 

and  integrity  of  the  jury  system.  Whatever  tends  to  subject  a  jury  to 
temptation  or  improper  influence  during  the  trial,  and  especially  after 
they  have  retired  for  deliberation,  should  be  jealously  guarded  against, 
to  the  end  that  the  accused  may  be  protected  in  his  constitutional  right 
of  a  fair  trial  by  an  impartial  jury. 

In  the  case  before  us  the  verdict  agreed  upon  and  delivered  into  Court 
was  a  nullity.  .  .  .  The  jury  agreed  upon  a  verdict,  signed  and  sealed  it, 
and  then  separated.  Their  function  for  deliberation  and  agreeing  upon 
a  verdict  ceased  as  soon  as  they  separated.  They  had  no  further  office 
to  perform,  except  to  deliver  into  Court  and  announce  the  sealed  verdict 
as  the  verdict  of  the  jury.  They  could  deliver  this  verdict  orally,  but 
they  could  not  deliver  a  different  verdict,  orally  or  otherwise.  Common- 
wealth V.  Tobin,  supra.  ...  It  follows,  therefore,  that  the  Court  erred 
in  excluding  evidence  on  cross-examination,  in  permitting  the  verdict  to 
be  amended,  and  in  denying  the  motion  for  new  trial. 

Judgment  of  the  Court  below  is  reversed,  and  the  cause  remanded 
for  a  new  trial. 


No.  845  INTEGRATION  OF  LEGAL  ACTS  1247 


SUB-TITLE  III.     CORPORATE  RECORDS 

845.    UNITED   STATES  BANK  v.   DANDRIDGE 

Supreme  Court  of  the  United  States.     1827 

12  Wheat.  65 

This  is  a  writ  of  error  to  the  Circuit  Court  for  the  district  of  Virginia. 
The  original  action  was  debt  on  a  bond,  purporting  to  be  signed  by 
Dandridge,  as  principal,  and  Carter  B.  Page,  Wilson  Allen,  James  Brown, 
Jr.,  Thomas  Taylor,  Harry  Heth  and  Andrew  Stevenson,  as  his  sureties, 
and  was  brought  jointly  against  all  the  parties.  The  condition  of  the 
bond,  after  reciting  that  Dandridge  had  been  appointed  cashier  of  the 
office  of  discount  and  deposit  of  the  Bank  of  the  United  States,  at  Rich- 
mond, Virginia,  was,  that  if  he  should  well  and  truly,  and  faithfully 
discharge  the  duties  and  trust  reposed  in  him  as  cashier  of  the  said  office, 
then  the  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
virtue.  The  declaration  set  forth  the  condition,  and  assigned  various 
breaches.  Dandridge  made  no  defence;  and  the  suit  was  abated,  as  to 
Heth,  by  his  death.  The  other  defendants  severed  in  their  pleas.  .  .  . 
Stevenson  and  Allen  pleaded,  among  other  pleas  noti  est  factum  generally, 
and  also  special  pleas  of  7i07i  est  factum,  on  which  issues  were  joined ;  and 
that  all  the  defendants,  in  various  forms,  pleaded,  that  the  instrument 
was  not  the  deed  of  Stevenson;  and  further  pleaded,  that  the  bond  had 
never  been  approved,  according  to  the  provisions  of  the  30th  article  of 
the  rules  and  regulations  of  the  bank.  Issues  were  also  taken  on  these 
pleas;  and  the  cause  came  on  for  trial  upon  all  the  issues  of  fact. 

At  the  trial,  evidence  was  offered  for  the  purpose  of  establishing  the 
due  execution  of  the  bond  by  the  defendants,  and  particularly  by  Steven- 
son and  Allen,  and  its  approval  by  the  plaintiffs.  The  evidence  was 
objected  to,  on  behalf  of  the  defendants,  as  not  sufficient  to  be  left  to  the 
jury,  to  infer  a  delivery  of  the  bond,  and  the  acceptance  and  approval 
thereof  by  the  directors  of  the  bank,  according  to  the  provisions  of  their 
charter;  and  the  objection  was  sustained,  the  Court  being  of  opinion,  that 
although  the  scroll  affixed  by  Alien  to  his  name  is,  in  Virginia,  equivalent 
to  a  seal  of  wax,  and  although  proof  of  the  handwriting  of  Stevenson,  and 
the  bond  being  in  possession  of  the  plaintiffs,  and  put  in  suit  by  them,  and 
the  introduction  of  Dandridge  into  the  office  of  cashier,  and  his  con- 
tinuing to  act  in  that  office,  would,  in  general,  be  prima  facie  evidence, 
to  be  submitted  to  the  jury,  as  proof  that  the  bond  was  fully  executed 
and  accepted ;  yet  it  was  not  evidence  of  that  fact,  or  of  the  obligation 
of  the  bond,  in  this  case;  because,  under  the  Act  of  Congress,  incorporat- 
ing the  Bank  of  the  United  States,  the  bond  ought  to  be  satisfactory  to 
the  board  of  directors,  before  the  cashier  can  legally  enter  on  the  duties 


1248  BOOK   VI:     PAROL   EVIDENCE    RULES  No.  845 

of  his  office,  and  consequently,  before  his  sureties  can  be  responsible  for 
his  non-performance  of  those  duties;  and  that  the  evidence  in  this  case 
did  not  prove  such  acceptance  and  approbation  of  the  bond,  as  is  required 
by  law  for  its  completion.   .   .   . 

The  Court  excluded  the  whole,  and  every  part  of  the  said  evidence 
from  the  jury,  being  of  opinion,  that  the  board  of  directors  keep  a  record 
of  their  proceedings,  which  record,  or  a  copy  of  it,  showing  the  assent  of 
the  directors  to  this  bond,  was  necessary  to  show  that  such  assent  was 
given ;  and  if  such  assent  had  not  been  entered  on  the  record  of  the  pro- 
ceedings of  the  said  directors,  the  bond  was  ineffectual,  and  no  claim  in 
favor  of  the  plaintiffs  could  be  founded  thereon,  against  the  defendants 
in  these  issues. 

This  cause  was  very  elaborately  argued  by  the  Attorney-General  and 
Mr.  Webster,  for  the  plaintiffs,  and  by  Mr.  Tazewell,  for  the  defendants. 

Story,  J.,  for  the  majority  (after  stating  the  case  as  above).  ...  It  is 
admitted,  in  the  opinion  of  the  Circuit  Court,  that  the  evidence  offered 
would  in  common  cases,  between  private  persons,  have  been  prima  facie 
evidence,  to  be  submitted  to  the  jury,  as  proof  that  the  bond  was  fully 
executed  and  accepted.  But  it  is  supposed,  that  a  different  rule  prevails 
in  cases  of  corporations;  that  their  acts  must  be  established  by  positive 
record  of  proofs;  and  that  no  presumptions  can  be  made,  in  their  favor, 
of  corporate  assent  or  adoption,  from  other  circumstances,  though  in 
respect  to  indi\'iduals,  the  same  circumstances  would  be  decisive.  The 
doctrine,  then,  is  maintained  from  the  nature  of  corporations,  as  distin- 
guished from  natural  persons;  and  from  the  supposed  incapacity  of  the 
former  to  do  any  act,  not  evidenced  by  writing,  and  if  done,  to  prove  it, 
except  by  writing.   .   .   . 

In  ancient  times,  it  was  held,  that  corporations  aggregate  could  do 
nothing  but  by  deed  under  their  common  seal.  But  this  principle  must 
always  have  been  understood  with  many  qualifications;  and  seems  inap- 
plicable to  acts  and  votes  passed  by  such  corporations  at  corporate  meet- 
ings. It  was  probably,  in  its  origin,  applied  to  aggregate  corporations 
at  the  common  law,  and  limited  to  such  solemn  proceedings  as  were 
usually  evidenced  under  seal,  and  had  to  be  done  by  those  persons  who 
had  the  custody  of  the  common  seal,  and  had  authority  to  bind  the 
corporation  thereby,  as  their  permanent  official  agents.  Be  this  as  it 
may,  the  rule  has  been  broken  in  upon  in  a  vast  variety  of  cases,  in  modern 
times,  and  cannot  now,  as  a  general  proposition,  be  supported.  Mr. 
Justice  Bayley,  in  Harper  v.  Charlesworth,  4  B.  &  C.  575,  said,  "A 
corporation  can  only  grant  by  deed;  yet  there  are  many  things  which  a 
corporation  has  power  to  do,  otherwise  than  by  deed.  It  may  appoint  a 
bailiff,  and  do  other  acts  of  a  like  nature."  And  it  is  now  firmly  estab- 
lished, both  in  England  and  America,  that  a  corporation  may  be  bound 
by  a  promise,  express  or  implied,  resulting  from  the  acts  of  its  authorized 
agent,  although  such  authority  be  only  by  virtue  of  a  corporate  vote,  un- 
accompanied with  the  corporate  seal.     But  whatever  may  be  the  implied 


No.  845  INTEGRATION  OF  LEGAL  ACTS  1249 

powers  of  aggregate  corporations,  hy  the  common  law,  and  the  modes  b^- 
which  those  powers  are  to  be  carried  into  operation,  corporations  created 
by  statute  must  depend,  both  for  their  powers  and  the  mode  of  exercising 
them,  upon  the  true  construction  of  the  statute  itself.  .  .  .  We  do  not 
admit,  as  a  general  proposition,  that  the  acts  of  a  corporation,  although 
in  all  other  respects  rightly  transacted,  are  invalid,  merely  from  the 
omission  to  have  them  reduced  to  writing,  unless  the  statute  creating  it 
makes  such  writing  indispensable  as  evidence,  or  to  give  them  an  obliga- 
tory force.  If  the  statute  imposes  such  a  restriction,  it  must  be  obeyed ; 
if  it  does  not,  then  it  remains  for  those  who  assert  the  doctrine  to  establish 
it  by  the  principles  of  the  common  law,  and  by  decisive  authorities. 
None  such  have,  in  our  judgment,  been  produced.  ...  If  a  person  acts 
notoriously  as  cashier  of  a  bank,  and  is  recognized  by  the  directors,  or 
by  the  corporation,  as  an  existing  officer,  a  regular  appointment  will  be 
presumed;  and  his  acts,  as  cashier,  will  bind  the  corporation,  although 
no  written  proof  is  or  can  be  adduced  of  his  appointment.  In  short,  we 
think,  that  the  acts  of  artificial  persons  afford  the  same  presumptions 
as  the  acts  of  natural  persons.  .  .  . 

But  the  present  question  does  not  depend  upon  the  point,  whether 
the  acts  of  a  corporation  may  be  proved  otherwise  than  by  some  written 
document.  ...  In  the  present  case,  the  acts  of  the  corporation  itself, 
done  at  a  corporate  meeting,  are  not  in  controversy.  .  .  .  The  corpora- 
tion is  altogether  a  distinct  body  from  the  directors,  possessing  all  the 
general  powers  and  attributes  of  an  aggregate  corporation,  and  entitled 
to  direct  and  superintend  the  management  of  its  ow^n  property,  and  the 
government  of  the  institution,  and  to  enact  by-laws  for  this  purpose.  .  .  . 
Assuming,  then,  that  the  directors  of  the  parent  bank  were,  as  a  board, 
to  approve  of  the  bond,  so  far  as  it  respects  the  sureties,  in  what  manner 
is  that  approval  to  be  evidenced?  Without  question,  the  directors  keep 
a  record  of  their  proceedings  as  a  board;  and  it  appears  by  the  rules  and 
regulations  of  the  parent  bank,  read  at  the  bar,  that  the  cashier  is  bound 
"  to  attend  all  meetings  of  the  board,  and  to  keep  a  fair  and  regular  record 
of  its  proceedings."  If  he  does  not  keep  such  a  record,  are  all  such  pro- 
ceedings void,  or  is  the  bank  at  liberty  to  establish  them  by  secondary 
evidence?  In  the  present  case  (we  repeat  it),  the  whole  argument  has 
proceeded  upon  the  ground,  as  conceded,  that  no  such  record  exists  of  the 
approval  of  the  present  bond.  The  charter  of  the  bank  does  not,  in  terms, 
require  that  such  an  approval  shall  be  by  writing,  or  entered  of  record. 
It  does  not,  in  terms,  require  that  the  proceedings  of  the  direc.tors  shall 
generally  be  recorded;  much  less,  that  all  of  them  shall  be  recorded. 
It  seems  to  have  left  these  matters  to  the  general  discretion  of  the  cor- 
poration, and  of  the  directors;  and  though  it  obviously  contemplates, 
that  there  will  be  books  kept  by  the  corporation,  which  will  disclose  the 
general  state  of  affairs,  it  is  not  a  just  inference,  that  it  meant  that  every 
official  act  of  the  directors  should  be  recorded,  of  whatever  nature  it 
might  be.  .   .  .  Upon  what  ground  it  can  be  maintained,  that  the  ap- 


1250  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  845 

proval  of  the  bond  by  the  directors  must  be  in  writing?  It  is  not  required 
by  the  terms  of  the  charter,  or  the  by-laws.  In  each  of  them,  the  language 
points  to  the  fact  of  approval,  and  not  to  the  evidence  by  which  it  is  to 
be  established,  if  controverted.  It  is  nowhere  said,  the  approval  shall  be 
in  writing,  or  of  record.  The  argument  at  the  bar,  upon  the  necessity 
of  its  being  in  writing,  must,  therefore,  depend  for  its  support,  upon  the 
ground,  that  it  is  a  just  inference  of  law  from  the  nature  and  objects  of  the 
statute,  from  the  analogy  of  the  board  of  directors  to  a  corporate  body, 
from  principles  of  public  convenience  and  necessity,  or  from  the  language 
of  authorities,  which  ought  not  to  be  departed  from.  Upon  the  best 
consideration  we  can  give  the  subject,  we  do  not  think  that  the  argument 
can  be  maintained,  under  any  of  these  aspects. 

Marshall,  Ch.  J.  (dissenting).  I  should  now,  as  is  my  custom,  when 
I  have  the  misfortune  to  differ  from  this  Court,  acquiesce  silently  in 
its  opinion,  did  I  not  believe  that  the  judgment  of  the  Circuit  Court 
of  Virginia  gave  general  surprise  to  the  profession,  and  was  generally 
condemned.  .  .  . 

The  plaintiff  is  a  corporation  aggregate;  a  being  created  by  law; 
itself  impersonal,  though  composed  of  many  individuals.  These  individ- 
uals change  at  will:  and,  even  while  members  of  the  corporation,  can,  in 
virtue  of  such  membership,  perform  no  corporate  act,  but  are  responsible 
in  their  natural  capacities,  both  while  members  of  the  corporation,  and 
after  they  cease  to  be  so,  for  everything  they  do,  whether  in  the  name  of  the 
corporation  or  otherwise.  The  corporation  being  one  entire  impersonal 
entity,  distinct  from  the  individuals  who  compose  it,  must  be  endowed 
with  a  mode  of  action  peculiar  to  itself,  which  will  always  distinguish  its 
transactions  from  those  of  its  members.  This  faculty  must  be  exercised 
according  to  its  own  nature.  Can  such  a  being  speak,  or  act,  otherwise 
than  in  writing?  Being  destitute  of  the  natural  organs  of  man,  being 
distinct  from  all  its  members,  can  it  communicate  its  resolutions,  or  declare 
its  will,  without  the  aid  of  some  adequate  substitute  for  those  organs? 
If  the  answ^er  to  this  question  must  be  in  the  negative,  what  is  that  sub- 
stitute? I  can  irhagine  no  other  than  writing.  The  will  to  be  announced 
is  the  aggregate  will;  the  voice  which  utters  it,  must  be  the  aggregate 
voice.  Human  organs  belong  only  to  individuals;  the  words  they  utter 
are  the  words  of  individuals.  These  individuals  must  speak  collectively, 
to  speak  corporately,  and  must  use  a  collective  voice;  they  have  no  such 
voice,  and  must  communicate  this  collective  will  in  some  other  mode. 
That  other  mode,  as  it  seems  to  me,  must  be  by  writing.  A  corporation 
will  generally  act  by  its  agents;  but  those  agents  have  no  self-existing 
power.  It  must  be  created  by  law,  or  communicated  by  the  body  itself. 
This  can  be  done  only  by  writing.  ...  It  is  stated  in  the  old  books 
(Bro.  Corp.  49),  that  a  corporation  may  have  a  ploughman,  butler, 
cook,  etc.,  without  retaining  them  by  deed;  and  in  the  same  book  (p.  50), 
Wood  says,  "small  things  need  not  be  in  writing,  as  to  light  a  candle, 
make  a  fire,  and  turn  cattle  off  the  land."     Fairfax  said,  "  A  corporation 


No.  845  INTEGRATION  OF  LEGAL  ACTS  1251 

cannot  have  a  servant  but  by  deed;  small  things  are  admissible,  on 
account  of  custom,  and  the  trouble  of  a  deed  in  such  cases,  not  by  strict 
law."  Some  subsequent  cases  show  that  officers  may  be  appointed 
without  deed,  but  not  that  they  may  be  appointed  without  writing. 
Every  instrument  under  seal  was  designated  as  a  deed,  and  all  writings 
not  under  seal  were  considered  as  acts  by  parol.  Consequently,  when  the 
old  books  say  a  thing  may  be  done  without  deed,  or  by  parol,  nothing 
more  is  intended  than  that  it  may  be  done  without  a  sealed  instrument. 
It  may  still  require  to  be  in  writing.  .  .  .  According  to  the  decisions  of 
the  Courts  of  England,  then,  and  of  this  Court,  a  corporation,  unless  it 
be  in  matters  to  which. the  maxim  "de  minimis  non  curat  lex"  applies, 
can  act  or  speak,  and,  of  course,  contract,  only  by  writing.  .  .  . 

It  may  be  said,  that  although  certain  things  ought  to  appear  in  writing, 
it  is  not  necessary  that  all  the  transactions  of  a  bank  should  so  appear; 
and  the  assent  of  the  directors  to  the  bonds  given  by  their  cashiers,  need 
not  appear.  Such  grave  acts  or  omissions  as  may  justify  the  suing  out  a 
scire  facias,  to  vacate  the  charter,  ought  to  be  evidenced  by  their  records; 
but  such  unimportant  acts  as  taking  bonds  from  their  officers,  need  not 
appear;  these  may  be  inferred.  I  do  not  concur  in  this  proposition.  .  .  . 
The  counsel  for  the  plaintiffs  has  sought  to  escape  the  almost  insuperable 
difficulties  which  must  attend  any  attempt  to  maintain  the  proposition 
that  a  corporation  aggregate  can  act  without  writing,  by  insisting  that 
the  directors  are  not  the  corporation,  but  are  to  be  considered  merely  as 
individuals  who  are  its  agents.  If  this  proposition  can  be  successfully 
maintained,  it  becomes  a  talisman,  by  whose  magic  power  the  whole 
fabric  which  the  law  has  erected  respecting  corporations,  is  at  once 
dissolved.  In  examining  it,  we  encountered  a  difficulty  in  the  commence- 
ment. Agents  are  constituted  for  special  purposes,  and  the  extent  of 
their  power  is  prescribed,  in  writing,  by  the  corporate  body  itself.  The 
directors  are  elected  by  the  stockholders,  and  manage  all  their  affairs,  in 
virtue  of  the  power  conferred  by  the  election.  The  stockholders  impart 
no  authority  to  them,  except  by  electing  them  as  directors.  But  we  are 
told,  and  are  told  truly,  that  the  authority  is  given  in  the  charter.  The 
charter  authorizes  the  directors  to  manage  all  the  business  of  the  corpo- 
ration. But  do  they  act  as  individuals,  or  in  a  corporate  character? 
If  they  act  as  a  corporate  body,  then  the  whole  law  applies  to  them  as 
to  other  corporate  bodies.  If  they  act  as  individuals,  then  we  have 
a  corporation  which  never  acts  in  its  corporate  character,  except  in  the 
instances  of  electing  its  directors,  or  instructing  them.  .  .  .  The  president 
and  directors  form,  by  the  charter,  a  select  body,  in  which  the  general 
powers  of  the  corporation  are  placed.  This  body  is,  I  think,  the  acting 
corporation.  .  .  .  The  board  must  keep  a  record  of  its  proceedings. 
Were  the  by-laws  silent  on  the  subject,  this  would  be,  as  I  think,  rendered 
indispensable,  by  the  fact,  that  it  is  the  act  of  a  corporation  aggregate. 
If  there  must  be  a  record  of  their  proceedings,  and  even  were  this  necessity 
not  absolute,  if  the  by-laws  show  that  there  is  one,  it  follows,  that  this 


1252  BOOK  VI :    parol  evidence  rules  No.  845 

record,  not  the  oral  testimony  of  the  members,  or  of  bystanders,  must 
prove  their  acts.  .  .  .  This  record,  or  an  authentic  copy  of  it,  must, 
according  to  the  rules  of  evidence,  be  produced,  that  it  may  prove  itself. 
May  its  existence  be  presumed  in  this  case?  The  corporation,  which 
claims  this  presumption,  keeps  the  record,  and  is  now  in  possession  of  it, 
if  it  exists.  No  rule  of  evidence  is  more  familiar  to  the  profession  than 
that  a  paper  cannot  be  presumed,  under  such  circumstances. 

I  have  stated  the  view  which  was  taken  by  the  Circuit  Court  of  this 
case.  I  have  only  to  add,  that  the  law  is  now  settled  otherwise,  perhaps 
to  the  advancement  of  public  convenience.  I  acquiesce,  as  I  ought,  in 
the  decision  which  has  been  made,  though  I  could  not  concur  in  it. 


846.   CHESAPEAKE  &  OHIO  R.  CO.  v.  DEEPWATER  R.  CO. 

Supreme  Court  of  Appeals  of  West  Virginia.     1905 

57  W.  Va.  643;  50  S.  E.  890 

Error  from  Circuit  Court,  Raleigh  County. 

Action  by  the  Chesapeake  &  Ohio  Railway  Company  against  John  L. 
Trail  and  others.  Judgment  for  plaintiff,  and  the  Deepwater  Railway 
Company  brings  error.     Reversed. 

A.  N.  Campbell  and  Brown,  Jackson  &  Knight,  for  plaintiff  in  error. 
Simms  &  Ensloiv  and  W.  P.  Hubbard,  for  defendant  in  error. 

Poffenbarger,  J.  —  Although,  in  form,  a  proceeding  by  one  railroad 
company  to  condemn,  for  its  roadbed,  a  strip  of  land  owned  by  another 
railroad  company,  which  purchased  said  land  for  its  roadbed,  this  case 
is  in  reality  a  controversy  between  said  railroad  companies  over  the 
question  of  priority  of  right  to  appropriate  the  strip  of  land  in  question, 
and  calls  for  the  settlement  of  principles  governing  the  rights  of  rival 
companies  contending  for  the  same  location  for  their  respective  roads. 

The  conflict  is  between  a  branch  line  of  the  Chesapeake  &  Ohio 
Railroad,  called  the  "Piney  Creek  Extension,"  commencing  at  Prince 
Station  on  the  main  line,  and  on  New  river,  and  running  for  several 
miles  up  Piney  creek  and  its  branches,  and  thence  across  the  divide  to 
the  waters  of  the  Guyandotte  river,  and  an  extension  of  the  Deepwater 
Railway,  commencing  at  Glen  Jean  on  Loup  creek,  another  branch  of  the 
New  river,  and  not  far  from  Piney  creek,  and  running  across  the  divide 
to  the  waters  of  the  Guyandotte  river,  and  thence  across  the  mountains 
to  the  Bluestone  river.  The  point  of  conflict  is  a  place  called  Jenny's 
Gap,  on  the  ridge  between  the  waters  of  New  river  tributaries  and  those 
of  Guyandotte  river  branches.  There  is  space  for  two  locations  through 
this  gap,  but  the  one  in  question  is  preferable  to  the  other.  .  .  . 

A  review  of  the  authorities  clearly  establishes  the  following  principles : 
First,  When  the  statute  does  not  make  the  filing  of  a  map  or  plat  of  a 
railroad  location  a  prerequisite  to  the  adoption  of  it,  an  appropriation 


No.  846  INTEGRATION   OF   LEGAL  ACTS  1253 

of  it  may  be  made  without  the  filing  of  such  maps.  .  .  .  Third,  A  mere 
survey  made  by  the  engineers  of  a  railroad  company,  not  adopted  or 
determined  upon  by  the  corporation  itself,  through  its  board  of  directors 
or  otherwise,  as  the  location  of  the  route,  does  not  amount  to  an  appro- 
priation, giving  priority  of  right  as  against  third  persons.  Fourth,  A 
survey  staked  out  upon  the  ground  as  a  center  line,  a  preliminary  line, 
or  as  an  actual  location,  whether  delineated  on  paper  or  not,  if  adopted 
by  the  corporation  as  aforesaid,  is  a  location  within  the  meaning  of  the 
statute,  and  the  company  first  making  such  location  has  a  right  to  it 
superior  to  that  of  any  other  company.  .  .  .  The  application  of  these 
principles  to  the  facts  must  determine  whether  the  applicant  is  entitled 
to  the  right  of  way  through  Jenny's  Gap. 

The  record  here  presents  the  three  distinct  issues  of 

(1)  A  location  by  the  Deepwater  Company  before  September  11, 
1902. 

(2)  A  location  by  the  Chesapeake  &  Ohio  Company,  September  11, 
1902,  and 

(3)  A  location  by  the  Deepwater  Company,  September  26,  1902.  .  .  . 

The  directors  of  the  Deepwater  Company,  on  the  26th  day  of  Septem- 
ber, 1902,  passed  a  resolution  reciting  that  the  engineer  had  located  the 
company's  proposed  railroad  from  Glen  Jean  up  the  Dunloup  creek  to 
the  mouth  of  Sugar  creek,  and  up  Sugar  creek,  crossing  the  divide,  to 
Pack's  Branch  of  Paint  creek,  down  that  branch  and  up  Paint  creek, 
crossing  the  divide,  to  Miller's  Camp  Branch  of  the  ]\Iarsh  Fork  of  Coal 
river,  down  that  branch  to  the  junction  of  the  same  with  Surveyor's 
Fork,  up  that  fork  to  Jenny's  Gap,  and  through  that  gap  to  the  waters 
of  Slab  Fork,  and  then  on  to  the  Bluestone  river  as  hereinbefore  described. 
.  .  .  This  was  a  formal,  specific,  and  a  deliberate  adoption  of  that  location 
by  the  corporate  authorities  of  the  Deepwater  Railway  Company.  This 
is  undisputed.  ...  If,  prior  to  the  26th  day  of  Septertiber,  1902,  the 
Chesapeake  &  Ohio  Company  had  not,  by  corporate  action,  adopted  the 
same  location  through  Jenny's  Gap,  the  right  of  the  Deepwater  Company 
to  that  location,  by  force  of  the  action  of  its  directors  on  September  26, 
1902,  is  beyond  dispute.  The  defendant  in  error  claims  to  have  adopted 
the  location  on  the  11th  day  of  September  by  a  resolution  passed  by  its 
board  of  directors  at  a  meeting  held  on  that  day  in  the  city  of  New  York. 

For  proof  of  this,  it  introduced,  over  the  objection  of  plaintiff  in  error, 
what  purports  to  be  a  record  of  the  minutes  of  such  meeting,  including 
the  adoption  of  such  a  resolution.  This  record  is  in  the  form  of  txT^e- 
written  sheets,  pasted  in  a  regular  book  of  the  company  kept  at  Rich- 
mond, Va.,  by  the  secretary  of  the  company,  who  testified  that  he  had 
not  attended  the  meeting,  and  knew  nothing  of  it  or  what  had  been 
done  thereat,  other  than  what  was  disclosed  by  the  type  written  matter. 
This  typewritten  record  on  sheets  of  paper,  signed  by  the  president  of 
the  company  and  the  assistant  secretary,  had  been  received  by  him 
and  pasted  in  the  minute  book,  but  he  did  not  even  say  when  they  had 


1254        BOOK  VI :  parol  evidence  rules      No.  846 

been  received.  Neither  the  president,  assistant  secretary,  nor  any  other 
person  who  appears  to  have  attended  the  meeting  was  called  to  testify 
that  such  meeting  was  held  and  such  resolution  passed,  and  nothing  was 
shown  by  way  of  excuse  for  not  calling  them.  Furthermore,  it  was  ad- 
mitted that  both  the  president  and  assistant  secretary  were  living,  and 
residing,  respectively,  in  Richmond  and  Philadelphia.  The  defendant  in 
error  attempts  to  use  this  record  as  evidence  to  prove  its  own  act  in  its 
own  favor  against  a  total  stranger  to  it.  It  is  not  used  for  the  purpose 
of  establishing  any  contractual  relation  between  it  and  the  plaintiff  in 
error.  It  makes  no  charge  against  the  plaintiff  in  error.  It  does,  how- 
ever, make  use  of  this  resolution  to  prove  title  in  itself  to  a  thing  which 
the  plaintiff  in  error  says  it  has  not  acquired,  and  to  which  the  plain- 
tiff in  error  is  entitled,  unless,  by  prior  acquisition,  it  has  become  the 
property  of  the  defendant  in  error. 

In  support  of  the  admissibility  of  the  record  for  this  purpose,  upon 
showing  that  it  was  entered  in  the  book  by  one  having  authority  to  do  so, 
it  is  contended  that  the  records  of  a  private  corporation  are  admissible 
evidence  against  all  persons  to  prove  its  corporate  acts.  The  able  counsel 
for  defendant  in  error  say  the  following  is  deducible  from  the  authorities 
as  a  rule  on  the  subject:  "The  records  of  a  corporation  are  admissible 
to  establish  a  right  in  it  which  grows  out  of  its  own  proceedings,  although 
they  may  not  be  admissible  to  fasten  the  liability  on  others."  In  testing 
the  soundness  of  this  proposition,  it  is  necessary  to  bear  in  mind  that  the 
decisions  relating  to  the  admissibility  of  such  evidence  present  many 
distinctions  in  respect  to  the  subject-matter  of  the  controversy,  the  rela- 
tion of  the  parties  to  it,  and  to  one  another,  and  the  nature  of  the  fact 
sought  to  be  proved  by  such  evidence. 

(1)  That  the  records  of  a  corporation  are  always  admissible  against 
it  is  perfectly  apparent.  They  are  admissions  and  declarations  against 
its  interest,  and  may  be  used  as  such,  just  as  the  books,  memoranda, 
letters,  and  declarations  of  an  individual  may  be  used  against  him, 
although  not  admissible  in  his  favor.  Jones,  Evidence,  §  530;  Townsend 
V.  Church,  6  Cush.  279.  The  cases  illustrating  this  use  of  corporation 
records  and  books  can  have  no  possible  bearing  on  the  question  presented 
here.     Hence  no  time  need  be  spent  in  collecting  and  analyzing  them. 

(2)  When  the  controversy  is  between  stockholders,  concerning  their 
interests  in  the  corporation,  and  involves  the  consideration  of  the  acts 
of  the  corporation  as  affecting  directly  its  status  and  indirectly  their 
interests,  the  records  and  books  are  admissible  if  authenticated  by  show- 
ing that  they  are  the  records  and  books  of  the  corporation  and  have  been 
regularly  kept  as  such.  This  is  done  by  calling  as  a  witness  the  secre- 
tary or  other  recording  officer,  if  he  can  be  had.  This  rule  rests  upon 
considerations  of  convenience,  and  also  upon  sound  legal  principle.  By 
becoming  a  stockholder  in  a  corporation,  a  person  creates,  between  him- 
self and  all  other  stockholders  of  the  corporation,  and  between  himself 
and  the  corporation,  a  contractual  relation,  which  is  affected  and  con- 


No.  846  INTEGRATION   OF   LEGAL  ACTS  1255 

trolled,  in  some  degree,  by  every  proper  act  of  the  corporation,  whether 
done  by  its  board  of  directors,  its  officers,  or  its  mere  employees.  .  .  . 
He  is  deemed  to  have  known,  when  he  established  his  relationship  of 
stockholder,  that  such  records  and  entries  would  be  made,  and  that  they 
would  indirectly  relate  to  and  affect  his  interest.  Having  access  to  the 
books  and  constructive  knowledge  of  their  contents,  there  is  ground  for 
a  presumption  that  he  would  not  have  suffered  an  improper  entry  to 
remain  in  them  without  objection.  Moreover,  a  relationship  closely 
allied  to  that  of  partnership  exists  between  the  stockholders  of  a  corpora^ 
tion.  Because  of  the  relation  of  agency  existing  between  copartners,  and 
the  right  of  inspection  of  the  books  relating  to  the  partnership  business 
and  affairs,  the  books  of  a  copartnership  are  admissible  evidence  in  con- 
troversies between  the  members  thereof.  .  ,  . 

(3)  Though,  according  to  good  authority,  there  is  no  legal  principle 
upon  which  the  action  can  be  justified.  Courts  almost  everywhere  hold 
that  the  records  and  proceedings  of  a  corporation  are  admissible  to  prove, 
prima  facie,  against  an  individual,  his  membership  in  it  as  a  stockholder. 
This  rule  is  stated  in  Turnbull  v.  Payson,  95  U.  S.  418,  24  L.  Ed.  437,  as 
follows : 

"A  person  is  presumed  to  be  the  owner  of  stock  when  his  name  appears  upoa 
the  books  of  the  company  as  a  stockholder,  and,  when  he  is  sued  as  such,  tha 
burden  of  disproving  that  presumption  is  east  upon  him." 

It  was  adopted  by  this  Court  in  Railway  v.  Applegate,  21  W.  Va.  172, 
without  any  reference  to  other  authorities  for  a  verification  of  its  sound- 
ness. .  .  .  Commenting  upon  this  rule,  Morawetz  on  Corporations, 
§  76,  says: 

"While  the  rule  stated  in  the  preceding  section  appears  to  be  well  established 
by  authority,  it  is  difficult  to  support  it  by  any  principle  of  the  common  law. 
The  stock-books  of  a  corporation  are  undoubtedly  evidence  against  it  as  admis- 
sions, but  they  cannot  be  admitted  on  this  ground,  for  the  company,  against  a 
person  who  denies  that  he  is  a  shareholder." 

In  this  the  author  is  supported  by  Wheeler  v.  Walker,  45  N.  H.  355,  and 
Chase  v.  Railroad  Co.,  38  111.  215.  Though  denouncing  the  rule  as 
indefensible  in  principle,  the  Alabama  Court  enforced  it  in  Semple  v. 
Glenn,  91  Ala.  245,  6  South.  46,  9  South.  265,  24  Am.  St.  Rep.  894. 

A  review  of  the  cases  will  show  that,  except  in  a  few  instances,  there  was 
evidence  other  than  the  mere  appearance  of  the  defendant's  name  upon 
the  stockbook  to  show  his  connection  with  the  company  as  a  stockholder. 
.  .  .  Railroad  Co.  v.  White,  41  Me.  512,  66  Am.  Dec.  257;  Railroad 
Co.  V.  Sherman,  8  R.  I.  564;  Vawter  v.  Franklin  College,  53  Ind.  88; 
Stuart  V.  Railway  Co.,  32  Grat.  146;  and  Turnpike  Co.  v.  McKean, 
10  Johns.  154,  6  Am.  Dec.  324  —  all  belong  to  the  class  of  cases  just 
examined.  Very  few,  if  any,  of  these  cases,  may  be  regarded  as  having 
enunciated  the  proposition  that,  in  the  absence  of  proof  of  a  subscription, 
or  other  substantial  connection  of  the  defendant  with  the  corporation, 


125G  BOOK  VI :    parol  evidence  rules  No.  846 

so  as  to  make  him  a  participant  in  the  enterprise,  the  presence  of  his  name 
alone  on  the  books  of  the  company,  written  there  by  one  of  its  agents, 
is  prima  facie  proof  of  membersliip.  If,  however,  such  doctrine  is  estab- 
lished, it  affords  no  reason  for  extending  the  departure  to  any  other  class 
of  cases.  It  has  been  denounced  as  unsound  in  principle  by  both  Courts 
and  text-writers. 

(4)  A  very  numerous  class  of  cases  in  which  corporations  have  been 
permitted  to  introduce  their  records  and  books  for  the  purpose  of  proving 
their  acts  is  that  in  which  it  is  necessary  to  establish  only  de  facto  cor- 
porate existence,  and  not  existence  de  jure.  For  instance,  a  bank  sues  on 
a  note,  or  a  railroad  company  on  a  contract,  and  the  plea  of  nul  tiel  record 
is  interposed,  denying  that  the  plaintiff  is  a  corporation.  Here  proof 
of  corporate  existence  is  required,  but  it  need  not  be  full,  nor  need  the 
evidence  be  such  as  is  necessary  to  prove  many  kinds  of  specific  corporate 
acts.  Many  decisions  say  that  for  this  purpose  it  suffices  to  introduce  the 
charter,  act  of  incorporation,  or  articles  of  incorporation,  and  then  proof 
that  the  plaintiff  has  acted  as  such  corporation  —  carried  on  a  banking 
business  or  railroad  business.  The  issue  is  collateral  in  its  nature.  The 
plea  simply  requires  the  plaintiff  to  establish  a  status  —  show  that  it  is 
what  it  claims  to  be.  In  that  question,  the  other  party  has  no  direct, 
but  only  an  incidental,  interest.  The  fact  thus  put  in  issue  is  distinct 
from,  and  practically  independent  of,  the  real  controversy  between  the 
parties.  See  Way  v.  Billings,  2  Mich.  397;  Insurance  Co.  v.  Allis,  24 
Minn.  75;  Henderson  v.  Bank,  14  Miss.  314;  Bank  v.  Harrison,  39  Mo. 
433,  93  Am.  Dec.  285.  .  .  . 

(5)  Practically  all  the  cases  found  in  which  it  has  been  held  that  the 
books  and  records  of  private  corporations  are  evidence  of  their  acts  and 
proceedings,  as  against  strangers,  belong  to  this  last  class.  This  accounts 
for  the  oft-repeated  proposition  that,  for  such  purposes,  such  records  are 
admissible  in  controversies  with  strangers  to  the  corporation.  To  say 
that  the  same  rule  must  be  applied  to  the  determination  of  a  question  of 
vital  interest  between  the  corporation  and  a  stranger  would  ignore  the 
distinction  which  ought  to  be  made  between  the  cases  in  which  the  issue 
is  one  in  which  the  stranger  has  no  direct  and  substantial  interest  and  the 
case  in  which  the  records  are  offered  to  prove  the  ver^-  fact  which  is 
directly  in  controversy  between  them.  A  corporation  may  be  permitted 
to  appeal  to  its  records  to  establish  a  collateral  issue  without  permitting 
it  to  introduce  self-made  and  self-serving  entries  upon  its  books  to  prove 
that  which  is  directly  in  issue  between  it  and  a  stranger.  That  they 
cannot  do  so  to  prove  title  and  claims  against  strangers  has  been  decided 
in  a  number  of  cases.  Jones  v.  University,  46  Ala.  626-;  Railroad  Co.  v. 
Cunnington,  39  Ohio  St.  327;  Railroad  Co.  v.  Noel,  77  Ind.  110;  Coosaw 
Mining  Co.  v.  Mining  Co.  (C.  C.)  75  Fed.  860;  London  v.  Lynn,  1  H.  Bl. 
205,  214.  ..  .  Owings  v.  Speed,  5  Wheat.  420,  5  L.  Ed.  124,  is  relied 
upon,  but  that  was  a  case  in  which  the  records  of  a  public  corporation 
were  held  admissible.    It  affords  no  precedent  for  the  admission  of  records 


Xo.  846  INTEGRATION    OF    LEGAL    ACTS  1257 

of  private  corporations.  All  authorities  admit  this  distinction.  Jones  on 
Evidence,  §520;  Wigmore,  Evidence,  §  1661.  Even  the  records  of  public 
corporations  are  not  admissible  to  prove  anything  but  acts  of  a  public 
nature.  Thus,  in  i\ttorney  General  v.  Warwicke,  4  Russell  222,  it  was 
said:  "Private  entries  in  the  books  of  a  corporation,  which  are  under 
their  own  control,  and  to  which  none  but  the  members  of  the  corporation 
have  access,  cannot  be  made  use  of  to  establish  rights  of  the  corporation 
against  third  parties."  So,  in  Marriage  i'.  Lawrence,  3  B.  &  A.  142,  the 
Court  held  that  "an  entry  in  the  public  books  of  a  corporation  is  not 
evidence  for  them,  unless  it  be  an  entry  of  a  public  nature." 

(6)  Counsel  for  defendant  in  error  base  their  contention  largely  upon 
an  observation  made  in  Railroad  Co.  v.  Eastman,  34  N.  H.  137,  quoted  in 
2  Thompson,  Corporations,  §  1921.  But  as  no  question  calling  for  such 
principle  arose  in  that  case,  the  declaration  is  obiter.  Mr.  Thompson 
also  says,  in  volume  6  of  his  work  on  Corporations,  §  7740,  that 

"the  general  rule  is  believed  to  be  that,  except  for  the  purpose  of  proving  what 
the  corporation  did,  or  what  action  its  corporators  took  in  effecting  the  organiza- 
tion, its  books  and  records  are  not  evidence  as  against  a  stranger."  .  .  . 

.  .  .  The  latest,  and  perhaps  the  most  analytical,  work  on  the  sub- 
ject of  evidence,  states  the  proposition  in  this  language : 

"The  records  of  the  proceedings  and  acts  of  an  ordinary  private  corporation 
are,  according  to  one  theory,  the  constitutive  acts  of  the  corporation;  they  are 
not  the  evidence  of  what  is  done,  but  they  are  what  is  done,  since  the  proceedings 
must  be  in  ^Titing."     3  Wigmore  on  Evidence,  §  1661. 

The  author  cites  no  cases  illustrating  what  he  means,  but  his  view  seems 
to  be  the  idea  above  expressed.  If  so,  expression  in  another  form  would 
be  that  they  are  not  evidence  that  a  thing  was  done,  but  are  the  evidence 
of  the  identity  of  the  thing  done;  it  being  granted  or  proved  that  some- 
thing was  done  because  whatever  was  done  was  put  in  writing,  and  the 
writing  itself  is  the  evidence  of  it.     Proceeding,  he  says : 

"According  to  the  other  theory,  they  are  merely  entries  of  the  oral  doings, 
and  are  thus  analogous  to  any  ordinary  person's  contemporary  entries  of  his 
doings." 

This  makes  them  mere  memoranda,  to  be  considered  as  a  part  of  the  oral 
testimony  of  the  clerk  or  officer  who  entered  them,  testifying  as  a  witness 
that  the  things  purporting  to  have  been  done  were  done.  That  this  is 
the  true  interpretation  of  his  language  appears  from  the  following: 

"The  general  practical  difference  between  the  two  theories  is  as  to  their  effect 
on  the  conclusiveness  of  the  entries." 

Under  the  first  theory,  the  written  memorial  of  what  was  done  could  not 
be  varied  by  parol  evidence;  under  the  second,  it  could.  This  shows  that 
he  does  not  mean  to  say  the  record  is  proof  that  it  was  made  at  the  time, 
in  the  manner,  and  b}'  the  authority  recited  therein.  Further  proof  of 
this  is  found  in  a  subsequent  paragraph  of  the  same  section,  in  which 
he  savs: 


1258        BOOK  VI :  , parol  evidence  rules      No.  846 

"Books  of  entries  of  corporate  proceedings  are  (as  above  quoted)  ordinarily 
not  receivable  under  the  regular  entries  exception  without  calling  the  clerk  or 
other  entrant.  But  the  records  of  a  public  officer  are  admissible  under  the  present 
exception  without  calling  the  entrant,  because  he  is  a  public  officer;  and  therefore 
the  books  of  a  public  corporation  (that  is,  with  us,  usually  a  municipal  governing 
body)  are  receivable  without  calling  the  official  entrant."  .  .  . 

The  effort  here  is  to  prove  title,  not  by  purchase,  recovery,  or  other- 
wise, from  the  adverse  party,  but  to  show  title  nevertheless.  It  is  title 
by  appropriation  from  the  public.  Shall  it  be  proved  by  evidence 
different  in  character  from  what  is  required  in  other  cases?  Could  title 
by  purchase,  in  case  of  conflict  between  two  corporations,  be  Established 
by  the  exhibition  of  a  resolution  on  the  books  of  one  of  them,  on  the 
theory  that,  as  to  the  other,  it  was  a  corporate  act,  and  not  a  transaction 
with  such  other  company?  .  .  .  Against  them  stand  several  holding 
the  contrary.  Therefore  the  weight  of  authority,  reason,  and  sound 
legal  principles  all  assert  the  contrary.  .  .  . 

As  this  evidence  must  be  discarded  as  inadmissible,  nothing  remains 
to  support  the  claim  of  a  location  by  the  defendant  in  error  on  the  11th 
day  of  September,  1902.  .  .  . 

The  conclusions  above  stated  require  reversal  of  the  two  judgments 
complained  of,  setting  aside  of  the  verdict,  restitution  of  the  land  in 
controversy  to  the  plaintiff  in  error.  .  .  . 

Brannon,  p.  (dissenting  in  part).  I  cannot  concur  in  that  feature 
of  the  foregoing  opinion  or  syllabus  laying  down,  as  a  permanent  rule  of 
evidence,  that  the  record  of  proceedings  of  the  directors  of  a  railroad 
company  is  not  admissible  evidence  alone  to  prove  that  the  directors 
adopted  a  particular  location  for  its  road.  It  is  an  act  which  can  be  done 
alone  by  the  directors.  It  cannot  be  done  except  in  regular  meeting. 
The  act  of  adoption  is  a  resolution  in  its  record  books.  It  may  not  be 
going  too  far  to  say  that  is  the  only  evidence,  if  the  record  be  in  existence. 
It  is  not  necessary  to  say  that;  but  I  do  say  that  the  resolution  on  record 
is  competent  evidence.  It  cannot  create  a  debt  or  liability  against  a 
stranger;  it  cannot  operate  to  take  away  his  right;  but  where  the  law 
demands  that  the  corporation  do  any  act  by  its  directory,  that  book  is 
competent  evidence  to  prove  the  doing  of  that  act.  Our  Code  of  1899 
says,  in  chapter  53,  §  52:  "They  shall  keep  a  record,  which  shall  be 
verified  by  the  signature  of  the  president."  That  "record"  must 
have  force  to  prove  an  act  demanded  of  the  directors  by  law.  The 
authorities  cited  by  Judge  Poffenbarger,  properly  construed,  show 
this.  Wigmore,  Evidence,  says:  "No  one  doubted  that  the  records 
of  a  meeting  were  receivable  to  prove  the  doings  of  a  meeting." 
That  is  just  the  case  —  to  prove  the  adoption  of  a  resolution.  In  this 
case,  as  Wigmore  says,  this  record  is  in  fact  not  simply  evidence  of  the 
act,  but  the  very  "act  itself."  2  Wigmore,  Evidence,  §  1074  (3).  I 
think  the  law  is  well  phrased  in  Sigua  v.  Brown,  171  N.  Y.  496,  64  N. 
E.  196: 


No.  846  INTEGRATION  OF  LEGAL  ACTS  1259 

"The  books  of  corporations,  for  many  purposes,  are  evidence,  not  only  be- 
tween the  corporation  and  its  members,  and  between  its  members,  but  also  as 
between  the  corporation,  or  its  members,  and  strangers.  They  are  received  in 
evidence  generally  to  prove  corporate  acts  of  a  corporation,  such  as  its  incorpora- 
tion, its  list  of  stockholders,  its  by-laws,  the  formal  proceedings  of  its  board  of 
directors." 

Thompson,  Corporations,  §  7740,  will  sustain  this  view.  It  is  not  claimed 
that  such  a  record  is  conclusive,  but  admissible,  evidence.  Thompson 
says:  "The  general  rule  is  believed  to  be  that,  except  for  the  purpose  of 
proving  what  the  corporation  did,  or  what  action  its  corporators  took,  in 
eflFecting  its  organization,  its  books  and  records  are  not  evidence  against 
strangers."  As  the  location  had  to  be  adopted  by  the  directors,  under 
this  authority  the  record  is  competent  to  prove  what  the  board  did. 


12G0  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  847 


TITLE   III.    FORMALITIES   OF  LEGAL  ACTS 

847.  John  H.  WiGMORE.  A  Treatise  on  Evidem-e^  (1905.  Vol.  IV,  §  24,54.) 
When  it  is  required  that  a  transaction,  to  have  legal  effect,  must  be  in  wTiting, 
the  requirement  is  one  of  form  or  solemnity.  This  principle  of  Solemnization, 
or  Formality,  differs  from  the  two  preceding  ones  in  that  it  does  not  inquire 
whether  the  act  was  done  at  all,  nor  whether  it  was  embodied  in  a  single  utter- 
ance, but  merely  whether  its  form  of  utterance  was  sufficient.  Stamp,  seal, 
attestation,  WTiting,  —  all  these  are  tlifferent  varieties  of  formality;  but  the 
fundamental  and  most  common  one,  in  all  modern  systems  of  law,  is  writing. 

That  the  ride  of  Written  Formality  is  independent  of  the  rule  of  Integration, 
just  examined,  is  plain.  For  example,  a  will  of  land,  during  the  century  after 
it  was  first  required  to  be  in  writing,  was  in  all  that  time  not  required  to  be  in 
a  single  document.  So,  too,  of  insurance  applications  under  modern  statutes. 
On  the  other  hand,  when  the  parties  have  voluntarily  reduced  their  transaction 
to  a  single  WTiting,  the  rule  of  Integration  applies,  although  the  transaction  might 
have  been  valid  without  any  writing.  W'henever,  then,  the  question  is  whether 
a  transaction,  to  be  valid,  must  he  in  writing,  not  merely  oral,  it  is  a  question  of 
Written  Formality.  This  question  is  presented  when  the  parties  have  used  no 
\\Titing,  and  is  a  distinct  one  from  that  which  arises  after  the  transaction  has 
been  done  in  writing,  i.e.,  from  the  question  of  "varying  the  WTiting"  already 
dealt  with. 

What  transactions,  then,  are  required  by  law  to  be  done  in  writing,  as  a 
condition  of  legal  validity?  At  common  law,  none,  it  would  seem.  The  his- 
torical surroundings  of  the  common  law  in  its  origins  were  unfavorable  to  such  a 
requirement. 

Even  among  statutes,  there  are  few  of  wide  scope.  These  date  back  to  the 
innovating  provisions  of  the  1500s,  by  which  bargains  and  sales,  as  well  as  wills, 
of  land  must  be  in  wTiting.  The  next  and  greatest  measure  of  this  kind  was  the 
Statute  of  Frauds  and  Perjuries,  in  1678,  which  extended  the  formality  of  writing 
to  the  remaining  most  important  transactions  in  land  and  to  many  classes  of 
contracts  and  of  dealings  with  personality. 

The  remaining  varieties  of  Formality  in  vogue  in  our  law  are  applicable  only 
to  specific  kinds  of  legal  acts,  e.g.,  attestation,  for  wills  only;  registration,  for 
conveyances  only.  Hence  they  are  not  features  common  to  legal  acts  in  general, 
and  do  not  fall  within  the  present  purview. 


No.  848         INTERPRETATION  OF  LEGAL  ACTS  1261 


TITLE  IV.    INTEItriiETATION  OF  LEGAL  ACTS 

848.  Introductory.  ^  General  Nature  of  Interpretation.  Standard  and 
Sources  of  Interpretation.  The  process  of  Interpretation  is  a  part  of  the 
procedure  of  realizing  a  person's  act  in  the  external  world.  It  is,  in  a  sense, 
the  completion  of  the  act;  for  without  it  the  utterance,  whether  written 
or  oral,  must  remain  vain  words.  If  a  person  were  to  be  contented  with 
proclaiming  his  contracts  at  the  top  of  a  mountain,  or  nailing  his  deeds 
to  the  front  gate,  he  would  not  need  to  be  concerned  with  the  process 
of  interpretation.  But  deeds  and  contracts  and  wills,  if  they  are  not  to 
remain  empty  manifestoes,  must  be  enforced.  They  must  be  applied  to 
external  objects.  Somewhere  possession  must  be  j'ielded  or  goods  de- 
livered or  money  transferred.  In  order  that  the  law  may  enforce  these 
changes  in  external  objects,  the  relation  between  the  terms  of  the  legal 
act  and  certain  specific  external  objects  must  be  determined,  as  an  indis- 
pensable part  of  the  process.  In  short,  the  interpretation  of  the  terms 
of  a  legal  act  is  an  essential  part  of  the  act  considered  as  capable  of  legal 
realization  and  enforcement.-  The  only  difference  is  that  the  actor  alone 
creates  the  terms  of  his  act,  while  the  interpretation  of  it,  being  a  part  of 
the  enforcement,  comes  into  the  hands  of  the  law. 

The  process  of  interpretation,  then,  though  it  is  commonly  simple 
and  often  unobserved,  is  always  present,  being  inherently  indispensable. 

The  method  of  it  consists  in  ascertaining  the  actor  s  associations  or 
connections  between  the  terms  of  the  act  and  the  various  possible  objects  of 
the  external  world.  Those  terms  may  be  dramatic  or  verbal.  The  lan- 
tern of  Paul  Revere,  and  the  twenty-one  guns  of  a  warship's  salute,  are 
as  much  the  subject  of  interpretation  as  the  words  of  a  will.  In  all 
cases,  the  process  is  that  of  applying  the  symbol  or  word  to  external 
objects.  Since  men  cannot  go  out  and  instantaneously  transform,  with 
the  presto  of  a  magician,  the  existing  to  the  desired  state  of  things,  they 
must  embody  their  will  in  marks  which  will  serve  to  point  out  the  effects 
desired,  and  then  wait  for  the  law,  or  for  some  one's  voluntary  obedience 
to  it,  to  effect  the  realization  of  the  effects  thus  pointed  out  in  advance. 
The  process  of  interpretation  may  be  compared  to  a  wireless  telegraph 
station.  A  vessel  approaches  the  coast  and  perceives  the  station-pole 
standing  straight  above  the  cliffs.  Until  the  current  can  be  intercepted, 
it  is  but  a  useless  rod  of  steel;  it  sends  no  message  and  accomplishes 
no  purpose.     It  may  have  any  one  of  various  attunements;   and  it  will 

^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905.  Vol.  IV, 
§§  2458,  24.59). 

^Answer  of  Judges  to  the  House  of  Lords,  22  How.  St.  Tr.  301  (1789): 
"Your  lordships  ask  us,  'whether  the  sense  of  the  letter  be  matter  of  law  or 
matter  of  fact? '  We  find  a  difficulty  in  separating  the  sense  of  the  letter 
from  the  letter.      The  paper  without  the  sense  is  not  a  letter." 


1262        BOOK  VI :  parol  evidence  rules      No.  848 

tell  nothing  until  a  similar  attuneraent  be  established  by  the  vessel.  To 
ascertain  that  attunement,  the  particular  country  where  it  is  fixed  must 
be  known,  and  then  the  official  records  of  its  methods  and  signals  must 
be  consulted.  Not  until  then  can  the  station's  message  be  made  actual 
to  the  vessel. 

Such  is  the  process  of  interpretation.  The  analogy  of  the  telegraph 
station  illustrates  the  important  distinction  between  the  two  great  divi- 
sions of  the  process.  The  first  question  must  always  be,  What  is  the 
standard  of  interpretation?  The  second  question  is,  In  what  sources  is  the 
tenor  of  that  standard  to  be  ascertained?  Sometimes  one  or  the  other 
of  these  questions  may  interpose  no  difficulty;  but  both  must  always  be 
settled. 

(1)  The  standard  of  interpretation,  as  involved  in  legal  acts,  is  the 
personality  whose  utterances  are  to  be  interpreted.  There  are  practically 
four  different  available  standards.  First,  there  is  the  standard  of  the 
normal  users  of  the  language  of  the  forum,  the  community  at  large,  repre- 
sented by  the  ordinary  meaning  of  words.  Next,  there  is  the  standard  of 
a  special  class  of  persons  within  the  community,  —  the  followers  of  a 
particular  trade  or  occupation,  the  members  of  a  particular  religious  sect, 
the  aliens  of  a  particular  tongue,  the  natives  of  a  particular  dialect,  who 
use  certain  words  in  a  sense  common  to  the  entire  class,  but  different  from 
that  of  the  community  at  large.  Thirdly,  there  is  the  standard  of  the 
specific  parties  cooperating  in  a  bilateral  act,  who  may  use  words  in  a  sense 
common  to  themselves  and  unknown  to  any  others.  Finally,  there  is  the 
standard  of  an  indimdual  actor,  who  may  use  words  in  a  sense  wholly 
peculiar  to  himself;  and  here  the  question  will  naturally  arise  whether  he 
may  insist  on  his  individual  standard  in  the  interpretation  of  the  words 
of  a  contract,  or  even  of  a  uniliteral  act  such  as  a  will.  The  first  inquiry 
in  interpretation,  then,  is  to  determine  which  of  these  standards  is  the 
proper  one  for  the  particular  act  to  be  interpreted;  and  for  this  purpose 
certain  working  rules  have  to  be  formulated. 

(2)  The  sources  for  ascertaining  the  tenor  of  the  standard  form  the 
second  object  of  inquiry.  Since  interpretation  consists  in  ascertaining 
the  associations  between  the  specific  terms  used  and  certain  external 
objects,  and  since  these  associations  must  be  somehow  knowable  in  order 
to  proceed,  the  question  is  where  they  are  to  be  looked  for.  So  far  as  the 
standard  of  interpretation  is  solely  the  normal  one  of  the  commvmity, 
the  inquiry  is  a  simple  one;  the  usage  of  the  community  (as  represented 
in  dictionaries  and  elsewhere)  is  the  source  of  information.  But  that 
standard  (as  will  be  seen)  is  rarely  the  exclusive  one.  The  mutual 
standard  of  parties  to  a  bilateral  act,  and  for  wills  the  individual  standard 
of  the  testator,  is  constantly  conceded  to  control;  and  it  then  becomes 
necessary  to  search  among  the  prior  and  subsequent  utterances  of  the 
party  or  parties  to  ascertain  their  usage,  or  fixed  associations  with  the 
terms  employed.  In  resorting  to  these  data,  the  question  then  arises 
whether  there  is  any  prohibitive  rule  of  law  which  limits  the  scope  of 


No.  848         INTERPRETATION  OF  LEGAL  ACTS  1263 

search  and  forbids  the  use  of  certain  data.  These  rules,  if  any,  form  the 
second  part  of  the  law  of  interpretation. 

Intention  and  Meaning,  distinguished.  Before  proceeding,  however, 
to  these  two  parts  of  the  subject  in  order,  it  is  necessary  to  fix  upon  a 
terminology  and  to  avoid  misunderstanding  in  the  use  of  words.  When 
we  seek  to  ascertain  the  standard  and  sources  of  interpretation  and 
thereby  discover  the  actor's  association  of  words  with  external  objects, 
what  is  the  term;  in  one  word,  which  describes  the  object  of  search? 
Is  it  the  person's  "  meaning"  ?  Or  is  it  his  "intention  "  ?  Over  this 
difference  of  phraseology  has  persisted  an  endless  controversy,  which, 
like  that  of  the  two  knights  and  the  shield  at  the  cross-roads,  is  after 
all  resolvable  mainly  into  a  difference  of  words  only. 

The  distinction  between  "intention"  and  "meaning"  is  vital.  The 
distinction  is«  independent  of  any  question  over  the  relative  propriety 
of  these  names;  for  there  exist  two  things,  which  must  be  kept  apart, 
yet  never  can  be  unless  different  terms  are  used.  The  words  "will"  and 
"sense"  may  be  taken  as  sufficiently  indicative  of  these  two  things  and 
free  from  the  ambiguity  of  the  other  terms. 

Will  and  Sense,  then,  are  distinct.  Interpretation  as  a  legal  process 
is  concerned  with  the  Sense  of  the  word  used,  and  not  with  the  Will  to 
use  that  particular  word.  The  contrast  is  between  that  Will,  volition, 
or  intent  to  utter,  as  the  subjective  element  of  an  act,  making  a  person 
responsible  for  a  particular  utterance  as  his,  and  that  Sense  or  meaning 
which  involves  the  fixed  association  between  the  uttered  word  and  some 
external  object.  It  has  already  been  seen  that  by  the  general  canon  of 
legal  acts,  the  person's  actual  will  or  intent  to  utter  a  given  word  can 
seldom  be  considered  for  legal  purposes.  If  he  has  exercised  a  volition 
to  utter  something,  then  he  is  responsible  for  such  utterances  as  in  external 
appearance  the  utterance  he  intended,  —  whether  or  not  he  actually 
intended  it.  On  the  other  hand,  the  sense  of  his  word  as  thus  uttered  — 
his  fixed  association  between  that  symbol  and  some  external  object  — 
may  usually  be  given  full  effect,  if  it  can  be  ascertained.  The  rules  for 
the  two  things  may  be  different. 

The  law  has  thus  constantly  to  emphasize  the  contrast  between  the 
prohibitive  rule,  applicable  to  the  execution  of  an  act,  and  the  present 
permissive  rule,  applicable  to  its  interpretation.  Judges  are  desirous, 
when  investigating  the  sense  of  the  icords  as  uttered  by  the  person,  of 
emphasizing  that  they  do  not  violate  the  rule  against  inquiring  whether 
he  actually  intended  to  utter  those  words.  Hence  the  reiteration  of  the 
contrast  between  "intention"  and  "meaning": 

17S9,  Kenton,  L.  C.  J.,  in  Hay  r.  Coventry,  3  T.  R.  83,  86:  "We  must 
collect  the  meaning  of  the  testator  from  those  words  which  he  has  used,  and 
cannot  add  words  which  he  has  not  used." 

1833,  Parke,  J.,  in  Doe  r.  GwilHm,  5  B.  &  Ad.  122,  129:  "In  expounding  a 
will,  the  Court  is  to  ascertain,  not  what  the  testator  actually  intended,  as  con- 


1264  BOOK  VI:  PAROL  EVIDENCE  RULES         No.  848 

tradistinguished  from  what  his  words  express,  but  what  is  the  meaning  of  the 
words  he  used." 

1833,  Den.man,  L.  C.  J.,  in  Rickman  v  Carstairs,  5  B.  &  Ad.  663:  "The 
question  ...  is  not  what  was  the  intention  of  the  parties,  but  what  is  the 
meaning  of  the  words  they  have  used." 

The  common  terminology  of  these  judicial  explanations  is  unfor- 
tunate, because  "meaning"  suggests  the  state  of  the  person's  mind  as 
fixed  on  certain  objects,  and  "intention"  bears  the  same  suggestion. 
The  constant  exclusion  of  the  state  of  the  person's  mind  in  one  aspect 
and  its  consideration  in  another  aspect  are  thus  apparently  contradictory 
and  irreconcilable.  But  the  terms  "will,"  or  "volition,"  and  "sense," 
serve  to  avoid  this  ambiguity.  They  emphasize  the  distinction  that  the 
will  to  utter  a  specific  word  is  one  thing,  and  the  fixed  assooiation  of  that 
word  is  another  thing.  Thus  the  Execution  of  the  act  and  its  Interpreta- 
tion as  executed  are  kept  distinct. 

The  analogy  of  other  symbols  than  words  wdll  best  illustrate  how 
common  and  fundamental  is  this  difference  in  other  affairs,  and  how 
instinctively  it  is  appreciated  and  applied.  Suppose  a  foreign  vessel  to 
be  coasting  the  shore  and  entering  various  harbors  where  the  Govern- 
ment maintains  a  uniform  system  of  harbor-buoys  in  various  colors  and 
shapes,  indicating  respectively  channels,  sandbars,  sunken  rocks,  and 
safe  anchorages ;  here  the  significance  of  each  kind  of  buoy  is  known  to  be 
the  same  in  every  harbor  under  Government  control.  But  suppose  the 
vessel  to  enter  a  harbor  or  inlet  under  the  control  of  an  individual  or  a 
city  having  a  peculiar  and  different  code  of  usage  for  the  buoys;  here  it 
is  immaterial  whether  a  red  buoy  under  the  Government  system  signifies 
a  channel  or  a  sandbar;  the  vital  question  for  the  vessel  now^  is  w^hat  a  red 
buoy  signifies  under  the  code  of  the  local  authority,  and  all  other  systems 
of  meaning  are  throwm  aside  as  useless.  This  illustrates  that  though,  in 
interpreting  a  person's  (for  example,  a  testator's)  words,  we  are  con- 
cerned with  his  individual  meaning,  as  distinguished  from  the  customary 
sense  of  words,  still  we  are  not  dealing  with  his  state  of  mind  as  to  voli- 
tion, but  with  the  associations  affixed  by  him  to  an  expressed  symbol  as 
indicating  to  others  an  external  object.  That  is  to  say,  the  local  harbor 
authorities  may  have  "intended"  to  put  a  green  buoy  instead  of  a  red 
buoy,  or  to  have  put  the  red  buoy  at  another  spot;  they, may  have  made 
a  "mistake,"  just  as  the  testator  may  have  intended  to  use  other  words; 
but  in  both  cases  the  state  of  mind  as  to  volition,  or  mistake,  is  a  wholly 
different  thing  from  the  fixed  association,  according  to  that  individual's 
standard,  between  the  expressed  symbol  and  some  external  object. 

To  illustrate  another  aspect  of  the  subject,  suppose  a  game  of  chess 
to  be  played  by  B  wath  his  guest  A.  If  the  two  are  of  the  same  nation, 
their  standards  of  interpretation  —  for  example,  as  to  the  shape  of  each 
chessman,  the  allow'able  moves,  and  the  effect  of  a  move  —  will  be  the 
same.     But  some  nations  differ  from  others  in  one  or  more  of  these 


No.  848  INTERPRETATION   OF   LEGAL  ACTS  1265 

respects;  so  that  if,  for  example,  B's  national  rules  allowed  a  rook  to 
threaten  diagonally  on  the  board,  A  as  guest  would  accept  and  accom- 
modate himself,  as  best  he  might,  to  this  standard  of  operation.  But, 
though  this  much  might  be  conceded  to  B  as  host,  in  the  adoption  of  his 
standards  for  giving  meaning  to  his  acts  of  moving  the  chessmen,  yet  it 
would  remain  true  that  his  private  intent  or  volition,  as  distinguished 
from  the  significance  of  his  acts  of  moving,  would  be  immaterial;  so 
that,  for  example,  liis  intent  to  have  touched  and  moved  a  different  piece, 
or  to  have  placed  the  piece  on  a  different  square,  would  not  be  taken  into 
consideration.  So,  again,  if  A  and  B  engage  in  a  shooting  match,  with 
two  targets  of  100  yards'  and  500  yards'  distance,  it  may  be  that,  after 
the  shooting,  A  and  B  will  discover  that  they  have  not  agreed  which  prize 
is  to  be  associated  with  which  target,  or  whether  the  victory  at  the 
500-yard  target  is  to  count  for  more  than  the  victory  at  the  100- 
yard  target,  and  they  may  have  to  repeat  the  match  after  coming  to  a 
common  understanding.  But  in  no  case  would  A  think  of  claiming  that 
B,  who  has  hit  the  100-yard  bull's-eye,  could  not  win  because  he  was 
really  aiming  at  the  500-yard  target  and  hit  the  other  only  by  mistake; 
nor  could  A  have  a  second  trial,  on  missing  the  500-yard  target,  because 
by  mistake  he  shot  at  the  100-yard  target. 

A  person,  then,  who  wills  to  utter  words  is  like  a  man  placing  a  buoy, 
or  moving  a  chessman,  or  shooting  at  a  target.  His  will  or  intent  or  volition 
as  to  the  terms  of  the  peculiar  utterance  is  one  thing;  his  sense  or  meaning 
attached  to  the  terms  actually  uttered  is  a  different  thing.  Whatever 
may  be  the  rules  for  the  former  element  of  his  act,  the  rules  for  the  latter 
element  are  independent  of  them. 


1266  BOOK  VI:    parol  evidence  rules  No.  850 


SUB-TITLE  I.     STANDARD    OF    INTERPRETATION 

850.  History.^  The  history  of  the  law  of  interpretation  is  the  history  of  a 
progress  from  a  stiff  and  superstitious  formaHsm  to  a  flexible  rationalism.  The 
marked  features  of  primitive  formalism  have  been  already  noticed  in  other  aspects. 
The  word  of  a  man  is  in  itself  almost  a  magic  formula.  The  wTong  word  pro- 
duces its  evil  effects  in  spite  of  the  good  will  of  the  party;  without  the  right 
word,  nothing  will  move,  however  plainly  he  seek  to  express  himself.  When 
the  brother  of  Ali  Baba  forgot  the  word  "sesame,"  he  was  powerless  to  open  the 
door  of  safety.  This  inherent  potency  of  words  was  for  primitive  minds,  as  it 
now  is  for  children,  no  mere  fairy  tale,  but  a  reality  of  life.  These  notions  come 
down  into  Coke's  time  shorn  of  their  first  crudeness.  But  they  explain  never- 
theless the  scholastic  technicality  of  those  later  days.  A  word  was  still  a  fixed 
symbol.  Its  meaning  was  something  inherent  and  objective,  not  subjective  and 
personal.  A  man  who  WTote  a  document  dealt  with  words  as  he  might  deal 
with  a  blunderbuss  or  a  carpenter's  tool.  They  had  their  uses;  and  he  must 
understand  and  choose  the  proper  word  for  the  purpose  in  hand,  just  as  he  must 
take  the  risk  of  not  handling  the  gun  or  the  adze  in  the  proper  fashion.  "Rerum 
enim  vocabula  immutabilia  sunt,  homines  mutabilia,"  sufficiently  illustrates  the 
attitude  of  the  times. 

This  attitude  was  of  course,  from  the  point  of  view  of  intellectual  develop- 
ment, bound  to  change  gradually.  But  progress  was  retarded,  in  the  English 
judicial  world,  by  three  circumstances  (with  others)  particular  to  that  sphere. 

One  of  these  was  the  prejudice  (for  such  it  may  be  termed)  in  favor  of  the 
legal  heir,  —  an  instinct  naturally  strong  in  a  nation  whose  greatest  and  most 
explanatory  fact  was  its  dependence  upon  landed  wealth  and  a  system  of  primo- 
geniture. When  a  will  was  to  be  construed,  its  effective  interpretation  was  no 
great  matter  of  concern  to  the  judges,  for  they  would  rather  than  not  that  its 
provisions  should  fail.  ^ 

Another  circumstance  was  the  tendency  of  the  judges  to  keep  the  construc- 
tion of  wTitings  out  of  the  jury's  hands  and  reserve  it  for  themselves.  Still  a 
third  consideration  was  the  practice  and  the  interests  of  conveyancers.  This 
branch  of  the  profession  had  accumulated  a  store  of  esoteric  learning,  which 
labelled  each  word  and  phrase  with  its  traditional  meaning.  This  learning  would 
lose  half  of  its  mystery  and  its  value  if  the  rigidity  of  these  terms  should  dis- 
appear. The  instinct  was  to  treasure  the  shibboleths  of  conveyancing;  and  the 
pressure  of  this  body  of  practitioners  against  any  liberality  of  interpretation 
must  have  been  heavy. 

At  the  period  of  the  end  of  the  1700s,  then,  there  is  found  in  the  law  a  settled 
tradition,  bolstered  up  in  artificial  survival  by  considerations  such  as  the  above, 
that  the  words  of  a  legal  document  inherently  possess  a  fixed  and  unalterable 
meaning.  The  law  had  prescribed  it.  No  man,  in  a  document,  could  think 
himself  entitled  to  mean  what  he  pleased.  Some  of  the  judicial  utterances  seem 
now  obstinate  enough  in  their  blindness. 

This  notion  was  barely  beginning  to  give  way  by  the  end  of  the  1700s.  In- 
terpretation by  local  usage,  for  example,  today  the  plainest  case  of  legitimate 

^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905.  Vol.  IV, 
§  2460). 


No.  851  INTERPRETATION  OF  LEGAL  ACTS  1267 

deviation  from  the  normal  standard,  was  still  but  making  its  way.  The  indi- 
vidual usage  of  a  testator  was  in  the  eyes  even  of  Hardwicke  and  Thurlow,  and 
of  course  of  Kenyon  and  Eldon  (those  reactionaries  and  mainstays  of  conserva- 
tism), heretical  enough.  As  late  as  1821  the  Chief  Justice  of  the  Common  Pleas 
conceded  frankly  that  "if  not  in  a  majority  of  wills,  yet  certainly  in  a  great  num- 
ber, the  construction  is  contrary  to  the  probable  intent."  And  yet  to  give  effect 
to  a  more  flexible  principle  was  to  threaten  the  "landmarks  of  property,"  as  the 
Bar  was  repeatedly  warned. 

But  the  law  of  England  was  merely  passing  through  the  same  stages  as  the 
law  of  Home.  It  was  impossible  that  it  could  remain  perpetually  immovable 
in  the  old  ruts.  And  so  it  emerged  into  the  ISOOs  with  a  growing  spirit  of  liber- 
ality which  could  not  help  conceding  something,  yet  was  hampered  by  the  stern 
tradition.  It  now  conceded  that  the  sense  of  words  is  not  fixed  by  rules  of  law; 
that  the  extreme  of  the  old  rule  had  disappeared.  But  it  insisted  that  when  the 
meaning  is  "plain"  —  that  is,  plain  by  the  standard  of  the  community  and  of 
the  "ordinary  reader  —  no  deviation  can  be  permitted.  That  is,  it  preserved 
the  old  theory  to  the  extent  of  legally  fixing  the  meaning  for  the  party,  however 
WTongly,  unless  the  ■s\Tongness  was  glaringly  plain  on  the  face  of  the  case. 

Such  is  the  rule  still  surviving  to  us,  in  many  Courts,  from  the  old  formalism, 
namely,  the  rule  that  you  cannot  disturb  a  plain  vieaning.  The  following  pas- 
sages show  its  plirasing: 

Lane  v.  Stanhope.  (1795.  6  T.  R.  345,  354.)  Lord  Kenyon,  Ch.  J.:  It  is 
our  duty  in  construing  a  will  to  give  effect  to  the  devisor's  intention  as  far  as  we 
can  consistently  with  the  rules  of  law;  not  conjecturing,  but  expounding  his 
will  from  the  words  used.  Where  certain  words  have  obtained  a  precise  techni- 
cal meaning,  we  ought  not  to  give  them  a  different  meaning;  that  would  be  (as 
Lord  King  and  other  judges  have  said)  removing  landmarks.  But  if  there  be 
no  such  appropriate  meaning  to  the  words  used  in  a  will,  if  the  devisor's  inten- 
tion be  clear  and  the  words  used  be  sufficient  to  give  effect  to  it,  we  ought  to 
construe  those  words  so  as  to  give  effect  to  the  intent. 

Beacon  Life  &  Fire  Assurance  Co.  v.  Gibbs.  (1862.  Pri^y  Council. 
1  Moore,  P.  C.  n.  s.  73,  98.)  Lord  Chelmsford:  In  order  to  construe  a  term  in 
a  WTitten  instrument  where  it  is  used  in  a  sense  differing  from  its  ordinary  mean- 
ing, evidence  is  admissible  to  prove  the  peculiar  sense  in  which  the  parties  under- 
stood the  word;   but  it  is  not  admissible  to  contradict  or  vary  what  is  plain. 


851.   ATTORNEY-GENERAL  v.   SHORE 

Chancery.     1833^3 

11  Sim.  592,  615 

In  1704,  Lady  Hewley,  a  Protestant  Non-conformist,  conveyed 
estates  to  trustees  for  the  benefit  of  "  such  poor  and  godly  preachers  for 
the  time  being  of  Christ's  Holy  Gospel,"  and  for  such  poor  and  godly 
widows  for  the  time  being,  of  "poor  and  godly  preachers  of  Christ's 
Holy  Gospel,"  as  the  trustees  for  the  time  being  should  think  fit;  for 
promoting  the  preaching  of  "Christ's  Holy  Gospel,"  in  such  manner  and 
in  such  poor  places  as  the  trustees  for  the  time  being  should  think  fit; 


1268  BOOK  VI :    parol  evidence  rules  No.  851 

for  educating  such  3'oung  men  designed  for  the  ministry  of  "Christ's 
Holy  Gospel"  as  the  trustees  for  the  time  being  should  approve  and 
think  fit;  and  for  relieving  such  "godly  persons  in  distress,"  being  fit 
objects  of  her  own  and  the  trustees'  charity,  as  the  trustees  for  the  time 
being  should  think  fit.  At  the  date  of  the  deed,  all  religious  sects  toler- 
ated by  law  believed  in  the  Trinity,  but,  in  the  course  of  time,  the 
estates  became  vested  in  trustees,  of  whom  the  majority  (though  called 
Presbyterians)  were  Unitarians,  and  one  was  a  member  of  the  Church  of 
England;  and  they  applied  the  rents  for  the  benefit  of  Unitarians.  .  .  . 
Dr.  John  Pye  Smith,  a  witness  for  the  Relators,  deposed  .  .  .  that 
the  ordinary  sense  and  meaning  of  the  term  Presbyterians  or  Presby- 
terian dissenters,  at  or  about  the  time  of  the  foundation  of  Lady  Hewley's 
charities,  was  a  particular  class  of  separatists  from  the  Establishment, 
who  differed  from  the  two  other  classes  on  certain  points  of  external 
discipline.  The  Rev.  Thomas  Scales,  for  the  relators,  deposed  .  .  . 
that  the  word  or  term  Presbyterian,  at  the  time  referred  to,  was  com- 
monly used  as  the  name  or  description  of  a  class  or  denomination  of 
English  Protestant  dissenters,  and  that  they  were  so  large  and  influential 
a  body  as  to  give  a  name  to  all  dissenters.  These  witnesses  deposed  to 
the  above  facts  from  "tradition  and  authentic  publications";  and  gave 
their  opinions,  derived  from  the  same  sources,  as  to  the  meaning,  in 
1704  and  1707,  of  "poor  godly  preachers,"  &c.,  &c.  .  .  .  The  following 
are  the  questions  propounded  to  the  learned  Judges,  by  the  House  of 
Lords : 

First,  —  Whether  the  extrinsic  evidence  adduced  in  this  cause,  or 
what  part  of  it,  is  admissible  for  the  purpose  of  determining  who  are 
entitled,  under  the  terms  "godly  Preachers  of  Christ's  Holy  Gospel," 
"Godly  Persons,"  and  the  other  descriptions  contained  in  the  deeds  of 
1704  and  1707,  to  the  benefit  of  Lady  Hewley's  bounty?  .  .  . 

TiNDAL,  C.  J.  —  The  general  rule  I  take  to  be,  that  where  the  words 
of  any  written  instrument  are  free  from  ambiguity  in  themselves,  and 
where  external  circumstances  do  not  create  any  doubt  or  difficulty  as  to 
the  proper  application  of  those  words  to  claimants  under  the  instrument, 
or  the  subject-matter  to  which  the  instrument  relates,  such  instrument  is 
always  to  be  construed  according  to  the  strict,  plain,  common  meaning  of 
the  words  themselves;  and  that,  in  such  case,  evidence  dehors  the  instru- 
ment, for  the  purpose  of  explaining  it  according  to  the  surmised  or  alleged 
intention  of  the  parties  to  the  instrument,  is  utterly  inadmissible.  If  it 
were  otherwise,  no  lawyer  would  be  safe  in  advising  upon  the  construction 
of  a  written  instrument,  nor  any  party  in  taking  under  it;  for  the  ablest 
advice  might  be  controlled,  and  the  clearest  title  undermined,  if,  at  some 
future  period,  parol  evidence  of  the  particular  meaning  which  the  party 
affixed  to  his  words,  or  of  his  secret  intention  in  making  the  instrument, 
or  of  the  objects  he  meant  to  take  benefit  under  it,  might  be  set  up  to 
contradict  or  vary  the  plain  language  of  the  instrument  itself.  The  true 
interpretation,  however,  of  every  instrument  being  manifestly  that  which 


No.  852  INTERPRETATION  OF  LEGAL  ACTS  1269 

will  make  the  instrument  speak  the  intention  of  the  party  at  the  time 
it  was  made,  it  has  always  been  considered  as  an  exception,  or,  perhaps, 
to  speak  more  precisely,  not  so  much  an  exception  from,  as  a  corollary 
to,  the  general  rule  above  stated,  that  where  any  doubt  arises  upon  the 
true  sense  and  meaning  of  the  words  themselves,  or  any  difficulty  as  to 
their  application  under  the  surrounding  circumstances,  the  sense  and 
meaning  of  the  language  may  be  investigated  and  ascertained  by  evidence 
dehors  the  instrument  itself;  for  both  reason  and  common  sense  agree, 
that  by  no  other  means  can  the  language  of  the  instrument  be  made  to 
speak  the  real  mind  of  the  party.  Such  investigation  does,  of  necessity, 
take  place  in  the  interpretation  of  instruments  written  in  a  foreign  lan- 
guage; in  the  case  of  ancient  instruments  where,  by  the  lapse  of  time  and 
change  of  manners,  the  words  have  acquired,  in  the  present  age,  a  dif- 
ferent meaning  from  that  which  they  bore  when  originally  employed; 
in  cases  where  terms  of  art  or  science  occur;  in  mercantile  contracts, 
which,  in  many  instances,  use  a  peculiar  language,  employed  by  those 
only  who  are  conversant  in  trade  and  commerce;  and  in  other  instances, 
in  which  the  words,  besides  their  general  common  meaning,  have  acquired, 
by  custom  or  otherwise,  a  well-known  peculiar,  idiomatic  meaning,  in  the 
particular  country  in  which  the  party  using  them  was  dwelling,  or  in  the 
particular  society  of  which  he  formed  a  member,  and  in  which  he  passed 
his  life.  .  .  .  But  I  conceive  the  exception  to  be  strictly  limited  to  cases 
of  the  description  above  given,  and  to  evidence  of  the  nature  above 
detailed. 

.  .  .  On  this  account,  I  think  all  the  extrinsic  evidence  which  was 
actually  given,  in  the  cause,  for  the  purpose  of  determining  who  were 
entitled  under  the  terms  "godly  preachers  of  Christ's  Holy  Gospel"  and 
other  expressions  used  in  the  deeds,  was  inadmissible.  Such,  for  instance, 
as  the  evidence  of  Dr.  Pye  Smith  and  Dr.  Bennett  as  to  the  religious 
opinions  of  the  Presbyterians  and  of  other  Protestant  dissenters  in  the 
time  of  Lady  Hewley ;  their  interpretation  of  the  terms  used  in  the  deeds; 
and  their  evidence  of  the  religious  opinions  of  Lady  Hewley  herself. 
The  production  also  of  the  will  of  Sir  -John  Hewley  and  of  Lady  Hewley, 
in  proof  of  the  private  religious  opinions  of  Lady  Hewley,  appears  to  me, 
both  in  respect  to  the  point  to  which  they  were  produced,  and  to  the 
character  of  the  evidence  itself,  not  admissible  by  law. 

[A  majority  of  the  other  judges  concurred  with  Tindal,  C.  J.] 


852.   Re  Jodrell 

''      Chancery.     1890 

L.  R.  44  Ch.D.  590 

The  Rev.  Sir  Edward  Repps  Jodrell,  Bart.,  who  died  on  the  12th  of 
November,  1882,  by  his  will,  made  on  the  23rd  of  March,  1868,  appointed 


1270  BOOK   VI:     PAROL   EVIDENCE    RULES  No.  852 

his  wife  and  two  friends  whom  he  named  to  be  his  executors  and  trustees, 

and  gave  various  specific  legacies.  .  .  .  By  clause  23  the  testator  directed 

the  trustees  to  invest  the  sum  of  £5000,  and  to  hold  the  same  in  trust  to 

pay  the  income  to  his  cousin,  Major  George  King.  .  .  .  By  clause  24 

there  was  a  similar  gift  of  £5000  to  hold  in  trust  to  pay  the  income  to  his 

cousin,  Georgiana  Forde.  .  .  .  By  clause  25  there  was  a  like  gift  of  £5000 

to  hold  in  trust  to  pay  the  income  thereof  to  his  cousin,  Emily  Mac- 

Donnell.  .  .  .  By  clause  37  the  testator  gave  as  follows:   "As  to  all  the 

I  residue  and  remainder  of  my  real  and  personal  estate  not  hereby  effec- 

I  tually  disposed  of,  I  direct  the  same  to  be  equally  divided  amongst  such. 

I  of  my  relatives  hereinbefore  named.  ..." 

'  In  an  administration  action  commenced  by  originating  summons  on 
the  13th  of  March,  1888,  ...  the  Chief  Clerk,  on  the  15th  of  March, 
i|  1889,  certified  that  .  .  .  the  persons  named  in  clauses  23,  24,  and  25 
|]  were  not  legitimately  related  to  the  testator,  but  were  the  legitimate 
descendants  of  George  Morison  King  and  Mary  Margaret  Morison 
Moylan,  formerly  King,  both  of  whom  and  the  testator's  mother  were 
the  natural  children  of  Caroline  Amelia  Morison.  .  .  . 

The  summons  was  adjourned  into  Court,  and  came  on  for  hearing 
before  Mr.  Justice  Stirling,  on  the  26th  of  October,  1889. 

C.  Lyttclton  Chubb,  for  the  plaintiffs,  the  executors  and  trustees,  stated 
the  facts,  and  said  that  questions  had  arisen  as  to  whether  persons  named 
in  the  will  as  "  my  cousins,"  but  who  were  not  cousins  legally,  could  take 
under  the  residuary  clause  as  "relatives";  .  .  . 

Rigby,  Q.  C,  (Christopher  James  with  him),  for  Charles  Scale  Hayne: 
.  .  .  The  testator  knew  the  fact  that  his  own  mother  was  a  natural 
child,  and  that  the  persons  called  "cousins"  in  clauses  23,  24,  and  25 
were  not  in  law  relatives,  but  in  blood  purely.  .  .  . 

Sir  Henry  James,  Q.  C,  Renshaic,  Q.  C,  and  Ingle  Joyce,  the  defend- 
ants. .  .  .  The  mere  fact  that  the  testator  in  his  will  treated  persons 
who  were  the  children  of  illegitimate  children  as  his  cousins  is  not  suffi- 
cient in  law  to  entitle  persons  who  were  not  really  his  relatives  to  take  a 
share.  .  .  . 

Stirling,  J.  .  .  .  The  main  question  then  arises  as  to  the  meaning 
of  the  words  "relatives  hereinbefore  named";  and  as  to  that,  three  views 
have  been  put  forward.  The  first  rests  on  two  elementary  rules  of  con- 
struction, viz.,  that  a  will  is  so  to  be  construed  as  to  give  effect  to  each 
^'  word  rather  than  in  a  way  which  will  leave  some  of  them  inoperative; 
f^^  and  that  the  words  are  to  be  taken  in  their  strict  and  accurate  meaning, 
unless  an  intention  can  be  inferred  to  use  them  in  another.  The  strict 
and  accurate  meaning  of  the  word  "relatives"  is -" legitimate  relatives." 
The  strict  and  accurate  meaning  of  the  word  "named"  .  .  .  is  "persons 
mentioned  nominatim,  if  not  by  all  their  names,  by  some  at  least,  either 
Christian  or  their  surnames."  If  the  testator  used  the  words  "rela- 
tives" and  ^' named"  with  those  meanings,  it  is  found  that  the  class  of 
persons  who  would  have  taken  under  clause  37,  if  the  testator  had  died 


No.  852  ESfTERPRETATION   OF  LEGAL  ACTS  1271 

immediately  after  the  execution  of  his  will,  consisted  of,  at  most,  five 
persons,  viz.,  Charles  Phillip  Paul  Jodrell,  named  in  clause  12;  Charles 
Scale  Hayne,  named  in  clause  20;  Emily  Higgins,  named  in  clause  21; 
and  Mary  Champagne  and  Blanche  Champagne,  named  in  clause  22.  ,  .  . 
The  result  is  that,  in  the  events  which  have  happened,  Mr.  Charles  Scale 
Hayne  is  entitled  to  the  whole  of  the  residue. 

From  this  decision  several  of  the  legatees  who  had  been  excluded 
appealed.  .  .  . 

Lord  Halsbury,  L.  C.  —  I  am  called  upon  to  express  an  opinion  on 
what  is  the  meaning  of  this  written  instrument,  and  I  repudiate  entirely 
the  notion  of  laying  down  any  canon  of  construction  which  is  to  extend 
beyond  the  particular  instrument  that  I  am  called  upon  to  give  an 
interpretation  to.  .  .  .  The  law  will  allow  you,  if  you  choose,  expressly 
and  in  terms,  to  leave  things  to  your  wife's  relations,  or  to  leave  things 
to  persons  who  are  not  your  legitimate  descendants;  and,  inasmuch  as 
the  law  permits  both  those  things  to  be  done  expressly,  I  myself  am 
wholly  unable  to  understand  in  what  way  a  Court  of  construction  is 
called  upon  to  put  particular  interpretations  upon  particular  words  with 
reference  to  any  supposed  presumption  that  the  law  makes  either  way. 
For  myself,  I  am  prepared  to  look  at  the  instrument  such  as  it  is;  to  see 
the  language  that  is  used  in  it;  to  look  at  the  whole  of  the  document, 
and  not  to  part  of  it;  and,  having  looked  at  the  whole  of  the  document, 
to  see  (if  I  can)  through  the  instrument  what  was  the  mind  of  the  testator. 
Those  are  general  principles  for  the  construction  of  all  instruments  — 
and  to  that  extent  it  may  be  said  that  they  are  canons  of  construction. 

But  the  moment  I  depart  from  those  general  canons  of  construction 
applicable  to  all  instruments,  and  I  am  overwhelmed  with  authorities 
about  what  particular  Judges  have  thought  about  other  particular 
instruments,  and  whether  in  this  or  that  particular  instrument  the  Judge 
has  been  sufficiently  satisfied  that  such  and  such  was  the  meaning  of  the 
testator,  I  confess  myself  to  be  in  a  hopeless  state  of  confusion.  In  the 
first  place,  I  do  not  know  what  mental  thermometer  there  is  to  ascertain 
what  exact  degree  of  certainty  is  to  be  obtained.  If  there  is  sufficient 
to  establish  the  meaning,  why  is  it  sufficient?  And  what  does  that  mean? 
It  must  mean  sufficient  in  the  mind  of  the  particular  tribunal  that  has  to 
decide.  .  .  . 

But  now  I  come  to  construe  the  particular  instrument,  and  I  do  not 
desire  to  express  my  meaning  otherwise  than  to  use  the  language  of  Lord 
Cairns  in  Hill  v.  Crook,  L.  R.  6  H.  L.  265,  285,  and  he  says,  very  truly, 
I  think, 

"If  you  find  that  that  is  the  nomenclature  used  by  the  testator,  taking  his 
will  as  the  dictionary  from  which  you  are  to  find  the  meaning  of  the  terms  that 
he  has  used,  that  is  all  which  the  law,  as  I  understand  the  cases,  requires." 

It  seems  to  me  that  that  is  a  very  simple  test,  and,  adding  only  to  that 
the  circumstances  of  the  case  with  which  the  testator  was  dealing  in 


1272  BOOK  VI :    parol  evidence  rules  No,  852 

order  that  you  may  put  yourself  as  much  as  you  can  into  the  position, 
and  diving  so  into  the  mind  of  the  person  who  has  made  the  instrument 
which  you  are  endeavoring  to  construe,  it  appears  to  me  you  have  all  the 
legitimate  materials  from  which  you  can  deduce  what  was  the  meaning 
of  the  testator. 

Now,  applying  to  the  present  case  those  general  observations  which 
are  applicable  to  the  interpretation  of  all  such  instruments,  I  find  that 
the  testator  has  described  a  number  of  persons  as  his  "cousins."  .  .  . 
When  we  do  come  to  the  word  "relative"  in  section  37  we  must  find  out 
what  the  testator  has  meant  by  the  word  "relative."  ...  I  find,  there- 
fore, that  the  word  "relative"  is  used  as  a  general  word  applicable  to 
some  of  the  persons  whom  he  has  hereinbefore  described. 

Now,  with  reference  to  Major  King,  Georgiana  Forde,  and  to  Emily 
MacDonnell,  this  observation  applies  —  I  take  those  as  examples, 
though  I  believe  there  are  more  —  those  are  persons  who  are  not  cousins 
in  the  strict  sense  which  is  insisted  on  on  the  other  side.  They  are  per- 
sons, all  three  of  them,  with  respect  to  whom  the  bar  sinister  would 
prevent  the  actual  application  in  strictness  of  that  language.  .  .  .  Did  he 
mean  those  persons  when  he  spoke  of  his  "relatives"?  I  confess  for 
myself  I  cannot  entertain  the  smallest  doubt  that  they  w^ere  in  his  mind 
as  relatives.  .  .  .  He  has,  therefore,  to  use  the  language  of  Lord  Cairns, 
given  me  a  dictionary  whereby  I  find  that  his  wife's  relatives,  the  nieces, 
and  his  illegitimate  cousins  are  his  relatives.  .  .  . 

Under  those  circumstances  I  cannot  entertain  a  doubt  that  we  ought 
not  to  follow  the  decision  of  the  learned  Judge  below.  I  think  that  the 
decision  was  erroneous  and  must  be  reversed. 

We  are  also  of  opinion  that  the  legatees  are  to  take  per  capita  and 
not  per  stirpes. 

LiNDLEY,  L.  J.  (concurring).  ...  I  do  not  propose  to  deal  with  decided 
cases  at  all.  It  may  be  that  there  were  expressions  in  the  documents 
then  before  the  Court  which  made  the  Judges  come  to  conclusions  which 
I  cannot  arrive  at  when  I  come  to  look  at  the  will  and  codicils  with  which 
I  have  to  deal.  I  do  not  consider  that  a  decision  which  is  more  or  less  at 
variance  with  other  cases  is  wrong  because  it  is  so  at  variance.  Cases  of 
construction  are  useful  when  they  lay  down  canons  or  rules  of  construc- 
tion, and  they  are  useful  when  they  put  an  interpretation  on  common 
forms  —  whether  in  deeds,  wills,  or  mercantile  documents.  They  may 
be  valuable  guides;  but  when  I  am  told  that  because  something  occurs 
in  one  will  I  am  to  give  a  precisely  similar  effect  to  a  similar  expression 
occurring  in  another  will  dealing  with  a  different  property  and  in  another 
context,  I  object  altogether  to  do  it.  The  only  principle  that  I  know  of 
is  that  which  has  been  expressed  before.  Look  at  the  words,  avail 
yourself  of  such  evidence  as  is  legitimately  admissible,  and  see  what  the 
testator  has  said,  and  expound  it  as  best  you  can  with  reference  to  what  is 
legitimately  before  you.  .  .   . 

BowEN,  L.  J.  —  I  am  of  the  same  opinion.  ...  It  seems  to  me  that 


No.  853  INTERPRETATION  OF  LEGAL  ACTS  1273 

the  law  laid  down  in  Hill  v.  Crook,  L.  R.  G  H.  L.  265,  285,  by  Lord  Cairns 
is  the  true  law.  And  although  I  do  not  disguise  from  myself  that  many 
judges,  from  Lord  Eldon's  time  down  to  the  present,  judges  of  the  highest 
authority  and  of  the  greatest  learning,  have  used  language  (so  to  speak) 
of  warning,  and  language  that  amounts  to  more  than  Lord  Cairns  has 
said  —  have  used  language  to  the  effect  that  you  must,  before  you  can 
include  under  the  name  which  the  law  usually  appropriates  to  a  legitimate 
tie  persons  who  stand  outside  that  strict  line,  find  a  necessary  inference, 
or  a  very  clear  intention  to  that  effect,  it  seems  to  me  that  the  only 
weight  one  can  give  to  such  language  is  to  treat  it  not  so  much  as  a  canon 
of  construction  as  a  counsel  of  caution,  to  warn  you  in  dealing  with  such 
cases  not  to  give  way  to  guesses  or  mere  speculation  as  to  the  probabilities 
of  an  intention,  but  to  act  only  on  such  evidence  as  can  lead  a  reasonable 
man  to  a  distinct  conclusion.  But  I  protest,  that  as  soon  as  you  see 
upon  the  will,  read  by  the  light  of  such  extrinsic  circumstances  as  you 
may  survey,  what  the  true  construction  is,  and  what  the  true  intention 
expressed  by  the  testator  is,  then  your  journey  is  performed.  You  require 
no  more  counsellors  to  assist  you;  and  after  once  arriving  at  the  journey's 
end,  to  pause  in  giving  effect  to  the  true  interpretation  because,  forsooth, 
the  language  has  not  been  framed  according  to  some  measure  or  standard 
of  correct  expression,  which  is  supposed  to  be  imposed  by  judges  out  of 
regard  for  social  or  other  reasons,  appears  to  me  to  be  using  the  language 
of  such  learned  judges,  not  as  laying  down  canons  for  construing  a  will, 
but  as  justifications  for  misconstruing  it.  As  soon  as  you  once  arrive 
at  your  journey's  end  you  have  no  more  to  do  than  to  give  effect  to  the 
true  construction  as  you  see  it.  .  .  . 

It  seems  to  me  that  here  the  true  construction  of  the  will  must  be 
that  in  the  term  "relatives  hereinbefore  named"  the  testator  intended  to 
include  all  those  he  had  before  treated  as  relatives,  whether  he  was 
correct  in  law  in  so  treating  them  or  not,  and  the  children  of  those  whom 
he  had  referred  to  in  the  preceding  clauses. 


853.   TILTON  v.   AMERICAN  BIBLE   SOCIETY 

Supreme  Court  of  New  Hampshire.     1880 

60  A' .  H.  377 

Bill  in  equity,  by  the  executor  of  the  will  of  Joseph  Tilton,  for  the 
interpretation  of  the  third  item  of  the  will.  Facts  found  by  the  Court. 
The  third  item  is,  "I  give  and  bequeath  to  the  Bible  Society,  Foreign 
Mission  Society,  the  Home  INIission  Society,  and  the  Tract  Society,  five 
hundred  dollars  each."  There  are  no  societies  known  by  those  names. 
From  1851  until  his  death  in  1864,  the  testator  and  his  wife  were  members 
of  the  Congregational  church  and  society  at  Littleton,  and  were  regular 
attendants  at  the  services  and  meetings  of  the  church  and  society. 


1274        BOOK  VI :  parol  evidence  rules      No.  853 

Subject  to  the  plaintiff's  exception,  it  was  proved  that  during  that  time, 
at  such  meetings,  annual  contributions  were  taken  for  the  New  Hamp- 
shire Bible  Society,  the  American  Board  of  Commissioners  for  Foreign 
Missions,  the  New  Hampshire  Home  Missionary  Society,  and  the 
American  Tract  Society  (who  are  defendants  claiming  the  legacies); 
that  when  such  contributions  were  taken,  they  were  called  collections  for 
the  New  Hampshire  Bible  Society,  Foreign  Missions,  the  New  Hampshire 
Missionary  Society,  and  the  American  Tract  Society;  and  that  during 
the  same  period  a  similar  custom  of  contribution  for  the  same  societies 
prevailed  in  the  other  Congregational  churches  and  societies  of  this  state, 
the  donees  being  usually  designated  as  the  Bible  Society,  Foreign  Mis- 
sions, Home  Missions,  and  the  Tract  Society.  There  was  no  evidence 
that  the  testator  had  knowledge  of  the  usage  in  other  towns  than  Little- 
ton, except  his  connection  with  the  Littleton  church  and  society.  Frank- 
lin Tilton  was  a  member  of  the  Congregational  church  and  society  at 
Littleton  from  July,  1858,  until  his  death,  was  a  regular  attendant  at 
their  meetings,  and  took  part  therein,  during  a  part  of  the  time  was 
superintendent  of  the  Sabbath-school,  and  was  familiar  with  the  usages 
1  ,  of  the  church  and  society.  The  residuary  legatees  contend  that  the 
//  bequests  of  the  third  item  are  void  for  uncertainty.  L^pon  these  facts 
the  Court  found  that  the  societies  for  whom  the  annual  contributions 
were  taken  were  the  societies  which  the  testator  intended  to  make  legatees 
in  the  third  item  of  his  will. 

Bingham,  Mitchell  &  Batchellor,  for  the  plaintiff  and  heirs.  There 
are  no  societies  known  by  the  names  used  by  the  testator.  The  defendant 
societies  are  neither  named  nor  described  in  the  will ;  and  their  names,  or 
descriptions  of  them  or  their  objects  in  the  will,  are  essential.  .  .  . 

C.  R.  Morrison,  for  the  societies.  ...  A  misdescription  of  the  legatee 
does  not  render  the  legacy  void,  unless  the  ambiguity  is  such  as  to  render 
it  impossible,  either  from  the  will  or  otherwise,  to  ascertain  w^ho  was 
intended  as  the  object  of  the  testator's  bounty.  Smith  v.  Smith,  4 
Paige  Ch.  271;  Society  v.  Hatch,  48  N.  H.  393,  397.  .  .  . 

Doe,  C.  J.  —  There  is  no  patent  ambiguity.  If  there  had  been  but 
one  Bible  society,  the  bequest  to  "the  Bible  Society"  would  not  have 
been  void  for  uncertainty. 

The  question  is  not  whether  a  plea  of  misnomer  of  a  party  is  sus- 
tained by  proof,  nor  whether  there  is  a  variance  between  the  evidence 
and  the  name  of  a  third  person  set  forth  in  pleading.  The  question 
is  not  by  what  name  any  Bible  society  was  known  to  others,  but  which 
one  of  several  Bible  societies  was  intended  by  the  testator.  .  .  .  Evi- 
dence showing  what  name  was  given  to  a  Bible  society  in  its  character, 
what  name  it  used  or  recognized  as  its  own,  and  by  what  name  or  names 
it  was  known  to  others,  tends  to  prove  a  name  by  which  the  legatee  might 
have  been  known  to  the  testator,  and  a  name  which  he  might  have  used 
in  his  will  to  express  his  intention.  But  the  society  intended  by  him, 
and  identified  by  competent  evidence,  is  the  legatee,  by  whatever  name 


No.  854  INTERPRETATION   OF   LEGAL  ACTS  1275 

described  in  the  will,  and  notwithstanding  any  other  name  or  names  by 
which  it  may  have  been  invariably  or  usually  known  to  others.  .  .  . 

The  New  Hampshire  Bible  Society  being  pointed  out  by  such  terms 
in  the  will  as  he  would  be  likely  to  use  in  describing  that  society,  being 
the  one  he  w' ould  probably  mean  when  he  spoke  of  "  the  Bible  Society," 
and  being  found,  upon  competent  evidence,  to  be  the  society  intended 
by  him,  the  law  does  not  withhold  the  legacy  from  the  donee  intended 
by  him,  and  does  not  give  it  to  those  who  he  meant  should  not  have  it. 

A  person  known  to  a  testator  as  A.  B.,  and  to  all  others  as  C.  D.,  may 
take  a  legacy  given  to  A.  B.  Samuel  may  take  a  legacy  given  to  Edward, 
the  testator  having  been  in  the  habit  of  calling  him  Edward.  Parsons  v 
Parsons,  1  Ves.  Jr.,  266.  ...  Case  discharged. 

Stanley,  J.,  did  not  sit.     The  others  concurred. 


854.   MYERS  v.   SARL 

Queen's  Bench.     1860 

3  E.  &  E.  306 

Action  for  a  sum  due  on  a  building  contract.  By  the  contract  it  was 
provided  that  "no  alteration  or  additions  shall  be  admitted  unless\ 
directed  by  the  architects  of"  the  defendants  "in  writing  under  his 
hand;  and  a  weekly  account  of  the  work  done  thereunder  shall  be  de-l 
livered  to  the  said  architect  or  the  clerk  of  the  works  on  every  Monday 
next  ensuing  the  performance  of  such  work;  and  the  delivery  of  such 
account  shall  be  a  condition  precedent  to  the  right  of"  the  plaintiff  "to 
recover  payment  for  such  addition  or  alteration."  It  was  contended 
before  the  arbitrator,  on  behalf  of  the  defendants,  that  the  plaintiff  was 
not  entitled  to  recover  for  some  of  the  extra  work  done  by  him,  on  the 
ground  that  the  same  was  not  directed  to  be  done  by  the  architect  by  any 
writing  under  his  hand  pursuant  to  the  clause  in  the  contract  above  set 
out,  and  also  on  the  ground  that  no  sufficient  weekly  accounts  of  such 
work  were  delivered  by  the  plaintiff  within  the  meaning  of  that  clause. 
With  respect  to  the  latter  objection  it  appeared  in  evidence  that  certain 
accounts  of  the  extra  w^ork  were  delivered  by  the  plaintiff  as  and  for 
weekly  accounts  within  the  meaning  of  the  contract;  and  it  was  con- 
tended on  his  behalf  that  the  term  "weekly  account,"  as  used  in  the 
contract,  was  a  term  of  art  well  known  in  the  building  trade,  and  to  all 
builders  and  architects,  and  that  parol  testimony  was  admissible  to 
prove  its  meaning. 

The  admissibility  of  such  evidence  was  objected  to  on  the  part  of  the 
defendants.  The  arbitrator  held  that  the  words  used  were  a  term  of 
art,  and  that  such  evidence  was  admissible:  and  he  accordingly  received 
the  same. 

Bovill  (Tompson  Chitty  with  him),  for  the  plaintiff.  .  .  .  Secondly, 


1276  BOOK  VI :    parol  evidence  rules  No.  854 

the  arbitrator  was  clearly  right  in  admitting  parol  evidence  to  explain 
the  term  "  weekly  account,"  that  being,  as  he  has  found,  a  term  of  art 
in  the  building  trade.  .  .  . 

Lush,  contra.  —  The  case  is  not  within  the  principles  upon  which 
parol  evidence  is  admissible  to  explain  written  documents.  The  parol 
evidence,  here,  was  not  restricted  to  the  meaning  of  an  ambiguous  word 
or  expression,  but  was  admitted  to  contradict  the  plain  meaning  of  the 
words  "a  weekly  account  of  the  work  done  thereunder,"  i.e.,  under  the 
direction  of  the  architect,  and  to  prove  that  those  words  were  satisfied 
by  the  delivery  of  accounts  of  extra  work  not  done  under  such  direction. 
Grant  v.  Maddox,  15  M.  &  W.  737,  is  distinguishable.  Parol  evidence 
was  properly  admitted,  in  that  case  to  show  that,  by  the  word  "year" 
in  the  contract  there  in  question,  the  theatrical  year  was  intended. 
(Blackburn,  J.  — •  Does  not  the  principle  of  that  decision  show  that 
evidence  is  admissible  to  explain  that,  by  a  "weekly  account  of  the 
work,"  an  account  of  certain  portions  of  weekly  work  was  meant?  .  .  . 
That  is  a  fair  meaning  of  the  words,  and  it  would  be  contradicted  by  the 
parol  evidence.) 

Hill,  J.  .  .  .  The  question  turns  upon  the  meaning  to  be  giAen,  in 
the  contract,  to  the  words  "a  weekly  account  of  the  work  done  there- 
under." Mr.  Lush  says  that  the  plain,  ordinary  meaning  of  these  words 
is  a  "weekly  account  of  all  the  work  done  thereunder."  The  usage  of 
the  trade  is  proved  to  be  that  they  mean  "a  weekly  account  of  the  day 
work  done  thereunder."  We  have  to  determine  whether  e\adence  of 
that  usage  was  rightly  received.  Now  the  rule  governing  the  admissi- 
bility of  evidence  to  explain  the  language  of  contracts  is,  that  words 
relating  to  the  transactions  of  common  life  are  to  be  taken  in  their  plain, 
ordinary,  and  popular  meaning;  but  if  a  contract  be  made  with  reference 
to  a  subject-matter  as  to  which  particular  words  and  expressions  have  by 
usage  acquired  a  peculiar  meaning  different  from  their  plain,  ordinary 
sense,  the  parties  to  such  a  contract,  if  they  use  those  words  or  expressions, 
must  be  taken  to  have  used  them  in  their  restricted  and  peculiar  significa- 
tion. And  parol  evidence  is  admissible  of  the  usage  which  affixes  that 
meaning  to  them.  The  admissibility  of  such  evidence  does  not  depend 
upon  whether  the  expression  to  be  construed  is  ambiguous  or  unambigu- 
ous; but  merely  upon  whether  or  not  the  expression  has,  with  reference 
to  the  subject-matter  of  the  contract,  acquired  the  peculiar  meaning. 

Blackburn,  J.  —  I  am  of  the  same  opinion.  I  agree  with  my  Brother 
Hill  that  the  words  of  a  wTitten  commercial  contract  are  to  be  understood 
in  the  sense  which  they  have  acquired  in  the  trade  to  which  the  contract 
relates.  It  is  a  prima  facie  presumption  that,  if  the  parties  to  such  a 
contract  use  expressions  which  bear  a  peculiar  meaning  in  the  trade,  they 
use  them  in  that  peculiar  meaning,  which  can  be  ascertained  only  by 
parol  evidence.  I  do  not  think  that  it  is  necessary,  in  order  to  render 
such  evidence  admissible,  that  there  should  be  any  ambiguity  on  the  face 
of  the  phrase  which  has  to  be  construed.  ...  I  take  it  to  be  the  true 


No.  856  INTERPRETATION  OF  LEGAL  ACTS  1277 

rule  of  law  upon  the  subject  that  when  it  is  shown  that  a  term  or  phrase 
in  a  written  contract  bears  a  peculiar  meaning  in  the  trade  or  business  to 
which  the  instrument  relates,  that  meaning  is  prima  facie  to  be  attributed 
to  it;  unless  upon  the  construction  of  the  whole  contract  enough  appears, 
either  from  express  words  or  by  necessary  implication,  to  show  that  the 
parties  did  not  intend  that  meaning  to  prevail.  The  consequence  is  that 
every  individual  case  must  be  decided  on  its  own  grounds.  .  .  . 

Consequently,  I  think  that  the  arbitrator  was  quite  right  in  admitting 
the  evidence. 

Judgment  for  plaintiff  on  first  point,  and  for  defendants  on  the  second. 

855.  Brown  v.  Byrne.  (1854.  Queen's  Bench.  3  E.  &  B.  703.)  Coleridge, 
J.  —  Neither,  in  the  construction  of  a  contract  among  merchants,  tradesmen,  or 
others,  ^\^ll  the  evidence  [of  a  local  usage]  be  excluded  because  the  words  are  in 
their  ordinary  meaning  unambiguous;  for  the  principle  of  admission  is  that 
words  perfectly  unambiguous  in  their  ordinary-  meaning  are  used  by  the  con- 
tractors in  a  different  sense  from  that,  ^^^lat  words  more  plain  than  "a  thou- 
sand," "a  week,"  "a  day"  ?  Yet  the  cases  are  familiar  in  which  "a  thousand" 
has  been  held  to  mean  "twelve  hundred,"  "a  week"  "a  week  only  during  the 
theatrical  season,"  "a  day"  "a  working  day." 


856.   WALLS  v.   BAILEY 

Court  of  Appeals  of  New  York.     1872 

49  N.  Y.  463 

This  action  was  instituted  to  recover  a  balance  alleged  to  be  due  to   |j 
the  plaintiffs  for  plastering  the  defendant's  house.     The  work  in  question 
was  done  under  a  written  contract,  of  which  the  following  is  a  cop3': 

"  Buffalo,  N.  Y.,  January  18,  1869. 

"We  hereby  agree  to  do  the  plastering  work  of  house  now  being  built  by 
George  Bailey,  on  Maine  street,  at  the  prices  named  below,  viz.: 

"For  one  coat  work,  twenty-five  cents  per  square  yard. 

"For  two  coat  work  with  hard  finish,  thirty-three  cents  per  square  yard. 

"  The  prices  to  include  all  labor  and  cost  of  material,  we  paying  said  Bailey 
the  invoice  price  for  all  laths  purchased  and  supplied  by  him.  All  work  to  be 
done  with  the  'International  Lime  Company's'  lime;  the  laths  to  be  securely 
nailed  before  plastering,  and  all  work  to  be  done  in  a  good,  workmanlike  manner, 
and  to  the  satisfaction  of  said  Bailey. 

"Plastering  with  hydraulic  cement,  forty-five  cents  per  square  yard,  to  be 
done  in  a  good,  workmanlike  manner,  and  to  the  satisfaction  of  said  Bailey. 

Walls  &  Leck." 

The  plaintiffs  claimed  that  in  determining  the  number  of  square  yards 
for  which  they  are  entitled  to  pay,  under  the  agreement,  the  openings, 
including  doors  and  windows,  are  to  be  measured  as  plastering.    That  in 


w 


1278  BOOK  VI :    parol  evidence  rules  No.  856 

rooms  plastered  with  two  or  three  coat  work,  the  part  of  the  work  behind 
the  cornice  and  base-board  is  to  be  measured  as  though  actually  plastered 
with  two  or  three  coats,  though  the  same  was  only  plastered  with  one 
coat.  This  claim  was  based  on  the  assumption  that  at  the  time  the 
agreement  was  made  it  was  the  custom  of  plasterers  in  the  city  of  Buffalo 
to  measure  and  charge  for  openings;  and  for  wall  not  plastered,  where 
the  same  was  covered  by  a  cornice  or  base-board.  The  Court  allowed 
proof  of  such  custom  to  be  given  on  the  trial  under  defendant's  objections. 

Defendant  was  called  as  a  witness  in  his  own  behalf,  and  his  counsel 
asked  him  this  question:  "When  you  made  the  contract  had  you  any 
knowledge  of  any  custom  in  Buffalo  of  measuring  openings  in  measuring 
plastering?"  This  was  objected  to  and  the  Court  excluded  the  testi- 
mony. The  Court  charged  that  the  contract  was  to  be  construed  with 
reference  to  the  custom  of  the  place  where  made,  that  such  custom  must 
be  reasonable  and  public,  general  and  uniform,  to  which  defendant 
excepted. 

The  jury  found  a  verdict  for  the  full  amount  claimed  by  the  plaintiffs. 

Benjamin  H.  Williams,  for  the  appellant.  The  work  was  done  under 
a  contract  clear  and  unequivocal,  which  could  not  be  varied  by  parol 
proof  of  a  custom.  .  .  .  Knowledge  of  the  customs  by  the  party  sought 
to  be  charged  must  be  shown,  and  the  presumption  of  such  knowledge 
may  be  rebutted.  .  .  . 

David  F.  Day,  for  the  respondents.  The  usage  of  plasterers  in  Buffalo 
was  properly  proven,  and  the  contract  is  to  be  construed  in  reference  to  it. 
.  .  .  Defendant  was  bound  to  know  the  custom  of  the  trade  with  which 
he  dealt.  .  .  . 

FoLGER,  J.  —  The  contract  between  the  parties  was  in  writing.  By 
it  the  plaintiffs  were  to  furnish  the  material  for  the  plastering  work  of  the 
defendant's  house,  and  to  do  the  work  of  laying  it  on.  The  defendant 
was  to  pay  them  for  the  work  and  material  a  price  per  square  yard.  Of 
course,  the  total  of  the  compensation  was  to  be  got  at  by  measurement. 
But  when  the  parties  came  to  determine  how  many  square  yards  there 
were,  they  differed.  The  query  was,  the  square  yards  of  what?  Of  the 
plaster  actually  laid  on,  or  of  the  whole  side  of  the  house,  calling  it  solid, 
with  no  allowance  for  the  openings  by  windows  and  doors?  .  .  .  Evidence 
of  usage  is  received,  as  is  any  other  parol  evidence,  when  a  written  con- 
tract is  under  consideration.  It  is  to  apply  the  written  contract  to  the 
subject-matter,  to  explain  expressions  used  in  a  particular  sense,  by 
particular  persons,  as  to  particular  subjects,  to  give  effect  to  language  in 
a  contract  as  it  was  understood  by  those  who  made  use  of  it.  The  jury, 
in  the  case  before  us,  have  found  the  existence  of  the  usage  contended 
for  by  the  plaintiffs,  and  upon  evidence  which  well  sustains  the  finding. 
The  same  evidence  shows  that  the  usage  was  uniform,  continuous  and 
well  settled.  Nor  was  it  one  which  was  in  opposition  to  well  settled 
principles  of  law,  or  which  was  unreasonable.  .  .  . 

These  views  dispose  of  the  points  made  by  the  appellant  in  this  court, 


No.  857  INTERPRETATION   OF   LEGAL  ACTS  1279 

save  the  one  that  the  trial  Court  erred  in  overruling  the  question  put  to 
the  defendant  when  on  the  stand  as  a  witness  in  his  own  behalf,  to  wit: 
"  When  you  made  that  contract,  had  you  any  knowledge  of  any  custom 
in  Buffalo  of  measuring  openings  in  measuring  plastering?"  ...  It 
would  seem,  however,  that  upon  principle,  for  a  party  to  be  bound  by  a 
local  usage,  or  a  usage  of  a  particular  trade  or  profession,  he  must  be 
shown  to  have  knowledge  or  notice  of  its  existence.  For  upon  what 
basis  is  it  that  a  contract  is  held  to  be  entered  into  with  reference  to, 
or  in  conformity  with,  an  existing  usage?  Usage  is  engrafted  upon  a 
contract  or  invoked  to  give  it  a  meaning,  on  the  assumption  that  the 
parties  contracted  in  reference  to  it;  that  is  to  say,  that  it  was  their 
intention  that  it  should  be  a  part  of  their  contract  wherever  their  contract 
in  that  regard  was  silent  or  obscure.  But  could  intention  run  in  that  way 
unless  there  was  knowledge  of  the  way  to  guide  it?  No  usage  is  admissi- 
ble to  influence  the  construction  of  a  contract  unless  it  appears  that  it 
be  so  well  settled,  so  ifniformly  acted  upon,  and  so  long  continued,  as  to 
raise  a  fair  presumption  that  it  was  known  to  both  contracting  parties, 
and  that  they  contracted  in  reference  thereto.  There  must  be  some 
proof  that  the  contract  had  reference  to  it,  or  proof  arising  out  of  the 
position  of  the  parties,  their  knowledge  of  the  course  of  business,  their 
knowledge  of  the  usage,  or  other  circumstance  from  which  it  may  be 
inferred  or  presumed  that  they  had  reference  to  it.  .  .  .  The  jury  may 
presume,  from  all  the  circumstances  of  the  case,  that  knowledge  or  notice 
existed.  ...  It  seems  then,  to  come  to  this:  Is  the  presumption,  which 
the  jur}^  may  thus  make  conclusive,  or  may  not  that  presumption  be 
repelled  by  express  negatory  proof  of  ignorance?  When  the  defendant 
proposed,  by  the  question  which  was  rejected,  to  offer  evidence  tending 
to  show  his  ignorance  of  the  existence  of  the  usage,  he  claimed  no  more 
than  to  exercise  the  right  of  attempting,  by  direct  evidence,  to  repel 
the  presumption  of  his  knowledge,  which  might  without  that  proof,  or 
perhaps  in  opposition  to  it,  be  made  from  the  facts  of  the  case.  ...  In 
this  view  it  was  proper  for  the  defendant  to  put  and  answer  the  question 
rejected. 

In  my  judgment,  the  trial  Court  should  have  admitted  the  question. 
For  this  reason,  the  judgment  should  be  reversed  and  a  new  trial  ordered, 
with  costs  to  abide  the  event  of  the  action. 

All  concur,  except  Peckham,  J.,  dissenting.     Judgment  reversed. 


857.   STOOPS  V.   SMITH 

Supreme  Judicial  Court  of  Massachusetts.     1868 

100  Mass.  63 

Contract  against  a  trader  in  sewing  machines  in  Worcester  on  the 
following  agreement  signed  by  him: 


1280  BOOK   VI :     PAROL    EVIDENCE    RULES  No.  857 

"Worcester,  August  30,  1866.  I  promise  to  pay  Walter  Stoops  the  sum  of 
fifty  dollars  for  inserting  business  card  in  two  hundred  copies  of  his  advertising 
chart;  to  be  paid  when  the  chart  is  published  and  the  card  appears  to  the  exclu- 
sion of  all  others  in  the  sewing  machine  trade." 

The  declaration  alleged  the  full  performance  of  the  condition  by  the 
plaintiff,  and  the  defendant's  refusal  nevertheless  to  pay  the  stipulated 
sum  on  demand.  The  answer  alleged  that  any  sum  which  the  defendant 
agreed  to  pay  to  the  plaintiff  was  in  consideration  of  the  plaintiff's 
promise  that  the  copies  of  the  chart  should  be  made  of  cloth,  and  be 
published  by  posting  in  the  most  public  and  conspicuous  places  within 
forty  miles  of  Worcester;  that  there  had  been  a  failure  of  such  considera- 
tion; and  that  the  plaintiff  made  the  promise  with  intent  to  defraud.  .  .  . 
The  defendant,  ofTered  to  show  that  the  chart,  as  understood  between 
them,  meant  a  chart  of  cloth,  to  be  posted  up  in  two  hundred  public 
places  near  Worcester,  and  that  no  chart  had  been  so  made  and  posted. 
This  offer  was  rejected. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

G.  F.  Verry,  for  the  defendant.  F.  H.  Deivey  and  F.  P.  Goulding,  for 
the  plaintiff. 

Wells,  J. — The  wTiting,  upon  which  this  action  is  brought,  contains 
a  promise  on  the  part  of  the  defendant  only.  It  recites,  imperfectly  and 
in  general  terms,  the  agreement  to  be  performed  on  the  part  of  the 
plaintiff,  as  the  consideration  upon  which  the  promise  of  the  defendant 
is  made.  At  the  trial,  the  defendant  offered  evidence  to  show  the  whole 
arrangement  between  the  parties ;  particularly  the  representations  of  the 
plaintiff  as  to  the  material  of  which  the  chart  was  to  be  made,  and  the 
manner  in  which  it  would  be  published;  and  contended  that  he  was  not 
bound  to  pay,  because  the  plaintiff  had  failed  so  to  make  and  publish  the 
chart.  The  Court  excluded  the  evidence,  and  ruled  that  no  evidence  of 
extrinsic  facts  was  admissible  for  any  purpose. 

The  alleged  representations  related  to  that  which  was  then  in  the 
future,  and  were,  in  one  aspect,  of  a  promissory  nature.  The  principle 
of  law  is  clear  and  well  settled,  that  the  obligation  of  a  written  contract 
cannot  be  abridged  or  modified  by  or  made  conditional  upon  another 
preceding  or  contemporaneous  parol  agreement,  not  referred  to  in  the 
writing  itself.  But  it  is  equally  well  settled  that,  for  the  purpose  of 
applying  the  terms  of  the  written  contract  to  the  subject  matter,  and 
removing  or  explaining  any  imcertainty  or  ambiguity  which  arises  from 
such  application,  parol  testimony  is  admissible,  and  has  a  legitimate 
office.  For  this  purpose,  all  the  facts  and  circumstances  of  the  trans- 
action out  of  which  the  contract  arose,  including  the  situation  and  rela- 
tions of  the  parties,  may  be  shown.  The  subject  matter  of  the  contract 
may  be  identified  by  .proof  of  what  was  before  the  parties,  by  sample  or 
otherwise,  at  the  time  of  the  negotiation.  The  terms  of  the  negotiation 
itself,  and  statements  therein  made,  may  be  resorted  to  for  this  purpose. 


No.  857  INTERPRETATION   OF   LEGAL  ACTS  1281 

.  ,  .  The  purpose  of  all  such  evidence  is,  to  ascertain  in  what  sense  the 
parties  themselves  used  the  ambiguous  terms  in  the  writing  which  set 
forth  their  contract.  If  the  previous  negotiations  make  it  manifest  in 
what  sense  they  understood  and  used  those  terms,  they  furnish  the  best 
definition  to  be  applied  in  the  interpretation  of  the  contract  itself.  The 
effect  must  be  limited  to  definition  of  the  terms  used,  and  identification 
of  the  subject-matter.  If  so  limited,  it  makes  no  difference  that  the 
language  of  the  negotiations  relates  to  the  future,  and  consists  in  positive 
engagements  on  the  part  of  the  other  party  to  the  contract.  Their  effect 
depends,  not  upon  their  promissory  obligation,  but  upon  the  aid  they 
afford  in  the  interpretation  of  the  contract  in  suit.  They  are  not  the  less 
effective  for  the  purpose  of  explanation  and  definition  because  they  pur- 
port to  carry  the  force  of  obligation.  The  contract  in  suit  may  illustrate 
this  principle  in  a  point  that  is  not  in  dispute.  The  defendant  agrees  to 
pay  fifty  dollars  "for  inserting  business  card,"  etc.  In  applying  this 
stipulation,  if  the  defendant  had  a  business  card  distinctively  known  and 
recognized  as  such,  there  would  be  no  difficulty  in  giving  effect  to  the 
contract.  But  the  identification  of  that  card  would  involve  the  whole 
principle  of  admitting  parol  evidence  for  the  interpretation  and  applica- 
tion of  written  contracts  to  the  subject-matter.  It  could  be  done  only 
by  the  aid  of  parol  testimony.  Suppose  he  had  several  business  cards, 
differing  in  form  and  contents,  but  one  was  selected  and  agreed  upon  for 
the  purpose  at  the  time  the  contract  was  signed;  or  that  one  had  been 
prepared  specially  for  the  purpose.  Clearly  parol  testimony  would  be 
competent  to  identify  the  card  so  selected  or  prepared ;  and  to  prove  that 
the  parties  assented  to  and  adopted  it  as  the  card  to  which  the  contract 
would  apply.  Suppose,  thirdly,  that  no  such  card  had  been  selected  or 
prepared,  but  its  form,  contents  and  style  had  been  described  verbally 
and  assented  to,  and  the  plaintiff  had  agreed  to  insert  it  as  so  described. 
Such  evidence  may  be  resorted  to,  not  for  the  promise  it  contains,  but  for 
the  aid  it  affords  in  fixing  the  meaning  and  applying  the  general  language 
of  the  written  contract.  The  same  considerations  render  the  evidence 
offered  by  the  defendant  competent  for  similar  purposes.  The  term 
"his  advertising  chart"  requires  to  be  practically  applied.  The  repre- 
sentations of  the  plaintiff  are  in  the  nature  of  a  description  of  the  vehicle 
by  which  the  publication  of  the  business  card  was  to  be  effected;  and 
his  account  of  the  disposition  he  proposed  to  make  of  the  charts  was  a  j 
description  of  the  extent  and  the  sense  in  which  it  was  to  be  an  "advertis- 
ing chart."  The  representations  as  to  the  material  of  which  the  chart 
was  to  be  made,  and  the  mode  of  publication,  constitute  his  description 
of  what  "his  advertising  chart"  was.  Macdonald  r.  Longbottom,  1  El. 
&  El.  977.  ... 

It  follows  that  the  evidence  offered  by  the  defendant  was  improperly 
excluded.  .  .  .  Exceptions  sustained. 


1282  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  858 

858.  GooDE  V.  Riley.  (1891.  Massachusetts.  153  Mass.  585;  28  N.  E.  228.) 
Holmes,  J.  —  You  cannot  prove  a  mere  private  convention  between  the  two 
parties  to  give  language  a  different  meaning  from  its  common  one.  It  would  open 
too  great  risks,  if  evidence  were  admissible  to  show  that  when  they  said  five 
hundred  feet  they  agreed  it  should  mean  one  hundred  inches,  or  that  Bunker 
Hill  Monument  should  signify  the  Old  South  Church.  An  artificial  construction 
cannot  be  given  to  plain  words  by  express  agreement. 


859.  VIOLETTE  v.   RICE 

Supreme  Judicial  Court  of  Massachusetts.     1899 

173  Mass.  82;  53  A^  E.  144 

Bill  in  Equity,  filed  November  20,  1896,  in  the  Superior  Court, 
against  Charles  E.  Rice  and  Edward  E.  Rice,  copartners  as  C.  E.  and 
E.  E.  Rice,  and  others  not  material  to  be  named,  to  reach  and  apply 
property  in  payment  of  damages  for  an  alleged  breach  of  a  contract  of 
employment.  Hearing  before  Sheldon,  J.,  who  ordered  a  decree  to  be 
entered  dismissing  the  bill;  and,  the  plaintiff  having  appealed,  reported 
the  case,  at  the  request  of  the  parties,  for  the  determination  of  this  court. 

This  is  a  bill  in  equity  to  reach  and  apply  property  which  is  alleged 
to  have  been  conveyed  in  fraud  of  the  plaintiff,  claiming  damages  for  a 
breach  of  contract  to  employ  the  plaintiff  in  the  part  of  "  Bertha  Gessler  " 
in  a  play  called  "Excelsior  Junior."  The  contract  was  in  writing,  and 
engaged  the  plaintiff  in  general  terms  "to  render  services  at  any  theaters," 
etc.;  the  plaintiff  agreeing  "to  conform  to  and  abide  by  the  rules  and 
regulations  adopted  by  said  Edward  E.  Rice  for  the  government  of  said 
companies."  ...  At  the  hearing  evidence  was  taken  de  bene  that  at  the 
time  of  signing  the  contract  it  was  agreed  that  the  general  word  "  services  " 
meant  services  in  the  particular  part  named.  This  evidence  ultimately 
was  rejected,  and  the  only  question  is  whether  it  should  have  been 
admitted. 

W.  R.  Sears,  for  the  plaintiff.  T.  J.  Barry,  for  the  defendants, 
submitted  the  case  on  a  brief. 

Holmes,  J.  (after  stating  the  case).  We  are  of  opinion  that  the  evi- 
dence could  not  be  received.  .  .  The  engagement  to  render  services 
expressed  a  general  employment,  which  could  not  be  limited  to  a  single 
part  without  contradiction;  for  to  give  evidence  requiring  words  to 
receive  an  abnormal  meaning  is  to  contradict.  It  is  settled  that  the 
normal  meaning  of  language  in  a  written  instrument  no  more  can  be 
changed  by  construction  than  it  can  be  contradicted  by  an  avowedly 
inconsistent  agreement,  on  the  strength  of  the  talk  of  the  parties  at  the 
time  when  the  instrument  was  signed.  .  .  .  AMien  evidence  of  circum- 
stances or  local  or  class  usage  is  admitted,  it  tends  to  show^  the  ordinary 
meaning  of  the  language  in  the  mouth  of  a  normal  speaker,  situated 


No.  860  INTERPRETATION  OF  LEGAL  ACTS  1283 

as  the  party  using  the  language  was  situated;  "but  to  admit  evidence 
to  show  the  sense  in  which  the  words  were  used  by  particular  individ- 
uals is  contrary  to  sound  principle."  Drummond  v.  Attorney  General, 
2  H.  L.  Cas.  837,  863.  "If  that  sort  of  evidence  were  admitted,  every 
written  document  would  be  at  the  mercy  of  witnesses  that  might  be 
called  to  swear  anything."      Nichol  v.  Godts,  10  Exch.  191,  194. 

The  case  of  Keller  v.  Webb,  125  Mass.  88,  goes  a  good  way,  but  was 
not  intended,  we  think,  to  qualify  the  principle,  settled  by  the  earlier  and 
later  Massachusetts  cases,  some  of  which  we  have  cited.  In  that  case 
evidence  of  conversation  was  admitted  to  show  that  " casks"  in  a  written 
contract,  meant  casks  of  a  certain  weight.  It  was  assumed  that  the 
contract  meant  casks  of  some  certain  weight,  but  did  not  state  what, 
and  thus  that  the  evidence  supplemented,  without  altering,  the  written 
words.  A  similar  explanation  applies  to  Stoops  v.  Smith,  100  Mass.  63, 
[ante,  No.  857]. 

The  other  cases  cited  do  not  need  particular  notice. 

Decree  affirmed. 


860.   RICKERSON  v.  HARTFORD  FIRE   INSURANCE  CO. 

Court  of  Appeals  of  New  York.     1896 

149  N.  Y.  307;  43  N.  E.  856 

This  action  was  founded  upon  a  policy  of  fire  insurance  issued  to  ■ 
P.  Sammet  and  J.  Alexander  by  the  Hartford  Fire  Insurance  Company,  I 
payable  to  the  Washington  Life  Insurance  Company,  as  mortgagee  and/ 
as  its  interest  might  appear,  upon  premises  known  as  number  160  Mott' 
street  in  the  city  of  New  York.  .  .  .  On  the  first  of  May,  1890,  Sammet 
and  Alexander  transferred  the  property  to  the  plaintiff  by  a  conveyance  ( 
which  described  the  premises  by  metes  and  bounds,  and  also  as  "  known  i 
and  distinguished  as  number  one  hundred  and  sixty  Mott  street,"  being 
the  same  description  that  there  was  in  the  mortgage.     At  the  same  time,  i 
both  policies  were  transferred  to  the  plaintiff,  and  the  change  of  interest 
was  duly  noted  and  indorsed  thereon  by  the  insurance  companies.  .  .  . 
The  trial  Court  found  that,  at  the  date  of  insurance,  "there  were  two 
buildings  on  the  lot  known  as  No.  160  Mott  street.  New  York  city,  viz., 
a  three-story  brick  building,  fronting  on  the  street,  twenty-five  feet  wide 
by  forty-six  feet  deep,  with  an  extension,  and  a  five-story  brick  building 
twenty-four  feet  wide   and   thirty-nine   feet   deep."     On   the   13th   of 
December,  1890,  a  fire  occurred  that  injured  the  three-story  building  to 
the  amount  of  a  few  hundred  dollars,  but  which  injured  the  five-story 
building  to  the  amount  of  several  thousand  dollars.     The  insurance 
companies  repaired  the  damage  to  the  former  only,  and  refused  to  pay 
any  part  of  the  damage  to  the  latter.     The  complaint  was  dismissed  for  ' 
the  reason  that  the  policy  did  not  cover  the  rear  building,  and  that  the 


1284         BOOK  VI :  parol  evidence  rules      No.  860 

defendant  had  fulfilled  its  contract  hy  repairing  the  damages  to  the  front 
building.   .   .   . 

At  the  trial,  the  defendant's  manager  was  asked:  "When  your 
company  issued  this  policy  on  which  this  action  is  brought,  which  building 
did  you  intend  to  insure?"  This  was  objected  to  as  "incompetent, 
irrelevant  and  immaterial,  and  as  calling  for  a  conclusion";  but  the 
objection  was  overruled  and  the  plaintiff  excepted.  The  witness  an- 
swered, in  substance,  that  he  intended  to  insure  the  front  building 
only.  He  was  then  asked:  "Did  you  intend  to  insure  more  than  one 
building?"  and  subject  to  the  same  objection,  ruling  and  exception, 
he  answered,  "No." 

George  Richards  and  Thomas  McAdam,  for  appellant.  It  was  error 
to  allow  Coit  to  say  what  structure  he  intended  to  cover  by  the 
policy.  .  .  . 

William  D.  Murray,  for  respondent.  All  of  the  evidence  to  which 
objection  was  made  was  admissible  as  it  was  introduced  to  place  the 
court  in  the  position  of  the  contracting  parties,  not  to  vary  the  terms 
of  the  written  contract,  but,  an  ambiguity  having  been  raised  by  the 
plaintiff,  to  enable  the  court  to  interpret  the  contract  in  the  light  of 
surrounding  facts  as  they  existed  at  the  time  of  its  execution.  .  .  . 

Vann,  J.  .  .  .  The  application  for  insurance  was  very  brief,  con- 
sisting mainly  of  the  names  of  persons  desiring  insurance,  and  a  descrip- 
tion of  the  property  to  be  insured,  as  "160  Mott,"  occupied  for  "stores 
and  dwellings."  The  company  consulted  its  insurance  map  before  issu- 
ing the  policy,  and  thus  learned  that  there  were  two  buildings  upon  the 
property,  and  the  general  location  of  each.  It  also  learned  the  same  facts 
from  the  clerk  who  delivered  the  application.  The  policy  describes  the 
property  insured  as  "  the  brick  building  and  additions,  .  .  .  situate  No. 
160  Mott  street,  city  of  New  York,  occupied  for  stores  and  dwellings." 
.  .  .  We  have  a  policy  which,  if  it  had  been  read  before  the  fire  by  a  person 
standing  upon  the  premises  and  familiar  with  the  buildings  and  the  way 
they  were  occupied,  would  leave  him  in  doubt  whether  the  property 
insured  embraced  all  the  buildings  or  only  a  part.  For  this  ambiguity 
the  company  is  responsible,  because  it  prepared  and  executed  the  con- 
tract, and  the  language  used  is  wholly  its  own.  While  it  is  the  duty  of 
the  Court  to  so  construe  the  policy  as,  if  possible,  to  give  effect  to  every 
word  used,  if  the  sense  in  which  they  were  used  is  uncertain  and  the 
meaning  is  ambiguous,  that  meaning  should  be  given  which  is  most 
favorable  to  the  insured.  .  .  .  The  trial  Court,  however,  resolved  the 
doubt  in  favor  of  the  insurer,  as  it  found  that  the  company  "  intended  to 
insure  and  did  insure  only  the  three-story  brick  building  situate  on  the 
front  of  the  lot  No.  160  Mott  street  in  the  city  of  New  York,"  and  that 
it  "did  not  intend  to  insure  and  did  not  insure  the  five-story  brick 
building  situate  on  the  rear  of  the  lot  No.  160  Mott  street.  New  York 
city."  .  .  . 

In  finding  the  fact,  it  is  reasonable  to  presume  that  he  was  influenced 


No.  860  INTERPRETATION  OF  LEGAL  ACTS  1285 

by  the  testimony  of  the  manager  of  the  defendant  in  relation  to  that 
subject,  [stating  the  testimony  excepted  to.] 

.  .  .  The  witness  was  thus  permitted  to  testify  to  the  secret  opera- 
tion of  his  own  mind,  although  it  had  not  been  communicated  to  the  other  ' 
party  to  the  contract.  He  wrote  the  policy  and  countersigned  it,  and  in  /i 
doing  so  stood  for  the  company.  When  the  Court  allowed  him  to  state 
his  intention  in  issuing  the  policy,  it  virtually  permitted  one  party  to  a 
written  agreement  to  state  what  he  meant  by  it,  against  the  objection  of 
the  other.  The  writing,  itself,  was  the  best  evidence  of  the  intent  and 
meaning  of  the  company.  As  its  meaning  was  ambiguous,  evidence  was 
properly  received  to  place  the  court  in  the  position  of  the  parties  and 
enable  it  to  appreciate  the  force  of  the  words  they  used  in  reducing  the 
contract  to  writing.  It  then  became  the  duty  of  the  Court,  sitting 
without  a  jury,  to  decide  what  the  parties,  thus  situated,  meant  by  the 
language  employed.  But  one  party  to  a  written  contract  cannot  state 
how  he  understood  it  when  he  signed  it,  nor  testify  as  to  its  meaning  or 
as  to  his  intent.  That  would  be  a  violation  of  the  rule  that  the  writing 
is  the  best  evidence  and  would  tend  to  destroy  the  effect  of  the  promise. 
What  the  parties  intended  should  have  been  gathered  from  the  contract, 
read  in  the  light  of  the  circumstances  surrounding  them  when  they  used 
the  doubtful  words.  Parol  evidence  was  not  admissible  to  show  what 
either  party  secretly  intended,  as  that  would  add  to  or  take  from  the 
writing  which  is  presumed  to  express  the  intention  of  both. 

We  think  that  the  evidence  above  referred  to  was  improperly  received 
and  that  the  judgment  appealed  from  should,  therefore,  be  reversed  and 
a  new  trial  granted,  with  costs  to  abide  the  event. 

All  concur.     Judgment  reversed. 


1286  BOOK  VI :    parol  evidence  rules  No.  862 


SUB-TITLE  II.     SOURCES    FOR    DETERMINING 
INTERPRETATION 

862.  History.^  It  was  a  part  of  the  stiff  formalism  of  earlier  interpretation, 
not  only  that  the  law  should  fix  the  meaning  of  words  and  phrases,  but  also  that 
all  aids  to  the  meaning  must  be  found  in  the  document  itself.  It  is  the  document 
that  "speaks,"  and  if  the  document  does  not  speak  for  itself,  we  cannot  make 
other  things  speak  instead  of  it,  —  such  was  the  notion.  The  piu-ely  relative 
nature  of  words  —  their  necessary  association  with  external  objects  —  was  as 
yet  not  conceived.  They  were  tangible  tools,  which  must  do  their  own  work 
or  remain  ineffective.  The  A\Titing  fixed  the  will  of  the  WTiter,  and  to  look  away 
from  the  writing  was  suggestive  only  of  deviation  and  uncertainty.  "The  con- 
struction of  wills,"  says  Lord  Coke,  "ought  to  be  collected  from  the  words  of  the 
will  in  writing,  and  not  by  any  averment  [i.e.,  circumstances]  of  evidence  out  of 
it,"  and  then  he  recurs  to  the  old  apprehension  of  uncertainty  for  legal  advisers 
and  landed  estates,  "for  it  would  be  full  of  great  inconvenience  that  none  should 
know  by  the  WTitten  words  of  a  will  what  construction  to  make  or  advice  to  give, 
but  it  should  be  controlled  by  collateral  averments  out  of  the  will."  A  hundred 
years  later.  Lord  Holt,  a  conservative  by  nature,  protests  in  like  strain  against 
the  newer  spirit:  "If  we  once  travel  into  the  affairs  of  the  testator,  and  leave  the 
will,  we  shall  not  know  the  mind  of  the  testator  by  his  words,  but  by  his  circum- 
stances ;  so  that  if  you  go  to  a  lawyer,  he  shall  not  know  how  to  expound  it.  Men's 
rights  will  be  very  precarious  upon  such  construction.  We  must  not  depart  from 
the  will  to  find  the  meaning  of  it  in  things  out  of  it."  The  echo  of  conservatism 
is  heard  in  Lord  Eldon's  remark  that,  "generally  speaking,  you  must  construe 
instruments  by  what  is  found  within  their  foiu-  corners." 

The  stages  of  progress  may  be  marked  off  somewhat  as  follows: 

(1)  Even  in  Coke's  time  it  was  conceded  that  in  case  of  an  equivocation  or 
double-meaning  description,  outside  data  could  be  sought,  because  "no  incon- 
venience can  arise  if  an  averment  [of  extrinsic  data]  in  such  case  be  taken;  for 
he  who  sees  such  will  cannot  be  deceived  by  any  secret  invisible  averment,  for 
he  ought  at  his  peril  to  inquire."     This  was  at  first  the  sole  specific  exception. 

(2)  Little  by  little  it  began  to  be  seen  that  there  might  be  other  necessary 
instances  of  resort  to  "things  extrinsical"  (in  Lord  Holt's  phrase).  Lord  Cowper 
and  Lord  Hardwicke  were  breakers  of  new  ground  in  this  respect.  By  the  1800s 
the  weight  of  opinion  conceded  what  Lord  Thurlow  had  laid  down,  that  not  only 
for  an  ec[uivocation,  but  also  for  any  real  and  insiu-mountable  uncertainty  of 
meaning,  resort  to  extrinsic  circumstances  for  light  was  permissible. 

(3)  The  truth  had  finally  to  be  recognized  that  words  always  need  interpre- 
tation; that  the  process  of  interpretation  inherently  and  invariably  means  the 
ascertainment  of  the  association  between  words  and  external  objects;  and  that 
this  makes  inevitable  a  free  resort  to  extrinsic  matters  for  applying  and  enforcing 
the  document.  "Words  must  be  translated  into  things  and  facts."  Instead  of 
the  fallacious  notion  that  "there  should  be  interpretation  only  when  it  is  needed," 
the  fact  is  that  there  must  always  be  interpretation. 


^  Abridged  from  the  present  Compiler's  Treatise  on  Evidence  (1905.  Vol.  IV, 
§  2470). 


No.  865         INTERPRETATION  OF  LEGAL  ACTS  1287 

863.  Sir  James  Wigkam,  V.  C.  Extrinsic  Evidence  in  Aid  of  the  Interpre- 
tation of  Wills.  (1831.  Proposition  V.)  For  the  purpose  of  determining  the 
object  of  a  testator's  bounty,  or  the  subject  of  disposition,  or  the  quantity  of 
interest  intended  to  be  given  by  his  will,  a  Court  may  incjuire  into  every  material 
fact  relating  to  the  person  who  claims  to  he  interested  under  the  will,  and  to  the  -prop- 
erty which  is  claimed  as  the  subject  of  disposition,  and  to  the  circumstances  of  the 
testator  and  of  his  family  and  affairs,  for  the  purpose  of  enabling  the  Court  to 
identify  the  person  or  thing  intended  by  the  testator,  or  to  determine  the  quan- 
tity of  interest  he  has  given  by  his  will.  The  same  (it  is  conceived)  is  true  of 
every  other  disputed  point,  respecting  which  it  can  be  shown  that  a  knowledge 
of  extrinsic  facts  can,  in  any  way,  be  made  ancillary  to  the  right  interpretation 
of  a  testator's  words. 

864.  Attorney  General  v.  Drtjmmond.  (1842.  Chancery.  1  Dr.  &  W. 
356.)  SuGDEN,  V.  C.  (interpreting  a  deed  containing  the  words  "Christian"  and 
"  Protestant  dissenter").  The  Court  is  at  liberty  to  inquire  into  all  the  surround- 
ing circumstance  which  may  have  acted  upon  the  minds  of  the  persons  by  whom 
the  deetl  or  will  (it  matters  not  whether  it  was  one  or  the  other)  was  executed. 
.  .  .  The  Court  has  not  merely  a  right,  but  it  is  its  duty  to  inquire  into  the 
surrounding  circumstances,  before  it  can  approace  the  construction  of  the 
instrument  itself. 


Topic  1.     Declarations  of  Intention 

865.  Francis,  Lord  Bacon.  Maxims,  (circa  1597.  Works,  Spedding's 
ed.,  1861,  vol.  XIV,  p.  273).  Rule  XXV.  There  be  two  sorts  of  ambi- 
guities of  words;  the  one  is  ambiguitas  patens  and  the  other  is  ambigvitas 
latcns. 

Patens  is  that  which  appears  to  be  ambiguous  upon  the  deed  or  instru- 
ment; latejis  is  that  which  seemeth  certain  and  without  ambiguity  for 
anything  that  appeareth  upon  the  deed  or  instrument,  but  there  is  some 
collateral  matter  out  of  the  deed  that  breedeth  the  ambiguity. 

(1)  Ambiguitas  patens  is  never  holpen  by  averment,  and  the  reason  is^ 
because  the  law  will  not  couple  and  mingle  matter  of  specialty,  which  is 
of  the  higher  account,  with  matter  of  averment,  which  is  of  inferior 
account  in  law;  for  that  were  to  make  all  deeds  hollow  and  subject  to 
averment,  and  so,  in  effect,  that  to  pass  without  deed,  which  the  law 
appointeth  shall  not  pass  but  by  deed.  Therefore  if  a  man  give  land  "  to 
I.  D.  et  I.  S.  hoeredibus,"  and  do  not  limit  to  whether  of  their  heirs;  it 
shall  not  be  supplied  by  averment  to  whether  of  them  the  intention  was 
the  inheritance  should  be  limited. 

(2)  But  if  it  be  ambigvitas  latcns,  then  otherwise  it  is.  As  I  grant  my 
manor  of  S.  "to  I.  F.  and  his  heirs,"  here  appeareth  no  ambiguity  at  all 
upon  the  deed;  but  if  the  truth  be  that  I  have  the  manors  both  of  South 
S.  and  North  S.  this  ambiguity  is  matter  in  fact;  and  therefore  it  shall  be 
holpen  by  averment,  whether  of  them  it  was  that  the  parties  intended 
should  pass. 

(3)  x\nother  sort  of  ambiguitas  latens  is  correlative  unto  this :  for  this 
ambiguity  spoken  of  before  is,  when  one  name  and  appellation  doth 


1288 


BOOK  VI :     PAROL  EVIDENCE  RULES 


No.  865 


denominate  divers  things;  and  the  second  is,  when  the  same  thing  is  called 
by  divers  names.  As  if  I  give  lands  "  to  Christ  Church  in  Oxford,"  and 
the  name  of  the  corporation  is  "  Ecclesia  Christi  in  Universitate  Oxford"; 
this  shall  be  holpen  by  averment,  because  there  appears  no  ambiguity  in 
the  words:  for  the  variance  is  matter  in  fact.  But  the  averment  shall 
not  be  of  the  intention,  because  it  does  not  stand  with  the  words.  For 
in  the  case  of  equivocation  the  general  intent  includes  both  the  special, 
and  therefore  stands  with  the  Avords;  but  so  it  is  not  in  variance;  and 
therefore  the  averment  must  be  a  matter  that  doth  induce  a  certainty, 
and  not  of  intention;  as  to  say  that  the  precinct  of  "  Oxford "  and  of  "  the 
University  of  Oxford"  is  one  and  the  same,  and  not  to  say  that  the 
intention  of  the  parties  was  that  the  grant  should  be  to  Christ  Church 
in  the  University  of  Oxford. 


866.   THE  LORD   CHEYNEY'S  CASE   (1591) 
5  Co.  Rep.  68a 

[Devise  to  his  son  H.  and  the  heirs  of  his  body,  and  then  to  T.  C.and 
the  heirs  male  of  his  body,  on  condition  "  that  he  or  they  or  any  of  them" 
shall  not  alienate.  Proof  by  witnesses  that  it  was  "  the  intent  and  mean- 
ing of  the  testators"  to  include  under  "he  or  they"  his  son  H.  as  well  as 
T.  C,  was  excluded.] 

He  should  not  be  received  to  such  averment  out  of  the  will.  .  .  .  But 
if  a  man  has  two  sons,  both  baptized  by  the  name  of  John,  and  conceiving 
that  the  elder,  who  had  been  long  absent,  is  dead,  devises  his  land  by  his 
will  in  writing  to  his  son  John  generally,  and  in  truth  the  elder  is  living,  — 
in  this  case  the  younger  son«may  in  pleading  or  in  evidence  allege  the 
devise  to  him,  and  if  it  be  denied,  he  may  produce  witnesses  to  prove  his 
father's  intent,  that  he  thought  the  other  to  be  dead,  or  that  he  at  the 
time  of  the  will  named  his  son  John  the  younger,  and  the  writer  left  out 
the  addition  of  the  younger. 


A/ 


867.   MILLER  v.  TRAVERS 

Chancery.     1832 

8  Bing.  244 

In  this  case  the  plaintiff,  John  Riggs  Miller,  filed  his  bill  against  the 
defendants  for  the  purpose  of  establishing  the  will  of  the  late  Sir  John 
Edward  Riggs  Miller,  Bart.,  and  for  carrying  into  execution  the  trusts 
thereof.  .  .  .  The  testator  by  his  will,  duly  executed,  devised  "all  his 
freehold  and  real  estates  whatsoever,  situate  in  the  county  of  Limerick, 
and  in  the  city  of  Limerick,"  to  certain  trustees  therein  named  and  their 
heirs.     At  the  time  of  making  his  will  he  had  no  real  estate  in  the  countv 


No.  867  INTERPRETATION   OF   LEGAL  ACTS  1289 

of  Limerick,  but  he  had  a  small  real  estate  in  the  city  of  Limerick,  and 
considerable  real  estates  situate  in  the  county  of  Clare.  The  real  estate 
in  the  city  of  Limerick  is  admitted  to  have  passed  under  the  devise;  but 
the  plaintiff  contends  that  he  is  at  liberty  to  show  by  parol  evidence  that 
the  testator  intended  his  estates  in  Clare  also  to  pass  under  the  same 
devise. 

TiNDAL,  C.  J.  .  .  .  The  main  question  between  the  parties,  and 
which  has  formed  the  principal  subject  of  argument  before  us,  is  this. 
Whether  parol  evidence  is  admissible  to  show  the  testator's  intention 
that  his  real  estates  in  the  county  of  Clare  should  pass  by  his  will?  .  .  . 

This  question  arises  upon  facts,  either  admitted  or  proved  in  the 
cause,  which  are  few  and  simple. 

The  general  character  of  the  parol  evidence  which  the  plaintiff  con- 
tends  he  is  at  liberty  to  produce,  in  order  to  establish  such  intention  in 
The  devisor,  is  this;  first,  that  the  estate  in  the  city  of  Limerick  is  so  small 
and  so  disproportioned  to  the  nature  of  the  charges  laid  upon  it,  and  the 
trusts  which  are  declared,  as  to  make  it  manifest  there  must  have  been 
some  mistake;  and  in  order  to  show  what  that  mistake  was,  the  plaintiff 
proposes  to  prove  that  in  the  copy  of  the  will  which  had  been  submitted 
to  the  testator  for  his  inspection,  and  had  been  approved  and  returned 
by  him,  the  devise  in  question  stood  thus:  "All  my  freehold  and  real 
estates  whatsoever  situate  in  the  counties  of  Clare,  Limerick  and  in  the 
city  of  Limerick;"  that  the  testator  directed  some  alterations  to  be  made 
in  other  parts  of  his  will,  and  that  the  same  copy  of  the  will,  accompanied 
with  a  statement  of  the  proposed  alterations,  was  sent  by  the  testator's 
attorney  to  his  conveyancer,  in  order  that  such  alterations  might  be 
reduced  into  proper  form;  and  that  upon  such  occasion  the  conveyancer, 
besides  making  the  alterations  directed,  did  by  mistake,  and  without  any 
authority,  strike  out  the  words  "counties  of  Clare"  and  substitute  the 
words  "county  of"  in  lieu  thereof,  so  as  to  leave  the  devise  in  question 
in  the  same  precise  form  as  it  now  stands  in  the  executed  will.  The 
plaintiff  further  proposes  to  prove  that  a  fair  copy  of  the  will  so  altered 
was  sent  to  the  testator,  who,  after  having  kept  it  by  him  for  some  time, 
executed  the  same  in  the  manner  required  by  law,  without  adverting  to 
the  alteration  above  pointed  out. 

L^pon  the  fullest  consideration,  however,  it  appears  to  the  Lord  Chief 
Baron  and  myself,  that  admitting  it  may  be  shown  from  the  description 
of  the  property  in  the  city  of  Limerick,  that  some  mistake  may  have 
arisen,  yet,  still,  as  the  devise  in  question  has  a  certain  operation  and 
effect,  namely,  the  effect  of  passing  the  estate  in  the  city  of  Limerick,  and 
as  the  intention  of  the  testator  to  devise  any  estate  in  the  county  of  Clare 
cannot  be  collected  from  the  will  itself,  nor  without  altering  or  adding 
to  the  words  used  in  the  will,  such  intention  cannot  be  supplied  by  the 
evidence  proposed  to  be  given. 

It  may  be  admitted,  that  in  all  cases  in  which  a  difficulty  arises  in 
applying  the  words  of  a  will  to  the  thing  which  is  the  subject-matter  of 


1290  BOOK    VI :     PAROL   EVIDENCE    RULES  No.  867 

the  devise,  or  to  the  person  of  the  devisee,  the  difficulty  or  ambiguity 
which  is  introduced  by  the  admission  of  extrinsic  evidence,  may  be 
rebutted  and  removed  by  the  production  of  further  evidence,  upon  the 
same  subject,  calculated  to  explain  what  was  the  estate  or  subject-matter 
really  intended  to  be' devised,  or  who  was  the  person  really  intended  to 
take  under  the  will ;  and  this  appears  to  us  to  be  the  extent  of  the  maxim 
"Ambiguitas  verborum  latens,  verificatione  suppletur." 

But  the  cases  to  which  this  construction  applies  will  be  found  to 
range  themselves  into  two  separate  classes,  distinguishable  from  each 
other,  and  to  neither  of  which  can  the  present  case  be  referred. 

The  first  class  is,  where  the  description  of  the  thing  devised,  or 
of  the  devisee,  is  clear  upon  the  face  of  the  will ;  but  upon  the  death  of  the 
testator  it  is  found  that  there  are  more  than  one  estate  or  subject-matter 
of  devise,  or  more  than  one  person  whose  description  follows  out  and  fills 
the  words  used  in  the  will.  As  where  the  testator  devises  his  manor  of 
Dale,  and  at  his  death  it  is  found  that  he  has  two  manors  of  that  name. 
South  Dale  and  North  Dale;  or  where  a  man  devises  to  his  son  John, 
and  he  has  two  sons  of  that  name.  In  each  of  these  cases  respectively 
parol  evidence  is  admissible  to  show  which  manor  was  intended  to  pass, 
and  which  son  was  intended  to  take.  The  other  class  of  cases  is  that  in 
which  the  description  contained  in  the  will  of  the  thing  intended  to  be 
devised,  or  of  the  person  who  is  intended  to  take,  is  true  in  part,  but  not 
true  in  every  particular.  As  where  an  estate  is  devised  called  A.,  and  is 
described  as  in  the  occupation  of  B.,  and  it  is  found,  that  though  there  is 
an  estate  called  A.,  yet  the  whole  is  not  in  B.'s  occupation;  or  where  an 
estate  is  devised  to  a  person  whose  surname  or  Christian  name  is  mis- 
taken; or  whose  description  is  imperfect  or  inaccurate;  in  which  latter 
class  of  cases  parol  evidence  is  admissible  to  show  what  estate  was  in- 
tended to  pass,  and  who  was  the  devisee  intended  to  take,  provided  there 
is  sufficient  indication  of  intention  appearing  on  the  face  of  the  will  to 
justify  the  application  of  the  evidence. 

.  .  .  But  the  case  now  before  the  Court  does  not  appear  to  fall 
within  either  of  these  distinctions.  There  are  no  words  in  the  will  which 
contain  an  imperfect,  or,  indeed,  any  description  whatever  of  the  estates 
in  Clare.  The  present  case  is  rather  one  in  which  the  plaintiff  does  7wt 
endeavor  to  apply  the  description  contained  in  the  will  to  the  estates  in 
Clare,  but  in  order  to  make  out  such  intention  is  compelled  to  introduce 
new  words  and  a  new  description  into  the  body  of  the  will  itself.  The 
testator  devises  all  his  estates  "in  the  county  of  Limerick  and  the  city 
of  Limerick."  .  .  .  The  plaintiff,  however,  contends,  that  he  has  a  right 
to  prove,  that  the  testator  intended  to  pass  not  only  the  estate  in  the  city 
of  Limerick,  but  an  estate  in  a  county  not  named  in  the  will,  namely,  the 
county  of  Clare,  and  that  the  will  is  to  be  read  and  construed  as  if  the 
word  Clare  stood  in  the  place  of  or  in  addition  to  that  of  Limerick.  But 
this,  it  is  manifest,  is  not  merely  calling  in  the  aid  of  extrinsic  evidence 
to  apply  the  intention  of  the  testator,  as  it  is  to  be  collected  from  the  will 


No.  8G7  INTERPRETATION   OF   LEGAL   ACTS  1291 

itself,  to  the  existing  state  of  his  property;  it  is  calhng  in  extrinsic  evi- 
dence to  introduce  into  the  will  an  intention  not  apparent  from  a  defective 
or  mistaken  description ;  it  is  making  the  will  speak  upon  the  face  of  the 
will.  It  is  not  simply  removing  a  difficulty  arising  upon  a  subject  on 
which  it  is  altogether  silent,  and  is  the  same  in  effect  as  the  filling  up  a 
blank  which  the  testator  might  have  left  in  his  will.  It  amounts,  in 
short,  by  the  admission  of  parol  evidence,  to  the  making  of  a  new  devise 
for  the  testator,  which  he  is  supposed  to  have  omitted.  Now,  the  first 
objection  to  the  introduction  of  such  evidence  is  that  it  is  inconsistent 
with  the  rule,  which  reason  and  sense  lay  down  and  which  has  been 
universally  established  for  the  construction  of  wills,  namely,  that  the 
testator's  intention  is  to  be  collected  from  the  words  used  in  the  will, 
and  that  words  which  he  has  not  used  cannot  be  added. 

But  it  is  an  objection  no  less  strong  that  the  only  mode  of  proving  the 
alleged  intention  of  the  testator  is,  by  setting  up  the  draft  of  the  will 
against  the  executed  will  itself.  As,  however,  the  copy  of  the  will  which 
omitted  the  name  of  the  county  of  Clare  was  for  some  time  in  the  custody 
of  the  testator,  and,  therefore,  open  for  his  inspection,  which  copy  was 
afterwards  executed  by  him  with  all  the  formalities  required  by  the 
Statute  of  Frauds,  the  presumption  is  that  he  must  have  seen  and 
approved  of  the  alteration,  rather  than  that  he  overlooked  it  by  mistake. 
It  is  unnecessary  to  advert  to  the  danger  of  allowing  the  draft  of  the  will 
to  be  set  up  as  of  greater  authority  to  evince  the  intention  of  the  testator 
than  the  will  itself,  after  the  will  has  been  solemnly  executed,  and  after 
the  death  of  the  testator.  If  such  evidence  is  admissible  to  introduce  a 
new  subject-matter  of  devise,  why  not  also  to  introduce  the  name  of  a 
devisee  altogether  omitted  in  the  will?  If  it  is  admissible  to  introduce 
new  matter  of  devise,  or  a  new  devisee,  why  not  to  strike  out  such  as  are 
contained  in  the  executed  will?  The  effect  of  such  evidence  in  either  case 
would  be,  that  the  will,  though  made  in  form  by  the  testator  in  his  life- 
time, would  really  be  made  by  the  attorney  after  his  death ;  that  all  the 
guards  intended  to  be  introduced  by  the  Statute  of  Frauds  would  be 
entirely  destroyed,  and  the  statute  itself  virtually  repealed.  And  upon 
examination  of  the  decided  cases  on  which  the  plaintiff  has  relied  in 
argument,  no  one  will  be  found  to  go  the  length  of  supporting  the  proposi- 
tion which  he  contends  for;  on  the  contrary,  they  will  all  be  found  con- 
sistent with  the  distinction  above  adverted  to,  —  that  an  uncertainty 
which  arises  from  applying  the  description  contained  in  the  will  either 
to  the  thing  devised  or  to  the  person  of  the  devisee,  may  be  helped  by 
parol  evidence ;  but  that  a  new  subject-matter  of  devise,  or  a  new  devisee, 
where  the  will  is  entirely  silent  upon  either,  cannot  be  imported  by  parol 
evidence  into  the  will  itself.  .  .  . 

The  cases  against  the  plaintiff's  construction  appear  to  bear  more 
closely  on  the  point.  In  the  first  place,  it  is  well  established,  that  where 
a  complete  blank  is  left  for  the  name  of  a  legatee  or  devisee,  no  parol 
evidence,  however  strong,  will  be  allowed  to  fill  it  up  as  intended  by  the 


1292        BOOK  VI :  parol  evidence  rules      No.  867 

testator.  Hunt  v.  Hort,  3  Bro.  C.  C.  311,  and  in  many  other  cases. 
Now  the  principle  must  be  precisely  the  same,  whether  it  is  the  person 
of  the  devisee,  or  the  estate  or  thing  devised,  which  is  left  altogether  in 
blank.  And  it  requires  a  very  nice  discrimination  to  distinguish  between 
the  case  of  a  will,  where  the  description  of  the  estate  is  left  altogether  in 
blank,  and  the  present  case,  where  there  is  a  total  omission  of  the  estates 
in  Clare.  .  .  . 

As  well,  therefore,  upon  the  authority  of  the  cases,  and  more  particu- 
larly of  that  which  is  last  referred  to,  as  upon  reason  and  principle,  we 
think  the  evidence  offered  by  the  plaintiff  would  be  inadmissible  upon 
I  \\  the  trial  of  the  issue,  and  that  it  would  therefore  be  useless  to  grant  the 
\  I    issue  in  the  terms  directed  by  the  Vice-Chancellor.  .  .  . 
Order  of  the  Vice-Chancellor  reversed. 


868.   DOE  DEM.   SIMON  HISCOCKS  v.  JOHN  HISCOCKS 

Exchequer.     1839 

5  M.  &  W.  363 

Ejectment  for  lands  in  the  county  of  Devon.  At  the  trial  before 
BosANQUET,  J.,  at  the  Devonshire  Spring  Assizes,  1838,  it  appeared  that 
the  lessor  of  the  plaintiff  claimed  the  premises  in  dispute  under  the  will  of 
Simon  Hiscocks,  the  grandfather  of  both  the  lessor  of  the  plaintiff  and 
the  defendant,  dated  July  7,  1822.  .  .  .  By  his  will,  Simon  Hiscocks, 
after  devising  estates  to  his  son  Simon  for  life,  and  from  and  after  his 

\  death  to  his  grandson,  Henry  Hiscocks,  in  tail  male,  and  making,  as  to 
certain  other  estates,  an  exactly  similar  provision  in  favor  of  his  son  John 
for  life;  then,  after  his  death,  the  testator  devises  those  estates  to  "my 
grandson,  John  Hiscocks,  eldest  son  of  the  said  John  Hiscocks."     It  is 

,  on  this  devise  that  the  question  wholly  turns.     In  fact,  John  Hiscocks, 

'  the  father,  had  been  twice  married ;  by  his  first  wife  he  had  Simon,  the 
lessor  of  the  plaintiff,  his  eldest  son ;  the  eldest  son  of  the  second  marriage 
was  John  Hiscocks,  the  defendant.  The  devise,  therefore,  does  not, 
both  by  name  and  description,  apply  to  either  the  lessor  of  the  plaintiff, 
who  is  the  eldest  son,  but  whose  name  is  Simon,  nor  to  the  defendant, 
who,  though  his  name  is  John,  is  not  the  eldest  son.  The  cause  was 
tried  before  Mr.  Justice  Bosanquet,  at  the  Spring  Assizes  for  the  County 
of  Devon,  1838,  and  that  learned  judge  admitted  evidence  of  the  instruc- 
tions of  the  testator  for  the  will,  and  of  his  declarations  after  the  will  was 

j   made,  in  order  to  explain  the  ambiguity  in  the  devise,  arising  from  this 

]C^\  state  of  facts;    and  the  verdict  having  been  found  for  the  lessor  of  the 

plaintiff,  a  rule  has  been  obtained  for  a  non-suit  or  new  trial,  on  the 

ground    that  such  evidence  of    intention  was   not  receivable    in    this 

case.  .  .  . 

Crowder  and  Bere  showed  cause,  and  contended  that  this  was  a  case  of 


No.  868  INTERPRETATION   OF   LEGAL  ACTS  1293 

latent  ambiguity,  which  did  not  arise  until  the  state  of  the  family  was 
proved,  and  it  appeared  that  the  testator  Lad  made  a  mistake  in  the 
name  of  the  intended  devisee;  and  the  case  therefore  fell  within  the 
established  principle,  that  a  latent  ambiguity,  where  no  uncertainty 
appeared  on  the  face  of  the  will  itself,  might  be  holpen  by  extrinsic 
evidence.  .  .  . 

Erie  and  Butt,  contra.  .  .  .  The  evidence  of  the  testator's  intention 
was  not  admissible  in  this  case,  because  it  went  to  show  an  intention 
contradictory  of  one  which  was  plainly  expressed  in  the  will,  and  was 
capable  of  an  application;  or,  if  not  applicable  by  inquiry  into  the 
surrounding  circumstances,  that  the  devise  was  altogether  void.  .  .  . 

The  judgment  of  the  Court  was  now  delivered  by 

Lord  Abinger,  C.  B.  (after  stating  the  case).  After  fully  considering 
the  question,  which  was  very  well  argued  on  both  sides,  we  think  that 
there  ought  to  be  a  new  trial. 

The  object  in  all  cases  is  to  discover  the  intention  of  the  testator. 
The  first  and  most  obvious  mode  of  doing  this  is  to  read  his  will  as  he  has 
written  it,  and  collect  his  intention  from  his  words.  But  as  his  words 
refer  to  facts  and  circumstances  respecting  his  property  and  his  family, 
and  others  whom  he  names  or  describes  in  his  will,  it  is  evident  that  the 
meaning  and  application  of  his  words  cannot  be  ascertained,  without 
evidence  of  all  those  facts  and  circumstances.  To  understand  the 
meaning  of  any  writer,  we  must  first  be  apprised  of  the  persons  and  cir- 
cumstances that  are  the  subjects  of  his  alhisions  or  statements;  and  if 
these  are  not  fully  disclosed  in  his  work,  we  must  look  for  illustration  to 
the  history  of  the  times  in  which  he  wrote,  and  to  the  works  of  contempo- 
raneous authors.  All  the  facts  and  circumstances,  therefore,  respecting 
persons  or  property,  to  which  the  will  relates,  are  undoubtedly  legitimate 
and  often  necessary  evidence,  to  enable  us  to  understand  the  meaning 
and  application  of  his  words.  Again,  the  testator  may  have  habitually 
called  certain  persons  or  things  by  peculiar  names,  by  which  they  were 
not  commonly  known.  If  these  names  should  occur  in  his  will,  they 
could  only  be  explained  and  construed  by  the  aid  of  evidence  to  show  the 
sense  in  which  he  used  them,  in  like  manner  as  if  his  will  were  written  in 
cypher,  or  in  a  foreign  language.  The  habits  of  the  testator  in  these 
particulars  must  be  receivable  as  evidence  to  explain  the  meaning  of 
his  will. 

But  there  is  another  mode  of  obtaining  the  intention  of  the  testator, 
which  is  by  evidence  of  his  declarations,  of  the  instructions  given  for  his 
will,  and  other  circumstances  of  the  like  nature,  which  are  not  adduced 
for  explaining  the  words  or  meaning  of  the  will,  but  either  to  supply 
some  deficiency,  or  remove  some  obscurity,  or  to  give  some  effect  to 
expressions  that  are  unmeaning  or  ambiguous. 

Now,  there  is  but  one  case  in  which  it  appears  to  us  that  this  sort  of 
evidence  of  intention  can  properly  be  admitted,  and  that  is,  where  the 
meaning  of  the  testator's  words  is  neither  ambiguous  nor  obscure,  and 


1294  BOOK  VI :    parol  evidence  rules  No.  868 

where  the  devise  is  on  the  face  of  it  perfect  and  inteUigible,  but,  from 
some  of  the  circumstances  admitted  in  proof,  an  ambiguity  arises,  as  to 
which  of  the  two  or  more  things,  or  which  of  the  two  or  more  persons 
(each  answering  the  words  in  the  will),  the  testator  intended  to  express. 
Thus,  if  a  testator  devise  his  manor  of  S.  to  A.  B.,  and  has  two  manors, 
of  North  S.  and  South  S.,  it  being  clear  he  means  to  devise  one  only, 
whereas  both  are  equally  denoted  by  the  words  he  has  used,  in  that  case 
there  is  what  Lord  Bacon  calls  "an  equivocation,"  i.e.,  the  words  equally 
apply  to  either  manor,  and  evidence  of  previous  intention  may  be  received 
to  solve  this  latent  ambiguity;  for  the  intention  shows  what  he  meant  to 
do;  and  when  you  know  that,  you  immediately  perceive  that  he  has 
done  it  by  the  general  words  he  has  used,  which,  in  their  ordinary  sense, 
may  properly  bear  that  construction. 

It  appears  to  us  that,  in  all  other  cases  parol  evidence  of  what  was 
the  testator's  intention  ought  to  be  excluded,  upon  this  plain  ground, 
that  his  will  ought  to  be  made  in  writing;  and  if  his  intention  cannot  be 
made  to  appear  by  the  writing,  explained  by  circumstances,  there  is  no 
will.  .  .  .  We  are  prepared  on  this  point  (the  point  in  judgment  in  the 
case  of  Miller  v.  Travers  [ante,  No.  867])  to  adhere  to  the  authority  of 
that  case. 

^Yhe^e  the  description  is  partly  true  as  to  both  claimants,  and  no 
case  of  equivocation  arises,  what  is  to  be  done  is  to  determine  whether 
the  description  means  the  lessor  of  the  plaintiff  or  the  defendant.  The 
description,  in  fact,  applies  partially  to  each,  and  it  is  not  easy  to  see 
how  the  difficulty  can  be  solved.  If  it  were  "res  Integra,"  we  should  be 
much  disposed  to  hold  the  devise  void  for  uncertainty;  but  the  cases  of 
Doe  V.  Huthwaite,  3  B.  &  Aid.  6.32,  Bradshaw  v.  Bradshaw,  and  others, 
are  authorities  against  this  conclusion.  If,  therefore,  by  looking  at  the 
surrounding  facts  to  be  found  by  the  jury,  the  Court  can  clearly  see, 
with  the  knowledge  which  arises  from  those  facts  alone,  that  the  testator 
meant  either  the  lessor  of  the  plaintiff  or  the  defendant,  it  may  so  decide, 
and  direct  the  jury  accordingly.  But  we  think  that,  for  this  purpose, 
they  cannot  receive  declarations  of  the  testator  of  what  he  intended  to 
do  in  making  his  will.   .   .   . 

Rule  absolute  for  a  new  trial. 


869.   WILLARD   v.   DARRAH 

Supreme  Court  of  Missouri.     1902 

168  Mo.  660;  68  S.  W.  1023 

Appeal  from  Saline  Circuit  Court.  Hon.  Richard  Field,  Judge. 
Reversed. 

This  is  a  suit  in  ejectment  for  the  possession  of  an  undivided  one- 
eighth  interest  in  a  tract  of  land  in  Saline  county,  described  in  the  petition. 


No.  869  INTERPRETATION   OF   LEGAL  ACTS  1295 

William  Nelson,  late  of  said  county,  deceased,  is  the  common  source  of 
title.  He  died  testate  on  December  12,  1892,  seized  in  fee  simple  of  the 
premises;  leaving  him  surviving:  three  daughters,  the  defendant, 
Mariah  Darrah,  and  her  two  sisters.  Nannie  Brown  and  Sarah  Bryan; 
two  sons,  James  Nelson  and  John  Nelson;  and  four  grandsons,  Ord 
Nelson  and  Corley  Nelson,  sons  of  his  deceased  son  Lawrence,  and 
plaintiff  John  Willard  and  his  brother  William  Willard,  sons  of  hisi 
deceased  daughter  Elizabeth.  By  his  will  the  testator  devised  the) 
premises  in  question  to  his  said  daughter  the  defendant  Mariah  Darrah,, 
named  therein,  his  sons  James  and  John;  made  provision  for  his  othei| 
two  granddaughters,  Nannie  Brown  and  Sarah  Bryan,  and  for  his  two 
grandsons,  Ord  and  Corley  Nelson,  and  made  the  following  further 
devise:  "4th.  I  give,  devise  and  bequeath  to  my  well-beloved  nephews, 
John  and  William  Willard,  the  following  described  tracts,"  ... 

On  the  trial,  the  plaintiff  introduced  parol  evidence  tending  to  prove 
that  at  the  time  of  his  death  the  testator  had  a  nephew  named  John  D. 
Willard,  and  several  grandnephews,  sons  of  the  said  John  D.,  one  of  whom 
was  named  John  Willard,  and  the  other  named  William  Willard,  and 
upon  these  facts  claimed  that  he  was  pretermitted  in  said  will,  and  as  one 
of  the  heirs  at  law  of  his  grandfather  is  entitled  to  the  interest  sued  for 
in  the  land  devised  to  the  defendant  Mrs.  Darrah.  To  meet  this  claim 
the  defendant  introduced  evidence  tending  to  prove  that  the  said  nephew 
John  D  Willard,  and  the  said  grandnephews  John  Willard  and  William 
Willard,  sons  of  the  said  John  D.,  were  strangers  to  the  testator,  never 
visited  him  and  never  resided  near  him.  That  the  grandsons  John 
W^illard  and  William  Willard  lived  near  their  grandfather,  owned  land 
adjoining  the  land  described  in  the  fourth  clause  of  the  will,  that  he  was 
very  intimate  and  friendly  with  them,  and  repeatedly  declared  that  he 
had  bought  this  land  for  them,  and  also  introduced  E.  M.  Edwards,  a 
lawyer,  as  a  witness  who  testified  in  substance  that  he  drew  the  will  at 
the  request  of  the  testator,  who  directed  that  this  land  should  be  given 
to  the  said  grandchildren  John  and  William  Willard,  but  by  mistake  he 
wrote  the  word  "nephews"  instead  of  "grandchildren"  in  that  clause  of 
the  will.  Without  setting  out  this  parol  evidence  at  length,  it  is  sufficient 
to  say,  that  it  appears  therefrom,  beyond  a  reasonable  doubt,  that  the 
testator  intended  by  the  fourth  clause  of  his  will  to  devise  the  land 
therein  described  to  his  well-known  and  well-beloved  grandchildren,  the 
plaintiff  John  Willard  and  his  brother  William  Willard,  and  not  to  his  two 
grandnephews  of  the  same  names,  who  were  not  personally  known  to,  or 
well-beloved  of  him.  The  case  was  tried  before  the  Court  without  a 
jury.  The  Court  rejected  the  evidence  of  Edwards  the  scrivener,  found 
the  issues  for  the  plaintiff,  and  from  the  judgment  in  his  favor  the  defend- 
ant appeals.  .  .  . 

W.  M.  Williams  and  Diigcjins  &  Rainey,  for  appellant.  .  .  The 
grandsons,  John  and  William  Willard,  being  mis-described  as  nephews, 
and  there  being  no  nephews  bearing  those  names,  this  creates  a  latent 


1296        BOOK  VI :  parol  evidence  rules      No.  869 

ambiguity  in  the  will  of  William  Nelson.  .  .  .  The  incorrect  naming 
in  a  will  of  a  beneficiary  (a  granddaughter)  creates  a  latent  ambiguity, 
and  extrinsic  evidence  is  admissil)le  to  remove  it.  .  .  .  Where  the 
language  of  the  will  is  applicable  to  each  of  two  or  more  persons  or  things, 
it  is  not  only  permissible  to  introduce  evidence  directly  as  to  the  intention 
of  the  testator,  based  upon  the  circumstances  of  the  case,  but  evidence 
of  the  testator's  own  declarations  may  be  adduced  to  show  the  person  or 
thing  intended.  .  .  . 

Alf.  F.  Rector,  A.  R.  Strother  and  Frank  P.  Sebree,  for  respondent. 
The  e\idence  of  Edwards  as  to  the  instructions  given  to  him  by  the  testa- 
tor for  drawing  the  will,  and  as  to  the  declarations  made  to  him  by  the 
testator  as  to  what  disposition  he  intended  to  make  of  his  property,  and 
as  to  what  provisions  he  intended  to  make  for  his  grandchildren,  John 
and  William  Willard,  was  all  incompetent  and  was  therefore  properly 
excluded.  .  .  .  There  is  no  latent  ambiguity  in  the  case.  .  .  .  There 
were  not  two  sets  of  nephews  named  John  and  William  Willard  nor  two 
sets  of  grandchildren  of  those  names.  The  terms  used  can  not  therefore 
"apply  equally  to  two  different  things  or  subjects."  There  were  two 
grandnephews  and  two  grandsons  of  those  names,  and  one  nephew  named 
John  D.  Willard.  .  .  .  Giving  full  effect  to  the  evidence  of  Edwards, 
which  was  excluded  by  the  trial  Court,  it  amounts  only  to  this,  that  the 
clear  and  unambiguous  language  of  the  will  was  a  mistake  of  the  scrivener. 
The  Court  is  now  asked,  not  to  construe  the  will  and  resolve  a  latent 
ambiguity,  but  to  reform  the  will  itself  and  correct  this  alleged  mistake, 
and  make  a  will  for  the  testator  which  he  did  not  make.  This  can  not 
legally  be  done.  .  .  . 

Brace,  P.  J.  (after  stating  the  case  as  above).  The  difficulty  in 
these  cases  is  to  determine  how  far  in  that  direction  the  Courts  may  go 
in  order  to  discover  the  true  intent  and  meaning  of  the  testator.  .  .  . 
There  is  much  conflict  of  judicial  opinion  on  the  subject.  .  .  .  A  learned 
and  able  text-writer,  from  such  a  review,  deduces  the  following  conclusion : 

"The  two  classes  of  cases,  then,  in  which  direct  evidence  dehors  the  will 
appears  admissible  to  show  the  testator's  intention,  are  these:  (1)  Wliere  the 
person  or  thing,  the  object  or  subject  of  the  disposition,  is  described  in  terms 
which  are  applicable  indifferently  to  more  than  one  person  or  thing.  (2)  Where 
the  description  of  the  person  or  thing  is  partly  correct  and  partly  incorrect, 
and  the  correct  part  leaves  something  equivocal."  .  .  .  (Schouler  on  Wills,  3d 
ed.,  §  576.) 

Here  the  devise  is  "  to  my  well-beloved  nephews  John  and  William 
Willard";  and  it  is  found  from  the  indirect  parol  evidence  that  there  are 
two  sets  of  brothers,  each  named  John  and  William  Willard,  —  the 
plaintiff  and  his  brother,  "well-beloved"  grandsons  of  the  testator,  and 
two  grandnephews,  not  "well-beloved"  of  him,  and  having  no  legal  or 
moral  claim  on  his  bounty.  As  to  each  of  these  sets  of  brothers  the 
description  contained  in  the  will  is  partly  correct  and  partly  incorrect. 
It  is  correct  as  to  the  Christian  and  surnames  of  each  set.     It  is  correct 


No.  870  INTERPRETATION  OF  LEGAL  ACTS  1297 

as  to  neither  in  the  superadded  description  of  relationship  to  the  testator, 
as  the  word  "nephew"  sinipHciter,  cannot  be  held  to  include  grand- 
nephews,  and  the  inapplicability  in  this  case  is  re-enforced  by  the  word 
"beloved"  prefixed  thereto.  So  that  the  description  in  the  will,  when  it 
comes  to  be  applied  to  those  only  who  can  possibly  have  been  intended, 
is  just  as  equivocal  in  point  of  fact  as  if  these  additional  words  of  descrip- 
tion had  been  omitted,  as  in  the  first  case  supposed.  The  description  of 
the  persons  is  partly  correct  and  partly  incorrect,  leaving  something 
equivocal.  The  description  does  not  apply  precisely  to  either  of  these 
two  sets  of  brothers,  but  it  is  morally  and  legall^^  certain  that  it  was 
intended  to  apply  to  one  or  the  other,  thus  bringing  the  case  within  the 
rule  established  by  the  second  class  of  cases,  in  which  direct  or  extrinsic 
parol  evidence,  including  expressions  of  intention,  is  admissible.  Such 
evidence  was  therefore  admissible  in  this  case,  in  order  to  solve  a  latent 
ambiguity  produced  by  extrinsic  evidence  in  the  application  of  the  terms 
of  the  will  to  the  objects  of  the  testator's  bounty,  to  prevent  the  fourth 
clause  of  the  wull  from  perishing,  and  obviate  a  partial  intestacy  of  the 
testator.  Its  effect  is  not  to  establish  an  intention  different  in  essence 
from  that  expressed  in  the  will,  but  to  let  in  light  by  which  that  inten- 
tion, rendered  obscure  by  outside  circumstances,  may  be  more  clearly 
discerned,  and  the  will  of  the  testator,  in  its  entire  scope,  effectuated 
according  to  his  true  intent  and  meaning. 

Hence,  we  conclude  that  the  Court  erred  in  rejecting  the  evidence  of 
the  scrivener  Edwards,  and  in  holding  that  the  plaintiff  was  not  named 
or  provided  for  in  the  will  of  his  grandfather,  the  said  William  Nelson. 
The  judgment  of  the  Circuit  Court  is  therefore  reversed. 

All  concur. 

870.  Sir  James  Fitzjames  Stephen.  Digest  of  the  Law  of  Evidence.  (3d  ed. 
Note  XXXIII,  to  Article  91,  Oral  Interpretation  of  Documents.)  It  is  difficult 
to  justify  the  line  drawn  between  the  rule  as  to  cases  in  which  evidence  of  ex- 
pressions of  intention  is  admitted  and  cases  in  which  it  is  rejected  [paragraph  7, 
illustrations  (k),  (I),  (m),  and  paragraph  8,  illustrations  (n)  and  (o)  ].  When 
placed  side  by  side,  such  cases  as  Doe  v.  Hiscocks  [ante,  No.  868]  [illustration  (k)] 
and  Doe  v.  Needs  [illustration  (n)  ]  produce  a  singular  effect.  The  vagueness 
of  the  distinction  between  them  is  indicated  by  the  case  of  Charter  v.  Charter, 
1871,  L.  R.  2  P.  &  M.  315.  In  this  case  the  testator  Forster  Charter  appointed 
"my  son  Forster  Charter"  his  executor.  He  had  two  sons,  William  Forster 
Charter  and  Charles  Charter,  and  many  circumstances  pointed  to  the  conclusion 
that  the  person  whom  the  testator  wished  to  be  his  executor  was  Charles  Charter. 
Lord  Penzance  not  only  admitted  evidence  of  all  the  circumstances  of  the  case, 
but  expressed  an  opinion  (p.  319)  that,  if  it  were  necessary,  evidence  of  decla- 
rations of  intention  might  be  admitted  under  the  rule  laid  down  by  Lord  Abinger 

in  Hiscocks  v.  Hiscocks,  because  part  of  the  language  employed  ("my  son 

Charter")  applied  correctly  to  each  son,  and  the  remainder,  "Forster,"  to  neither. 
This  mode  of  construing  the  rule  would  admit  evidence  of  declarations  of  inten- 
tion both  in  cases  falling  under  paragraph  8,  and  in  cases  falling  under  para- 
graph 7,  which  is  inconsistent  not  only  with  the  reasoning  in  the  judgment,  but 


1298        BOOK  VI :  parol  evidence  rules      No.  870 

with  the  actual  decision  in  Doe  v.  Hiscocks.  .  .  .  That  part  of  Lord  Pen- 
zance's judgment  above  referred  to  was  unanimously  overruled  in  the  House  of 
Lords.   .  .  . 

Conclusive  as  the  authorities  upon  the  subject  are,  it  may  not,  perhaps,  be 
presumptuous  to  express  a  doubt  whether  the  conflict  between  a  natural  wish  to 
fulfil  the  intention  which  the  testator  would  have  formed  if  he  had  recollected 
all  the  circumstances  of  the  case,  the  wish  to  avoid  the  evil  of  permitting 
written  instruments  to  be  varied  by  oral  evidence,  and  the  wish  to  give  effect 
to  wills,  has  not  produced  in  practice  an  illogical  compromise.  The  strictly 
logical  coiu"se,  I  think,  would  be  either  to  admit  declarations  of  intention  both 
in  cases  falling  under  paragraph  7,  and  in  cases  falling  under  paragraph  8,  or 
to  exclude  such  evidence  in  both  classes  of  cases,  and  to  hold  void  for  un- 
certainty every  bequest  or  devise  which  was  shown  to  be  uncertain  in  its 
application  to  facts. 

871.  A.  M.  KiDD.  Note  on  Doe  v.  Hiscocks.  (1912.  California  Law 
Review,  I,  87.)  IVills:  Parol  Evidence  to  Explain  Ambiguity  and  Miscon- 
ceptions. —  In  the  Estate  of  Donellan  (44  Cal.  Dec.  462,  Sept.  27,  1912),  the  tes- 
tatrix left  one-fourth  of  the  residue  of  her  property  to  her  niece,  Mary,  a  resident 
of  New  York,  daughter  of  her  deceased  sister,  Mary.  The  evidence  disclosed 
two  daughters  of  the  sister,  Annie  and  Mary.  Annie,  the  elder  of  the  two 
daughters,  married  in  Ireland,  came  to  this  country,  settled  in  Brooklyn,  New 
York,  and  still  lived  there  when  the  present  case  arose.  Mary  never  came  to  this 
country,  and  still  lived  in  Ireland.  The  evidence  also  showed  that  testatrix  knew 
of  the  existence  of  but  one  niece;  that  when  Annie  was  six  years  old  at  the  time 
of  the  death  of  her  father,  testatrix  wanted  her  to  come  and  live  with  her;  that 
testatrix  wrote  to  a  Boston  relative  inquiring  about  her  niece  and  was  referred 
by  the  relative  to  the  New  York  niece;  that  Annie  was  called  Mary  by  a  relative 
in  Boston  with  whom  she  li\'ed  when  she  first  came  to  this  country.  This  was 
substantially  all  the  evidence,  except  some  hearsay  erroneously  admitted.  The 
Superior  Court  held  the  will  applied  to  Mary,  relying  upon  the  maxim  that  the 
name  controlled  the  description.  The  Supreme  Coiu-t  refused  to  consider  this 
maxim  as  binding  and  directed  the  trial  Court  to  construe  the  clause  to  apply 
to  Annie,  unless  on  a  rehearing  further  evidence  should  require  a  different 
decision,  upon  the  ground  that  testatrix  meant  the  niece  who  came  to  this 
country.  .  .   . 

In  accordance  with  the  ruling  in  the  Supreme  Court  in  the  Estate  of  Dominici 
(151  Cal.  181;  90  Pac.  448;  1907),  evidence  was  admitted  of  the  testatrix's 
statements  of  intention  to  the  lawyer  who  prepared  the  will.  While  the  general 
rule  in  construing  a  will  is  that  all  extrinsic  evidence  is  admissible,  there  is  an 
exception  to  the  rule  by  the  exclusion  of  declarations  of  intention.  It  is  consid- 
ered dangerous  to  permit  the  solemn  written  expression  in  the  will  to  be  affected 
by  other  statements  of  the  testator  as  to  what  he  intended.  In  one  case,  how- 
ever, such  statements  have  always  been  admitted,  —  the  case  of  equivocation, 
where  the  bequest  is  to  "my  niece  Mary"  and  there  are  two  nieces  named  Mary. 
In  such  a  case  the  declarations  of  the  testator  are  admitted  to  show  which  niece 
was  meant.  The  will  in  the  present  case,  however,  is  not  one  of  equivocation 
but  of  misdescription;  neither  niece  fits  the  requirements  accurately.  One 
niece  satisfies  the  description  by  residence  but  not  by  name,  the  other  by  name 
but  not  by  residence.  Under  these  facts  the  English  Courts  have  refused  to 
admit  declarations  of  intention,  although  it  is  hard  to  see  why  the  same  principle 


No.  874         INTERPRETATION  OF  LEGAL  ACTS  1299 

that  applies  to  "equivocation"  .should  not  apply  to  "misdescription."  In  fact 
English  judges  have  been  unable  to  see  the  distinction.^  In  admitting  the  state- 
ments made  by  the  testatrix  to  the  lawyer  in  the  principal  case  the  Court  is  in 
accord  with  sound  theory  and  authority  in  this  country. 

It  may  be  questioned,  however,  whether  this  result,  commendable  as  it  is 
on  principle,  has  been  achieved  without  doing  violence  to  §  1340  of  the  Civil 
Code.  The  annotations  of  the  Code  Commissioners  show  that  they  recognize 
the  conflict  in  the  decisions  and  deliberately  adopted  the  English  rule  as  estab- 
lished in  Doe  v.  Hiscocks  (5  M.  &  W.  363;   1839). 


Topic  2.     Falsa  Demonstratio 

873.  Myers  v.  Ladd.  (1861.  26  111.  415,  417.)  Caton,  C.  J.  —  If  I  give  a  bill 
of  sale  of  my  black  horses,  and  describe  them  as  being  now  in  my  barn,  I  shall 
not  avoid  it  by  showing  that  the  horses  were  in  the  pasture  or  on  the  road.  The 
description  of  the  horses  being  sufficient  to  enable  witnesses  acquainted  with  my 
stock  to  identify  them,  the  locality  specified  would  be  rejected  as  surplusage. 
Nor  is  this  rule  confined  to  personal  property.  It  is  equally  applicable  to  real 
estate.  If  I  sell  an  estate,  and  describe  it  as  my  dwelling  house  in  which  I  now 
reside,  situate  in  the  city  of  Ottawa,  I  shall  not  avoid  the  deed  by  showing  that 
my  residence  was  outside  the  city  limits.  So  if  a  deed  describe  lands  by  its  cor- 
rect numbers,  and  further  describe  it  as  being  situated  in  a  WTong  county,  the 
latter  is  rejected.  The  rule  is,  that  where  there  are  two  descriptions  in  a  deed, 
the  one,  as  it  were,  superadded  to  the  other,  and  one  description  being  complete 
and  sufficient  in  itself,  and  the  other,  which  is  subordinate  and  superadded,  is 
incorrect,  the  incorrect  description,  or  feature  or  circumstance  of  the  description, 
is  rejected  as  surplusage,  and  the  complete  and  correct  description  is  allowed  to 
stand  alone. 


874.   WINKLEY  v.  KAIME 

Supreme  Judicial  Court  of  New  Hampshire.     1855 

32  A^  H.  268 

Writ  of  Entry.  The  premises  claimed  are  a  part  of  lot  No.  97  in  the 
2d  division  in  Barnstead,  containing  about  forty  acres,  more  or  less,  of 
wild  land  which  has  never  been  improved  or  enclosed  by  fences.  The 
plaintiff  claimed  title  by  devise  from  Benjamin  Winkley  of  "thirty-six 
acres,  more  or  less,  in  lot  37,  in  second  division  in  Barnstead,  being  same 
I  purchased  of  John  Peavey,"  and  in  proof  of  title  in  said  Winkley, 

^  "Why  the  law  should  be  so,  in  cases  where  some  error  of  description  involv- 
ing a  latent  ambiguity  has  to  be  corrected,  when  e\ndence  of  the  same  kind  is 
admitted  in  what  Lord  Bacon  describes  as  cases  of  'equivocation'  (Maxims  of 
the  Law,  Rule  XXIII),  I  am  not  sure  that  I  clearly  understand,  but  it  has  been 
conclusively  so  settled  by  a  series  of  authorities  to  which  we  are  bound  to  adhere." 
Charter  r.  Charter,  L.  R.  7  H.  L.  364  (1874). 


1300  BOOK  VI :  PAROL  EVIDENCE  RULES        No.  874 

offered:  1.  Deed  from  John  Peavey  to  said  Winkley,  dated  March  25, 
1839,  of  thirty-six  acres,  more  or  less,  in  lot  97,  in  2d  division,  bounded 
and  described  in  the  plaintiff's  declaration.  .  .  . 

The  defendant  offered  in  evidence:  1.  Deed  from  Thomas  and  Hannah 
Johnson  to  him,  dated  November  14,  1851,  of  certain  lands  in  Barnstead, 
being  nineteen  acres  out  of  lot  97,  being  same  deeded  by  Benjamin 
Winkley  as  collector  of  taxes  to  J.  G.  Kaime,  dated  May  1,  1801,  in 
common,  and  of  lot  formerly  owned  by  Hale  and  others.  ... 

No  evidence  was  offered  by  either  party  to  show  what  lands  were  in- 
tended and  conveyed  by  the  several  deeds  offered  by  them  respectively, 
and  whose  descriptions  are  hereinbefore  particularly  mentioned,  except 
as  is  in  this  case  expressly  stated.  A  witness  for  the  plaintiff  testified 
that  he  never  knew  of  John  Peavey  occupying  any  such  lot  as  37  in  2d 
division,  or  that  there  was  any  such  lot.  And  there  was  no  evidence  that 
there  was  any  such.  The  plaintiff,  in  order  to  show  what  lands  were 
conveyed  by  the  deeds  offered  by  the  defendant  Winkley  to  J.  G.  Kaime, 
and  T.  &  H.  Johnson  to  the  defendant,  .  .  .  offered  a  witness,  who 
testified  that  in  about  1820  his  father,  now  deceased,  was  in  the  occupa- 
tion of  a  part  of  lot  97,  not  including  these  premises,  and  when  so  in 
possession  stated  to  the  witness  that  he  was  in  possession  under  Hale  and 
others.  To  this  last  the  defendant  objected  as  incompetent,  but  the 
same  was  admitted. 

W^hereupon  it  was  agreed  by  the  parties  that  the  questions  arising  in 
this  case  be  transferred  to  the  Superior  Court  of  Judicature  for  determina- 
tion, said  Court  to  order  such  judgment  for  the  plaintiff  or  defendant  as 
on  the  foregoing  case  shall  be  proper. 

Bellows,  for  the  plaintiff.  .  .  .  LeaviU  and  Bell,  for  the  defendant. 

Eastman,  J.  —  The  demandant  declares  for  forty  acres  of  land,  more  or 
less,  of  lot  No.  97,  in  the  2d  division  in  Barnstead.  The  case  was  turned 
into  an  agreed  one  at  the  trial,  and  we  take  the  evidence  as  finding  the 
facts.  The  first  step  in  the  demandant's  title  is  a  devise  from  Benjamin 
Winkley  to  the  demandant,  of  "  thirty-six  acres,  more  or  less,  in  lot  37 
in  the  2d  division  in  Barnstead,  being  same  I  purchased  of  John  Peavey." 
It  is  apparent  that  here  is  a  radical  difference  between  the  description  of 
the  premises  demanded  and  those  contained  in  the  devise;  the  land 
demanded  being  a  part  of  lot  No.  97,  and  that  bequeathed  being  a  part 
of  lot  No.  37.  The  plaintiff  contends  that  there  is  a  latent  ambiguity  in 
the  devise,  and  that  the  testator  intended  to  bequeath  to  him  the  land 
in  lot  97,  as  set  forth  in  his  declaration,  and  not  37.  To  prove  this,  parol 
evidence  was  introduced  on  the  trial,  tending  to  show  that  the  lands 
occupied  by  Peavey  were  a  part  of  97  in  the  2d  division,  and  that  there 
is  no  such  lot  as  37  in  the  2d  division  in  that  town. 

There  is  nothing  ambiguous  in  the  terms  of  this  devise,  but  the  evi- 
dence shows  that,  as  it  stands,  it  cannot  take  effect,  for  there  is  no  such 
lot  as  No.  37  in  the  2d  division.  The  ambiguity  is  latent;  shown  so  to 
be  by  the  evidence;  and  if  that  stands  well  with  the  words  of  the  will,  it 


No.  875  INTERPRETATION   OF   LEGAL   ACTS  1301 

will  be  competent,  as  showing  the  meaning  and  intention  of  the  testator. 
Without  going  into  any  extended  examination  of  the  question  of  latent 
ambiguity  at  the  present  time,  it  is  sufficient  for  the  present  case  to  say 
that  it  appears  to  come  very  properly  under  the  rule  of  "  falsa  demonstra- 
tio  non  nocet";  the  principle  being,  that  if  there  is  a  sufficient  description 
of  the  land  devised,  or  of  the  person  of  the  devisee  intended  by  the  testa- 
tor, independent  of  the  erroneous  description,  the  will  will  take  effect.  .  .  . 
By  rejecting  the  words  and  figures,  "in  lot  37,"  in  this  devise,  it  will 
stand  thus,  "  thirty-six  acres,  more  or  less,  in  2d  division  in  Barnstead, 
being  same  I  purchased  of  John  Peavey."  What  the  testator  purchased 
of  Peavey  is  shown  to  be  in  the  2d  division;  is  bounded,  and  answers  in 
all  respects  to  the  description  in  the  devise,  except  the  number  of  the  lot. 
The  extrinsic  evidence  thus  manifestly  shows  what  must  have  been  the 
intention  of  the  testator,  and,  both  upon  the  doctrine  of  the  authorities 
and  the  justice  of  the  case,  we  think  the  devise  should  be  made  to  take 
effect. 

The  tenant,  then,  not  showing  either  title  or -possession  paramount 
to  that  of  the  demandant,  must  fail,  and  according  to  the  provisions  of 
the  case  there  must  be  Judgment  for  the  plaintiff. 


875.   KURTZ  v.   HIBNER 

Supreme  Court  of  Illinois.     1870 

55  ///.  514 

Bill  for  petition  by  John  Hibner  and  others,  children  and  heirs  of 
John  Hibner,  deceased,  against  Charles,  Elizabeth  and  James  Kurtz, 
the  latter  claiming  under  a  will  of  John  Hibner.  The  Circuit  Court 
refused  to  hear  parol  evidence,  to  explain  the  language  of  the  will.  The 
relevant  provisions  of  the  will  were  the  following:  "Third  —  I  give  and 
bequeath  to  my  daughter,  Elizabeth  Kurtz,  all  that  tract  or  parcel  of 
land  situate  in  the  town  of  Joliet,  Will  County,  Illinois,  and  described 
as  follows:  The  west  half  of  the  southwest  quarter  of  section  32,  township 
35,  range  10,  containing  eighty  acres,  more  or  less,  together  with  all 
the  appurtenances  thereunto  belonging,  or  in  an;v'\\'ise  appertaining." 
"  Seventh  —  I  give  and  bequeath  to  my  grandson,  James  Kurtz,  all  that 
part  or  parcel  of  land  described  as  the  south  half  of  the  east  half  of  the 
south  quarter  section  31,  in  township  35,  range  10,  containing  forty 
acres,  more  or  less." 

Appellants  offered  to  prove  that  the  testator,  at  the  time  of  his  death 
owned  only  one  eighty-acre  tract,  in  township  thirty-five,  which  was  the 
one  described  in  the  bill;  that  a  mistake  was  made  in  drafting  the  will, 
by  the  insertion  of  the  words  "section  thirty-two,"  instead  of  "section 
thirty-three";  that  Charles  and  Elizabeth  Kurtz  had  been  in  the  actual 


1302  BOOK   VI :     PAROL   EVIDENCE   RULES  No.  875 

possession  of  the  tract  for  a  number  of  years,  and  upon  the  repeated 
promise  of  the  testator  in  his  Hfetime,  that  he  would  give  the  same  to 
Ehzabeth,  had  made  lasting  and  valuable  improvements,  at  their  own 
expense,  on  the  land  —  had  fenced  it,  and  erected  thereon  a  dwelling- 
house,  barn  and  corn  cribs,  dug  wells  and  set  out  fruit-trees.  Appellants 
also  offered  to  prove  that  James  Kurtz,  at  the  time  of  the  death  of  the 
testator,  was  in  the  actual  possession  of  the  forty-acre  tract,  as  the  tenant 
of  the  deceased,  and  that  the  draughtsman  of  the  will,  by  mistake, 
inserted  the  word  "one,"  after  the  words  "section  thirty,"  instead  of 
"two,"  so  as  to  bequeath  to  James  land  in  section  thirty-one  instead  of 
section  thirty-two.  This  evidence  was  rejected  by  the  Court,  on  the 
hearing. 

Mr.  D.  H.  Pinney,  for  the  appellants.  In  this  case  the  testator  in- 
tended to  devise  land  which  he  owned,  the  description  of  which  differed 
from  that  named  in  the  will,  in  the  number  of  the  section.  The  devisee 
could  show  by  extrinsic  evidence  that  the  draughtsman  of  the  will,  by 
mistake,  inserted  the  wrong  numbers  in  attempting  to  describe  the  land 
intended  to  be  devised.  .  .  .  Parol  evidence  was  admissible  on  other 
grounds;  for,  after  rejecting  the  number  of  the  section,  enough  remains 
to  show  the  property  intended.  .  .  . 

Mr.  ir.  C.  Goodhue,  for  the  appellees.  Equity,  in  no  proceeding,  how- 
ever direct,  affords  any  remedy  against  mistakes  made  in  a  last  will 
and  testament,  —  mistakes  that  can  only  be  made  out  by  averment 
and  proof  outside  of  the  will.  .  .  .  This  case  presents  the  simple  question 
of  construction.  What  is  the  meaning  of  the  will  as  made  by  the  tes- 
tator? The  description  of  the  land,  which  is  sought  to  be  changed  by 
extrinsic  evidence,  is  too  clear  to  require  the  aid  of  such  evidence  to 
identify  it.     There  is  no  ambiguity  to  be  explained. 

Thornton,  J.  —  It  has  been  strongly  urged  by  counsel  for  appellants, 
that  this  evidence  should  have  been  received,  for  the  purpose  of  ascer- 
taining the  intention  of  the  testator.  The  law  requires  that  all  wills  of 
lands  shall  be  in  writing,  and  extrinsic  evidence  is  never  admissible,  to 
alter,  detract  from,  or  add  to,  the  terms  of  a  will.  To  permit  evidence, 
the  effect  of  which  would  be  to  take  from  a  will  plain  and  unambiguous 
language,  and  insert  other  language  in  lieu  thereof,  would  violate  the 
foregoing  well-established  rule.  For  the  purpose  of  determining  the 
object  of  a  testator's  bounty,  or  the  subject  of  disposition,  parol  evidence 
may  be  recei\'ed,  to  enable  the  Court  to  identify  the  person  or  thing 
intended.  In  this  regard,  the  evidence  offered  afforded  no  aid  to  the 
Court.  .  .  .  The  thing  devised  is  certain  and  specific.  Section,  township, 
and  range  are  given.  The  evidence  offered,  as  to  the  mistake  in  the  sec- 
tion, would  have  made  a  new  and  different  will.  .  .  . 

The  case  of  Riggs  v.  Myers,  20  Mo.  239,  is  also  cited  by  counsel  for 
appellants.  That  case  is  very  different  from  the  one  under  consideration. 
The  testator,  in  that  case,  made  a  full  disposition  of  all  his  estate,  and 
then  described  certain  lands,  locating  them  in  a  township  in  which  he 


No.  876  INTERPRETATION   OF   LEGAL   ACTS  1303 

owned  no  lands.  The  land  intended  to  be  devised,  was,  however, 
identified,  by  reference  to  "the  big  spring"  upon  it.  In  the  case  before 
the  Court  there  is  no  disposition,  either  specifically  or  generally,  of  the 
lands  in  the  bill  mentioned. 

We  think,  therefore,  there  was  no  error. 

876.  Notes  Upon  Kurtz  v.  Hibner.  Isaac  T.  Redfield,  C. 
J.  (of  Vermont;  Editor  of  the  Register.  10  American  Law  Register, 
New  Series,  93;  1871).  We  regret  the  necessity  of  dissenting,  so  entirely 
as  we  must,  from  the  argument  and  conclusions  of  the  learned  judge  in 
the  foregoing  opinion  [of  Kurtz  v.  Hibner.].  .  .  The  Court  say,  indeed, 
that  the  evidence  was  offered  by  the  appellants  for  the  purpose  of  showing 
that  the  will  was  by  mistake  drawn  difl"erently  from  what  the  testator 
intended.  That  precise  point  was  immaterial,  and  the  evidence  was  not, 
strictly  speaking,  admissible  for  that  purpose.  That  would  be  to  add  a 
new  term  to  the  will  by  making  it  read,  in  terms,  as  the  testator  would 
have  had  it  made,  if  he  had  recollected  the  numbers  of  the  sections  in 
which  his  lands  lay,  which  can  never  be  done.  .  .  .  But  nothing  is  more 
common,  or  we  might  say  universal,  than  to  receive  oral  proof  to  show, 
that  language  was  used  in  a  peculiar  sense,  or  that  one  term  was  used  for 
another,  or  that  an  essential  term,  to  make  the  definition  perfect,  was 
wholly  omitted,  or  erroneously  stated.  .  .  .  One  rule  upon  the  subject 
is  so  thoroughly  established  as  to  have  become  a  maxim  in  the  Jaw, 
"falsa  demonstratio  non  nocet."  The  practical  meaning  of  this  maxim 
is,  that  however  many  errors  there  may  be  in  the  description,  either  of  the 
legatee  or  of  the  subject-matter  of  the  devise,  it  will  not  avoid  the  bequest, 
provided  enough  remains  to  show,  with  reasonable  certainty,  what  was 
intended.  ...  In  the  principal  case,  there  could  be  no  question  of  the 
admission  of  oral  evidence  to  show  the  state  and  extent  of  the  testator's 
property,  in  order  to  place  the  court  in  the  same  position  the  testator 
was  at  the  time  he  made  the  will.  No  reasonable  man  could  question 
this  upon  the  decided  cases.  This  being  done,  it  appears  the  testator 
had  no  such  land  as  that  described,  in  the  particular  sections  named. 
This  rendered  it  clear,  absolutely  certain,  we  may  say,  that  the  sections 
named  were  erroneous  and  could  have  no  possible  operation,  and  must  be 
rejected.  The  devise  then  was  the  same  as  if  the  sections  had  not  been 
named  at  all,  or  had  been  named,  leaving  the  numbers  blank.  We  are 
then  compelled  to  fall  back  upon  the  remaining  portion  of  the  description, 
"eighty  acres  of  land  in  range  ten,  in  township  thirty-five,"  and  "forty 
acres  of  land  in  range  ten,  in  township  thirty-five";  and,  upon  inquiry, 
we  find  precisely  such  pieces  of  land  in  "range  ten,  in  township  thirty- 
five,"  belonging  to  the  testator.  This  renders  the  devise  as  certain  as 
it  is  possible  to  make  it.  .  .  .  We  trust  we  have  not  failed  to  express  our 
views  in  regard  to  the  foregoing  case  with  all  that  moderation  and  respect 
which  is  due  to  the  decision  of  so  learned  and  able  a  court,  and  which 
we  most  sincerely  feel.     But  that  the  decision  is  fatally  and  flagrantly 


1304  BOOK  VI :  PAROL  EVIDENCE  RULES         No.  876 

erroneous  there  can  be  no  more  question  or  doubt  than  of  the  axioms  of 
geometry  or  the  propositions  in  the  most  exact  sciences. 

877.  The  Same.  John  D.  Caton,  J.  (of  Illinois;  American  Law 
Register,  ibid.  p.  353).  I  have  perused  with  some  care  and  much  interest 
the  reports  of  the  case  of  Kurtz  v.  Hibner  et  al.,  ante,  p.  93,  and  the  edi- 
torial note  appended,  in  which  the  learned  editor  feels  compelled  to  dissent 
from  the  conclusions  of  the  court,  as  announced  in  the  opinion  of  Mr. 
Justice  Thornton.  The  principle  involved  is  of  the  highest  importance, 
and  is  worthy  of  the  most  careful  consideration  of  the  profession.  From 
the  best  consideration  which  I  have  been  able  to  give  the  subject,  I  am 
constrained  to  the  conclusion  that  the  decision  of  the  Court  is  right,  and 
that  the  editor  has  fallen  into  an  error.  The  great  learning  and 
deservedly  high  reputation  of  the  editor  who  wrote  that  note,  and  the 
profound  respect  I  have  ever  entertained  for  him  as  an  eminent  jurist, 
whose  labors  have  done  much  to  advance  the  science  of  the  law,  have 
caused  me  to  hesitate  long  before  allowing  myself  to  disagree  with  him. 

The  fundamental  error  of  the  editor,  in  my  apprehension,  consists 
in  his  assuming  that  necessarily  the  testator  designed  to  devise  land  to 
which  he  had  a  present  existing  title.  To  maintain  this  assumption  we 
must  find  that  the  Court,  as  a  matter  of  law,  must  declare  that  it  was 
impossible  for  the  testator  to  intend  to  devise  property  to  which  he  had 
not  a  present  title,  when  there  is  no  expression  in  the  will  intimating  such 
a  purpose.  I  have  met  with  no  case,  and  certainly  none  that  has  been 
cited  in  the  editorial  note,  in  which  such  a  doctrine  is  intimated.  While 
in  the  particular  case  we  may  admit  that  this  is  most  probably  true,  we 
must  also  admit  that  it  is  not  necessarily  so,  and  the  Court  had  no  warrant 
for  saying,  as  matter  of  law,  or  as  a  necessary  legal  conclusion,  that  such 
was  the  case;  and  hence  it  had  no  right  to  act  upon  such  a  conclusion. 
We  may  suppose  a  thousand  cases  in  which  the  testator  would  devise  a 
particular  piece  of  land  to  which  he  at  the  time  had  no  title.  It  is  suffi- 
cient to  suggest  the  case  of  an  honest  mistake  as  to  the  ownership,  or  of 
a  contemplated  purchase.  At  any  rate,  he  had  a  right  to  do  so,  and  so 
it  has  no  doubt  been  done  by  ten  thousand  before  him  through  misappre- 
hension or  even  caprice.  The  devise  in  this  will  is  of  "  the  west  half  of 
the  south-west  quarter,  section  32,  township  35,  range  10,  containing  80 
acres,  more  or  less."  Here  then  we  have  the  range,  the  township,  the 
section,  the  quarter  section,  and  the  half-quarter  section  set  down,  and 
nothing  more.  The  description  is  complete  and  definite,  but  we  find 
nowhere  a  single  word  of  additional  description.  We  find  no  attempt  to 
duplicate  the  description  as  "my"  land,  or  "in  the  possession  of  A.  B.," 
or  "on  which  is  the  Big  Spring,"  or  "my  land  on  the  Bluff,"  nor  any 
other  single  word  on  which  the  Court  may  seize  to  enable  it,  with  the  aid 
of  parol  proof,  to  say  that  "thirty-two"  was  a  false  description,  and  so 
reject  it,  and  still  determine  from  the  words  of  the  will  that  section  thirty- 
three  was  in  truth  meant.     Strike  the  word  "  thirty-two  "  from  this  de- 


No.  878  INTERPRETATION  OF  LEGAL  ACTS  1305 

scription  and  the  whole  is  left  entirely  unintelligible,  for  there  is  nothing 
else  in  the  will  to  supply  its  place. 

I  entirely  agree  with  the  learned  editor,  in  his  definition  of  the  maxim 
"falsa  demonstratio  non  nocet."  He  says,  "The  practical  meaning  of 
this  maxim  is,  that  however  many  errors  there  may  be  in  the  description, 
either  of  the  legatee  or  of  the  subject-matter  of  the  devise,  it  will  not 
avoid  the  bequest,  provided  enough  remains  to  shoio,  with  reasoyiahle 
certainty,  what  was  intended."  I  have  emphasized  the  latter  part  of  this 
definition  because  I  think  it  an  important,  nay,  an  indispensable  part  of 
it,  and  which,  in  its  application  to  the  principal  case,  was  quite  over- 
looked in  the  note.  If  we  reject  the  false  description,  which  is  in  the 
number  of  the  section,  and  so  leave  that  a  blank  as  the  editor  in  fact  does, 
leaving  only  a  specified  eighty-acre  tract  in  an  unspecified  section  in  a 
given  township,  we  have  a  description  which  applies  alike  to  no  less  than 
36  different  lots,  so  far  as  the  description  goes,  and  nothing  "  remains  in 
the  will  to  show  with  reasonable  certainty"  which  of  the  36  tracts  was 
intended.  .  .  . 

If  in  this  case  the  word  my  had  been  used  instead  of  the  in  connection 
with,  or  rather  in  duplication  of  the  description,  then  indeed  there  would 
have  been  something  in  the  will  to  construe,  and  by  the  aid  of  parol  proof 
the  Court  might  ascertain  what  the  testator  meant  when  he  used  it  — 
then  there  would  have  been  an  additional  description  by  which  the 
Court  might  have  determined  the  subject  of  the  devise,  after  having 
eliminated  thirty-two.  I  repeat,  without  some  sort  of  additional  descrip- 
tion in  the  will,  the  Court  had  no  right  to  destroy  the  description,  which 
is  clear,  precise,  and  single,  and  insert  an  additional  description  of  its 
own,  and  then  go  on  and  construe  it.  It  is  impossible  to  say  that  there 
is  a  false  description  where  there  is  but  one  description  which,  as  in  this 
case,  is  plain  and  perfect,  without  an  additional  reference  or  w^ord  by 
which  the  Court  might  be  enabled  to  determine  what  land  was  in  the 
mind  of  the  testator  when  he  wrote  or  dictated  the  description  proposed 
to  be  eliminated  from  the  will.  The  central  idea  on  which  this  doctrine 
of  "falsa,  &c.,"  turns  is,  that  there  must  be  two  descriptions  of  some  sort, 
which  facts  aliunde,  if  need  be,  show  are  inconsistent  with  each  other, 
and  enable  the  Court  to  say  satisfactorily  which  is  the  true  and  which  is 
the  false  description,  when  it  will  discard  the  false  and  give  effect  to  the 
true,  as  if  the  false  description  had  never  been  written.  .  .  .  The  legal 
acumen  for  which  the  editor,  with  whom  I  feel  compelled  though  reluc- 
tantly to  disagree,  is  so  justly  celebrated,  will,  I  am  satisfied,  upon  more 
mature  reflection,  convince  him  that  he  has  for  once,  at  least,  fallen  into 
an  error;  and  his  well-known  candor,  I  am  sure,  must  make  him  anxious, 
that  if  such  be  the  case,  it  should  be  pointed  out  in  a  courteous  and  proper 
way. 

878.  The  Same.  John  H.  Wigmore.  Note  on  Kurtz  v.  Hihner 
(1910-11.  Ilhnois  Law  Review,  V,  314).    Kurtz  v.  Hihner.    Misdescription 


1306  BOOK   VI :     PAROL   EVIDENCE    RULES  No.  878 

of  Tracts  in  a  Will.  The  cases  subsequent  to  Kurtz  v.  Hibner,  55  111. 
514,  in  this  State,  have  now  been  placed  on  a  footing  which  is  entirely 
satisfactory.  Graves  v.  Rose,  111.,  92  N.  E.  601  (October  12, 1910),  places 
the  only  real  issue  squarely  where  it  can  be  precisely  understood  and 
debated.  The  three  dissents  leave  the  issue  fairly  open  for  future  settle- 
ment. 

The  original  problem  is:  When  a  description  of  a  tract  —  e.g.,  as 
here,  "  the  W.  ^  of  N.  W.  \  of  section  12  "  —  is  found  not  to  fit  exactly 
any  land  subject  to  the  testator's  disposition,  but  there  is  other  land 
partly  answering  the  description,  what  can  be  done  to  carry  out  the 
devise? 

In  the  first  place,  it  has  long  been  plain  that  no  method  which  involved 
setting  aside  the  will  on  the  ground  of  mistake  in  drafting  would  be 
sanctioned;  this  would  go  counter  to  the  principle  that  the  terms  of  a 
legal  document  duly  executed  must  stand  as  final;  and  the  possible 
alleviation  by  applying  to  wills  the  equitable  methods  of  "reformation" 
long  used  for  mutual  mistake  inter  vivos  has  never  been  given  any 
countenance. 

In  the  second  place,  the  process  of  interpretation  authorizes  a  descrip- 
tion to  be  construed  as  a  whole,  and  permits  it  to  be  enforced,  even  though 
it  does  not  fit  in  some  details  not  essential.  Therefore,  if  one  of  the 
items  of  description  is  "N.  W.  ^,"  and  the  "  W"  does  not  fit,  but  the 
remainder  of  the  description  commends  itself  as  the  essential  terms  in 
the  testator's  effort  to  identify  the  thing  devised,  the  description  will  be 
applied,  in  disregard  of  the  "W"  not  fitting.  This  is  a  natural  conse- 
quence of  the  fact  that  a  descriptive  series  of  terms  might  conceivably 
be  infinite  in  detail;  that  all  description,  therefore,  consists,  practically, 
in  the  selection  of  a  few  details  taken  as  cumulative  marks;  and  that 
when  the  cumulation  of  marks  is  plain  in  its  identification  as  a  whole,  the 
variance  of  one  or  more  marks  is  immaterial.  On  this  principle  numerous 
such  devises  have  been  carried  out  —  notably,  when  the  area  of  the  tract 
or  the  testator's  title  was  given  as  one  of  the  marks  of  description;  as  in 
Decker  v.  Decker,  121  111.  341;  Whitman  v.  Rodney,  156  111.  116;  Hufl^- 
man  v.  Young,  170  111.  290;  Felkel  v.  O'Brien,  231  111.  329;  Collins  v. 
Capps,  235  111.  560. 

But,  in  the  third  place,  since  this  process  of  interpretation  must, 
after  disregarding  the  item  that  does  not  fit,  be  based  on  remaining  items 
that  do  fit  and  are  sufficient,  the  remaining  items  must  be  found  existing 
in  the  words  of  the  will,  and  cannot  he  implied  into  it.  This  was  the  part 
of  the  principle  on  which  the  latest  case.  Graves  v.  Rose,  above,  came  to 
turn,  as  it  was  also  for  the  earliest  case,  Kurtz  v.  Hibner,  according  to  the 
explanation  of  Caton,  J.,  given  in  his  letter  in  10  Amer.  L.  Reg.  N.  S. 
353  [ante,  No.  877].  If  a  description  does  not  contain  words  such  as  "  my 
land  "  or  "  owned  hy  me"  or  "  being  my  homestead,"  or  " now  occupied  by 
C.  J.  R.,"  and  if  without  such  a  term  the  remaining  items  are  too  vague 
to  identify,  then  the  desired  term  cannot  be  implied  into  the  description. 


No.  879  INTERPRETATION   OF   LEGAL  ACTS  1307 

On  this  point  the  majority  and  the  minority  opinions  seem  to  be  squarely 
at  issue.  The  minority  opinion  invokes  "  the  presum.ptio7i  that  the  testa- 
tor intended  to  dispose  of  property  which  he  owned,"  and  maintains  that 
this  presumption  was  virtually  the  basis  of  the  decision  in  the  chief  prior 
cases  sustaining  such  descriptions.  Wliether  that  interpretation  of  the 
prior  issues  is  correct  does  not  here  matter.  We  note  merely  that  the 
effect  of  such  a  presumption  would  be  to  imply  a  term  into  the  will,  and 
that  the  propriety  of  this  is  the  real  issue.  Now,  it  is  safe  to  assert  that 
in  our  country  and  generation  (differing  therein  from  the  Roman  custom) 
testators  do  mean  always  to  devise  only  property  owned  by  them,  so 
that  the  presumption  is  sound.  Hence,  as  a  matter  of  practical  safety 
in  construing  wills,  the  propriety  of  so  implying  that  term  into  a  will 
would  be  justified.  It  comes  down  then  to  a  simple  question:  Shall  we 
adhere  rigorously  to  the  theoretical  rule  against  implying  terms  into  a 
will,  or  shall  we  frankly  admit  an  exception  on  grounds  of  common 
experience  and  practical  safety?  We  are  disposed  to  accept  the  latter 
solution. 

879.  The  Same.  Henry  Schofield.  Note  on  Kurtz  v.  Hihncr  (1912. 
Illinois  Law  Review,  VI,  485).  Of  course  there  is  no  equity  jurisdic- 
tion to  reform  wills.  Indeed  there  is  no  judicial  power  to  reform  wills, 
and,  under  existing  law,  an  exertion  of  such  judicial  power  by  a  court 
would  be  usurpation  of  ungranted  judicial  power.  No  one  ever  has  sug- 
gested that  judicial  power  to  reform  wills  ought  to  exist,  except  Stephen, 
in  the  preface  to  the  third  edition  of  his  Digest  of  the  Law  of  Evidence 
(Thayer,  Evidence,  437,  note  2);  which  suggestion  seems  to  have 
been  dropped  by  Stephen  from  his  later  editions.  The  suggestion 
evidently  was  ill  considered,  though  no  doubt  the  legislature  of  Illinois 
has  the  power  to  authorize  the  Courts  to  write  wills  for  the  dead, 
which  legislative  power  may  be  exercised  if  enough  people  ever  come  to 
want  it. 

It  often  happens  that  a  testator  describing  his  land  by  the  government 
description  leaves  out  one  of  the  points  of  the  compass,  puts  in  a  wrong 
point,  duplicates  a  point,  puts  in  a  wrong  fraction,  leaves  out  the  right 
fraction,  or  duplicates  a  fraction,  or  puts  in  the  wrong  section  number, 
and  the  question  has  arisen  whether  a  testator's  mistake  of  that  kind 
can  be  corrected  by  the  judicial  process  of  construction.  The  question 
is  not  one  in  equity  jurisdiction  at  all,  but  has  arisen,  and  may  arise,  in 
courts  of  law  as  well  as  in  courts  of  equity,  without  any  regard  to  the  form 
of  the  action  at  law  or  the  nature  of  the  bill  in  equity.  The  question 
first  came  up  in  Illinois  in  1870,  in  Kurtz  v.  Hibner,  55  111.  514,  and  has 
been  coming  up  regularly  ever  since,  the  last  case  being  Graves  v.  Rose, 
246  111.  76,  in  1910,  where  the  court  divided  four  to  three,  Cartwright, 
J.,  writing  the  opinion,  and  Dunn,  J.,  the  dissenting  opinion.  As  is 
well  known,  the  decision  in  Kurtz  v.  Hibner,  denying  correction,  was 
assailed  by  Judge  Redfield  and  defended  by  Judge  Caton  and  by  Mr. 


1308  BOOK  VI:  PAROL  EVIDENCE  RULES         No.  879 

Julius  Rosenthal.  See  the  literature  collected  in  4  Wigmore,  Evidence, 
p.  3517,  note  6.  The  Caton-Rosenthal  several  and  not  joint  defense 
was  identical,  viz. :  that  the  court  was  powerless  to  insert  words  of  owner- 
ship not  written  in  the  will  by  the  testator,  such  as  "my  land"  or  "land 
owned  by  me."  .  .  .  Neither  the  Supreme  Court,  nor  any  judge  thereof 
in  a  dissenting  opinion,  ever  has  adopted  the  Caton-Rosenthal  defense 
of  Kurtz  V.  Hibner,  but,  on  the  contrary,  as  it  seems  to  me,  the  rule  now 
is  that  a  will  necessarily  speaks  of  the  testator's  own  property  at  the  time 
of  his  death;  that  words  of  ownership  must  be  implied  in  every  will, 
and  it  is  not  a  question  of  inserting  words  of  ownership,  but  of  striking 
out  words  of  ownership  written  in  by  the  law,  which  striking  out  is  not 
allowable,  unless  the  text  of  the  will  excludes  words  of  ownership,  which 
never  has  happened  and  very  likely  never  will  happen.  (In  4  Wigmore, 
Evidence,  pp.  3514,  3417,  quaere  whether  the  learned  author  has  not 
given  too  much  weight  to  the  Caton-Rosenthal  point.) 

All  the  reported  Illinois  cases  are  cases  where  the  practical  effect  of 
the  mistake  in  the  government  description  in  the  will  was,  on  the  face  of 
things  if  the  mistake  was  left  uncorrected,  to  devise  land  the  testator 
did  not  own  instead  of  land  that  he  did  own,  or  to  leave  the  testator 
intestate  as  to  a  parcel  of  land  that  he  did  own.  To  try  to  reconcile  the 
Illinois  cases  involves  a  useless  mental  strain;  they  are  irreconcilable; 
they  stand  about  evenly  divided,  half  correcting  the  mistake,  and  the 
other  half  refusing  correction,  the  cases  of  correction  being  most  of  the 
later  ones,  commencing  in  1887,  but  the  last  case  refuses  correction. 
The  doctrine  prevailing  now  generally  outside  Illinois  is,  that  a  testator's 
mistake  of  the  kind  mentioned  ordinarily  is  correctable  by  the  judicial 
process  of  construction  by  a  court  of  law  or  by  a  court  of  equity,  by 
means  of  an  application  of  the  rule,  "falsa  demonstratio  non  nocet," 
under  which,  striking  out  the  words  of  mistake,  it  commonly  happens  in 
most  cases  that  enough  descriptive  words  are  left  in  the  will,  when  aided 
by  evidence  of  proper  extrinsic  facts,  to  identify  and  pass  the  land  in 
question  the  testator  did  own.  But  it  is  said  over  and  over  in  the 
Illinois  cases  that  such  correction  of  such  a  mistake  of  description  in  a 
will  "is  more  than  construction,  -r-  it  is  reformation,"  as  by  Bailey,  J., 
speaking  for  the  court,  in  Bingel  v.  Voltz,  142  111.  214,  in  1892,  and  by 
ViCKERS,  J.,  dissenting,  in  Gano  r.  Gano,  239  111.  539,  547,  in  1909,  and 
in  the  last  case  of  Graves  v.  Rose,  246  111.  76,  87,  Cartwright,  J.,  speak- 
ing for  the  majority  said:  "That  such  a  change  in  a  deed,  contract  or 
instrument  other  than  a  will,  to  make  it  conform  to  the  intention  of  the 
maker,  would  be  a  reformation  has  never  been  questioned,  and  we  do  not 
see  how  it  can  he  called  anything  different  in  case  of  a  will.''  .  .  . 

The  evidence  of  surrounding  extrinsic  facts  that  may  be  called  the 
"stock  evidence"  to  put  the  judicial  process  of  reformation  into  play  and 
action  to  correct  a  mistake  of  description  in  a  contract  or  deed,  i.e., 
evidence  of  "mistake  of  the  scrivener."  (34  Cyc.  910),  ordinarily  cannot 
be  used  at  all  to  aid  the  correction  of  a  like  mistake  in  a  will,  deed  or  other 


No.  879         INTERPRETATION  OF  LEGAL  ACTS  130S 

instrument  by  the  judicial  process  of  construction.  (4  Wigmore,  Evi- 
dence, §  2471;  30  Am.  and  Eng.  Ency.  of  Law,  2  led.,  680.)  And  in  so 
far  as  Kurtz  v.  Hibner  and  the  other  IlHnois  cases  deny  the  right  to  use 
evidence  of  that  kind  of  an  extrinsic  fact  to  aid  construction,  they  are 
sound  in  principle. 


APPENDICES 


APPENDIX   I 

TOPICAL  CROSS-REFERENCES  TO  THE    COMPILER'S 

TREATISE   ON   EVIDENCE   AND   POCKET 

CODE   OF   EVIDENCE 


BOOK    I 

RULES    OF   ADMISSIBILITY    OF    EVIDENCE 

PART  I.     RULES    OF  AUXILIARY  PROBATIVE   POLICY 

TITLE  I.    ELIMINATIVE  RULES 

SUB-TITLE  I.    RULES    EXCLUDING   AUTOPTIC    PROFERENCE 
(REAL   EVIDENCE) 


3.  James  Ings'  Trial  (murderous  weapons  exhibited)      .    . 

4.  David  Paul  Brown,  "The  Forum"  (deceased's  garment 

exhibited) 

5.  State  V.  Moore  (deceased's  garment  exhibited)   .... 

6.  L.  C.  J.  Mansfield,  "Rules  for  Views" 

7.  Springer  v.  Chicago  (view  of  premises  by  jury)  .... 

SUB-TITLE  II.     RULES  EXCLUDING  CIRCUM- 
STANTIAL EVIDENCE 

Topic  I.     Moral  Character  as  Evidence 

Sub-topic  A.     Accused's  Character  as  Evidence  of 

AN  Act 

9.  Thomas  Brewster's  Trial  (kind  of  trait) 

10.  WilUam  Turner's  Trial  "      "      "       

11.  Cancemi  v.  People  (kind  of  crime  charged) 

12.  State  V.  Surry  (kind  of  trait) 

13.  Regina  v.  Rowton  (offered  by  prosecution)      

14.  State  V.  Lapage  "        "  "  

15.  William    Trickett,     "Character-Evidence    in    Criminal 

Cases"  (offered  by  prosecution) 

Sub-topic  B.     Character  as  Evidence  of  an  Act 
IN  Other  Cases 

16.  Ruan  v.  Perry  (party's,  in  action  of  tort)" 

17.  Gough  V.  St.  John  (party's,  in  general) 

18.  Wright  V.  McKee  "        "        "  

19.  Tenney  v.  Tuttle  (party's,  in  issue  of  neghgence)   .    .    . 

20.  Fonda  v.  St.  Paul  C.  R.  Co.  (party's,  in  issue  of  negli 

gence)      

21.  Hein  v.  Holdridge  (party's,  in  issue  of  seduction)  .    .    . 


VOL. 

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APPENDIX   I 


22.  McClure  v.  State  Banking  Co.  (third  person,  in  forgery) 

23.  The  Queen  v.  Ryan  (prosecutrix  on  charge  of  rape)    .    . 

24.  Franklin  v.  State      (deceased,  on  charge  of  homicide) 

25.  WiUiams  v.  Fambro 

26.  State  v.  Kennade  "  "        "       " 

27.  People  v.  Lamar 


Sub-topic  C. 


Character  as  an  Issue  in  Civil 
Cases 


28.  Buford  v.  M'Luny  (plaintiff's,  in  defamation)     .... 

29.  William  Trickett,  "Character-Evidence  in  Civil  Cases" 

(plaintiff's,  in  defamation) 

30.  Cleghorn    v.    N.  Y.  C.  &   H.  R.  R.  Co.    (defendant's 

employee's) 


Topic  2.     Conduct  as  Evidence  of  a  Human  Quality 
or  Condition 

Sub-topic  A.     Conduct  as  Evidence  of  Accused's 
Moral  Character 

31.  Robert  Hawkins'  Trial  (in  general) 

32.  John  Campbell,  "Lives  of  the  Chief  Justices  of  England" 

(in  general) 

33.  Alexander  Davison's  Trial  (good  acts) 

34.  People  v.  White  (conviction  of  crime) 

35.  People  v.  Stout   (in  general) 

36.  State  v.  Lapage    "        "  

37.  People  v.  Shay      "        "  

38.  William    Trickett,    "Character-Evidence    in    Criminal 

Cases"  (in  general) 

39.  The  Baroness  de  Valley's  Assassination  (French  practice) 

40.  The  Lebaudy  Case  (French  practice) 

41.  Hall    V.    Commonwealth  (prior  convictions    affecting 

increase  of  sentence) 

Sub-topic  B.  Conduct  as  Evidence  of  Accused's 
Intent,  Knowledge,  Motive 

42.  Hathaway's  Trial  (in  general) 

43.  Vaughan's  Trial       "        "  

44.  Regina  v.  Dossett  (arson) 

45.  Bottomley  v.  United  States  (fraud) 

46.  State  v.  Lapage  (rape) 

47.  Commonwealth  v.  Robinson  (homicide) 

48.  People  v.  Marrin  (forgery) 

Sub-topic  C.     Conduct  as  Evidence  of  Character 
in  Other  Cases 

49.  Morris  v.  East  Haven  (plaintiff's  negligence) 

50.  Fonda  v.  St.  Paul  C.  R.  Co.  (employee's  negligence) 

51.  McQuiggan  v.  Ladd  (plaintiff's  violence) 


TREATISE 

CC»B 

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TOPICAL   CROSS-REFERENCES 


1315 


TREATISE         CODE 


52.  State  v.  Greene  (deceased's  violence) 

53.  Noyes  v.  Boston  &  M.  R.  Co.  (third  person's  crime) 

54.  Clarke  v.  Periam  (defendant's  character  in  issue  on  bond) 

55.  Miller  v.  Curtis  (plaintiff's  character  in  damages)  .    .    . 

56.  Cunningham  v.   Austin  &   N.   W.   R.   Co.    (employee's 

character  in  issue) 

57.  Fonda  v.  St.  Paul  C.  R.  Co.  (employee's   character   in 

issue) 

58.  Pittsburgh  R.  Co.  v.  Thomas  (employee's  character  in 

issue) 

Sub-topic  D.     Conduct  as  Evidence  of  Knowledge, 
Intent,  Plan,  Habit,  etc.,  in  Civil  Cases 

59.  Delphi  v.  Lowery  (knowledge  of  dangerous  highway)    . 

60.  Morrow  v.  St.  Paul  City  R.  Co.  (knowledge  of  employee's 

incompetence) 

61.  Spenceley  v.  DeWillott  (habit  in  making  contracts)  .    . 

62.  Howe  V.  Thayer  (plan  in  giving  notice) 

63.  Aiken  v.  Kennison  (habit  in  making  contracts)    .... 

64.  Bock  V.  Wall  (motive  to  fulfil  duty)      

Topic  3.      Specific  Events  or  Acts  as  Evidence  of  a  Condition 
or  Cause,  etc.,  in  External  Inanimate  Nature 

65.  Collins  v.  Dorchester  (former  injury  in  highway)    . 

66.  Darling  v.  Westmoreland        "  "       "         " 

67.  Morse  v.  Minneapolis  &  St.  L.R.Co.  (condition  of  railway) 

68.  Matter  of  Thompson  (former  sales  of  land) 

69.  Bemis  v.  Temple  (former  injury  in  highway) 

70.  Central   Vermont   R.    Co.   v.   Soper    (former  injury   in 

factory)  

71.  Fishman  v.  Consumers'  Brewing  Co.  (former  fires) 

72.  Alcott  V.  Public  Service  Co.  (former  defects  in  switch) 


SUB-TITLE  III. 


RULES  EXCLUDING  TESTIMONIAL 
EVIDENCE 


Topic  I. 


Rules  Defining  Qualifications  of  Witnesses 

75.  Simon  Greenleaf,  "Evidence"  (in  general) 

76.  Sir  Edward   Coke,  "Commentary  upon   Littleton"   (in 

general     

77.  Statutes  (sundry  rules)       

Sub-topic  A.     Mental  and  Moral  Incapacity 

78.  Simon  Greenleaf,  "Evidence"  (lunatic)      

79.  Regina  P.Hill  "  

80.  Worth ingt on  v.  Mercer  "  

81.  Statutes  "  

82.  Rex  V.  Brasier  (child)      

83.  Hughes  V.  R.  Co.  (child) 

84.  Wheeler  v.  United  States  (child) 

85.  Brown  v.  Crashaw  (convict) 


VOL. 
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370 


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1316 


APPENDIX    I 


TREATISE        CODE 


86.  Chief  Baron  Gilbert,  "  Evidence "    (convict) 

87.  Simon  Greenleaf,  "Evidence"  "  .    .    .    .    . 

88.  Sims  V.  Sims  (conviction  in  another  State) 

89.  Statutes  (convict) 

90.  Vance  v.  State         "  

StJB-TOPic  B.     Emotional  Incapacity 

(1)  Interest  in  Ldtigation 

91.  Sir  Edward  Goke,  "Commentary  upon  Littleton"  (gen- 

eral principle) 

92.  Simon  Greenleaf,  "Evidence"  (general  principle)   .    .    . 

93.  Statutes  "  "         .    .    .    . 

94.  Louis'  Admr.  v.  Easton  (survivor  of    transaction    with 

deceased)    

95.  St.   John  V.   Lofland  (survivor  of  transaction  with  de- 

ceased)     

96.  Ross  V.  Demoss  (counsel  or  attorney) 

97.  Anon.,  "The  Attorney  as  a  Witness"  (counsel  or  attor- 

ney)   


VOL. 
I 


(2)  Marital  Relationship 

98.  Sir  Edward  Coke,  " Commentary  upon  Littleton"  (gen- 

eral principle) 

99.  Chief  Baron  Gilbert,  "Evidence"  (general  principle)    . 

100.  Cornell  v.  Vanartsdalen  (husband  deceased) 

101.  William  &  Mary  College  v.  Powell  (wife  deceased)     .    . 

102.  Common  Law  Practice  Commissioners'  Report  .... 

103.  Statutes      


Sub-topic  C.     Experiential  Incapacity 

104.  Vander  Donckt  v.  Thellusson  (foreign  law) 

105.  Jones  v.  Tucker  (disease  of  horses) 

106.  Evans  v.  People  (cause  of  death) 

107.  Siebert  v.  People  (poison) 


Sub-topic  D.     Perception  (Observation,  Knowledge) 
(1)  In  General 

108.  John  Ayliffe,  "Parergon"  (general  principles)     . 

109.  Bushel's  Case  "  " 

110.  Thomas  Starkie,  "Evidence"  (general  principles) 

111.  Evans  v.  People     .  "  "  . 

112.  Walter  Bushnell's  Trial 

113.  R.  V.  Dewhurst 

114.  Parnell  Commission's  Proceedings  (general  principl 

115.  State  i;.  Flanders  (alteration  of  document)       .    .    . 

116.  Perry  v.  Burton  (payment  of  taxes) 

117.  Killen  v.  Lide's  Adm'r.  (possession  of  money)     .    . 

118.  Pittsburgh,  V.  &  C.  R.  Co.  v.  Vance  (land  value)  . 

119.  State  V.  Lytle  (identity  of  counsel) 

120.  Grayson  v.  Lynch  (cattle  disease  in  another  place) 


es) 


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650 
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658 
659 
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720 
660 
665 


TOPICAL    CROSS-REFERENCES 


1317 


(2)  Handwriting 

121.  Lord  Ferrers  v.  Shirley  (knowledge  by  correspondence) 

122.  Eagleton  v.  Kingston  (general  principle) 

123.  Rowt's  Adm'x  v.  Kile's  Adm'r.  (general  principle).    .    . 

124.  State  v.  Allen  (general  principle) 

125.  State  v.  Goldstein  (knowledge  by  correspondence) .    .    . 

Sub-topic  E.     Memory  (Recollection) 

126.  Scroop's  Trial  (memoranda;  general  principle)  .... 

127.  Knox's  &  Lane's  Trial  .(memoranda;  general  principle) 

128.  Sir  J.  PViend's  Trial  (memoranda;  general  principle)    .. 

129.  Duchess  of  Kingston's  Trial  (memoranda;  general  prin- 

ciple)   

130.  Anon,  (memoranda;  general  principle) 

131.  Davis  V.  Field  (memoranda;  general  principle)  .    .    . 

(1)  Present  Recollection  Revived 

132.  Henry  v.  Lee  (mem.  not  written  by  witness  himself). 

133.  Sir  G.  A.  Lewin,  "Note  to  Lawes  v.  Reed"   (kind  of 

mem.  in  general)      

134.  Huff  V.  Bennett  (mem.  not  an  original) 

(2)  Past  Recollection  Recorded 

135.  Talbot  v.  Cusack  (general  principle) 

136.  Doe  dem.  Church  &  Phillips  v.  Perkins  (mem.  not  an 

original)      

137.  Burrough  v.  Martin  (mem.  not  written  by  witness  him- 

self)  

138.  Burton  v.  Plummer  (mem.  not  an  original) 

139.  Acklen's  Ex'r  v.  Hickman  (sundry  rules) 

140.  Norwalk  v.  Ireland  (witness'  personal  knowledge)      .    . 

141.  Volusia   County    Bank   v.    Bigelow    (time   of   making 

memo.) 

142.  Murray  &  Peppers  v.  Dickens  (time;  joint  memo.) 

143.  Curtis  v.  Bradley  (admissible  as  evidence  to  the  jury) 

Sub-topic  F.     Narration 
(1)  Form  of  Narration 

145.  James  Ram,  "Facts"   (leading  question)    .... 

146.  Nicholls  v.  Dowding  "  "  .... 

147.  Blevins  v.  Pope  "  "  .... 

148.  Heisler  v.  State  "  "  .... 

149.  Travelers'  Ins.  Co.  v.  Sheppard  (leading  questions) 

150.  Lott  v.  King  "  "  .... 

151.  Thomas  Hardy's  Trial  (misleading  questions)     .    . 

152.  Statutes      

153.  Allen  v.  Rand  (agent  writing  deposition)      .... 

154.  People  v.  Moore  (witness  reading  over  deposition) 

155.  Cowley  v.  People  (photograph) 

156.  De  Forge  v.  N.  Y.  N.  H.  &  H.  R.  Co.  (radiograph) 


treatise 

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APPENDIX    I 


160.  History 


(2)  Opinion 


(a)  The  Opinion  Rule,  in  General 

161.  New  England  Glass  Co.  v.  Lovell  (general  principle) 

162.  Commonwealth  v.  Sturtivant  (general  principle)    .    . 

163.  Hardy  v.  Merrill  (insanity) 

164.  Fiske  v.  Gowing  (meaning  of  conversation)      .... 

165.  Marcott  v.  Marquette,  H.  &  O.  R.  Co.  (possibility)  . 

166.  Graham  v.  Pennsylvania  Co.  (safety,  care,  etc.).    .    . 

167.  Schaefer  &  Co.  v.  Ely  (safety,  care,  etc.) 

168.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  (policy 

of  rule) 


(6)  Opinion  to  Character 

170.  Layer's  Trial  (history) , 

171.  Macclesfield's  Trial  (history) , 

172.  Alexander  Davison's  Trial  (history)      , 

173.  Regina  v.  Rowton  (defendant's  character) 

174.  John  H.  Wigmore,  "Note  on  R.  v.  Rowton"  (defend 

ant's  character) 

Sir  J.  F.  Stephen,  "Note  on  R.  v.  Rowton"  (defend- 
ant's character) 

Hamilton  v.  People  (witness'  character) 

Wm.  Trickett,  "Character-Evidence  in  Criminal 
Cases"  (in  general) 


175. 

176. 
177. 


(c)  Opinion  to  Handwriting 

179.  Algernon  Sidney's  Trial  (history) 

180.  Hales'  and  Kinnersley's  Trial  (history) 

181.  History 

182.  Doe  dem.  Perry  v.  Newton  (specimens  to  jury)      .    .    . 

183.  Doe  dem.  Mudd  v.  Suckermore    (specimens  to  expert) 

184.  Morrison  v.  Porter  (specimens) 

185.  University  of  Illinois  v.  Spalding  (specimens)      .    .    .    . 

186.  Statutes      

187.  Hoag  V.  Wright  (testing  expert's  opinion) 


189. 
190. 
191. 
192. 

193. 
194. 


{d)  Hypothetical  Questions 

Lord  Melville's  Trial  (general  principle) '   . 

M'Naghten's  Case  "  "       

Dickenson  v.  Fitchburg      "  "  .... 

Bellefontaine  &  Ind.  R.  Co.  v.  Bailey  (to  expert  having 

personal  knowledge) 

People  V.  McElvaine  (scope  of  data) 

People  V.  Faber  (sGope  of  data)      


Topic  2.      Rules  Limiting  Impeachment  of  Witnesses 

Stjb-topic  a.     General  Character  Traits 

196.  Macclesfield's  Trial  (kind  of  moral  trait)    .... 

197.  Rex  V.  Watson  (kind  of  moral  trait)     ...'... 


Ill 


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1969 
1976 
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TOPICAL   CROSS-REFERENCES 


TREATISE 


1319 

CODE 


198.  State  v.  Randolph  (kind  of  moral  trait) 

199.  Calhoon  v.  Com. 

200.  State  v.  Beckner  "     "       "         " 

201.  Alleman  v.  Stepp  (mental  impairment) 


Sub-topic  B.     Specific  Conduct 

202.  Rookwood's  Trial  (general  principle) 

203.  Layer's  Trial  "  "  

204.  Watson's  Trial  "  "  

205.  People  v.  Jackson  (proved  by  other  witnesses)    .    .    .    . 

206.  Lord  Castlemaine's  Trial   (proved  by  record  of  con- 

viction)        

207.  Statutes  (proved  by  record  of  conviction) 

208.  Koch  V.  State  (proved  by  record  of  conviction)  .    .    .    . 

209.  Oxier  v.  United  States  (on  cross-examination)     .    .    .    . 

210.  R.  V.  Castro,  alias  Tichborne  (on  cross-examination)     . 

211.  Buel  V.  State  (on  cross-examination) 

212.  People  v.  Crandall  (on  cross-examination) 

213.  State  v.  Greenburg    "      "  "  

214.  Sir  J.   F.   Stephen,    "History  of  the  Criminal  Law,' 

"Digest  of  the  Law  of  Evidence"  (on  cross-exami- 
nation)     

Sub-topic  C.     Contradiction  and  Self-Contradiction 

216.  Whitebread's  Trial  (general  principle)      .    .    . 

217.  Earl  of  Castlemaine's  Trial  (general  principle) 

218.  Attorney-General  v.  Hitchcock  (collateral  facts) 

219.  Chicago  City  R.  Co.  v.  Allen 

220.  Hoag  V.  Wright  "  " 

221.  Lambert  v.  Hamlin  "  " 
Simms  v.  Forbes                                "  " 
The  Queen's  Case  (prior  question  to  witness) 
Downer  v.  Dana                 "                   " 
Unis  z;.  Charlton's  Adm'r.  "                   " 
Adams  v.  Herald  Pub.  Co.  (prior  question  to  witness) 


Sub-topic  D.     Who  may  be  Impeached 


222. 
223. 
224. 
225. 
226. 


228.  History  (impeaching  one's  own  witness)      

229.  Stephen  Colledge's  Trial  (impeaching  one's  own  witness) 

230.  Buller,  J.,  "Trials  at  Nisi  Prius"  (by  contradiction)  . 

231.  Ewer  v.  Ambrose  (by  contradiction) 

232.  Selover  v.  Bryant  (By  self-contradiction)      

233.  Statutes  (by  self-contradiction) 

234.  State  v.  Slack  (who  is  one's  own  witness) 

235.  Sturgis  v.  State        "  "  

236.  Johnston  v.  Marriage  (who  is  one's  own  witness)    .    . 

237.  Koester  v.  Rochester  Candy  Works  (who  is  one's  own 

witness) 

238.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  (policy 

of  the  rule) 


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1320 


APPENDIX    I 


Topic  3.     Rtiles  Limiting  Corroboration  of  Witnesses 

240.  Bate  v.  Hill  (by  good  character) 

241.  Tedens  v.  Schumers  (by  good  character) 

242.  Gertz  v.  Fitchburg  R.  Co.  (by  good  character)   .... 

243.  Knox's  and  Lane's  Trial  (by  similar  statements)    .    .    . 

244.  Chief  Baron  Gilbert,    "Evidence"    (by  similar  state- 

ments)      

245.  Stolp  V.  Blair  (by  similar  statements) 

246.  State  v.  Parish     "        "  "  

247.  Hewitt  v.  Corey  "        "  "  


Topic  4.     Rules  Excluding  Party's  Admissions  and 
Confessions 

Sub-topic  A.     In  General 

250.  Theory 

251.  State  v.  Willis        (general  principles) 

252.  Heane  v.  Rogers  "  "  

253.  Corser  v.  Paul  "  "  

254.  Kitchen  v.  Robbins  (personal  knowledge)    .    .    .    . 


II 


II 


Sub-topic  B.     Third  Person's  Admissions 

255.  The  King  v.  Inhabitants  of  Hardwick  (nominal  parties) 

256.  Gibblehouse  v.  Stong  (privies  in  title) 

257.  Franklin  Bank  v.   Penn.   D.   &   M.   Steam   Nav.   Co. 

(agents) 

258.  Ashmore  v.  Pennsylvania  S.  T.  &  T.  Co.  (agents)      .    . 

259.  Rudd  v.  Robinson  (corporation  books) 

260.  Starr  Bm-ying  Ground  v.  North  Lane  Cemetery  Ass'n 

(stockholders) 

State  V.  Walker  (conspirators) 


261. 

262.  Piedmont  Savings  Bank  v.  Levy  (grantors) . 


Sub-topic  C.     Implied  Admissions 

(a)  Sundry  Conduct 

265.  Foxley's  Case  (in  general) 

266.  Armory  v.  Delamirie  (in  general) 

267.  Craig  dem.  Annesley  v.  Anglesea  (suppression  of  evi-' 

dence) '. 

268.  Roe  dem.  Haldane  &  Urry  v.  Harvey  (non-production 

of  evidence) 

269.  Morse  v.  Minneapolis  &  St.  L.  R.  Co.   (repairs  «after 

injui-y) 

270.  Brock  v.  State  (non-production  of  witness)      

271.  Stevens  r).  Boston  Elevated  Ry.  Co.  (employer's  rules) 

272.  Rhea  v.  Territory  (non-production  of  witness)    .... 

(b)  Assent  by  Silence 

274.  Home  Tooke's  Trial  (general  principle) 

275.  Fairlie  v.  Denton  (general  principle) 


II 


1106 

1109 

(( 

U122- 
"ill31 
J1122- 
I113I 


II 


1048 

(( 

1056 

a 

1053 


1076 
1080 

1078 

1074 

1076 
1079 
1082 


273 

278 
291 

283 

288 
282 
288 

1071 


596 
601 

1612- 
1619 
j612- 
1619 


630 


635 
634 


686 

688 

687 
675 

686 

687 
692 


641 

u 

654 

658 

647 
658 
647 
658 

666 


TOPICAL    CROSS-REFERENCES 


1321 


TREATISE         CODE 


276.  Mattocks  v.  Lyman  (general  principle) 

277.  Commonwealth  v.  Kenney  (.silence  under  arrest)    .    .    . 

278.  Parulo  v.  Phila.  &  Reading  R.  Co.  (silence  by  ignorance) 

279.  Wiedemann  v.  Walpole  (non-reply  to  claim) 

280.  Rudd  V.  Robinson  (stockholder's  access  to  books)  .    .    . 

281.  Chesapeake  &  O.  R.  Co.  v.  Deepwater  R.  Co.  (stock- 

holder's access  to  books) 

Sub-topic  D.     Admissions  in  Litigation 

282.  Hartford  Bridge  Co.  v.  Granger  (offer  of  compromise) 

283.  Truby  v.  Seybert  (attorney's  admissions)     

284.  Dennie  v.  Williams  (pleadings)      

285.  Boots  V.  Canine  "  

286.  Person  v.  Bowe  "  

Sub-topic  E.     Confessions 

288.  History 

289.  Warickshall's  Case  (general  principle) 

290.  Bram  v.  United  States  (inducement) 

29  L  Commonwealth  v.  Cressinger  (inducement) 

292.  Commonwealth  v.  Storti  "  

293.  Ammons  v.  State  (sweat-box) 

294.  State  v.  Finch  (statement  made  under  oath) 

295.  State  v.  Campbell  (what  is  a  confession)      


TITLE  II.    PREFERENTIAL  RULES 

296.  Introductory 

297.  James  Bradley  Thayer,    "A  Preliminary  Treatise  on 

Evidence"  (best  evidence  rule)      


II 


II 


SUB-TITLE   I.     RULE   OF  PREFERENCE  FOR 
DOCUMENTARY   ORIGINALS 

298.  History 

299.  Francis  Francia's  Trial  (history)        

300.  John  Tutchin's  Trial  "  

Topic  I.     The  Rule  Itself 

302.  Dr.  Leyfield's  Case  (general  principle) 

303.  Read  v.  Brookman  (original  lost) .    .    . 

304.  The  Queen  v.  Kenilworth  (extent  of  search) 

305.  Bagley  v.  McMickle  (destruction  by  party) 

306.  Prussing  v.  Jackson  (extent  of  search) 

307.  Attorney-General  v.  Le  Merchant  (detention  by  oppo- 

nent)     

308.  Lawrence  v.  Clark     "  "  

309.  Dwyer  v.  Collins  (notice  to  produce) 

310.  United  States  v.  Doebler  (notice  to  produce) 

311.  Eure  v.  Pittman  (possession  by  third  person)      .    .    .    . 

312.  Bowden  v.  Achor  "  "  .    .    .    . 


II 


II 


II 


1071 
1072 
1071 
1073 
1074 


1061 

1063 

1064-7 


817 
831-41 


833 
852 
821 


1171 
1173 

1177 


666 
670 
668 
671 
675 


642 

680 

681-4 


700 
707 


716 
701 


745 
746 


1179 

747 

1193 

754 

1194 

760 

1198 

763 

1194 

761 

1199 

764 

1202 

769 

it 

770 

1205 

768 

1212 

775 

1213 

776 

1322 


APPENDIX    I 


TREATISE         CODE 


318 
319 


313.  Shea  v.  Sewerage  &  W.  Board  (voluminous  documents) 

314.  Chief  Baron  Gilbert,   "Evidence"    (public  document) 

315.  Rex  V.  Gordon         (public  document) 

316.  Hennell  v.  Lyon  "  "  

317.  Clement  v.  Graham     "  "  

Lynch  v.  Gierke  (recorded  deed) 

Peay  v.  Picket  "  " 

320.  Commonwealth  v.  Emery  (recorded  deed) 

321.  Statutes    (recorded  deed) 

322.  Scott  V.  Bassett  (recorded  deed) 

323.  Carpenter  v.  Dressier  (land  certificate) 

Topic  2.     Limits  to  the  Application  of  the  Rule 

325.  Philipson  v.  Chase  (duplicate  original)      

326.  Rex  v.  Watson  "  "         

327.  Anheuser-Busch  Brewing  Ass'n  v.  Hutmacher  (duplicate 

original)      

328.  Peaks  v.  Cobb  (duplicate  original) 

329.  International  Harvester  Co.  v.  EKstrom  (carbon  copy) 

330.  Cole  V.  Gibson  (collateral  documents) 


331.  Lamb  v.  Moberly  (collateral  documents) 

332.  Tilton  v.  Beecher  "  "  

333.  Massey  v.  Bank  "  "  

334.  Minnesota  Debenture  Co.  v.  Johnson   (collateral  docu- 

ments       

335.  Slatterie  v.  Pooley  (party's  admission) 

336.  Lawless  v.  Queale  "  "  

337.  Minnesota   Debenture    Co.   v.    Johnson    (party's    ad- 

mission)       

338.  The  Queen's  Case  (witness'  admission) 


339.  Henry  Brougham,  "Speech  on  the  Courts  of  Common 

Law"  (witness'  admission) 

340.  Statutes  "  "  

341.  The  Charles  Morgan  (witness'  admission) 

Topic  3.     Rules  Preferring  One  Sort  of  Secondary  Evidence 
to  Another 

343.  Doe  dem.  Gilbert  v.  Ross  (copy  vs.  recollection)     .    . 

344.  Harvey  v.  Thorpe  (copy  vs.  recollection) 

345.  State  v.  Lynde  (official  copy)      

346.  State  v.  Knowles  (record  of  conviction) 

347.  Statutes      

348.  Chief  Baron  Gilbert,  "Evidence"         (copy  of  copy) 

349.  Cameron  v.  Peck  (Connecticut,  1871)       "  " 

SUB-TITLE    II.     RULES    OF    PREFERENCE    AS 
BETWEEN    DIFFERENT    KINDS    OF    WITNESSES 


Topic  I. 

351.  History  . 

352.  Statutes 


Rule  Preferring  the  Attesting  Witness 


VOL. 

§ 

II 

1230 
1218 

tl 

II 

(I 

II 

u 

1224 

u 

li 

tl 

1225 

II 

1239 

II 

II 

1232 

II 

II 

II 

II 

II 

11 

1234 

(( 

1252 

(( 

u 

1245 
1243 
1248 

II 
II 

1246 

1255 

11 

" 

11 

" 

1259 

II 

u 

11 

li 

II 

(( 

II 

1268 

II 

11 
11 

1273 
1270 

II 
li 

1274 

II 

1287 
1291 

TOPICAL   CROSS-REFERENCES 


TREATISE 


1323 

CODE 


353.  Bootle  v.  Blundell  (number  required) 

354.  Holmes  v.  HoUoman  (grounds  excusing  production)  .    . 

355.  McVicker  v.  Conkle  (proof  of  both  signatures)    .... 

356.  Gillis  v.  Gillis  (failure  of  proof) 

357.  More  v.  More  (implied  tenor  of  attestation) 

358.  Statutes  (sundry  details) 

Topic  2.     Rules  of  Preference  for  Sundry  Kinds  of  Witnesses 

359.  United  States  v.  Gibert  (eyewitnesses  in  general)   .    .    . 

360.  Regina  v.  Christopher  (magistrate's  report  of  testimony) 

361.  Brice  v.  Miller  (stenographer's  report)      


TITLE  III.    ANALYTIC  RULES  {HEARSAY  RVLE) 

SUB-TITLE    L     THE   HEARSAY   RULE   ITSELF 
Topic  I.     History  and  Theory  of  the  Rule 


364.  Introductory  (general  principle) 

365.  History 


Topic  2.     Modes  of  Satisfying  the  Rule  of  Cross-Examination 

368 
369 
370 
371 
372 


Cazenove  v.  Vaughan  (opportunity  to  attend)    .    . 

Statutes  (notice  of  deposition) 

Evans  v.  Rothschild  (notice  of  plural  depositions) 
Walkerton  v.  Erdman  (issues  and  parties  the  same) 
Ansonia  v.  Cooper  (deposition  taken  but  not  used) 


Topic  3.     Modes  of  Satisfying  the  Rule  of  Confrontation 


373.  Introductory  (general  principle) 

374.  Statutes  (non-availability  of  witness) 

375.  Greenlee  v.  Mosnat  (non-availability  of  witness)    .    . 

376.  Hughes  v.  Chicago,  St.  P.  M.  &  Omaha  R.  Co.  (party's 

admission)      

377.  State  v.  Heffernan  (criminal  cases)        


SUB-TITLE  II.     EXCEPTIONS  TO  THE  HEARSAY  RULE 

380.  Introductory  (general  principle) 


Topic  I.     Dying   Declarations 

381.  Wright  dem.  Clymer  v.  Littler  (forgery  of  will)  .    .    . 

382.  Stobart  v.  Dryden  (civil  cases) 

383.  J.  G.  Phillimore,  "History  and  Principles  of  the  Law  of 

Evidence"  (same) 


384.  Montgomery  v.  State  (homicide  by  abortion) 


Topic  2.     Statements  of  Facts  against  Interest 


385.  Middleton  v.  Melton  (pecuniary  interest)    . 

386.  Smith  v.  Moore  (proprietary  interest)  .    .    . 
386a.  Donnelly  v.  United  States  (penal  interest) 


VOL. 
II 


II 


II 


II 


II 


II 


II 


II 


1304 
1310 
1320 
1302 
1511 
1311 


1339 
1329 
1330 


1361 
1364 


1371 
1382 
1379 
1386 
1389 


1395 
1411 
1409 

1416 
1398 


1420 


1432 


1432 


1460 
1458 
1476 


867 
869 
887 
866 
1000 


897 
892 
893 


910 


913 

916 
916 
919 
921 


929 
930 
938 

942 
929 


950 


952 


952 
(952, 
(961 


968 
969 
971 


1324 


APPENDIX   I 


TREATISE        CODE 


Topic  3.     Statements  about  Family  History 

387.  Vowles  v.  Young  (husband  as  to  wif(;'s  family) 

388.  Johnson  v.  Lawson  (non-member  of  family)     . 

389.  Hartman's  Estate  (nature  of  relationship) 


391.  History 


Topic  4.     Regular  Entries 


Sub-topic  A.     Party's  Books  of  Account 
392.  Eastman  v.  Moulton  (general  rules)      


393.  Statutes  (general  rules)      

394.  Conklin  v.  Stamler  (effect  of  party's  competency) 

395.  House  v.  Beak  (general  rules)       


396.  Lewis  v.  England  (originals;  cash  items) 


Sub-topic  B.     Third  Person's  Entries 


397. 
398. 
399. 

400. 


Price  V.  Lord  Torrington  (history) 

Kennedy  v.  Doyle  (kind  of  occupation) 

Delaney  v.  Framingham  Gas  F.  &  P.  Co.   (personal 

knowledge) 

Louisville  &  N.  R.  Co.  v.  Daniel  (personal  knowledge) 


40L  Coolidgep.  Taylor  (personal  knowledge) 


II 


II 


II 


Topic  5.     Statements  by  Deceased  Persons  in  General 

402.  Sugden  v.  St.  Leonards  (general  principle) 

403.  Statutes  (general  principle) 

404.  Nagle  v.  Boston  &  N.  S.  R.  Co.  (general  principle)    . 

Topic  6.     Reputation 

407.  Badger  v.  Badger  (marriage) 

408.  Bland  v.  Beasley  (boundaries) 

409.  Bucklin  v.  State  (character) 

410.  Atlantic  &  Birmingham  R.  Co.  v.  Reynolds  (character) 

Official  Statements 


Topic  7. 

412.  Introductory 

413.  Rex  V.  Aickles  (general  principle) 

414.  Gaines  v.  Relf 


Sub-topic  A.     Registers  and  Records 

415.  Merrick  v.  Wakley  (workhouse  record) 

416.  Kennedy  v.  Doyle  (marriage  register) 

417.  Delaney  v.   Framingham  Gas  F.  &  P.   Co.    (hospital 

record)    

418.  History  (register  of  deeds)      

419.  Statutes       "  "         

420.  Eady  v.  Shivey  (register  of  deeds) 

421.  Wilcox  V.  Bergman  (register  of  deeds)       

422.  Chesapeake  &  Ohio  R.  Co.  v.  Deepwater  R.  Co.  (records 

of  corporation) 


II 


II 


II 


III 


III 


1489 
1487 
1491 


1518 


1537 

1519 
1560 
1537 
S   1539 
1  1558 


1518 
1523 

1530 


1576 


1603 
1584 
1610 
1616 


1633 


1639 
1642 

1639 
1650 
1651 
1651 
1651 

1661 


988 
987 
989 


1019 
-26 

1018 
1019 
(1020 
1  1032 


1005 


1012 


1047 


1066 
1052 
1071 
1075 


1090 

a 

1100 
1103 

1100 

1110 

1121 


TOPICAL   CROSS-REFERENCES 


1325 


TREATISE       CODE 


Sub-topic  B.    Reports  and  Returns 

423.  Ellicott  V.  Pearl  (surveyor) 

424.  U.  S.  Life  Insurance  Co.  v.  Vocke  (coroner)    . 

425.  Jones  v.  Guano  Co.  (State  chemist) 


Sub-topic  C.     Certificates 

427.  Omichund  v.  Barker  (in  general) 

428.  Tovvnsley  v.  Sumrall  (notary's  protest) 

429.  Statutes  (notary's  protest)      

430.  Kidd's  Adm'r  v.  Alexander's  Adm'r  (notary's  certificate 

of  deed)       

431.  Statutes  (notary's  certificate  of  deed) 

432.  John  H.  Wigmore,    "Treatise  on  Evidence"   (notary's 

certificate  of  deed) 

433.  Chief  Baron   Gilbert,    "Evidence"    (certified    copy  in 

general) 

434.  Justice  Buller,  "Trials  at  Nisi  Prius"  (certified  copy  in 

general) 

435.  Appleton  v.  Braybrook  (certified  copy  in  general) 

436.  Church  v.  Hubbart  (judicial  record) 

437.  United  States  v.  Percheman  (public  record)     .... 

438.  Ferguson  v.  Clifford  (public  record) 

439.  Statutes  (certified  copy)      

440.  Chief    Baron    Gilbert,    "Evidence"  (  official    printer's 

copy)  .....    

441.  Statutes  (official  printer's  copy) 

442.  Willock  v.  Wilson  (official  seal) 


Topic  8      Statements  of  a  Mental  or  Physical  Condition 

445.  Aveson  v.  Kinnaird  (general  principle) 

446.  Bacon  v.  Charlton  (statements  of  pain) 

447.  Roosa  v.  Loan  Co.  "  "  

448.  Roche  v.  Raih-oad  Co.        "  "  

449.  Williams  v.  Great  Northern  R.  Co.  (statements  of  pain) 

450.  Doe  dem.  Shallcross  v.  Palmer  (statements  of  intention) 

451.  Commonwealth  v.  Trefethen  "  " 

452.  Waterman  v.  Whitney  (testator's  utterances)      .... 

453.  Sugden  v.  St.  Leonards  "  "  .... 

454.  Mooney  v.  Olsen  "  "  .    .    .    . 

455.  Hobson  v.  Moorman  "  "  .... 


Topic  9.     Spontaneous  Exclamations 

457.  Thompson  v.  Trevanion  (general  principle) 

458.  United  States  v.  King  "  "  

459.  Travelers'  Insurance  Co.  v.  Sheppard  (general  principle 

460.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Haislup  (general 

principle) 

SUB-TITLE    m.     HEARSAY   RULE    NOT    APPLICABLE 

(RES    GESTAE) 

462.  Introductory  (general  principle) 

463.  James  Bradley  Thayer,  in  "American  Law  Review" 

(res  gestae) 


Ill 


III 


III 


III 


III 


1665 
1671 
1672 


1674 
1675 


1676 


1677 


1681 
1680 


1684 

u 

1679 


1718 
1722 
1719 


1725 

1740 
1736 
1738 


1747 
1749 


1768 


1133 
1141 
1130 


1144 
1146 


1147 

(i 
i( 

1152 

<( 
(( 

( 1163, 
1 1145 
1153 

1160 

1164 

ii 

1145 


1201 
1202 
1203 
1202 

1208 

1224 
1220 
1223 
1223 


1230 
1233 


1240 


1326 


APPENDIX    I 


464.  Cherry  v.  Slade  (general  principle) 

465.  Fabrigas  v.  Mostyn  (third  person's  belief) 

466.  Tilton  v.  Beecher  (speaker's  intent) 

467.  Parnell  Commission's  Proceedings  (third  person's  belief) 

468.  Webb  v.  Richardson  (occupation  of  land) 

469.  State  v.  Fox  (identifying  a  time) 

470.  State  Bank  v.  Hutchinson  (third  person's  belief)    .    .    . 

471.  Piedmont  Savings  Bank  v.  Levy  (grantor's  declaration) 

TITLE  ir.    PROPHYLACTIC  RULES 

472.  Introductory      


473. 
474. 
475. 
476. 
477. 
478. 
479. 
480. 
481 : 
482. 
483. 
484. 


SUB-TITLE   I.     OATH 

History 

Joseph  Chitty,  "The  Practice  of  the  Law"  (form) 

Clinton  v.  State  (belief) 

Lady  Lisle's  Trial  "       

Omichund  v.  Barker        "        

Miller  v.  Salomons  "       

People  V.  Matteson  "       

Braddon's  Trial  (child) 

Charles  Dickens,  "Bleak  House"  (child) 

Hughes  v.,  D.  G.  H.,  &  M.  R.  Co.  (child)      .    .    . 

Statutes  (oath  made  optional) 

Hronek  v.  People  (oath  made  optional) 


SUB-TITLE  II.     SEQUESTRATION  OF  WITNESSES 

486.  Susanna's  Case  (history) 

487.  Kerne's  Trial  (history) 

488.  Golden  v.  State  (method) 

489.  Louisville  &  Nashville  R.  Co.  v.  York  (method)     . 

490.  Statutes  (method) 

491.  LaughUn  v.  State  (effect  of  disobedience)     .... 


SUB-TITLE  m.     DISCOVERY  BEFORE  TRIAL 

492.  History 

Topic  I.     Witnesses 
Sub-topic  A.     Criminal  Cases 

493.  Stephen  CoUedge's  Trial  (history) 

494.  Sir  J.   F.   Stephen,    "History  of  the  Criminal  Law" 

(history) 

495.  Statutes  (history)     

496.  State  v.  Myers  (effect  of  omitting  notice) 


Sub-topic  B.     Civil  Cases 

497.  Sir  James  Wigram,  "Discovery"  (rule  in  chancery) 

498.  Common  Law  Practice  Commissioners'  Report  (com- 

mon law) 

499.  Statutes  (changing  rule)      

500.  Ex  parte  Schoepf  (effect  of  statutes) 

500a.  Meier  v.  Paulus  (effect  of  statutes) 


Ill 


III 


III 


III 


III 


III 


III 


1772 
1789 
1777 
1789 
1778 
1791 
1789 
1780 


1813 

1815 
1818 
1817 


1821 


1828 
1829 


1837 

1840 

it 

1837 

1842 

1845 
1845 


1851 
1853 


1856 


1245 
1256 
1246 
1256 
1248 
1258 
1256 
1249 


1295 
1287 

1288 


1289 

ii 
(C 

1302 


1314 
1315 
1316 
1321 


1327 
1330 


1332 


TOPICAL    CROSS-REFERENCES 


1327 


Topic  2.     Documents 

501.  Wm.  Tidd,  "Practice"  (common  law  rule)      .    .    . 

502.  Bolton  v.  Liverpool  (chancery  rule) 

503.  Henry  Brougham,  "Speech  on  the  Courts  of  Common 

Law"  (policy) 

504.  Common  Law  Practice  Commissioners'  Report  (policy) 

505.  Statutes  (change  of  law)      

506.  Swedish-American  Telephone  Co.  v.  Fidelity  &  C.  Co. 

(effect  of  change) 

507.  Reynolds  v.  Burgess  Sulphite  Fibre  Co.  (chattels) 

TITLE    r.    SYNTHETIC    RILES 

509.  Introductory  

SUB-TITLE  I.     NUMBER  OF  WITNESSES  REQUIRED 

510.  History 

511.  Indianapolis  Street  R.  Co.  v.  Johnson  (general  principle) 

512.  Summary  (general  principle) 

SUB-TITLE  II.     KINDS  OF  WITNESSES  REQUIRED 

513.  Introductory  (general  principle) 

514.  Rex  V.  Simmonds  (eye-witness  of  crime) 

515.  State  v.  Barrett  (eye-witness  of  crime) 

516.  Sir   Matthew   Hale,    "Pleas   of    the   Crown"    (corpus 

delicti) 

517.  Commonwealth  v.  Webster  (corpus  delicti)      .... 

518.  Buel  V.  State  (corpus  deUcti) 

SUB-TITLE   III.     VERBAL    COMPLETENESS 

520.  Algernon  Sidney's  Trial  (general  principle)      .... 

521.  Thomas  Starkie,  "Evidence"  (general  principle)    .    . 

522.  Tilton  i>.  Beecher  (general  principle) 

523.  Commonwealth  v.  Keyes  (general  principle)    .... 

Topic  I.     Compulsory  Completeness 

525.  Smnmons  v.  State  (former  testimony)       

526.  State  v.  Lu  Sing  (confession) 

527.  Read  v.  Hide  (document)      

528.  Vance  v.  Reardon  (judicial  record) 

529.  Perry  v.  Burton  (deed) 

530.  Tiiton  v.  Beecher  (report  of  speech)      

531.  Parnell  Commission's  Proceedings  (report  of  speech) 

Topic  2.     Optional  Completeness 

532.  The  Queen's  Case  (witne.ss'  self-contradictions)      .    . 

533.  Prince  v.  Samo  (party's  admissions)      

534.  People  v.  SchJessel  (party's  admissions) 

535.  Dewey  v.  Hotchkiss  (account-books) 

536.  Atherton  v.  Defreeze  (conversations) 

537.  Lombard  v.  Chaplin  "         "  ....... 


FREATISE 

CODE 

VOL. 
Ill 

§ 

§ 

1858 
1857 

— 

it 

1858 

— 

It 

It 

1335 

u 
it 

It 
1862 

it 
1339 

III 

2030 

— 

III 

It 

2032 
2034 

1.500 

III 

it 
t< 

2077 

2079 

It 

1534 
1535 

II 
II 

2081 

II 

tt 

1536 

III 

2094 

1547 

" 

It 

ii 

I 

II 

1 

2098 
2100 
2102 
2110 
21'05 
2102 

1551 
1558 
1561 
1571 
1.566 
1555 

III 

2115 

1576 
1575 

1 
1 
1 

2118 
2115 
2119 

1581 
1580 

1328 


APPENDIX    I 


SUB-TITLE   IV.     AUTHENTICATION   OF   DOCUMENTS 

538.  Home  Tooke's  Trial  (general  principle) 

539.  Willson  v.  Betts  "  "  

540.  Stamper  v.  Griffin  (general  principle) 

541.  Siegfrid  v.  Levan  (presumption) 

542.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  (modes  of 

authentication) 


Topic  I.     Authentication  by  Age 

544.  Middleton  v.  Mass  (possession) 

545.  McGuire  v.  Blount  (custody) 


546. 

547. 
548. 
549. 


Topic  2.     Authentication  by  Contents 
International  Harvester  Co.  v.  Campbell  (general  prin- 


ciple) 


Barham  v.  Bank  of  Delight  (general  principle) 
Cobb  V.  Glenn  B.  &  L.  Co.  (telegram)  .  .  . 
Barrett  v.  Magner  (telephone) 


Ill 


Topic  3.     Authentication  by  Official  Custody 
550.  Adamthwaite  v.  Synge  (general  principle)    .    . 


Topic  4.     Authentication  by  Official  Seal 

552.  J.  C.  Jeaffreson,  "A  Book  about  Lawyers"  (history) 

553.  Chief  Baron  Gilbert,   "Evidence"    (general  principle) 

554.  John  H.  Wigmore,  "A  Treatise  on  Evidence"   (general 

principle) 

555.  Church  v.  Hubbart  (foreign  record) 

556.  Griswold  v.  Pitcairn  (foreign  record) 

557.  Waldron  v.  Turpin  (foreign  notary)       

558.  Statutes  (foreign  notary) 

559.  Commonwealth  z).  Phillips  (judicial  record) 

560.  Statutes  (judicial  record) 

561.  Garden  City  Sand  Co.  v.  Miller  (judicial  record)    .    .    . 

562.  Willock  v.  Wilson  (judicial  record) 

563.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  (distinc- 

tions)   


PART  II.    RULES   OF  EXTRINSIC  POLICY 

565.  Introductory         


TITLE    I.    RULES    OF   ABSOLUTE    EXCLUSION 

566.  Stevison  v.  Earnest  (illegal  procurement  of  evidence) 

567.  WiUiams  v.  State 


TITLE    II. 


568.  History 


MULES    OF    CONDITIONAL    EXCLUSION 
{FRiriLEOE) 


III 


III 


III 


III 


III 


III 


IV 


2130 

2130 
2135 

2131 


2141 
2139 


2148 

u 

2154 
2155 


2158 

2161 

<i 

2163 

(I 

2165 

u 

2164 

(( 

(I 

a 

2162 
2175 
2183 

ii 

2190 


1591 

1595 
1604 

1596 


1613 
1611 


1620 

ii 

1626 
1594 


1630 


1633 

1634 
1638 
1639 

1640 

(( 

1639 


1634r-6 


1650 


1656 


TOPICAL    CROSS-REFERENCES 


1329 


TREATISE  CODE 


SUB-TITLE   I.     VIATORIAL   PRIVILEGE 

569.  Introductory  (general  principle) 

570.  Braddon's  Trial  (fees)      

571.  West  V.  State  (fees)      

572.  People  v.  Davis  (illness) 

573.  Statutes  (distances)      

574.  Dixon  v.  People  (fees  of  expert) 

575.  In  re  Shaw  (subpcsna  duces  tecum) 

SUB-TITLE   II.     PRIVILEGED   TOPICS 

576.  Doe  v.  Date  (privilege  personal  to  witness)      .    .    . 

577.  Great  Western  Turnpike  Co.  v  Loomis  (privilege  per- 

sonal to  witness) , 

Topic  I.     Privilege  for  Party-Opponent  in  Civil  Cases 

578.  History 

579.  Statutes      , 

580.  Wanek  v.  Winona  (human  body) , 

581.  Reynolds  v.  Burgess  Sulphite  Fibre  Co.  (chattels)      .    , 

Topic  2.     Privilege  for  Anti-Marital  Facts 

583.  Sir    Edward    Coke,    "Commentary    upon    Littleton' 

(history) 

584.  Lady  Ivy 's  Trial  (history)      

585.  Rex  v.  All  Saints  (spouse  not  a  party)      

586.  State  v.  Briggs  (spouse  not  a  party)      

587.  Caldwell  v.  Stuart  (spouse  deceased) 

588.  State  v.  Woodrow  (offences  against  spouse)     .... 

589.  Rhea  v.  Territory  (inference  from  claim  of  privilege) 

590.  Statutes  (changes  in  law) 

591.  Common  Law  Practice  Commissioners'  Report  (policy) 

Topic  3.     Privilege  for  Self-Criminating  Facts 

593.  History 

594.  Statutes  (general  principle) , 

595.  Counselman  v.  Hitchcock 


Sub-topic  A.     Scope  of  the  Privilege 

596.  Paxton  v.  Douglas  (facts  tending  to  criminate) 

597.  Aaron  Burr's  Trial 

598.  Ward  v.  State  "         "         "  " 

599.  State  v.  Flynn  (documents) 

600.  United  States  v.  Cross  (bodily  exhibition)    .    . 

601.  Downs  V.  Swann  (bodily  exhibition)      .... 

602.  Holt  V.  United  States  (bodily  exhibition) .    .    . 

603.  Ex  parte  Kneedler  (name) 

604.  Hale  v.  Henkel  (corporation)      

605.  John  H.  Wigmore,  "Note  on  Hale  v.  Henkel" 


VOL. 

§ 

§ 

IV 

2197 

1661 

ti 

2202 

1680 

11 

" 

2205 

1685 

" 

2207 

1691 

" 

2203 

1682 

2200 

1667 

IV 

2196 

1673 

11 

11 

It 

IV 

2218 

11 

1702 

(( 

2220 

1704 

it 

2221 

1705 

IV 

2227 

If 

It 

— 

a 

2234 

1715 

u 

2234 

1715 

ii 

2237 

1712 

ti 

2239 

1723 

<{ 

2243 

1726 

(( 

2245 

1718 

tt 

2228 

. 

IV 

2250 

It 

2252 
2252 

1731 

II 

IV 

2260 

1736 

it 

11 

II 

tl 

2264 

1738 

11 

2265 

1739 

tl 

" 

" 

tt 

2260 

1736 

It 

2259 

1735 

tl 

II 

t: 

1330 


APPENDIX    I 


TREATISE       CODE 


Sub-topic  B.     Claim  of  the  Privilege 

607.  Bembridge's  Trial  (warning  by  judge)      

608.  Mayo  v.  Mayo  "         "       "  

609.  Cloyes  v.  Tiiayer  (privilege  personal  to  witness)      .    .    . 

610.  State  v.  Kent  alias  Pancoast  (privilege  personal  to  wit- 

ness)     

611.  Regina  ».  Garbett  (who  decides) 

612.  State  v.  Thaden  "         "         

613.  People  v.  Tyler  (inference  from  claim)      

614.  Commonwealth  v.  Webster  (inference  from  claim)    .    . 

615.  Brock  v.  State  "  "         "     .    .    . 

616.  Commonwealth  v.  Richmond  (comment  by  counsel) 

617.  Arthur  Train,  "The  Prisoner  at  the  Bar" 


Sub-topic  C.     Waiver  of  the  Privilege 

618.  East  India  Co.  v.  Atkins  (by  contract)     .    .    . 

619.  Regina  v.  Garbett  (by  testimony) 

620.  Fitzpatrick  v.  United  States  (by  testimony)    . 


Sub-topic  D.     Removal  of  the  Privilege  by  Grant 
OF  Immunity 

621.  Counselman  v.  Hitchcock  (effect  of  statute)    . 

622.  Brown  v.  W^alker  (effect  of  statute) 

623.  Hale  v.  Henkel  (mode  of  obtaining  immunity) 

624.  State  v.  Murphy 

625.  Heike  v.  United  States  "  " 

Sub-topic  E.     Policy  of  the  Privilege 

627.  Marquis  of  Nayve's  Trial 

628.  Sir  J.  F.  Stephen,  "History  of  the  Criminal  Law 

629.  Committee  on  Trial  Procedure,  Institute  of  Criminal 

Law  and  Criminology 

630.  Arthur  Train,  "The  Prisoner  at  the  Bar"   .    . 

631.  John  H.  Wigmore,  "A  Treatise  on  Evidence" 


SUB-TITLE   III.     PRIVILEGED    RELATIONS 
633.  Introductory  (general  principle) 


Topic  I.     Attorney  and  Client 

635.  Greenough  v.  Gaskell  (general  principle)      .    .    . 

636.  Anderson  v.  Bank  "  "       

637.  Statutes  (general  principle) 

638.  Craig  dem.  Annesley  v.  Anglesea  (plan  of  crime) 

639.  Hatton  v.  Robinson  (conveyancing)      

640.  Barnes  v.  Harris  (law  student) 

641.  Mitchell's  Case  (documents) 

642.  Skinner  v.  Great  Northern  R.  Co.  (documents)  . 

643.  Ex  parte  Schoepf  (documents) 

644.  Sheehan  v.  Allen  (consultation  as  attorney)     .    . 


IV 


IV 


IV 


IV 


IV 


IV 


2269 
2270 

2271 

2272 
2273 


2275 
2276 


2282 
2281a 


2251 


2285 


2292 


2298 
2297 
2301 
2309 
2318 


§ 


1742 
1743 

1744 

1745 

ti 

1746 

1748 

1747 


1749 
1751 


1754 
1755 


1760 


1765 


1772 
1770 
1774 
1784 
1785 


(2303  U777 
<  2306 1 11780 


TOPICAL   CROSS-REFERENCES 


1331 
TREATISE       CODE 


645.  Champion  v.  McCarthy  (will) 

646.  In  re  Cunnion's  Will  " 


Topic  2.     Husband  and  Wife 

648.  Introductory  (general  principle)     .    .    . 

649.  Mercer  v.  State  (third  person  disclosing) 

650.  Sexton  v.  Sexton  (confidential  nature) 

Topic  3.     Jurors 

652.  Earl  of  Shaftesbury's  Trial  (grand  jury) 

653.  Phillips  v.  Marblehead  (petit  jury)    .    . 

654.  State  v.  Campbell  (grand  jury  witness) 

Topic  4.     Official  Secrets 

655.  Hardy's  Trial  (informer) 

656.  Michael  v.  Matson  (informer)     .... 

657.  Aaron  Burr's  Trial  (Executive)  .... 

658.  Mississippi  v.  Johnson       "  .... 

659.  Beatson  v.  Skene  (officials  in  general)   . 

660.  Hennessey  v.  Wright 


662. 
663. 
664. 
665. 


Topic  5.     Physician  and  Patient 

Duchess  of  Kingston's  Trial  (historjO 

Commissioners  on  Revision  of  the  Statutes 

Gartside  v.  Connecticut  M.  L.  Ins.  Co. (communications) 
McRae  v.  Erickson  (necessary  to  prescribe) 


BOOK    II 

HOW    AND    WHEN    EVIDENCE    IS 
TO  BE  PRESENTED 

(PROCEDURE    OF   ADMISSIBILITY) 

TITLE  I.    THEOJiT  OF  AVMISSIBILITT 

Topic  I.     Multiple  Admissibility 

667.  People  v.  Doyle         (general  principle) 

668.  Goodhand  v.  Benton       "  "  

669.  Pegg  V.  Warford  "  "  

670.  Ball  V.  United  States       "  "  

Topic  2.     Curative  Admissibility 

671.  Mowry  1).  Smith    (general  principle) 

672.  Phelps  v.  Hunt  "  "  

673.  Sisler  v.  Shaffer  "  "  

674.  State  v.  Slack  "  "  

Topic  3.     Conditional  Admissibility 

675.  Rogers  v.  Brent  (general  principle)       

676.  Campau  v.  Dewey    "  "  


IV      2315 


IV 


IV 


IV 


IV 


2329 


2333 

2339 

(2336 

"J2337 

2360 
2346 
2362 


2374 

a 

2370 

ii 

2375 

ii 

2380 

2384 
2383 


I 
III 


1794 

1807 


1812 

1819 

J1815 

I18I6 

1830 
1825 
1834 


1837 
1850 
1845 


1859 
1858 


13 


15 


114 

ri87i 


42 


44 


46 

47 


45 
1360 


1332 


APPENDIX    I 


677.  Parnell  Commission's  Proceedings  (general  principle) 

678.  Ellis  V.  Thayer  (general  principal)         

679.  Putnam  v.  Harris  (motion  to  strike  out) 


TITLE  II.   MODE   OE  INTRODUCING  EVIDENCE 

Topic  I.     The  Offer 
682.  Goodhand  v.  Benton  (specific  purpose) 


683.  Farleigh  v.  Kelley  (good  in  part  only) 

684.  Indianapolis  &  Martinsville  R.  T.  Co.  v.  Hall  (good 

in  part  only) 

685.  Marshall   v.    Marshall    (expected   answer   not   shown) 


Topic  2.     The  Objection 


687. 


Cady  V.  Norton  (general  principle) 

688.  Marsh  v.  Hand  (time)      

689.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  (time) 

690.  Albers  Commission  Co.  v.  Sessel  (time,  for  deposition) 

691.  Rush  V.  French  (tenor) 

692.  Rindskoff  y.  Malone  (general  objection  overruled).    .    . 

693.  Tooley  v.  Bacon  (general  objection  sustained)     .... 

694.  Wolverton  v.  Commonwealth   (specific  objection  over- 

ruled)       

695.  Spencer  v.  Potter's  Estate  (general  objection  overruled) 

Topic  3.     The  Ruling 

697.  Hamblett  v.  Hamblett  (revocation,  by  striking  out)  . 

698.  State  v.  Moran  (revocation,  by  striking  out)  .... 

699.  GuUiford  v.  McQuillen  (revocation,  by  striking  out) 

700.  John  H.  Wigmore,   "A  Treatise  on  Evidence"   (judi 

cial  discretion) 

701.  Norris  ?>.  Clinkscales  (judicial  discretion)     .    .    . 

702.  De  Camp  v.  Archibald  (notary's  power  to  rule) 

703.  Ex  parte  Jennings 

704.  Ex  parte  Schoepf  "  "      "      "     . 

705.  Dowagiac  Mfg.  Co.  v.  Lochren  (master's  power) 

Topic  4.     The  Exception 

707.  Wright  v.  Sharp  (general  principle) 

708.  Hunnicutt  v.  Peyton  (time) 

709.  Ru.sh  V.  French  (tenor) 

710.  Griffin  v.  Henderson  (tenor) 


711. 


Topic  5.     New  Trial  for  Erroneous  Ruling 
John  H.  Wigmore,  "A  Treatise  on  Evidence"  (history) 


I 

III 
III 


712.  State  v.  Crawford  (principle) 


TITLE  III.     ORDER    OF  INTRODUCING  EVIDENCE 

Topic  I.     In  General 

714.  Lord  Lovat's  Trial  (order  of  examination 

715.  Hathaway  v.  Hemingway  (order  of' case) 


IV 


)    14 

)  187 


14 

1871 

1871 


17 


18 


19 
16 

a 

2195 


a 

(( 

I 

20 

<' 

a 

11 

it 

u 

it 

I 

21 

11 

u 

III 

1883 

<( 

1869 

TOPICAL    CROSS-REFERENCES 


716.  Rucker  v.  Eddings  (discretion) 

717.  Mueller  v.  Rebhan  (new  in  rebuttal) 

718.  Ankersmit  v.  Tuck      "     "         "        

Topic  2.     Putting  in  One's  Own  Case  on  Cross-Examination 

719.  Moody  v.  Rowell  (orthodox  rule) 

720.  Philadelphia  &  Trenton  R.  Co.  v.  Stimpson    (Federal 

rule) 

721.  Stafford  v.  Fargo  (Federal  rule) 

722.  New  York  Iron  Mine  v.  Negaunee  Bank  (modified  rule) 

723.  Rush  V.  French  (modified  rule) 

724.  Ayers  v.  Wabash  R.  Co.  (orthodox  rule) 


TITLE  IV.    JURISDICTION;    RULES   OF  EVIDENCE  IJS 
THE  FEDERAL    COURTS 

727.  Introductory.    John  H.  Wigmore,  "A  Treatise  on  Evi- 

dence"     

728.  Wilson  v.  New  England  Navig.  Co 


1333 

TREATISE      CODE 


BOOK    III 

TO   WHOM    EVIDENCE    IS    TO    BE 
PRESENTED 

(  Law  and  Fact;  Judge  and  Jury) 

730.  James  Bradley  Thayer,    "A  Preliminary  Treatise  on 

Evidence"  (general  principle) 

731.  Edward  Bushell's  Trial  (jury  not  to  determine  law) 

732.  Commonwealth  v.  Porter  (jury  not  to  determine  law)  . 

733.  State  v.  Gannon  (jury  not  to  determine  law) 

734.  Titus  Gates'  Trial    (judge's  comment  on  evidence)    .    . 

735.  State  v.  Moses  "  "  "  "  .    .    .    . 

736.  James  Bradley  Thayer,   "A  Preliminary  Treatise  on 

Evidence"  (judge's  comment  on  evidence)      .... 

737.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar"  (judge's 

comment  on  evidence) 

738.  Bartlett  v.  Smith   (facts  preliminary  to  admissibility) 

739.  Hutchinson  v.  Bowker  (construction  of  documents)     . 

740.  Hooper  v.  Moore  (foreign  law) 

741.  State  v.  Monich  (preliminary  facts) 

742.  Bridges  v.  North  London  R.  Co.  (negligence)      .... 

743.  James  Bradley  Thayer,   "A  Preliminary  Treatise  on 

Evidence"  (negligence) 


VOL. 

Ill 


III 


IV 


1867 
1873 


1885 
1886 

a 

1889 

1885 


2549 
2559 


2551 


2550 
2556 
2558 
2550 
2552 


1352 
1365 


1376 


2100 
2115 


16 


2101 
2110 
2115 
2102 
2104 


1334 


APPENDIX    I 


BOOK    IV 

BY    WHOM    EVIDENCE    IS    TO    BE 
PRESENTED 

(BtJKDEN  OF  Proof;  Presumptions) 

745.  Introductory      

TITLE  I.    MEASUHE   OF  JVBY'S  PERSVASION 

746.  Commonwealth  v.  Webster  (criminal  case) 

747.  Ellis  V.  Buzzell  (civil  case) 

748.  Buel  v.  State  (criminal  case) 

749.  William  Trickett,  "Reasonable  Doubt"  (criminal  case) 

TITLE  II.    PARTY'S  RISK   OF  ISON-PERSUASION  OF 
THE  JURY 

751.  Kendall  v.  Brownson  (payment) 

752.  Lisbon  v.  Lyman  (negative  issue) 

753.  Gulf,  Colo.    &  S.  F.  R.  Co.  v.    Schieder  (contributory 

negligence) 

754.  State  v.  Quigley  (sanity)      

755.  Ginn  v.  Dolan  (ponsideration) 

TITLE  III.    PARTY'S  DUTY   OF  SATISFYING   THE 
JUDGE 

Topic  I.     Sufl5ciency  of  a  Mass  of  Evidence 

757.  Rex  v.  Almon  (general  principle) 

758.  Regina  v.  O'Doherty       "  "  

759.  Gray  v.  Jackson  (carrier's  contract) 

760.  Bridges  v.  North  London  R.  Co.  (negligence)      .    .    . 
76L  Hehir  v.  Rhode  Island  Co.  "         "  ... 

762.  State  v.  Forbes  (forgery) 

763.  Joliet,  Aurora  &  N.  R.  Co.  v.  Velie  (motion  to  direct 

verdict) 

Topic  2.     Specific  Presumptions 

765.  Cogdell  v.  R.  Co.  (general  principle) 

766.  State  v.  Hodge  (possession  of  stolen  goods)     .    .    . 

767.  Ross  V.  Cotton  Mills  (negligence) 

768.  Continental  Ins.  Co.  v.  Chicago  &  N.  W.  R.  Co.  (negU- 

gence)      

769.  Foss  V.  McRae  (alteration  of  instruments) 

770.  Carver  v.  Carver  (execution  of  instrument) 

BOOK  V 

OF  WHAT  FACTS  NO  EVIDENCE 
NEED  BE  PRESENTED 

TITLE  I.    JUDICIAL   ADMISSIONS 

773.  Chief  Baron  Gilbert,  "Evidence"  (in  general)     .    .    . 

774.  Paige  v.  Willet  (in  general) 

775.  New  York,  L.  E.  &  W.  R.  Co.'s  Petition  (in  general) 


TREATISE 

CODE 

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TOPICAL   CROSS-REFERENCES 


776.  Prestwood  v.  Watson  (writing;  later  trial)  .... 

777.  State  v.  Marx  (criminal  case) 

778.  Statutes  (execution  of  instrument)     .... 

779.  Carver  v.  Carver        "  "  "  .... 

TITLE  II.    JVDICIAL  NOTICE 

782.  Introductory  (general  principle) 

783.  James   Bradley  Thayer,  "A   Preliminary  Treatise  on 

Evidence"  (general  principle) 

784.  Lumley  v.  Gye        "  "  

785.  Fox  V.  State  (judge's  personal  knowledge)    .... 

786.  Kilpatrick  v.  Commonwealth  (judge  of  other  com-t) 

787.  State  v.  Main  (disease  of  trees)      

788.  Winn  v.  Coggins  (decree  in  separate  cause)     .    .    . 

789.  Rea  v.  State  (county  organization) 

790.  Perovich  v.  Perry  (attorney-general) 

791.  People  v.  Schmitz  (mayor  of  city) 

792.  Letters  on  the  Case  of  People  v.  Schmitz 


BOOK  VI 

THE  SO-CALLED  PAROL  EVIDENCE 
RULES 

795.  Introductory      

TITLE  I.    ENACTION  OF  A  LEGAL  ACT 

796.  History 

SUB-TITLE   I.     ACT    VOID    FOR   INCOMPLETENESS 

798.  Thoroughgood's  Case  (delivery  of  deed)      

799.  Pym  v.  Campbell  (delivery  of  contract) 

800.  Burke  v.  Dulaney  (delivery  of  negotiable  instruments) 

801.  Stanley   v.    White    (delivery   of   deed) 

802.  Smith  v.  Dotterweich  (general  principle) 

SUB-TITLE   II.     ACT   VOID    FOR   LACK    OF   INTENT 

804.  Thomas    Erskine    Holland,    "Jurisprudence"    (general 

principle) 

805.  Foster  v.  Mackinnon  (document  signed  without  reading) 

806.  'McNamara  v.  Boston  Elevated  R.  Co.  (document  signed 

without  reading) 

807.  Gray  v.  James  (document  signed  without  reading)     .    . 

808.  Essex  v.  Day 

809.  Medley  v.  German  Alliance  Ins.  Co.  (document  signed 

without  reading) 

810.  Baxendale  v.  Bennett  (document  signed  in  blank)      .    . 

811.  Hubbard  v.  Greeley  (delivery  by  escrowee) 

812.  Albert  M.  Kales,  "Delivery  in  Escrow"  (delivery  by 

escrowee)      


1335 

TREATISE       CODE 


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1883 
1889 
1892 
1891 


1895 
(1897, 
(1905 


1907 
1910 


1336 


APPENDIX    I 


TREATISE       CODE 


813.  Louis  M.  Greeley,  "Unauthorized  Delivery  of  Escrow" 

(delivery  by  escrowee) 

814.  Guardhouse  v.  Blackburn  (will) 

815.  Beamish  v.  Beamish  " 

SUB-TITLE   III.     ACT    VOIDABLE 

816.  State  v.  Cass  (fraud) 

817.  Fairbanks  v.  Snow  (duress) 

TITLE  II.    INTEGRATION   OF  LEGAL  ACTS 

820.  History 

SUB-TITLE   I.     ORDINARY   TRANSACTIONS 
Topic  I.     In  General 

821.  Lilly,  "Practical  Register"  (general  principle)   .... 

822.  Knight  v.  Barber  "               "           .... 

823.  Van  Syckel  v.  Dalrymple  "               "           .... 

824.  Brosty  v.  Thompson  (sale)      

Topic  2.     Sundry  Applications  of  the  Rule 

826.  Ramsdell  v.  Clark  (receipt  of  payment) 

827.  Baum  v.  Lynn  (recital  of  consideration) 

828.  Lese  v.  Lamprecht  (contract  to  accept  title) 

829.  Heitman  v.  Commercial    Bank    of   Savannah  (renewal 

of  note)  

830.  Adams  v.  Gillig  (contract  to  convey) 

SUB-TITLE   II.     JUDICIAL   RECORDS 
Topic  I.     In  General 

832.  Sir  F.  Pollock  and  Frederic  W.  Maitland,  "History  of 

English  Law" 

833.  Sir  Edward  Coke,  "Commentaries  upon  Littleton" 

834.  Sayles  v.  Briggs         (general  principle) 

835.  Hughes  v.  Pritchard        "  "  

836.  Cote  V.  New  England  Navig.  Co.  (general  principle) 

Topic  2.     Jury's  Verdict 

837.  Vaise  v.  Delaval        (general  principle) 

838.  Owen  v.  Warburton        "  "  

839.  Robbins  v.  Windover  (juror's  motives) 

840.  Wright  v.  Telegraph  Co.  (juror's  misconduct)      .    . 

841.  Capen  v.  Stoughton  (error  in  drafting  verdict)    .    . 

842.  Koch  V.  State  (amendment  after  separation)    .    .    . 

SUB-TITLE   III.     CORPORATION  RECORDS 

845.  United  States  Bank  v.  Dandridge      

846.  Chesapeake  &  Ohio  R.  Co.  v.  Deepwater  R.  Co.    . 

TITLE  III.    FORMALITIES   OF  LEGAL  ACTS 

847.  John  H.  Wigmore,  "A  Treatise  on  Evidence"  .  . 


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IV 

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IV 

2454 

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1911 


1913 


1915 


1920 


1925 


1927 
1929 
1925 

1931 
1925 


1947 


1947 


1945 


1950 


TOPICAL   CROSS-REFERENCES 


1337 
CODE 


TITLE  IV.    INTERPRETATION  OF  LEGAL  ACTS 

848.  Introductory      

SUB-TITLE   I.     STANDARD    OF   INTERPRETATION 

850.  History 

851.  Attorney-General  v.  Shore  (general  principle)      .... 

852.  Re  Jodrell  (will) 

853.  Tilton  v.  American  Bible  Society  (will) 

854.  Myers  v.  Sari     (usage) 

855.  Browne  w.  Byrne    **      

856.  Walls  V.  Bailey       "  

857.  Stoops  V.  Smith  (mutual  understanding)      

858.  Goode  v.  Riley  "  "  

859.  Violette  v.  Rice  "  "  

860.  Rickerson  v.  Hartford  Fire  Ins.  Co.  (individual  meaning) 

SUB-TITLE  II.     SOURCES  FOR  DETERMINING 
INTERPRETATION 

862.  History 

'863.  Sir  James  Wigram,  "Interpretation  of  Wills"  (general 
principle) 

864.  Attorney-General  v.  Drummond  (general  principle) 

Topic  I.     Declarations  of  Intention 

865.  Francis,  Lord  Bacon,  "Maxims"  (general  principle) 

866.  The  Lord  Cheyney's  Case  (equivocation) 

867.  Miller  v.  Travers  (misdescription) 

868.  Doe  dem.  Simon  Hiscocks  v.  John  Hiscocks  (misdescrip- 

tion)     

869.  Wlllard  v.  Darrah  (misdescription) 

870.  Sir  J.  F.  Stephen,  "Digest  of  the  Law  of   Evidence" 

(misdescription) 

871.  Albert  M.  Kales,    "Note  on  Doe  v.  Hiscocks"   (mis- 

description)     

Topic  2.     Falsa  Demonstratio 

873.  Myers  v.  Ladd        (general  principle)        

874.  Winkley  v.  Kaime  "  "  

875.  Kurtz  v.  Hibner  "  "  

876-879.  Isaac  T.  Redfield  et  al.  "Comments  on  Kurtz  v. 

Hibner"      


IV 


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2476 


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1961 

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1962 

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1966 


1975 


1976 
1978 
1981 


1983 


APPENDIX   II 

REVIEW  PROBLEMS,   FOR  APPLYING  THE  RULES 
OF  EVIDENCE  1 

1.  The  plaintiff  receives  a  letter  sent  to  him  by  the  defendant,  and 
desires  to  offer  it  in  evidence.    (1)   May  or  must  he  first  put  in  his  own ^JT  30"=* 
letter  to  which  the  defendant's  was  an  answer?     (2)    If  he  may  or  must, 

how  can  he  prove  the  contents  of  his  own  letter,  (a)  if  he  has  kept  a  copy/  3'i3  " 
(6)  if  he  has  not  kept  a  copy? 

2.  Upon  a  trial  for  illegal  liquor-selling,  in  cross-examining  witnesses 

A  and  B  called  by  the  defendant,  (1)  may  the  prosecuting  counsel  ask    J  V  «i  /  p 
each  whether  he  was  ever  convicted  of  illegal  liquor-selling?     (2)  If  he     '       «  cV 
is  allowed  to  ask,  and  A  refuses  to  answer,  may  A  be  compelled?     (3)  If 
B  answers  that  he  was  not,  may  the  contrary  be  proved?     (4)  May  the  ^ 
fact  of  conviction  be  proved  without  having  questioned  A  or  B  at  all? 

3.  In  the  same  case,  (a)  may  the  defendant,  by  witnesses  K  and  L,    i  f9 
show  the  good  reputation  of  witnesses  A  and  B?     (5)  If  so,  may  the 

1  These  problems  may  be  used  for  review  by  allotting  one  to  each  student  and 
requesting  a  \\Titten  report  for  discussion  at  the  next  lecture.  Each  report  should 
cite  the  cases  in  this  book  exemplifpng  the  rules  invoked  in  the  problem,  with  a 
brief  statement  of  the  question  thereby  raised:  e.g. 

No.  39.  Offer  (1).  (o)  Wliether  the  testimony  involves  the, contents  of  th« 
check,  and  therefore  whether  the  rule  for  producing  the  original  is  applicable  at 
all:  Case  331,  Lamb  r.  Moberly. 

(b)  Even  if  applicable,  whether  the  pleadings  are  a  sufficient  implied  notice  to 
produce:   Case  310,  U.  S.  «.  Doebler. 

(c)  ^Vhether  notice  to  produce  is  necessary,  if  the  plaintiff's  attorney  is  the 
possessor  of  the  check:  Case  308,  La^\Tence  v.  Clark;  Case  311,  Eiu-e  v.  Pittman. 

Offer  (2).  (a)  Wliether  the  wife  may  be  called  against  her  husband:  Case  586, 
State  V.  Briggs. 

(b)  Wliether  a  privileged  communication  is  involved:  Case  650,  Sexton  v. 
Sexton. 

(c)  WTiether  the  oral  admission  of  the  check's  contents  is  receivable:  Case 
335,  Slatterie  v.  Pooley. 

(d)  Whether  the  admission  may  be  proved  wathout  first  inquiring  of  the  plain- 
tiff on  the  stand  whether  he  made  it:  Case  226,  Adams  v.  Herald  Pub.  Co. 

In  all  such  reviews,  no  rule  should  be  stated  without  the  citation  of  a  specific 
authority  most  nearly  applicable,  and  a  categoric  statement  of  the  supposed  rule. 

Most  of  the  following  problems  have  been  culled  from  the  Editor's  own 
examination  papers.  A  few  have  been  added  from  the  volume  "Examinations  in 
Law,"  edited  by  him  in  1900,  and  containing  examination  papers  from  Cornell, 
Harvard,  Iowa,  New  York,  and  other  Universities. 


'\ 


1340  APPENDIX    II 

prosecution,  in  cross-examining  K  and  L,  ask  them  if  they  had  ever 
heard  that  the  defendant  had  sold  liquor  illegally  in  Wichita  before  he 
»),^  , '       came  to  Chicago? 

4.  In  the  same  case,  (1)  the  defendant,  in  cross-examining  the  princi- 
pal witness  for  the  prosecution,  asks  him  whether  he  did  not  see  a  license 
for  the  sale  of  liquor  nailed  on  the  wall  of  the  defendant's  saloon  in  public 
view;  the  judge  excludes  the  question.  (2)  Later  when  the  defendant 
/^'-^'^  has  opened  his  case,  he  produces  a  document  purporting  to  be  such  a 
~  ;^  ^  license,  signed  by  the  Mayor.  The  judge  requires  proof  of  the  Mayor's 
signature.     Are  these  two  rulings  correct?   N^^' 

^      5.   The  issue  being  whether  A  died  from  latk  of  proper  medical  attend- 

^■^.0<t,  ^nce  on  February  1st,  M  is  called  by  the  prosecution  to  testify  that  he 

'    \    saw  A  on  January  15th  so  ill  with  the  fever  as  to  need  a  physician;   this 

4    is  excluded.     M  is  then  asked  whether  A,  at  the  time  M  saw  him,  was 
y\  .    .  .  ,  > 

•>^       complaining  of  illness;   this  is  allowed.     Are  the  rulings  correct?  ^^ 

- —         6.    The  plaintiff,  a  car-inspector,  was  injured  by  the  starting  of  the 

defendant's  train  while  the  former  was  between  the  wheels.     At  the  trial 

the  plaintiff  offers  to  show  (1)  that  several  accidents  of  the  same  sort  to 

other  car-inspectors  at  the  same  station  had  occui-red  within  the  previous 

six  months,  (2)  that  the  engineer  of  the  train  in  question  was  reputed  to 

be  hasty  in  starting  his  trains  without  warning.     Should  these  offers  be 

allowed? 

7.  A  is  tried  for  the  murder  of  X.  A  and  B  had  been  arrested  for  the 
murder  but  B  had  been  taken  from  the  jail  and  hanged  by  a  mob;  just 
before  the  hanging,  B  had  made  a  confession  of  his  guilt,  entirely  exon- 
erating A.     May  the  confession  be  offered  in  evidence  on  A's  behalf? 

8.  Upon  the  issue  whether  S,  claiming  an  estate,  is  the  son  of  the 
intestate  A,  the  marriage  of  A  to  N  is  offered  to  be  proved  (1)  by  acquaint- 
ances testifying  to  his  life  with  N  as  wife,  (2)  by  a  document  purporting 
to  be  the  city  clerk's  certified  copy  of  the  recorded  return  of  marriage  by 
the  clergyman  C,  (3)  by  children  of  A  testifying  that  A  always  spoke  to 
them  of  N  as  his  wife,  (4)  by  N  testifying  to  their  marriage.  Are  any  of 
these  methods  inadmissible? 

9.  In  an  action  on  a  written  contract  for  the  sale  of  20  carloads  of 
No.  2  steel  billets,  deliverable  in  Chicago,  "at  the  rate  of  S2.27  net  cash," 
the  defendant  offers  to  show  that  by  the  custom  of  the  trade  "cash" 
was  understood  to  mean  "within  ten  days  after  arrival  of  goods  at  the 
freight-house."     Is  this  allowable? 

10.  To  prove  the  date  of  a  storm,  a  witness  A  produces  a  daily  record 
of  the  weather,  which  he  has  been  for  many  years  in  the  habit  of  keeping; 
a  witness  B  produces  a  similar  record  kept  by  his  father  now  deceased. 
How,  if  at  all,  can  these  documents  be  used? 

11.  A  recorded  deed,  bearing  the  signature  of  persons  purporting  to 
be  grantor  and  witness,  is  desired  to  be  proved,  and  you  have  the  deed 
itself,  as  well  as  a  certified  copy.     How  would  you  prove  the  deed? 

12.  A  will  is  oflfered  for  probate  containing  a  devise  of  "my  cemetery 


REVIEW  PROBLEMS  1341 

lot  in  Graceland  Cemetery."  In  fact  it  appears  that  the  testator  had  a 
lot  in  Rose  Hill  Cemetery,  but  not  in  Graceland  Cemetery.  The  drafts- 
man is  offered  to  prove  that  he  inserted  by  mistake  the  words  "  in  Grace- 
land  Cemetery,"  that  the  testator  said  nothing  to  him  of  the  place  of  the 
lot,  and  that  the  testator  signed  the  will  without  reading  it  over.  Is 
this  admissible? 

'^  13.  In  a  prosecution  for  illegal  liquor^selling,  the  chief  witness  for  the 
prosecution  is  asked  on  cross-examination,  against  objection,  (a)  whether 
he  has  ever  been  drunk  (h)  or  ever  arrested  for  drunkenness,  (c)  In 
rebuttal  the  prosecution  is  not  allowed  to  prove  the  witness'  character  for 
sobriety.     Are  these  rulings  correct? 

14.  In  the  same  trial,  the  defendant,  taking  the  stand,  is  asked  on 
cross-examination  whether  he  had  not  sold  liquor  illegally  on  four  prior 
occasions  in  the  same  month.  The  question  being  allowed  against 
objection,  he  then  refuses  to  answer  on  the  ground  that  his  answer  would 
tend  to  criminate  him;  but  the  Court  without  further  questioning  com- 
pels him  to  answer.     Are  these  rulings  correct? 

'=  15.  Supposing  the  rulings  to  be  correct,  and  supposing  the  defendant 
to  answer  in  the  negative,  on  what  conditions  could  the  prosecution  use 
an  affidavit  by  the  defendant,  made  since  the  date  of  the  alleged  sales, 
applying  for  a  Federal  liquor-license,  and  stating  that  the  affiant  had 
never  before  sold  liquor? 

^  16.  In  a  railroad  collision,  several  persons  are  seriously  injured.  On 
what  conditions  could  you  use  the  statement  (a)  of  the  injured  persons, 
(b)  of  the  trainmen  made  to  the  party  rescuing  the  injured  from  the  wreck? 

17.  In  probating  the  will  of  a  person  who  disappeared  from  New 
York  in  1890,  on  whom  is  the  burden  of  proof,  and  what  evidence  would 
suffice  to  sustain  it? 

18.  In  an  action  against  a  city  for  injuries  received  on  a  defective 
sidewalk,  the  plaintiff  offers  to  show  (a)  that  other  persons  fell  and  were 
injured  at  the  same  place  the  next  day,  and  (h)  that  on  the  third  day  the 
city  re-planked  the  whole  walk.     Is  this  admissible? 

19.  In  the  same  action,  a  witness  for  the  plaintiff  is  asked  whether 
the  place  was  safe  when  he  saw  it;  this  is  allowed.  He  is  then  asked  on 
cross-examination  whether  one  of  the  injured  persons,  who  afterwards 
died,  had  not  admitted  that  the  place  was  safe  and  that  it  was  by  his  own 
carelessness  that  he  fell  in;   this  is  excluded.     Are  these  rulings  correct? 

20.  In  a  criminal  prosecution  under  an  Illinois  statute,  for  conspiring 
and  combining  on  and  after  May  1,  1903,  to  restrain  trade  and  establish 
a  monopoly  by  fixing  the  price  of  beef  sold  on  the  hoof  at  the  stock  yards, 
one  of  the  defendants,  taking  the  stand,  is  asked  on  cross-examination, 
whether  during  the  year  1902  he  had  been  a  party  to  a  similar  agreement 
made  and  acted  on  in  Kansas  City,  Missouri,  (a)  On  objection,  the 
question  is  held  to  be  improper.  Is  this  ruling  correct?  (b)  Supposing 
the  question  to  have  been  properly  allowed,  could  the  witness  have 
declined  to  answer? 


1342  APPENDIX  II 

21.  In  the  same  case,  (a)  supposing  the  defendant  to  answer  the 
question  in  the  negative,  can  the  fact  of  such  an  agreement  in  Kansas 
City  be  estabhshed  by  caUing  other  witnesses?  (6)  Supposing  that 
it  could  be,  would  it  be  proper  to  do  so  by  asking  these  witnesses 
whether  they  had  heard  the  defendant  admit  the  signing  of  such  an 
agreement? 

22.  In  the  same  case,  supposing  that  the  defendant  had  answered 
the  question  in  the  affirmative,  and  supposing  the  agreement  to  have 
been  in  writing  and  now  in  fact  in  his  possession,  how  could  the  prosecu- 
tion prove  its  contents? 

23.  In  the  same  case,  supposing  the  prosecution  to  desire  to  prove 
the  illegality  of  the  Kansas  City  agreement  under  the  laws  of  Missouri, 
how  could  the  prosecution  prove  (1)  the  Missouri  statute  defining  the 
crime,  and  (2)  a  record  of  the  conviction  of  the  defendant  in  Missouri  for 
the  offence  as  committed  by  making  this  agreement? 

24.  John  Doe  and  Mary  his  wife  go  out  driving;  the  horse  is  frightened 
by  a  derrick  left  in  the  street  by  the  defendant  Metropolitan  Construc- 
tion Co. ;  the  horse  runs  away,  and  John  Doe  is  thrown  out  of  the  carriage, 
expiring  shortly  after  he  is  taken  to  the  hospital.  In  an  action  by  his 
son,  as  administrator,  for  the  death,  the  plaintiff  offers  to  show  (1)  the 
habits  of  the  deceased  as  a  prudent  driver,  and  (2)  several  prior  instances, 
during  the  same  week,  of  the  frightening  of  horses  by  the  same  derrick. 
Are  these  offers  admissible? 

25.  In  the  same  case,  the  defendant  offers  to  show  that  the  deceased, 
immediately  after  the  injury  and  while  being  lifted  into  the  ambulance, 
said:  "It  was  my  own  fault;  I  knew  that  the  horse  would  not  pass  the 
derrick.  Take  me  home,  I  would  rather  die  there  than  in  the  hospital." 
Is  this  admissible,  or  any  part  of  it? 

26.  In  the  same  case  (1)  the  plaintiff  calls  the  widow  to  prove  the 
age  and  the  income  of  the  deceased.  This  being  permitted  against 
objection,  (2)  the  defendant  then  asks  the  witness,  on  cross-examination, 
whether  the  deceased  had  not  frequently  admitted  to  her  his  knowledge 
of  the  horse's  skittish  disposition.  This  also  is  permitted,  against 
objection.     Are  these  rulings  correct? 

27.  In  the  same  case;  suppose  that  the  wife  was  the  only  eye-witness, 
and  that,  being  called  for  the  plaintiff,  she  testifies  on  cross-examination 
that  the  deceased,  when  the  horse  showed  signs  of  fright  at  approaching 
the  derrick,  insisted  on  driving  up  to  it,  though  he  might  easily  have 
turned  aside  into  a  street  leading  equally  well  to  his  destination;  and 
suppose  that  the  plaintiff  rests  without  other  evidence  as  to  the  circum- 
stances of  the  injury.  On  a  motion  to  direct  a  verdict  for  the  defendant 
on  the  ground  of  contributory  fault,  how  should  the  judge  rule? 

28.  In  the  same  case  (supposing  the  judge  to  deny  the  preceding 
motion),  the  defendant  offers  a  document,  signed  by  the  plaintiff,  releasing 
the  defendant  from  all  liability,  by  reason  of  this  injury,  in  consideration 
of  $500  received.     The  plaintiff  offers  to  show  (1)  that  the  true  con- 


REVIEW  PROBLEMS  1343 

sideration  was  not  only  $500,  but  also  a  promise  by  the  defendant  to 
give  employment  to  the  plaintiff  as  bookkeeper,  which  promise  the 
defendant  has  not  kept;  and  (2)  that  the  plaintiff  signed  this  release  as 
attorney  for  his  father,  while  the  father  was  still  alive  and  a  possibility 
of  recovery  existed,  on  the  express  understanding  with  defendant  that 
the  agreement  should  not  be  binding  in  case  the  father  died.  May  either 
of  these  facts  be  shown? 

29.  The  following  questions  are  desired  to  be  put  to  an  opponent's 
witness  on  cross-examination:  "Were  you  ever  in  jail?"  "Were  you 
in  1899  convicted  of  disorderly  conduct?"  "Were  you  in  1898  indicted 
for  forgery?"  "Did  you  ever  say  that  you  would  get  even  with  the 
party  against  whom  you  are  now  testifying?"  May  these  questions  be 
asked? 

30.  In  an  action  of  ejectment,  the  title  to  the  land  depending  on  the 
alienage  of  one  Hans  Brinker,  the  plaintiff's  grantor,  it  is  in  issue  whether 
Hans  was  born  in  Holland  or  Illinois;  Hans'  father  Diedrich,  with  his 
family,  having  come  to  Illinois  from  Holland  in  1860.  A  diary  of  Died- 
rich is  offered,  containing  the  following  entry:  "June  1,  1866.  Bought  at 
the  village  store  the  first  pair  of  breeches,  price  $2,  for  my  boy  Hans, 
to-day  three  years  old;  I  am  to  pay  the  storekeeper  in  chickens."  Is  this 
admissible? 

31.  In  the  same  action,  the  plaintiff  offers  to  prove  the  handwriting 
of  Diedrich  in  this  book  by  submitting  to  an  expert  in  handwriting,  for 
comparison,  the  will  of  Diedrich,  under  which  Hans  claimed  title  to  the 
land.  The  Court  prohibits  this.  The  plaintiff  then  asks  to  have  the 
jury  make  the  comparison.  This  the  Court  allows.  Are  these  rulings 
correct? 

32.  In  the  same  action,  the  plaintiff  desires  to  prove  the  record  of 
naturalization  of  Diedrich  (who  was  naturalized  in  the  Federal  Court  in 
Illinois),  and  a  deed  of  the  land  to  Diedrich  from  one  Jonas.  How  can 
he  prove  these  documents? 

33.  In  the  same  action,  the  defendant,  to  disprove  the  validity  of 
Diedrich's  naturalization,  calls  the  widow  of  Diedrich,  to  testify  that  he 
often  admitted  to  her  that  he  had  in  his  naturalization  application  mis- 
stated the  date  of  his  arrival  in  Illinois  as  1860  instead  of  1863.  May  the 
testimony  be  received? 

34.  On  May  31  the  Northwestern  Elevated  Railroad  was  opened  for 
traffic,  and  on  June  6  a  girder,  fastened  with  screwbolts  of  a  certain  kind, 
came  loose,  and  caused  an  accident  in  which  the  plaintiff  was  injured. 
The  defendant,  at  the  trial,  offers  to  prove  (1)  that  during  the  six  days  of 
operation  six  hundred  trains  had  been  run  without  any  other  accident; 
and  (2)  that  similar  screwbolts  were  used  for  fastening  girders  on  elevated 
roads  in  other  cities.     May  this  be  proved? 

35.  At  the  same  trial,  the  foreman  of  the  defendant's  construction 
gang  is  called  to  prove  the  number  of  bolts  put  in  each  girder.  He 
proposes  to  use  a  time-book  made  by  him  from  daily  oral  reports  of 


1344  APPENDIX  II 

section  bosses  under  him.     An  objection  to  this  is  overruled  by  the  Court. 
Was  this  ruling  correct? 

36.  On  the  same  trial,  the  plaintiff  offers,  in  regard  to  this  foreman, 
(1)  to  prove  his  reputation  in  the  machine-shops  for  incompetency;  (2) 
to  call  a  former  employer  to  testify  that  he  would  not  believe  the  foreman 
on  oath.     Should  these  offers  be  rejected? 

37.  In  a  will  contest,  the  trial  judge  rules  that  "  the  burden  of  proof 
of  the  testator's  sanity  is  on  the  proponent  throughout  the  case."  Is  this 
correct? 

38.  The  plaintiff  was  the  New  York  broker  of  the  defendant,  a 
Chicago  dealer  in  wheat.  The  plaintiff  received  from  the  defendant 
on  May  31  a  telegram  reading,  when  translated  from  cipher:  "No.  3 
red  dropped  two  points;  don't  buy  forty  thousand."  The  plaintiff 
bought;  but  the  defendant  refused  to  pay.  In  an  action  for  expenses, 
the  plaintiff  offers  to  prove  that,  for  securing  greater  secrecy  of  com- 
munication, it  had  always  been  understood  between  his  principal  and 
himself  that  on  telegraphic  orders  he  was  to  buy  when  the  telegram  read 
"don't  buy,"  and  vice  versa.     May  this  be  shown? 

39.  Action  for  a  debt;  plea,  payment.  (1)  The  defendant  offers  a 
witness  to  the  delivery  of  a  check  to  the  plaintiff's  attorney;  an  objection 
that  the  check  must  be  produced,  or  notice  given,  is  sustained.  (2)  The 
defendant  then  calls  the  plaintiff's  wife  to  testify  to  an  admission,  by 
the  plaintiff,  made  to  the  defendant  in  her  presence,  that  he  had  received 
the  check;  general  objection  to  this  is  overruled.  Are  these  rulings 
correct? 

40.  Suppose  the  Supreme  Court  holds  that  both  of  these  rulings  were 
erroneous.  Would  it  make  any  difference  to  the  defendant,  in  taking 
advantage  of  them,  that  one  objection  was  specific  and  the  other  general? 

41.  In  an  action  by  the  United  States  against  a  person  landing  in  this 
country,  for  a  penalty  for  fraudulently  evading  the  customs  laws,  the 
defendant  offers  a  certified  copy,  from  the  Treasury  Department,  of  a 
report  of  a  Treasury  detective  to  the  Superintendent  of  Customs,  in 
which  it  is  stated  that  the  defendant  did  not  attempt  to  conceal  the 
goods.     The  plaintiff  objects.     Should  the  objection  be  sustained? 

42.  "Where  a  document  has  been  attested  by  witnesses,  these  wit- 
nesses must  be  called  before  any  other  evidence  of  execution  can  be 
resorted  to;  but  where  the  witnesses  are  shown  to  be  deceased,  then  it  is 
sufficient  to  prove  the  maker's  handwriting."  Point  out  the  errors,  if 
any,  in  this  statement. 

43.  In  a  proceeding  of  quo  warranto  to  determine  the  title  to  the 
office  of  State  Treasurer,  the  only  points  practically  in  dispute  being 
the  number  of  votes  cast,  and  the  petitioner's  eligibility  as  a  citizen  of 
the  State,  the  judge  rules  that  the  burden  of  proof  is  upon  the  petitioner 
to  show  that  he  had  received  the  highest  number  of  votes,  and  upon 
the  respondent  to  show  that  the  petitioner  was  not  a  citizen.  W^hat  is 
the  effect  of  this  ruling? 


REVIEW  PROBLEMS  1345 

44.  In  the  trial  of  the  same  proceeding,  to  prove  the  number  of  votes 
cast  at  a  certain  precinct,  one  of  the  inspectors  of  election  at  that  precinct 
desires  to  use  a  tallied  check-list  kept  by  another  inspector,  now  deceased, 
who  acted  with  him.     Can  it  be  used  in  any  way? 

45.  A's  will  gave  to  B  "my  S.  E.  |  of  the  N.  E.  |  of  section  8, 
township  IS,  range  28."  It  is  discovered,  in  carrying  out  the  will,  (1) 
that  the  only  land  owned  by  A  was  the  S.  E.  j  of  the  N.  E.  j  of  section 
18,  township  8,  range  28;  (2)  that  B  is  A's  son-in-law,  already  long  in 
possession  of  this  land  by  A's  consent;  (3)  that  A  dictated  to  the  attorney 
drawing  the  will  a  description  as  in  (1)  above,  but  that  the  typewriter 
preparing  the  will  for  signature  erroneously  transcribed  the  description. 
On  the  trial  of  title  to  the  land,  may  any  of  these  things  be  shown? 

46.  On  a  criminal  prosecution  for  furnishing  the  army  in  Cuba  a 
supply  of  fresh  beef  knowingly  treated  with  injurious  chemicals,  testi- 
mony to  the  fitness  of  the  beef  consumed  is  offered  from  (1)  a  private 
soldier,  (2)  an  army  surgeon,  both  of  whom  had  partaken  of  the  beef. 
What  objections  would  you,  for  the  opponent,  make  to  the  testimony 
of  either,  and  how,  if  at  all,  could  the  objections  be  obviated? 

47.  In  the  same  case,  the  prosecution  offers  to  show  (1)  that  beef 
similarly  treated  was  furnished  by  the  defendant  to  the  camps  in  Chatta- 
nooga and  Tampa,  and  (2)  that  the  defendant's  agent  in  Cuba,  already 
called  as  a  witness,  had  admitted  that  the  supply  sent  to  Cuba  was  so 
treated.  This  is  received.  The  defendant  offers  to  show  (1)  that  the 
agent's  reputation  for  veracity  is  bad,  and  (2)  that  his  own  reputation 
for  integrity  is  good.     This  is  received.     Are  these  rulings  correct? 

48.  In  the  same  case  is  offered  a  declaration,  made  at  the  point  of 
death,  of  a  private  soldier,  since  deceased,  as  to  the  nature  of  his  pains 
and  symptoms.     Is  this  admissible? 

49.  A  police  officer,  testifying  to  a  quantity  of  burglar's  tools  found 
on  the  defendant's  premises,  proposes  to  use  a  list  made  by  the  police 
sergeant  at  the  time,  from  the  dictation  of  the  witness.  Most  of  the 
articles  the  witness  cannot  remember;  he  only  knows  that  he  gave  an 
exact  list  at  the  time  he  dictated.  The  Court  allows  him  to  read  from 
the  list,  but  will  not  let  the  paper  be  shown  to  the  opposing  counsel  or 
handed  to  the  jury.     Is  this  ruling  correct  or  not? 

50.  On  an  indictment  for  murder,  the  evidence  was  that  the  accused 
and  the  deceased  were  in  a  house  alone,  and  suddenly  the  deceased  came 
running  out  with  her  throat  cut;  a  bystander  reached  her  within  one 
minute  and  asked  her  who  did  it.  She  could  not  speak,  but  pointed 
repeatedly  at  the  house.  In  a  few  moments  she  expired  from  loss  of 
blood.  Was  the  evidence  of  gestures  admissible  for  any  purpose  or  not, 
and  on  what  principle? 

51.  At  the  trial  of  Daniel  Coughlin  on  the  charge  of  murder,  the 
prosecution  offers  Mrs.  Foy  to  testify  to  conversations  between  the 
accused  and  her  husband  detailing  a  plan  to  commit  the  alleged  crime. 
May  she  testify? 


1346  APPENDIX   II 

52.  To  prove  the  contents  of  a  deed  of  land  in  Indiana,  the  deed 
being  recorded,  and  the  original  being  in  your  client's  possession  in 
Indiana,  what  evidence  will  you  offer  in  a  trial  in  Omaha? 

53.  On  the  second  trial  of  a  case  the  short-hand  report  of  the  testi- 
mony of  witness  B  of  the  first  trial  is  offered.  B  is  in  court,  but  swears 
that  he  has  now  forgotten  the  facts,  as  they  occurred  more  than  three 
years  before.  Can  the  short-hand  report  be  used?  Is  there  any  other 
way  of  meeting  the  difficulty? 

54.  On  an  indictment  for  receiving  stolen  goods,  to  wit:  14  pieces  of 
bar-iron,  knowing  them  to  be  stolen,  evidence  is  ofFered  that  on  searching 
the  defendant's  premises,  various  stolen  articles  were  found,  including 
two  axes,  ten  pieces  of  cloth  and  a  bicycle.  Is  this  admissible  or  not, 
and  on  what  principle? 

55.  On  the  examination  of  a  witness  six  years  old,  the  Court  requires 
the  offering  party  to  show  that  the  child  understands  the  significance  of 
a  lie.     Is  this  correct  or  not? 

56.  In  an  action  of  trover,  the  defendant  puts  in  articles  of  ante- 
nuptial marriage  settlement,  dated  January,  1891,  in  which  the  property 
was  given  to  his  wife  A,  the  marriage  occurring  in  February,  1891.  The 
plaintiff  shows  that  the  parties  had  previously  married  in  1889.  The 
defendant  then  shows  that  A's  first  husband  M  had  disappeared  in  1885, 
and  was  reported  dead,  that  in  this  belief  he  and  A  married  in  1889,  but 
that  on  hearing  again  in  1891  that  M  had  died  only  in  1890,  they  repeated 
the  ceremony.  There  is  no  evidence  as  to  his  death,  except  his  disap- 
pearance in  1885.     In  this  lack  of  evidence,  which  party  fails  in  his  case? 

57.  In  an  action  of  ejectment  for  land  claimed  by  the  plaintifp  as 
heir,  the  defence  being  that  the  plaintiff  was  born  before  marriage,  and, 
therefore,  illegitimate,  the  plaintiff  offers  his  father's  sister  as  a  witness 
to  the  inscription  on  a  ring  worn  by  the  mother  and  naming  the  date  of 
the  wedding.  The  inscription  was  put  on  by  the  father,  and  the  sister 
was  with  him  when  the  order  was  given.  The  defendant  objects :  (1)  that 
the  ring  is  not  produced,  (2)  that  the  mother  is  not  put  on  the  stand,  (3) 
that  the  father  is  not  put  on  the  stand.  The  plaintiff  testifies  that  the 
father  is  dead;  and  the  Court  overrules  all  tliree  objections.  Is  this 
correct  or  not? 

58.  In  an  action  against  a  School  Board  by  a  teacher  of  a  High 
School  for  salary  unpaid,  the  defence  is  that  the  teacher  refused  to  take 
a  class  in  a  special  summer  school,  established  during  the  World's  Fair, 
for  the  months  of  July  and  August.  The  contract  provides  for  a  salary 
of  SI, 500  a  year,  and  says  nothing  about  vacations;  but  the  teacher 
offers  to  show  a  custom  in  all  schools  of  the  State  to  allow  a  three  months' 
vacation  during  July,  August  and  September.  The  Court  declares  the 
evidence  immaterial.     Is  this  correct  or  not? 

59.  In  a  will  probated  in  Chicago  in  August,  1893,  a  bequest  of 
$10,000  is  made  to  the  "Board  of  Foreign  Missions."  There  are  Boards 
of  Foreign  Missions  in  several  religious  bodies  and  there  is  an  "  Ameri- 


REVIEW  PROBLEMS  1347 

can  Board  of  Foreign  Missions"  of  the  Presbyterian  Church.  Evidence 
is  offered  (1)  that  the  deceased  was  a  Baptist  and  had  never  given  to  the 
"American Board;"  (2)  that  he  said  to  his  lawyer  in  July,  1893,  "I  shall 
give  the  Presbyterians  something,  for  I  have  never  yet  given  them  any 
money."     Is  any  of  this  admissible  or  not,  and  on  what  principle? 

60.  Press  Dispatch,  Jan.  4,  1896:  "A  very  curious  mistake,  which 
renders  two  wills  void  and  presents  an  interesting  point  of  law,  recently 
came  before  Surrogate  Borland,  in  Poughkeepsie,  N.Y.  Matilda  and 
Adeline  Wescott,  sisters,  residing  near  Glenham,  and  owning  some  land, 
decided  a  few  years  ago  to  take  a  trip  south  together  and  to  make  their 
wills  before  going.  They  went  together  to  the  same  lawyer,  and  when 
the  wills  were  prepared  each  signed  the  other's  will,  supposing  that  she 
was  signing  her  own.  Adeline  has  just  died,  the  mistake  has  been 
discovered,  and  her  will,  just  offered  for  probate,  has  been  rejected." 
Comment  on  this  situation. 

61.  Best,  "Evidence,"  §  268:  "As  however  the  question  of  burden 
of  proof  may  present  itself  at  any  moment  during  a  trial,  the  test  ought 
in  strict  accuracy  to  be  expressed  thus,  viz.:  Which  party  would  be 
successful  if  no  evidence  at  all,  or  no  more  evidence  (as  the  case  may  be) 
were  given?"     Comment  on  this  suggestion. 

62.  In  an  action  for  illness  caused  by  the  inhalation  of  gas  negligently 
allowed  to  escape,  a  witness  was  offered  to  testify  («)  that  the  defendant's 
gas  had  to  his  knowledge  caused  illness  in  several  families  in  the  same 
block.  An  objection  to  this  was  sustained.  (6)  He  was  then  offered  to 
testify  to  the  fact  that  to  his  knowledge  there  had  been  illness  in  several 
families  in  the  same  block  where  the  defendant's  gas  had  escaped  into 
the  houses.  An  objection  to  this  was  also  sustained.  Were  the  rulings 
correct? 

63.  Upon  an  indictment  for  forging  a  note,  evidence  is  offered  by 
the  prosecution  of  previous  forgeries  by  the  defendant.  The  Court, 
excluding  the  evidence,  says:  "It  would  have  been  evidence  of  the 
prisoner  being  a  bad  man  and  likely  to  commit  the  offenses  thus  charged. 
But  the  law  does  not  permit  the  issue  of  criminal  trials  to  depend  on  this 
species  of  evidence."     State  your  opinion  of  this. 

64.  In  a  statutory  action  in  the  name  of  the  State  to  obtain  support 
from  the  alleged  father  for  a  bastard  child,  the  declarations  of  the  pros- 
ecutrix' deceased  sister  are  offered  to  show  the  date  of  birth  of  the 
prosecutrix'  child.     Are  they  admissible? 

65.  In  an  indictment  for  knowingly  using  the  U.  S.  mails  for  the 
sending  of  an  immoral  book,  the  prosecution,  to  show  knowledge  by 
the  defendant  of  the  character  of  the  book,  wishes  to  prove  that  it  was 
forbidden  to  be  imported  into  Canada  because  of  its  immorality,  and  has 
therefore  obtained  a  certificate  to  that  effect  from  the  Canadian  Customs 
Department.  What  evidential  steps  will  the  court  require  to  be  taken 
before  it  will  admit  this  certificate,  and  what  evidence,  therefore,  must 
the  prosecution  be  ready  with? 


1348  APPENDIX   II 

66.  A  defendant  in  a  criminal  case,  after  taking  the  stand  and  being 
cross-examined,  retires;  but  is  later  recalled  by  the  prosecution  to  identify 
his  signature  to  a  document  offered  in  rebuttal.  He  claims  his  privilege. 
Is  he  right? 

67.  (a)  A  witness  for  the  defendant  is  asked  whether  he  had  not 
threatened  to  "get  even  with"  the  plaintiff;  the  question  is  excluded. 
(6)  He  is  then  asked  whether  he  did  not  take  things  that  did  not  belong 
to  him  when  he  left  his  last  employer;  this  also  is  excluded,  (c)  Another 
witness  is  then  offered  to  prove  the  facts  thus  suggested;  but  this  testi- 
mony is  also  excluded.     Are  the  rulings  correct? 

68.  In  an  action  in  a  State  court,  a  deposition  is  taken  after  due 
notice  to  the  defendant,  who  did  not  appear  to  cross-examine.  The  suit 
being  then  voluntarily  withdrawn,  and  re-instituted  against  the  same 
defendant  for  the  same  cause  of  action  in  a  Federal  court  on  the 
ground  of  diverse  citizenship,  the  deposition  is  offered,  but  is  objected 
to  (a)  because  the  deponent  is  not  shown  to  be  deceased;  (b)  because 
there  was  no  cross-examination ;  (c)  because  the  deposition  was  not  taken 
in  the  same  court.     Is  either  of  these  objections  valid? 

69.  Action  on  a  bond;  defence,  non  est  factum,  and  payment  by 
check.  To  prove  the  handwriting  of  the  bond,  the  check  is  handed  to  a 
witness  for  the  defendant,  who  has  qualified  as  to  handwriting,  and  he  is 
asked  whether  he  believes  them  to  be  in  the  same  handwriting ;  the  check 
and  the  bond  are  then  shown  to  the  jury  for  their  inspection.  On  objec- 
tion, should  either  of  these  things  have  been  allowed? 

70.  In  the  foregoing  case  (a)  on  whom  is  the  burden  of  proof  of  pay- 
ment? (6)  After  the  check  is  introduced,  what  is  the  situation  as  to 
burden  of  proof? 

71.  Action  by  a  bank  against  a  surety  company  on  the  bond  of  the 
cashier,  for  sums  embezzled  by  falsification  of  the  books.  To  show  the 
amount  of  money  received  over  the  counter,  the  bookkeeper  is  called, 
and  testifies  to  the  accuracy  of  a  ledger-account  kept  by  him  and  made 
up  from  deposit-tags  stamped  by  the  receiving-teller  and  handed  to  the 
bookkeeper;  the  teller  has  committed  suicide.  May  the  account  be 
received? 

72.  On  the  same  trial,  to  show  the  cashier's  fraudulent  knowledge 
and  intent,  evidence  is  offered  (a)  of  other  incorrect  entries  made  by 
him  as  paying-teller  before  being  promoted  to  the  position  of  cashier, 
(b)  of  incorrect  monthly  balance-sheets  for  the  preceding  year,  made 
out  by  the  bookkeeper  and  handed  each  month  to  the  cashier.  Are 
these  admissible? 

73.  On  the  same  trial,  the  wife  of  the  deceased  receiving-teller  is 
called  by  the  defendant  to  testify  to  a  confession  made  by  her  husband, 
just  before  his  death,  to  the  cashier  in  her  presence,  acknowledging  that 
he  was  the  one  who  had  embezzled  the  money  and  promising  to  disclose 
all  to  the  directors.     May  this  be  asked  for? 

74.  To  prove  the  contents  and  execution  of  a  will  by  J.  S.  of  Madison, 


REVIEW  PROBLEMS  1349 

Wisconsin,  dated  Jan.  1,  1897,  you  have  brought  to  court  (a)  a  document 
purporting  to  be  a  copy  of  the  will,  with  an  appended  certificate  by  the 
clerk  of  the  Probate  Court  at  Madison  that  the  document  is  a  copy  of  a 
will  of  that  tenor  duly  probated  and  filed  with  him,  and  (6)  a  book  of 
Wisconsin  Statutes,  from  the  library  of  the  Law  Institute  of  Chicago, 
containing  a  statute  authorizing  the  lawful  custodians  of  documents  duly 
filed  in  a  public  office  to  certify  to  the  correctness  of  copies  thereof. 
Are  you  sufficiently  prepared? 

75.  The  above  will  (if  you  have  succeeded  in  proving  it)  bequeaths 
the  sum  of  $100,000  to  "  Northwestern  College  in  the  State  of  Illinois," 
the  income  to  be  appropriated  for  ten  years  to  the  needs  of  "The  Law 
Department  of  the  said  College,"  and  then  the  principal  to  be  spent  in 
the  purchase  of  a  law  library  "for  the  said  College."  The  claimants  are 
two:  "Northwestern  College,"  situated  in  Naperville,  Illinois,  and 
"Northwestern  University,"  situated  in  Evanston,  Illinois.  On  behalf 
of  the  latter  claimant,  by  whom  you  have  been  retained,  you  offer 
evidence  as  follows :  (a)  That  in  popular  usage  little  or  no  discrimination 
is  made  between  the  terms  "university"  and  "college,"  and  that  they 
are  constantly  applied  to  institutions  of  identical  character;  (b)  that  the 
testator  had  never  heard  of  the  existence  of  the  institution  at  Naperville; 
(c)  that  the  institution  at  Naperville  had  no  law  department  before  or 
at  the  time  of  the  testator's  death;  (d)  that  the  testator  had  on  several 
occasions  expressed  an  intention  to  leave  money  to  the  "College  at 
Evanston."     Will  the  Court  admit  this  evidence? 

76.  To  prove  the  age  of  the  buyer  of  liquor,  in  a  prosecution  for  selling 
liquor  to  a  minor,  the  prosecution  offers  (1)  the  buyer  himself,  (2)  his 
school  teacher  from  the  High  School,  who  proposes  to  testify  (a)  by  refer- 
ring to  a  record  of  pupils'  ages  made  by  him  at  the  beginning  of  the  term, 
(6)  by  stating  what  the  buyer's  father  said  to  the  teacher  as  to  the 
buyer's  age.     Are  any  of  these  proper? 

77.  In  the  same  case,  the  prosecution  calls  the  defendant's  coun- 
sel, who  happened  to  be  present  when  the  sale  occurred,  and  asks  him 

(1)  what  the  defendant  said  at  the  time  about  the  buyer's  age,  and 

(2)  whether  the  liquor  was  intoxicating.  Would  this  testimony  be 
admissible? 

78.  In  the  same  case,  if  the  law  exonerates  the  defendant  for  a  sale 
made  in  bona  fide  belief  that  the  vendee  was  of  age,  what  is  the  situa- 
tion, after  the  prosecution  has  introduced  e\ndence  that  the  boy  was 
20  years  of  age,  as  to  the  burden  of  proof? 

79.  Murder  by  poisoning  with  arsenic  a  cup  of  tea  drunk  by  the 
deceased  while  an  inmate  of  the  defendant's  house.  Evidence  is  offered 
by  the  prosecution  (1)  that  six  other  persons  who  partook  of  the  tea  on 
the  same  occasion  were  taken  ill  with  the  same  symptoms,  (2)  that  in 
the  cup  habitually  used  by  the  deceased  while  in  the  defendant's  house 
an  arsenious  deposit  had  been  noticed  on  three  previous  occasions  in  the 
same  week.     Ls  this  admissible? 


1350  APPENDIX  II 

SO.  In  an  action  by  the  engineer  of  a  train  for  injury  in  a  derailment 
alleged  to  have  been  due  to  the  switchman's  carelessness,  the  plaintiff 
offers  to  show  the  switchman's  negligent  habits  (1)  by  one  who  knew 
them,  (2)  by  reputation,  (3j  by  various  instances  of  former  carelessness. 
Is  any  of  this  admissible? 

81.  The  law  of  an  ante-nuptial  contract,  by  which  the  intended  wife 
accepts  a  sum  of  money  in  lieu  of  dower,  etc.,  is  assumed  to  be  that  the 
contract  is  valid,  unless  by  the  intending  husband's  fraudulent  conceal- 
ment the  wife  was  ignorant  of  the  real  amount  of  his  estate.  It  may  also 
be  assumed,  as  a  rule  of  evidence,  that  the  fact  of  serious  disproportion 
between  the  amount  of  his  estate,  and  the  sum  given  to  the  woman  in 
the  contract,  raises  a  presumption  of  his  fraudulent  concealment  and  her 
ignorance.  Suppose  (1)  a  bill  for  partition  by  the  heirs,  making  the  wife 
a  defendant,  (2)  an  action  by  the  wife  to  set  apart  dower  from  the  estate, 
making  the  heirs  defendants.  In  each  of  these  actions,  who  will  have  to 
be  ready  with  what  evidence  in  the  various  stages  of  the  case? 

82.  In  an  action  on  a  policy  of  life  insurance  there  is  a  question  as  to 
the  cause  of  the  death  of  the  party  insured,  whether  from  disease  or  as 
the  result  of  an  accident.  The  attending  physician  testifies  as  to  the 
condition  of  the  patient,  and  in  giving  the  reasons  of  his  opinion  is  allowed 
to  state  what  the  patient  told  him,  (a)  as  to  the  manner  of  the  accident, 
(6)  as  to  his  symptoms  from  the  time  of  the  injury  to  the  time  of  con- 
sultation.    Are  these  admissible? 

83.  A  sues  B  for  damages  done  by  B's  dog.  For  the  purpose  of  effect- 
ing a  settlement,  A  and  B  meet  by  agreement  to  talk  over  the  case. 
During  the  conversation  B  says  "the  dog  never  hurt  anyone  but  once 
before."  No  settlement  being  effected,  these  declarations  are  offered 
against  B  on  the  trial  to  prove  scienter.     Are  they  admissible? 

84.  The  question  is,  whether  A  was  lawfully  married  to  B.  A 
statement  by  a  deceased  clergyman  that  he  performed  the  marriage 
under  circumstances  which  would  have  rendered  him  liable  to  criminal 
prosecution  is  offered  in  evidence.     Is  it  admissible?     Give  reasons. 

85.  (a)  A  is  served  with  a  subpoena  duces  tecum  requiring  him  to 
prodvice  a  certain  letter  in  his  possession.  A  refuses  to  produce  the 
letter  on  the  trial.  (6)  Defendant  is  served  with  notice  to  produce  a 
certain  letter  in  his  possession  on  the  trial.  Defendant  refuses  to  pro- 
duce the  letter.  How  would  you  prove  the  contents  of  the  letters  in  the 
above  cases?     • 

86.  The  plaintiff  in  an  action  against  a  railroad  company  for  personal 
injuries  caused  by  the  negligence  of  defendant's  telegraph  operator, 
offers  evidence  that  the  general  reputation  of  the  operator  as  regards 
fitness  for  such  duties  is  bad.     Is  the  evidence  admissible? 

87.  A  kills  B,  a  friend,  when  there  are  no  witnesses  present.  As  a 
matter  of  fact,  A  is  a  quarrelsome  and  passionate  man,  has  killed  two 
other  men,  one  in  a  duel,  and  one  in  circumstances  like  the  present,  — 
has  threatened  B's  life,  and  has  frequently  stated  that  he  would  kill  any 


•  REVIEW  PROBLEMS  1351 

man  who  used  certain  words  in  his  presence.     How  far,  if  at  all,  can  these 
facts,  or  any  of  them,  be  used  against  him  when  on  trial  for  the  murder? 

88.  The  question  is  whether  a  railway  train  stopped  long  enough  at  a 
station  to  enable  passengers  to  get  off.  The  railroad  company  calls 
conductors  and  trainmen  to  testify  that  in  their  opinion  the  time  allowed 
was  sufficient  for  that  purpose.     Is  the  evidence  competent? 

89.  In  an  action  for  the  price  of  a  desk,  the  plaintiff,  to  show  the 
price  agreed  on,  offers  his  books  with  the  entry  of  the  sale,  the  salesman 
having  reported  the  price  to  the  bookkeeper  and  knowing  nothing  of 
the  entry.  The  bookkeeper  is  dead,  but  the  salesman  is  not.  May  the 
book  be  received? 

90.  In  an  action  on  a  policy  of  life  insurance,  the  company  sets  up  the 
defence  that  the  deceased  committed  suicide.  Can  it  introduce  in  evi- 
dence the  verdict  of  a  coroner's  jury  finding  this  to  be  the  fact? 

91.  On  which  party  is  the  burden  of  proof  as  to  suicide,  in  the  fore- 
going case? 

92.  You  have  occasion,  in  suing  on  a  contract  made  by  telegrams, 
to  prove  the  terms  of  certain  telegraphic  communications  between  the 
plaintiff  and  defendant.     How  do  you  do  it? 

93.  In  an  action  by  A  to  recover  real  estate,  he  offers  in  evidence  the 
record  of  a  deed  to  himself  contained  in  the  Deed  Record  from  the  office 
of  the  Recorder  of  the  County.     What  objection,  if  any,  is  sound? 

94.  A  is  taken  ill  while  passing  through  Boston  to  New  Hampshire, 
and  makes  his  wnll,  devising  to  his  nephew  "My  farm  in  Portland, 
Maine,  which  I  bought  from  J.  S.  in  1891."  Evidence  is  offered  on  behalf 
of  the  nephew,  in  an  action  to  try  title,  (1)  that  the  person  who  drew  the 
will  inserted  by  inadvertence  "Maine,"  instead  of  "Oregon"  as  directed; 
(2)  that  the  only  land  the  testator  owned  was  in  Portland,  Oregon,  where 
he  had  a  son  and  a  daughter,  and  that  here  he  had  bought  land  from  J.  S. 
in  1891;  (3)  that  he  had  never  seen  the  land,  but  had  bought  it  through 
a  land  agent,  who,  instead  of  investing  in  a  farm  as  ordered,  had  bought 
a  series  of  town-lots,  which  the  testator  had  always  believed  to  be  and 
spoken  of  as  a  farm.     Is  any  of  this  admissible? 

95.  In  the  same  case,  suppose  that  the  first  offer,  being  ruled  admissi- 
ble, is  sustained  by  a  witness  K.  who  testifies  to  the  residence  of  J.  S. 
in  Portland,  Oregon,  and  to  J.  S.'s  ownership  of  the  farm  there  in  1891; 
that  objection  is  made  by  the  opponent  that  the  deed  from  J.  S.  to  the 
testator  is  not  yet  proved;  that  counsel  for  the  nephew  declares  his 
intention  to  produce  the  deed  later  in  the  trial;  that  the  Court  thereupon 
admits  K's  testimony;  and  that  the  deed  from  J.  S.  is  afterwards  not 
offered,  nor  is  further  alluded  to  by  either  party,  until  after  verdict  for 
the  nephew  and  on  motion  for  new  trial.  Can  the  opponent  take  ad- 
vantage of  the  nephew's  failure  to  prove  the  deed? 

96.  In  a  proceeding  to  restrain  a  person  from  practicing  as  an  attorney 
without  a  license,  the  petitioner,  (a)  on  cross-examination  of  the  respond- 
ent, who  has  taken  the  stand  in  his  own  behalf,  asks  him  whether  he  did 


1352  APPENDIX   II 

not  in  1898  leave  the  State  of  New  York  in  order  to  avoid  disbarment 
proceedings;  on  objections  sustained,  (b)  the  petitioner  offers  a  record 
of  the  respondent's  disbarment  in  the  Court  of  Appeals  of  the  State  of 
New  York;  tliis  is  admitted.     Are  these  rulings  correct? 

97.  St.  Louis  Times,  April,  1909:  "  In  a  Georgia  city  a  recent  traveler, 
approaching  the  clerk  of  the  best  hotel,  said:  'I  would  like  a  room.' 
Responded  the  clerk:  'You  want  a  dollar  or  a  dollar  and  a  half  room?' 
'  A  dollar  and  a  half  room.'  The  guest  was  given  a  key  to  his  room,  and 
upon  having  been  shown  to  it  by  a  bellboy,  unlocked  the  door  and  found 
upon  a  table,  conspicuously  in  the  middle  of  the  room,  a  quart  of  the  best 
whisky,  which  probably  would  have  cost  him  about  a  dollar  and  a  half 
anywhere  in  America.  This  he  put  in  his  pocket,  and  demurely  went  his 
way.  It  seems  that  some  time  later*  the  prohibitionists  of  the  city, 
having  got  wind  of  this  evasive  method  of  circumventing  the  liquor  law, 
employed  a  detective  to  go  through  the  same  process.  He  did  so, 
obtained  his  whisky,  and  had  the  proprietor  of  the  hotel  arrested  for 
selling  the  liquor  without  a  license.  In  court,  under  the  cross-examina- 
tion of  the  defendant's  attorney,  the  detective  admitted  that  in  the  first 
place  he  had  not  purchased  any  liquor,  and  that  in  the  second  place  he 
carried  away  the  liquor  he  found  upon  the  table  he  had  hired  —  where- 
upon he  promptly  was  arrested  for  petty  larceny." 

On  the  trial  of  the  detective  for  larceny,  can  this  testimony  of  his  be 
used  against  him? 

98.  Associated  Press  Dispatch :  "  Matteawan,  N.Y.,  April  17, 1909.  — 
Dr.  Robert  T.  Lamb,  superintendent  of  the  Matteawan  Hospital  for  the 
Criminal  Insane,  and  who  was  one  of  the  principal  witnesses  in  the  Thaw 
trial  proceedings,  had  a  narrow  escape  from  death  yesterday  at  the  hands 
of  John  Tohlman,  a  professor  of  languages,  who  was  sent  to  the  institu- 
tion three  years  ago,  after  having  killed  a  man.  Tohlman  struck  Dr. 
Lamb  over  the  head  with  a  steel  shovel,  three  feet  long,  cutting  his  head 
and  rendering  him  unconscious.  Luckily,  the  blow  was  a  glancing  one, 
and  the  injury  inflicted  is  not  serious  in  character." 

If  there  should  be  a  criminal  trial  of  Tohlman  for  this  assault,  could 
either  Dr.  Lamb  or  Professor  Tohlman  testify? 

99.  In  the  same  case,  if  Dr.  Lamb  should  be  at  the  time  of  the  trial 
still  confined  to  his  bed  from  the  injury,  can  his  deposition  be  taken  and 
used? 

100.  Associated  Press  Dispatch:  "Mercer,  Pa.,  April  23,  1909.— 
District  Attorney  J.  Mede  Lininger  to-day  attempted  to  have  Mrs. 
James  H.  Boyle,  one  of  the  couple  held  on  the  charge  of  kidnaping  Willie 
Whitla,  testify  before  the  grand  jury.  She  was  taken  from  the  jail  to 
the  grand  jury  room.  WTien  her  counsel,  former  Judge  Miller,  heard  of 
it,  he  rushed  to  the  room  and  instructed  her  to  refuse  to  say  a  word. 
She  followed  his  advice.  Mr.  Lininger  then  asked  Judge  "Williams  to 
commit  the  woman  for  contempt.  Judge  Williams  ruled  that  neither 
Boyle  nor  his  wife  could  be  compelled  to  testify  until  he  decided  the 


REVIEW  PROBLEMS  1353 

question.     The  first  question  asked  of  Mrs.  Boyle  was,  '  Are  you  married 
to  James  H.  Boyle?'" 

Can  the  woman  be  allowed  or  compelled  to  testify  for  the  prosecution 
or  for  the  defence  on  the  trial? 

101.  Associated  Press  Dispatch:  "Boston,  April  15,  1909. — Frank 
T.  Bryson,  nineteen  years  old,  of  47  Lincoln  road,  Nonantum,  was  held 
for  the  grand  jury  in  $3,000,  in  the  Newton  court  this  morning.  Judge 
Kennedy  having  found  probable  cause  on  a  charge  of  breaking  and 
entering.  Bryson  was  arrested  about  1 :30  o'clock  this  morning  by  two 
policemen  who  found  him  hiding  near  a  railroad  signal  tower  opposite 
the  junction  of  Crafts  and  Washington  streets,  Newtonville.  They  were 
searching  the  vicinity  in  response  to  a  call  for  aid  from  Dr.  T.  F.  O'Donnell, 
whose  house  is  nearby.  Margaret  Ryan,  a  servant  in  the  O'Donnell 
house,  had  awakened  suddenly  and  saw  a  man  lighting  a  match  at  the 
foot  of  her  bed.  Her  screams  frightened  the  intruder  away  and  aroused 
the  family.  The  officers  found  footprints  in  the  yard,  and  after  they 
had  arrested  Bryson  they  took  off  his  shoes  and  found  that  they  fitted 
the  marks.  The  prisoner  declared  that  he  had  not  been  near  the  O'Don- 
nell house,  and  said  that  he  was  on  the  street  at  that  hour  because  he 
had  quarreled  with  his  father,  who  w^ould  not  admit  him  to  the  house. 
Miss  Ryan  positively  identified  him  as  the  man  whom  she  had  seen  in  her 
room.  Bryson  has  a  police  record.  Entrance  to  the  O'Donnell  house 
was  gained  through  a  window  opening  onto  a  stairway  landing." 

How  could  that  "police  record"  be  used  on  the  trial? 

102.  Brown  v.  Feldwert  (1905),  46  Ore.  363.  The  defendant  signed, 
without  reading  it,  a  paper  which  was  a  promissory  note.  In  the  hands 
of  a  bona  fide  transferee  for  value  before  maturity,  can  the  note  be  re- 
covered on,  in  spite  of  the  circumstances  of  signing  it? 

104.  Gardiner  v.  McDonough,  147  Cal.  313.  The  plaintiff  and  the 
defendant,  dealers  in  produce,  negotiated  a  sale,  of  which  a  memorandum 
was  made  reciting  a  contract  for  so  many  "peas"  and  "pinks,"  at  so 
much  "per  100."  A  dispute  ha\'ing  arisen,  one  of  the  parties  wishes 
to  show  that  by  the  trade  usage  "peas"  signifies  "white  beans"  and 
"  pinks  "  signifies  "  pink  beans  "  and  "  per  100  "  signifies  "  per  100  pounds." 
Is  this  allowable? 

105.  Dick  V.  Zimmermann  (1904),  207  111.  636,  permits  a  cross- 
examiner  to  "  elicit  suppressed  facts  which  weaken  or  qualify  the  case  of 
the  party  introducing  the  witness  or  support  the  case  of  the  party  cross- 
examining."  Is  any  part  of  this  statement  inconsistent  with  the  rule 
in  the  Federal  Courts? 

106.  Tifft  V.  Greene  (1904),  211  111.  389.  It  is  desired  to  prove 
records  of  tax-sales  by  certified  copy.  They  are  kept  in  a  room  in  the 
county  building,  by  a  certain  official  who  fills  the  offices  both  of  county 
clerk  and  of  clerk  of  the  county  court.  How  would  you  be  able  to  tell 
what  officer  should  certify  the  copies  in  order  to  make  them  admissible? 

107.  Walker  v.  Southern  R.  Co.  (1907),  Ala.,  56  S.  E.  952.     Bills  of 


1354  APPENDIX   II 

lading  were  made  out  in  triplicate.  One  was  signed  by  the  shipper  and 
filed  with  the  carrier's  auditor;  another  was  sent  to  the  shipper  with  the 
shipper's  signature  copied  into  it;  and  the  third,  with  the  shipper's 
signature  copied  into  it,  was  kept  in  the  carrier's  freight  office.  In  an 
action  by  the  shipper  against  the  carrier,  which  one  or  ones  of  these  may 
the  shipper  use,  and  on  what  conditions,  if  any? 

108.  Smith  v.  Lehigh  Valley  R.  Co.  (1904),  177  N.  Y.  379.  Issue  as 
to  the  defendant's  engineer  having  rung  the  bell  at  the  crossing  where 
the  plaintiff  was  injured.  The  engineer  testified  that  he  did,  and, 
further,  that  the  bell  was  rung  automatically  at  all  the  prior  crossings  for 
several  miles  up  the  road.  The  plaintiff  offered  witnesses  to  show  that 
the  bell  was  not  ringing  at  certain  of  those  prior  crossings.  This  was 
held  inadmissible,  one  judge  dissenting.  Is  the  decision  or  the  dissent 
more  sound? 

109.  In  the  same  case,  suppose  that  the  trial  Court  rules  the  plaintiff's 
offer  to  be  admissible,  and  the  evidence  is  accordingly  admitted;  but 
that  later  in  the  trial,  when  a  further  witness  on  the  same  point  is  offered 
and  objected  to,  the  trial  Court,  after  argument,  changes  its  ruling  and 
orders  that  the  prior  testimony  on  that  subject  be  stricken  out.  Assum- 
ing that  the  Supreme  Court  also  holds  the  evidence  inadmissible,  will  the 
defendant's  exception  to  the  original  ruling  nevertheless  be  sustained? 

110.  Chamyion  v.  M cC art hij  (1907),  111.,  81  N.  E.  808.  Inheritance 
of  J.,  an  intestate,  illegitimate  son  of  S.  The  plaintiff  claims  as  another 
illegitimate  son  of  S.  S.  also  had  legitimate  children,  by  marriage  to 
C.  To  prove  the  plaintiff  to  be  son  of  S.,  declarations  of  J-.,  of  S.,  and  of 
deceased  members  of  C's  family,  are  offered.     Are  they  admissible? 

111.  In  a  prosecution  for  perjury  committed  in  testifying  on  oath 
before  Federal  Commissioner  of  Corporations  Garfield,  how  would  you 
prove  (a)  the  Federal  Statute  empowering  him  to  administer  the  oath? 
(b)  the  words  of  the  testimony  constituting  the  alleged  perjury? 

112.  The  plaintiff's  intestate  was  killed  while  lawfully  riding  on  a 
freight  train  in  charge  of  cattle.  A  witness  offered  to  testify  that  the 
deceased  had  a  ticket  from  Chicago  to  Oshkosh;  it  was  objected  that  the 
ticket  should  be  produced  or  accounted  for;  the  objection  was  overruled. 
Was  this  correct?     (215  111.,  158.) 

113.  Probate  of  a  will ;  issue  of  undue  influence;  what  sort  of  declara- 
tions by  the  testator  are  admissible?     (76  N.  E.  678,  111.) 

114.  Injury  to  a  mine-workman  by  the  lowering  of  the  cage  at  a 
speed  exceeding  the  statutory  rate;  the  statute  makes  the  mine-owner 
liable  for  an  injury  caused  by  a  wilful  violation  of  the  statute.  The 
fact  that  the  engineer  had  "repeatedly  lowered  the  cage"  at  an  excessive 
speed  is  offered.     Is  it  admissible  for  any  purpose?     (77  N.  E.  131,  111.) 

115.  "\Maen  the  direct  examination  opens  on  a  general  subject,  the 
cross-examination  may  go  into  any  phase  of  that  subject;"  said  of  an 
accused's  conversations.  What  are  the  different  varieties  of  rule  on  the 
subject?     (73  N.  E.  601,  Ind.;  69  N.  E.  919,  111.) 


REVIEW   PROBLEMS  1355 

116.  Action  on  a  claim  for  cigars  and  liquors.  The  plaintiff  offered 
an  original  book,  sworn  to  by  the  clerk  keeping  it,  and  made  up  by  him 
from  tickets  punched  by  a  registering  machine  operated  by  the  salesman, 
who  sent  the  tickets  to  the  clerk,  who  made  the  entries  in  the  book; 
neither  the  tickets  nor  the  salesman  were  produced  or  accounted  for. 
The  book  was  excluded.     Is  this  ruling  correct?     (73  N.  E.  656,  Mass.) 

117.  Action  on  an  insurance  policy;  defence,  false  representations 
as  to  health.  The  insured's  statements  as  to  his  present  condition  of 
health,  made  pending  the  application  for  insurance,  were  admitted. 
Can  this  ruling  be  supported  on  any  ground?     (73  N.  E.  592,  Ind.) 

118.  Action  on  an  alleged  creditors'  agreement  in  writing;  the 
defendant  admitted  his  signature,  but  denied  his  liability,  and  offered 
to  show  that  the  document  had  been  signed  by  him  and  delivered  to  the 
plaintift"s  agent  on  the  understanding  that  it  should  not  be  binding  until 
a  certain  proportion  of  the  creditors  should  also  have  signed  and  that 
these  additional  signatures  had  not  been  obtained.  The  plaintiff  testified 
that  he  personally  knew  nothing  of  this  understanding.  Is  the  defendant 
liable?     (71  N.  E.  117,  Mass.) 

119.  News  Dispatch:  "Evansville,  Texas,  May  11,  1907.  —  By 
marrying  August  January,  a  wealthy  Nebraska  farmer.  Garnet  Collins 
today  took  unto  herself  as  husband  the  man  on  whose  testimony  the 
Federal  authorities  expected  to  send  her  to  jail  and  also  the  man  who  wa3 
the  innocent  cause  of  the  prosecution  of  the  case  against  her.  The  girl 
and  her  mother,  Mrs.  J.  C,  were  arrested  several  days  ago  on  charges  of 
using  mails  to  defraud,  on  complaint  of  numerous  men  over  the  country 
who  had  answered  their  matrimonial  advertisements  and  sent  them  money 
on  which  to  come  to  them.  Their  apartments  were  searched  and  a 
number  of  letters,  all  speaking  of  money  inclosed,  were  found.  Among 
the  letters  were  several  from  January,  and  in  all  of  them  were  references 
to  cash  forwarded  for  a  trip  to  Nebraska  or  to  tickets  wired.  January 
was  immediately  sent  for  by  the  authorities  to  come  to  Evansville  and 
testify;  but  on  his  arrival  he  and  the  younger  Collins  woman  wet-e 
quietly  married,  and  the  authorities  now  admit  he  cannot  be  forced  to 
testify  against  her." 

On  the  trial  of  the  mother,  (a)  Can  August  January  be  obliged  to 
testify?  (b)  Can  the  daughter  be  obliged  to  testify,  if  the  Federal  attor- 
ney hands  her  a  pardon  on  calling  her  to  the  stand? 

120.  Action  by  Doe  against  Roe  on  a  contract,  signed  by  both. 
Roe  has  gone  to  Nebraska,  taking  the  only  original  of  the  contract. 
Doe  has  no  copy.  The  trial  is  set  for  next  week.  How  can  Doe  prove 
his  contract  without  Roe's  testimony? 

121.  In  the  same  case,  are  there  any  conditions  on  which  Doe  can 
get  Roe's  testimony  by  interrogatories  before  trial,  Roe  being  still  in 
Nebraska? 

122.  On  cross-examination,  in  a  personal  injury  action,  may  an  eye- 
witness for  the  plaintiff  be  asked:   "Did  you  ever  make  an  affidavit,  in 


1356  APPENDIX  II 

which  you  denied  being  present  at  the  time  of  the  injury?"     (136  111. 
317;  219  111.222.) 

123.  Prosecution  of  M.  for  receiving  stolen  goods  from  one  K.,  well 
knowing  them  to  have  been  stolen  by  K.  The  prosecution,  to  prove  the 
theft,  offers  a  written  voluntary  confession  by  K.,  implicating  M.  Is 
this  admissible?     (Ind.,  76  N.  E.  245.) 

124.  In  the  same  case,  would  the  confession  of  K.  be  deemed  volun- 
tary if  made  to  a  chief  of  police  while  under  arrest  and  in  answer  to 
questions? 

125.  A  will  was  duly  signed  and  attested,  and  left  all  the  property  to 
a  certain  woman.  In  a  proceeding  to  probate  the  will,  contested  by  the 
next  of  kin,  one  of  the  attesting  witnesses  testified  that  the  testator  had 
laughed  and  said  to  him,  just  after  the  document  was  executed  and  the 
woman  legatee  had  left  the  room,  "This  paper  is  a  fake,  and  it  is  only 
done  for  a  purpose."     Is  this  admissible?     (187  Mass.  120.) 

126.  Action  for  slander  by  the  defendant  in  saying  that  the  plaintiff 
whipped  her  own  mother.  May  the  plaintiff's  character  as  to  brutality, 
or  the  opposite,  to  her  mother,  be  introduced  by  either  plaintiff  or 
defendant?     (Wis.,  109  N.  W.  633.) 

127.  Action  for  damage  by  the  spread  of  fire  negligently  set  by  the 
defendant  railroad's  employees  while  clearing  stubble.  May  the  plaintiff 
show  that  twice  before  in  the  same  month  a  fire  has  spread  to  his  land 
from  fire  set  by  the  defendant's  employees? 

128.  In  the  preceding  case,  if  the  defendant's  employees  are  in  an- 
other State,  how  could  the  plaintiff  take  and  use  their  depositions? 

129.  In  the  preceding  case,  an  employee  of  the  defendant,  called  by 
the  plaintiff,  is  afterwards  called  by  the  defendant, on  the  same  point. 
May  the  plaintiff  impeach  him  by  self-contradictions?  (Kan.,  86  Pac. 
461.) 

130.  A  statute  required  druggists  to  file  in  a  city  office  a  monthly 
report  of  sales  of  liquors.  On  a  prosecution  for  selling  unlawfully  to  a 
minor,  may  such  a  report,  filed  by  the  defendant  one  month  before  the 
prosecution  was  begun,  be  used  as  a  part  of  the  evidence  to  prove  the 
fact  of  the  sale?     (123  Mich.  317.) 

131.  Forgery  of  a  note  in  the  name  of  A.  S.,  judge  of  the  Superior 
Court.  May  the  forgery  be  evidenced  (1)  by  the  testimony  of  the 
county-treasurer,  who  has  often  seen  the  judge's  signature  in  indorsement 
on  his  salary-drafts,  (2)  by  specimens  of  the  judge's  handwriting  from  the 
files  of  the  Superior  Court? 


APPENDIX   III 

PRACTICAL  EXERCISES  IN  INTRODUCING  EVIDENCE 

IN  COURTS 

1.  Allen  V.  Whitman.  Breach  of  contract  to  pay  for  goods;  plea, 
goods  not  delivered  as  agreed.  Defendant  is  to  prove,  by  his  employees 
and  his  or  their  books,  the  total  amount  actually  delivered. 

2.  People  V.  Watrous.  Murder.  Defendant  is  an  employee  of  Jame- 
son's department  store;  to  prove  an  alibi  he  desires  to  use  the  employees' 
patent  time-indicator,  showing  his  time  of  entering  and  leaving. 

3.  Billings  v.  Paine.  Slander.  To  impeach  the  defendant's  witness, 
Alton,  a  reporter,  now  on  the  stand,  plaintiff  desires  to  show  that  Alton 
also  has  slandered  plaintiff  by  writing  an  article  in  the  newspaper  about 
him. 

4.  Johnson  v.  Doe.  Ejectment.  To  show  prescriptive  title,  defend- 
ant desires  to  prove  the  building  of  a  fence  in  1860  by  his  grandfather, 
now  deceased ;  defendant  calls  a  witness  who  heard  the  grandfather  talk 
about  it. 

5.  Mortimer  v.  Morton.  Action  on  a  note  purporting  to  be  made 
by  defendant  and  endorsed  to  plaintiff  by  George  Williams;  defense, 
forgery  of  endorsement  by  plaintiff.  Plaintiff  desires  to  prove  Williams' 
admission  of  the  genuineness  of  the  endorsement,  in  a  letter  written  by 
Willaims. 

6.  Steele  v.  Sanchez.  Goods  (kerosene  oil)  sold  and  delivered. 
Plea,  goods  not  equal  to  warranty.  Defendant's  employee  has  testified 
to  the  bad  quality.  Plaintiff  wishes  to  show  the  witness'  inexpertness  as 
a  judge  of  oil  by  proving  his  discharge  by  his  former  employer,  etc.,  etc. 

^  These  Exercises  are  simple,  and  are  not  intended  to  lead  to  argument  over 
rules  having  scientific  controversial  difficulties.  Their  aim  is  merely  to  give  the 
student  his  first  plunge  across  the  Rubicon.  The  first  actual  experience  in 
making  or  opposing  an  offer  of  evidence  marks  a  stage  in  his  development,  and 
the  public  struggles  of  each  counsel  to  do  one  of  these  simple  things  is  a  useful 
object-lesson  to  the  others. 

Each  case  is  allotted  to  two  counsel,  —  one  to  make  the  ofi'er  and  one  to  oppose 
it.  A  calendar  is  set.  The  ofi'ering  counsel  prepares  his  evidence  as  he  sees  fit, 
but  always  keeping  within  the  strict  limits  of  the  problem  as  stated.  His  object 
is  to  introduce  the  described  evidence  in  accordance  with  the  rules  applicable. 
The  opponent's  duty  is  merely  to  be  prepared  to  check  any  violation  of  the  rules. 
Each  must  be  ready  to  cite  some  authority  in  the  Case-book  or  Statute-book, 
when  called  upon  to  justify  a  point  of  law.  Any  document  designed  to  be  used 
must,  to  save  time,  be  submitted  to  the  opponent's  inspection  before  the  case  is 
called.     No  case  is  expected  to  take  more  than  ten  minutes. 


1358  ,  APPENDIX   III 

7.  Eldon  V.  Ellenborough.  Inheritance  of  John  Eldon,  father  of 
plaintiff.  Prove  the  date  of  father's  marriage  and  the  date  of  plaintiff's 
birth,  by  the  same  witness. 

8.  Wilson  V.  Walters.  Contract  to  deliver  cotton.  Plea,  non- 
assumpsit.  Prove  the  signatures  to  the  defendant's  letters,  by  a  witness 
to  the  signature,  and  by  other  specimens  of  the  defendant's  handwriting. 

9.  Elmer  v.  Edwards.  Contract  to  sell  a  horse;  plea,  written  war- 
ranty and  a  breach.     Prove  the  written  warranty  by  a  copy. 

10.  Johnson  V.  Jones.  Inheritance  depending  on  the  date  of  the 
plaintiff's  father's  marriage.  Prove  the  date  by  a  copy  of  the  marriage- 
register. 

11.  Mason  v.  Moon.  Contract  to  sell  machinery.  The  contract 
being  made  by  letters  and  telegrams,  plaintiff  desires  to  prove  the  plain- 
tiff's letter  of  Jan.  19,  and  his  telegram  of  Feb.  1,  both  being  in  the  defend- 
ant's possession. 

12.  Shand  v.  Thompson.  Action  on  a  judgment  rendered  in  the 
seventh  Judicial  District  of  Iowa;  prove  the  law  of  Iowa  as  to  the  juris- 
diction of  the  court.      * 

13.  Nansen  v.  Nomad.  Action  for  wrongful  ejection  from  a  railroad 
train,  defendant  claiming  that  the  ticket  of  the  plaintiff  did  not  read  to 
the  right  station;  plaintiff  is  to  prove  the  ticket  and  its  issuance,  by  the 
plaintiff  as  a  witness,  the  ticket  being  in  his  possession. 

14.  Manso7i  v.  Fitch.  Action  for  wrongful  arrest  by  a  police  officer 
on  the  charge  of  disorderly  conduct.  Defendant  wishes  to  show  the 
plaintiff's  bad  reputation  somehow.     Plaintiff  has  already  testified. 

15.  Edwards  v.  Raymond.  Action  for  wages;  plea,  discharge  for 
incompetency.     Defendant  is  to  prove  plaintiff's  incompetency  somehow. 

16.  Field  v.  Walton.  Injury  by  a  collision  with  the  defendant's 
wagon.  The  plaintiff  wishes  somehow  to  prove  that  the  defendant  is  a 
careless  driver. 

17.  Westerly  v.  Adams.  Action  for  ten  cases  of  tobacco;  plea,  goods 
not  equal  to  sample.  Prove  for  the  plaintiff  that  the  goods  were  equal  to 
sample. 

18.  Dennison  v.  Pierce.  Slander;  plea  of  privilege.  Plaintiff  is  to 
prove  the  defendant's  malice.     The  defendant  has  been  on  the  stand. 

19.  State  V.  Rogers.  Conspiracy  to  murder.  The  prosecution  puts 
an  accomplice  on  the  stand.  The  defendant  desires  to  impeach  him  by 
showing  an  indictment  against  him  for  the  same  crime. 

20.  Winston  v.  Gray.  Injury  at  a  railroad  crossing.  The  plaintiff 
desires  to  prove  the  speed  of  the  train  by  a  witness.  \ 

21.  People  V.  Anson.  Embezzlement.  The  prosecution  desires  to 
prove  the  payment  of  S130  by  a  bank  on  a  check  drawn  by  the  defendant. 

22.  Pritchett  v.  Eliot.  Contract  to  sell  land.  The  defendant  wishes 
to  prove  the  execution  and  contents  of  a  deed  from  the  plaintiff,  registered 
in  Cook  County,  the  land  being  in  Cook  County. 

23.  Connor  v.  Dale.     Action  against  the  endorser  of  a  promissor^^  note 


PRACTICAL  EXERCISES  1359 

payable  in  Chicago.     The  plaintiff  desires  to  prove  the  dishonor  and 
notice  by  a  notary's  certificate  of  protest. 

24.  Walters  v.  Ross.  Action  for  sums  of  money  lent.  Defendant 
pleads  that  plaintiff  told  him  to  pay  S15  of  it  to  George  Wilson;  and 
defendant  wishes  to  prove  a  receipt  signed  by  Wilson. 

25.  Berry  v.  Eames.  Action  on  a  note  for  $375;  plea,  payment. 
The  defendant  wishes  to  prove  a  copy  of  the  payment-check.  The 
original  is  in  possession  of  the  Chicago  Bank. 

26.  EastoH  V.  Lewis.  Action  on  a  promissory  note;  plea,  payment. 
Prove  the  written  receipt  by  the  plaintiff's  admissions. 

27.  Hoosicr  v.  Wade.  Action  on  a  judgment  in  the  Rogers  County 
Court  of  Indiana.     Prove  the  judgment  by  a  certified  copy. 

28.  Flim  V.  Flam.  Action  for  money  loaned,  viz.,  $100;  plea, 
payment;  the  plaintiff,  admitting  the  receipt  of  certain  currency,  main- 
tains that  it  was  counterfeit.  The  plaintiff  has  the  currency  in  court, 
and  wishes  to  prove  it  counterfeit. 

29.  Beans  v.  Bones.  Action  for  goods  sold;  the  defendant  disputes 
the  price  agreed  on;  the  plaintiff  wishes  to  evidence  the  price  from  his 
store  account  books. 

30.  Pomeroy  v.  Benjamin.  Action  for  nuisance  by  smoke  from  the 
defendant's  factory.  The  plaintiff  wishes  to  prove  that  the  smoke  has 
injured  the  furniture  in  adjacent  houses  also. 

31.  Holmes  V.  White.  Prosecution  for  violating  the  State  law  against 
public  gambling.  The  defendant  wishes  to  show  that  he  has  obtained 
immunity  from  prosecution  by  testimony  before  a  legislative  investigating 
committee. 

32.  People  V.  .James.  Bigamy.  The  prosecution  desires  to  prove 
either  the  first  or  the  second  marriage  by  one  of  the  wives. 

33.  Philips  V.  Charlestown.  Personal  injury  by  falling  into  a  hole  in 
a  defective  city  sidewalk.  The  plaintiff's  statements,  made  out  of  court 
as  to  the  nature  of  his  injury  and  suffering,  are  to  be  proved. 

34.  Ford  v.  Rivers.  Personal  injury.  The  defendant's  witness,  who 
has  examined  the  plaintiff,  is  to  qualify  as  a  physician  and  surgeon. 

35.  Rankin  v.  Houseworth.  Action  on  a  guaranty  of  a  note.  To 
prove  the  maker's  non-payment,  the  plaintiff  offers  a  deposition,  taken 
in  Iowa,  of  the  cashier  of  a  bank. 

36.  Files  v.  Jasper.  Action  for  the  price  of  hogs  sold  Jan.  14.  The 
plaintiff,  to  prove  damages,  calls  a  witness  to  the  market  price  of  hogs  at 
the  Chicago  Stockyards  on  Jan.  14. 

37.  State  v.  Copp.  Prosecution  of  a  policeman  for  assault  and 
battery.  The  policeman  pleads  his  official  authority  to  arrest.  The 
defendant  having  testified  that  he  was  wearing  his  star  at  the  time 
the  prosecution  calls  a  witness  to  testify  that  the  star  was  at  the  time 
in  the  station-house  on  the  defendant's  coat  there  hanging  up. 

38.  Simpkins  v.  Trask.  Bankruptcy.  The  plaintiff  desires  to  prove 
a  claim  of  $175,  based  on  an  account  stated. 


1360  APPENDIX   III 

39.  Atkins  v.  Sullivan.  Action  on  a  contract  to  carry  the  plaintiff's 
trunk  to  the  station,  the  breach  being  the  loss  of  the  trunk.  To  prove 
damages,  the  plaintiff  takes  the  stand  to  prove  the  contents  and  value, 
consisting  of  clothing  and  jewelry. 

40.  Wilkerson  v.  Stimso7i.  Action  on  a  contract  to  give  title.  To 
show  the  offered  title  to  be  defective,  the  plaintiff  desires  to  prove  an 
unrecorded  deed  of  1880  from  Jones  to  Smith. 


INDICES 


LIST  OF  CASES  REPRINTED 

[English  criminal  trials  are  listed  under  Rex  v. 


CASE   NO. 

Acklen's  Executor  v.  Hickman  ....  139 

Adams  v.  Gillig 830 

Adams  i'.  Herald  Pub.  Co 226 

Adamthwaite  v.  Synge 550 

Aiken  v.  Kennison   63 

Albers  Com.  Co.  v.  Sessel  690 

Alcott  ('.  Public  Service  Co 72 

Alleman  v.  Stepp 201 

Allen  V.  Rand 153 

Ammons  v.  State 293 

Anderson  v.  Bank 636 

Anheuser-B.B.Ass'n,  v.  Hutmacher .  327 

Ankersmit  v.  Tuck 718 

Annesley  v.  Anglesea 267,  638 

Anon 130 

Ansonia  r.  Cooper 372 

Appleton  V.  Braybrook 435 

Armory  v.  Delamu'ie 266 

Ashmore  r.  P.  S.  T.  &  T.  Co 258 

Atherton  v.  Defreeze 536 

Atlantic  &  B.  R.  Co.  v.  Re^molds.  .410 
Atty.-Genl.  v.  Drummond 864 

—  V.  Hitchcock 218 

—  V.  Le  Merchant 307 

—  T.  Shore 851 

Aveson  v.  Kinnaird    445 

Ayers  v.  Wabash  R.  Co 724 

Bacon  v.  Charlton 446 

Badger  v.  Badger 407 

Bagley  r.  :\IcMickle 305 

Ball  V.  U.  S 670 

Barham  v.  Bank 547 

Barnes  r.  Harris  640 

Barrett  v.  Magner 549 

Bartlett  v.  Smith 738 

Bate  r.Hill 240 

Baum  V.  Lynn 827 

Baxendale  v.  Bennett 810 

Beamish  v.  Beamish 815 

Beatson  v.  Skene 659 


CASE   NO. 

Bellefontaine  &  I.  R.  Co.  v.  Bailey  192 

Bembridge's  Trial 607 

Bemis  v.  Temple 69 

Bland  v.  Beasley 408 

Blevins  v.  Pope 147 

Bock  r.  Wall  64 

Bolton  V.  Liverpool 502 

Bootle  V.  Blundell 353 

Boots  V.  Canine 285 

Bottomley  v.  United  States 45 

Bowden  v.  Achor 312 

Braddon's  Trial 480,  570 

Bram».  U.  S 290 

Brewster's  Trial 9 

Brice  v.  Miller 361 

Bridges  ».  R.  Co 742,  760 

Brock  V.  State    270,  615 

Brosty  v.  Thompson 824 

Brown  v.  Crashaw 85 

—  r.  Walker 622 

Browne  v.  Byrne 855 

Bucklin  v.  State 409 

Buel  V.  State 211,  518,  748 

Buford  V.  M'Luny 28 

Burke  v.  Dulaney 800 

Burr's  Trial 597,  657 

Burrough  r.  Martin 137 

Burton  v.  Plummer 138 

Bushell's  Case 109,  731 

Buslmell's  Trial 112 

Cady  r.  Norton 687 

Caldwell  I'.  Stuart 587 

Calhoon  v.  Com 199 

Cameron  v.  Peck 349 

Campau  v.  Dewey 676 

Cancemi  v.  People 11 

Capen  v.  Stoughton 841 

Carpenter  v.  Dressier 323 

Carver  v.  Carver    770,  779 

Castlemaine's  Trial 206,  217 


1364 


LIST    OF    CASES    REPRINTED 


CASE   NO. 

Castro,  alias  Tichborne,  Case  .  .  .  .210 

Cazenove  v.  Vaughan 368 

Central  Vt.  R.  Co.  v.  Soper 70 

Champion  v.  McCarthy 645 

Charles  Morgan,  The 341 

Cherry  v.  Slade 464 

Chesapeake  &  O.  R.  Co.  v.  D.  R. 

Co 281,  422,  846 

Cheyney's  Case 866 

Chicago  City  R.  Co.  v.  Allen 219 

Church  V.  Hubbart 436,  555 

Clarke  v.  Periam 54 

Cleghorn  r.  R.  Co 30 

Clement  v.  Graham 317 

Clinton  V.  State  475 

Cloyes  r.  Thayer 609 

Cobbi-.  G.  B.  &L.  Co 548 

Cogdell  c.  R.  Co 765 

Cole  V.  Gibson 330 

CoUedge's  Trial 229,  493 

Collins  V.  Dorchester 65 

Commonwealth  v.  Cressinger 291 

—  V.  Emery 320 

—  V.  Kenny 277 

—  V.  Keyes 523 

—  V.  Phillips 559 

—  V.  Porter 732 

—  V.  Richmond 616 

—  V.  Robinson 47 

—  ».  Storti 292 

—  V.  Stm-tivant 162 

—  V.  Trefethen 451 

—  V.  Webster 517,  616,  746 

Conklin  v.  Stamler 394 

Continental  Ins.  Co.  v.  R.  Co 768 

Coolidge  V.  Taylor 401 

Cornell  v.  \^anartsdalen 100 

Corser  v.  Paul 253 

Cote  V.  N.  E.  Nav.  Co 836 

Counselman  v.  Hitchcock  .  .  .  .595,  621 

Cowley  V.  People 155 

Craig  dem.  Annesley  v.  Anglesea .  . 

267,  638 

Cunningham  v.  A.  &  N.  W.  R.  Co. .   56 

Cunnion's  Will 646 

Curtis  V.  Bradley 143 

Darling  v.  Westmoreland 66 

Davis  V.  Field  131 

Davison's  Trial 33,  172 


CASE   NO. 

DeCamp  v.  Archibald 702 

Deforge  v.  R.  Co 156 

Delaney  v.  F.  P.  Co 399,  417 

Delphi  V.  Lowery 59 

Dennie  v.  Williams 284 

Dewey  v.  Hotchkiss 535 

Dickenson  v.  Fitchburg 191 

Dixon  V.  People 574 

Doe  V.  Date 576 

—  V.  Hiscocks 868 

—  V.  Newton  ; 182 

—  V.  Palmer 450 

—  V.  Perkins  136 

—  V.  Suckermore 183 

—  V.  Ross 343 

Donnelly  r.  U.  S 386a 

Dowagiac  M.  Co.  v.  Lochren 705 

DowTier  v.  Dana 224 

Downs  V.  Swann 601 

Dwyer  r.  Collins 309 

Eady  v.  Shivey  420 

Eagleton  v.  Kingston 122 

East  India  Co.  v.  Atkins 618 

Eastman  v.  Moulton 392 

Ellicott  r.  Pearl 423 

Ellis  V.  BuzzeU 747 

—  v.  Thayer 678 

Essex  V.  Day 808 

Eure  V.  Pitman 311 

Evans  V.  People 106,  111 

—  V.  Rothschild 370 

Ewer  V.  Ambrose 231 

Fabrigas  v.  Mostyn 465 

Fairbanks  i\  Snow 817 

Fairlie  v.  Denton 275 

Farleigh  v.  Kelley 683 

Ferguson  v.  Clifford 438 

Ferrers  v.  Shirley 121 

Fishman  v.  Consumers'  B.  Co 71 

Fiske  r.  Gowing 164 

Fitzpatrick  v.V.S 620 

Fonda  V.  St.  Paul  C.  R.  Co.. 20,  50,  57 

Fosst).  McRae 769 

Foster  v.  Mackinnon 805 

Fox  ».  State 785 

Foxley 's  Case 265 

Francia's  Trial '. .  .299 


LIST    OF    CASES    REPRINTED 


136i 


CASE    NO. 

Franklin  v.  State 24 

Franklin  Bank  v.  Pa.  D.  &  M.  S.  N. 

Co 257 

Freind's  Trial 128 

Gaines  v.  Relf 414 

Garden  City  S.  Co.  v.  Miller 561 

Gartside  v.  Insurance  Co 664 

Gertz  V.  Fitchburg  R.  Co 242 

Gibblehouse  v.  Stong 256 

Gillis  ».  Gillis 356 

Ginn  V.  Dolan 755 

Golden  v.  State 488 

Goode  r.  Riley 858 

Goodhand  v.  Benton 668,  682 

Gough  V.  St.  John 17 

Graham  v.  Pa.  Co 166 

Gray  v.  Jackson 759 

—  V.  James 807 

Grayson  v.  Lynch 120 

Great    Western    Turnpike    Co.    v. 

Loomis 577 

Greenlee  v.  Mosnat    375 

Greenough  i\  Gaskell 635 

Griffin  v.  Henderson 710 

Griswold  v.  Pitcairn 556 

Guardhouse  v.  Blackburn  814 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Shieder  .753 
GuUiford  V.  McQuillen 699 

Hale  V.  Henkel 604,  623 

Hales'  Trial 180 

HalU'.  Com 41 

Hamblett  ;•.  Hamblett 697 

Hamilton  r.  People 176 

Hardy  v.  jNIerrill 163 

Hardy's  Trial  151,655 

Hartford  Bridge  Co.  v.  Granger  .  .  .282 

Hartman's  Estate 389 

Harvey  r.  Thorpe 344 

Hathaway's  Trial 42 

Hathaway  r.  Hemingway 715 

Hatton  i\  Robinson 639 

Hawkins'  Trial   31 

Heane  v.  Rogers  252 

Hehir  «.  R.  S.  Co 761 

Heike».  U.  S 625 

Hein  v.  Holdridge 21 

Heisler  v.  State 148 

Heitman  v.  Bank 829 


CASE   NO. 

Hennel  v.  Lyon 316 

Hennessy  v.  Wright 660 

Henry  v.  Lee 132 

Hewitt  V.  Corey 247 

Hoag  i'.  Wright 187,  220 

Hobson  V.  Moorman 455 

Holmes  v.  Holloman 354 

Holt  r.  U.  S 602 

Hooper  v.  Moore 740 

Home  Tooke's  Trial    274 

House  V.  Beak 395 

Howe  V.  Thayer 62 

Hronek  v.  People 484 

Hubbard  v.  Greeley  811 

Huff  v.  Bennett 134 

Hughes  V.  Detroit  G.  H.  &  M.  R. 
Co 83,482 

—  V.  Chicago  St.  P.  M.  &  O.  R. 
Co 376 

—  V.  Pritchard 835 

Hunnicutt  v.  Peyton 708 

Hutchison  v.  Bowker 739 

Indianapolis  &  M.  R.  Co.  v.  Hall  .  .  .684 
Indianapolis  St.  R.  Co.  v.  Johnson. 511 
International  Harv.  Co.  v.  Camp- 
bell   546 

—  V.  Elfstrom 329 

Ings'  Trial 3 

Ivy's  Trial 584 

Jennings,  ex  parte 703 

Jodrell,  re 852 

Johnson  v.  Lawson 388 

Johnston  v.  Marriage 236 

Joliet  A.  &  N.  R.  Co.  v.  Velie 763 

Jones  V.  Guano  Co 425 

—  V.  Tucker 105 

Kendall  v.  Brownson  751 

Kennedy  v.  Doyle 398,  416 

Kerne's  Trial 487 

Kidd's  Adm'r  v.  Alexander's  Adm'r  430 

Killen  V.  Lide's  Adm'r 117 

Kilpatrick  v.  Commonwealth 786 

King  V.  Hardwick 255 

Kingston's  Trial 129,  662 

Kitchen  v.  Robbins 254 

Kneedler,  ex  parte 603 

Knight  y.  Barber 822 


1366 


LIST    OF    CASES    REPRINTED 


CASE   NO. 

Knox's  and  Lane's  Trial 127,  243 

Koester  v.  Rochester  Candy  Works .  237 

Koch  ?'.  State 208,842 

Kurtz  V.  Hibner    875 

Lambert  v.  Hamlin 221 

Lamb  v.  Moberly 331 

Laughlin  v.  State 491 

Lavves  v.  Reed 133 

Lawless  v.  Queale 336 

LawTence  v.  Clark 308 

Layer's  Trial 170,203 

Lebaudy  Case 40 

Lese  V.  Lamprecht 828 

Lewis  V.  England 396 

Lejiield's  Case 302 

Lisbon  v.  Lyman 752 

Lisle's  Trial 476 

Lombard  v.  Chaplin 537 

Lott  V.  King 150 

Louis'  Adm'r  v.  Easton     94 

Louisville  &  N.  R.  Co.  v.  Daniel.  .  .400 

—  i'.  York 489 

Lovat's  Trial 714 

Lumley  v.  Gye 784 

Lynch  v.  Clerke 318 

McClure  v.  State  Banking  Co 22 

McGuire  v.  Blount 545 

M'Naghten's  Case  190 

McNamara  «.  B.  E.  R.  Co 806 

McQuiggan  v.  Ladd 51 

McRae  v.  Erickson 665 

McVicker  v.  Conkle 355 

Macclesfield's  Trial  171,  196 

Marcott  y.  R.  Co 165 

Marsh  y.  Hand  688 

Marshall  v.  Marshall 685 

Mattocks  V.  Lyman 276 

Massey  v.  Bank 333 

Mayo  V.  Mayo 608 

Medley  v.  Ins.  Co 809 

Meier  v.  Paulus 500a 

Melville's  Trial 189 

Mercer  v.  State 649 

Merrick  v.  Wakley 415 

Michael  v.  Matson 656 

Middleton  v.  Mass 544 

—  V.  Melton    385 


CASE   NO. 

Miller  v.  Curtis 55 

—  V.  Salomons 478 

—  V.  Travers 867 

Minnesota  Debenture  Co.  v.  John- 
son  334,337 

Mississippi  v.  Johnson 658 

Mitchell's  Case 641 

Montgomery  v.  State 384 

Moody  V.  Rowell 719 

Mooney  v.  Olsen 454 

More«.  More 357 

Morris  v.  East  Haven 49 

Morrison  v.  Porter 184 

Morrow  v.  R.  Co 60 

Morse  i).  R.  Co .  .67,  269 

MowTy  V.  Smith  671 

Mueller  v.  Rebhan  717 

Miu-ray  &  Peppers  v.  Dickens 142 

Myers  v.  Ladd 873 

—  ?).  Sari 854 

Nagle  V.  B.  &  N.  S.  R.  Co 404 

Nayve's  Trial 627 

New  England  Glass  Co.  v.  Lovell.  .161 
New  York  Iron  Mine  v.  Negaunee 

Bank 722 

New  York,  L.  E.  &.  W.  R.  Co.'s 

Petition 775 

Nicholls  V.  Dowding 146 

Norris  v.  Clinkscales 701 

Norwalk  v.  Ireland 140 

Noyes  i'.  B.  &  M.  R.  Co 53 

Gates' Trial 734 

Omichund  v.  Barker 427,  477 

Owen  V.  Warbiu-ton 838 

Oxier  v.  United  States 209 

Paige  V.  Willet 774 

Parnell   Commission's  Proceedings 

114,  467,  531,  677 

Parulo  i'.  R.  Co 278 

Paxton  V.  Douglas 596 

Peaks  «.  Cobb 328 

Peay  «.  Picket 319 

Pegg  V.  Warf ord    669 

People  V.  Crandall 212 

—  V.  Davis 572 

—  V.  Doyle 667 

—  V.  Faber 194 


LIST    OF    CASES    REPRINTED 


1367 


CASE    NO. 

People  V.  Jackson 205 

—  V.  Lamar 27 

—  V.  McElvaine 193 

—  V.  Marrin 48 

—  V.  Matteson 479 

—  V.  Moore 154 

—  V.  Schlessel 534 

—  V.  Schmitz 791 

—  V.  Shay 37 

—  V.  Stout 35 

—  V.  Tyler 613 

—  t).  White 34 

Perovich  v.  Perry 789 

Perry  v.  Burton 116, 529 

Person  v.  Bowe 286 

Phelps?;.  Hunt 672 

Philadelphia  &  T.  R.  Co.  v.  Stimp- 

son 720 

Philipson  v.  Chase 325 

Phillips  V.  Marblehead 653 

Piedmont  S.  Bank  v.  Levy  .  .  .262,  471 
Pittsburgh  C.  C.  &  St.  L.  R.  Co.  V. 

Haislup 460 

Pittsbm-gh  R.  Co.  v.  Thomas 58 

Pittsburgh  V.  &  C.  R.  Co.  v.  Vance  118 

Price  V.  Torrington 397 

Prestwood  v.  Watson 776 

Prince  v.  Samo 533 

Prussing  v.  Jackson 306 

Putnam  v.  Harris 679 

Pym  V.  Campbell 799 

Queen's  Case,  The 223,  338,  532 

Queen  v.     See  Regina  v. 

Rex  or  Regina  v.  Aickles 413 

—  V.  All  Saints  585 

—  V.  Almon 757 

—  V.  Bembridge 607 

—  V.  Braddon 480,  570 

—  V.  Brasier 82 

—  V.  Brewster 9 

—  V.  Bushell 109,  731 

—  V.  Bushnell  112 

—  V.  Castlemaine 206,  217 

—  V.  Castro,  alias  Tichborne 210 

—  V.  Christopher 360 

—  V.  Colledge 229,  493 

—  V.  Davison 33,  172 

—  V.  Dewhurst  113 


CASE   NO. 

Rex  or  Regina  v.  Dossett 44 

—  V.  Foxley 265 

—  V.  Francia 299 

—  V.  Freind 128 

~v.  Garbett 611,  619 

—  V.  Gordon  315 

—  V.  Hales 180 

—  V.  Hardwick 255 

—  V.  Hardy 151,  655 

—  V.  Hathaway 42 

—  V.  Hawkins 31 

—  V.  Hill 79 

—  V.  Ings 3 

—  V.  Ivy 584 

—  V.  Kenilworth 304 

—  V.  Kerne 487 

—  V.  Kingston 129,  662 

—  V.  Knox 127,  243 

—  V.  Layer    170,  203 

—  V.  Lisle 476 

—  V.  Lovat 714 

—  V.  Macclesfield 171,  196 

—  V.  Melville ■.  .  .  189 

—  V.  Gates 734 

—  V.  O'Doherty 758 

—  V.  Rookwood 202 

—  V.  Rowton 13,  173 

—  V.  Ryan 23 

—  V.  Scroop 126 

—  r.  Shaftesbury  652 

—  V.  Sidney 179,  520 

—  V.  Simmonds 514 

—  V.  Tooke 274,  538 

—  V.  Tiu-ner 10 

—  V.  Tutchin 300 

—  V.  Vaughan 43 

—  V.  Warickshall 289 

—  V.  Watson 197,  204,  326 

—  r.  \\liitebread    216 

Ramsdell  v.  Clark 826 

Rea  V,  State 789 

Read  v.  Brookman 303 

—  ?;.  Hide 527 

Reynolds  v.  Burgess  S.  F.  Co.  507,  580 

Rhea  v.  Territory 272,  589 

Rickerson  v.  Ins.  Co 860 

Rindskoff  v.  Malone 692 

Robbins  v.  Windover 839 

Roches.  R.  Co 448 

Roe  d.  Haldane  v.  Harvey 268 


1368 


LIST    OF    CASES    REPRINTED 


CASE    NO. 

Rogers  v.  Brent 675 

Rook  wood's  Trial 202 

Roosa  v.  Loan  Co 447 

Ross  V.  Cotton  Mills 767 

—  V.  Demoss 96 

Rowt's  Adm'x  v.  Kile's  Adm'r  ....  123 

Riian  V.  Perry 16 

Riicker  v.  Eddings 716 

Rudil  V.  Robinson 259,  280 

Rush  i'.  French 691,  709,  723 

Sayles  v.  Briggs 834 

Schaefer  &  Co.  v.  Ely 167 

Schoepfi  ex  parte 500,  643,  704 

Scott  V.  Bassett    322 

Scroop's  Trial 126 

Selover  v.  Bryant 232 

Sexton  V.  Sexton 650 

Shaftesbury's  Trial  652 

Shaw,  in  re 575 

Shea  V.  S.  &  W.  Board 313 

Sheehan  v.  Allen 644 

Sidney's  Trial 179,  520 

Siebert  v.  People 107 

Siegfried  v.  Levan 541 

Simms  v.  Forbes 222 

Sims  V.  Sims 88 

Sisler  V.  Shaffer 673 

Skinner  v.  Great  Northern  R.  Co.   642 

Slatterie  v.  Pooley 335 

Smith  V.  Dotterweich 802 

—  V.  Moore 386 

Spenceley  v.  DeWillott 61 

Spencer  v.  Potter's  Estate 695 

Springer  v.  Chicago 7 

St.  John  V.  Lofland 95 

Stafford  V.  Fargo 721 

Stamper  v.  Griffin 540 

Stanley  v.  White 801 

Starr  Burying  Ground  v.  Ass'n 260 

State  V.  Allen 124 

—  V.  Barrett 515 

—  V.  Beckner 200 

—  V.  Briggs  586 

—  V.  Campbell 295,  654 

—  V.  Cass 816 

—  V.  Crawford ' 712 

—  V.  Finch 294 

—  V.  Flanders  115 

—  V.  Flynn 599 


CASE   NO. 

State  V.  Forbes 762 

—  V.  Fox 469 

—  V.  Gannon 733 

—  V.  Goldstein    125 

—  V.  Greenburg 213 

—  V.  Greene 52 

—  V.  Heffernan 377 

—  V.  Hodge 766 

—  V.  Kent,  alias  Pancoast 610 

—  V.  Kennade  . 26 

—  V.  Knowles 346 

—  V.  Lapage 14,  36,  46 

—  V.  Lynde  345 

—  V.  Lytle 119 

—  V.  Lu  Sing 526 

—  V.  Main 787 

~v.  Marx 777 

—  V.  Monich 741 

—  V.  Moore 5 

—  V.  Moran 698 

—  V.  Moses 735 

—  V.  Murphy 624 

—  V.  Myers  496 

—  V.  Parish 246 

—  V.  Quigley 754 

—  V.  Randolph 198 

—  V.  Slack 234,674 

—  V.  Surry 12 

—  j;.  Thaden 612 

—  V.  Walker   261 

—  V.  Willis 251 

—  V.  Woodrow 588 

State  Bank  v.  Hutchinson 470 

Stevens  v.  R.  Co 271 

Stevison  v.  Earnest 566 

Stobart  V.  Dryden 382 

Stolp  V.  Blair 245 

Stoops  V.  Smith 857 

Sturgis  V.  State 235 

Sugden  v.  St.  Leonards 402,  453 

Summons  v.  State 525 

Susanna's  Case 486 

Swedish-American  Tel.  Co.  v.  F.  & 

C.  Co 506 

Talbot  V.  Cusack 135 

Tedens  v.  Schumers 241 

Tenney  v.  Tuttle 19 

Thompson,  matter  of 68 

—  V.  Trevanion 457 


LIST    OF    CASES    REPRINTED 


1369 


CA8E    NO. 

Thoroughgood's  Case 798 

Tichborne  Case 210 

Tilton  V.  American  Bible  Society  .  .853 

—  V.  Beecher 332,  466,  522,  530 

Tooke's  Trial 274,  538 

Tooley  V.  Bacon 693 

Townsley  v.  Suinrall 428 

Travelers'    Ins.    Co.    v.    Sheppard 

149, 459 

Truby  v.  Seybert 283 

Turner's  Trial 10 

Tutchin's  Trial 300 

Unis  V.  Charlton's  Adm'r 225 

United  States  v.  Cross 600 

—  V.  Doebler 310 

—  V.  Gibert 359 

—  V.  King 458 

—  V.  Percheman 437 

United  States  Bank  v.  Dandridge .  .  845 
United  States  L.  Ins.  Co.  v.  Vocke .  .  424 
University  of  Illinois  v.  Spalding  .  .  185 

Vaise  V.  Delaval 837 

Valley,  Baroness  de,  Case 39 

Vance  v.  Reardon 528 

—  V.  State 90 

Vander  Donckt  v.  Thellusson 104 

Van  Syckel  v.  Dalrymple 823 

Vaughan's  Trial 43 

Views,  Rules  for 6 

Violette  v.  Rice 859 


CASE    NO. 

Volusia  Co.  Bank  v.  Bigelow 141 

V^owles  V.  Young 387 

Waldron  v.  Turpin 557 

Walkerton  v.  Erdman 371 

Walls  V.  Bailey 856 

Wanek  v.  Winona 581 

Ward  V.  State 598 

Warickshall's  Case 289 

Waterman  v.  Whitney     452 

Watson's  Trial 197,  204,  326 

Webb  V.  Richardson 468 

West  V.  State 571 

Wheeler  r.  U.  S 84 

Whitebread's  Trial 216 

Wiedemann  v.  Walpole 279 

Wilcox  V.  Bergman 421 

Willard  v.  Darrah 869 

William  &  Mary  College  v.  Powell .  101 
Williams  v.  Fambro 25 

—  i).  G.  N.  R.  Co 449 

—  V.  State  567 

Willock  V.  Wilson 442,  562 

Wilson  V.  Betts 539 

Wilson  V.  N.  E.  Nav.  Co 728 

Winkley  v.  Kaime 874 

Winn  V.  Coggins 788 

Wolverton  v.  Com 694 

Worthington  v.  Mercer 80 

Wright  V.  Littler 381 

—  V.  McKee 18 

—  V.  Sharp 707 

—  V.  Telegraph  Co 840 


LIST  OF  STATUTES  REPRINTED 


ENGLAND 

Statutes  at  Large 

EXTRACT    NO. 

5  Eliz.  c.  9,  §  12 568 

29Car.  II,  c.  3 847 

7  Wm.  Ill,  c.  3,  §  2  568 

4  Wm.  IV,  20 778 

6  &  7  Vict,  c.  85 207 

14  &  15  Vict.,  c.  99,   §  6  .  .  .  .505,  579 

—  §14 439 

17  &  18  Vict.,  c.  125,  §  22 233 

—  §24 340 

—  §25 347 

—  §26 352 

—  §27..' 186 

—  §50 505,579 

—  §103 207 

Rules    of   Court,    1883,    Ord.    37, 

38  369,374 

CALIFORNIA 

Constitution  1879 
Art.  I,  §4 483 

Penal  Code  1872 

§§867,868 490 

§1102    77,  590 

§§1322,1323 77,590 

§1330 573 

Code  of  Civil  Procedure  1872 

§§1308,  1315 358 

§§  1879,  1880   77,  590,  637 

§1881 77,  590 

§  1882  (Amend.  1901) 637 

§1893 439 

§1900 441 

§1901 439 

§§1905,  1906 439 

§1918 439 

§1919 419 


CALIFORNIA  {Continued) 

EXTRACT   NO. 

§  1944 186 

§1948 431 

§1951 321,419 

§  1S63 441 

§2043 490 

§2049 233 

§2051 207,  347 


GEORGIA 

§  3628  . . . 

Code  1895 

419 

§  5182  . . . 

393 

ILLINOIS 

Constitution  1870 
Art.  II,  §3 483 

Revised  Statutes  187 1^ 

C.  30,  §20 419 

—  §35 321,431 

—  §36 321 

C.  38 

—  §§  426,  491 77,  207,  590 

C.  51,  §§  1,  2,  4,  5.  .  .77,  207,  347,  590 

—  §3 393 

—  §6  499,579 

—  §9   505,  579 

—  §13   439 

—  §§24-34 369 

—  §51 352 

C.  99,  §§10-13 429,558 

C.  101,  §§3,  4 483 

C.  110,  §20 505,579 

—  §34 778 

C.  148,  §6 358 

Session  Laws 
1905,  May  18,  §  32 499,  579 


1372 


LIST    OF    STATUTES    REPRINTED 


IOWA 

Code  1897 

EXTRACT   NO. 

§4608 637 

§4621 431 

§§4622,4623    393,  560 

§4635 439 

KANSAS 

General  Statutes  1897 
C.  95,  §§  380,  381 505,579 

MASSACHUSETTS 
Revised  Laws  1902 

C.  173,  §6 505,579 

C.  173,  §  35 499,  505,  579 

§§57-63   499,505,579 

C.  175,  §§18,  19 483 

—  §20   77,590 

—  §21  77,  590 

—  §66 403 

—  §70 352 

MICHIGAN 

Compiled  Laws  1897 
§§  11883,  11893,  11934 495 

NEBRASKA 

Compiled  Statutes  1899 
§5970 441 

NEW  YORK 

Code  of  Civil  Procedure  1877 

§735 778 

§§828,  829   77,  590 

§831 77,590 

§832  77,590 


NEW  YORK   {Continued) 

EXTRACT   NO. 

§850 77,  590 

§870 499 

§935 321,  419 

§947 321 

Code  of  Criminal  Procedure  1881 
§393 77,590 

Penal  Code  1881 
§715 77,590 

Session  Laws 

1876,  c.  182,  §1   77,590 

1880,  c.  36,  §  1 186 

1883,  c.  195,  §  1 352 

1888,  c.  555 186 

UNITED  STATES 
Constitution  1787 

Art.  IV,  §1 439 

Amend.  V 594 

Amend.  VI 374 

Revised  Statutes  1878 

§724 505,579 

§858    77,  590 

§§  861,  863,  865,  866 374 

§864 152 

§870 .'....573 

§876 573 

§905 439 

§906 439 

§  1033 495 

WISCONSIN 

Statutes  1898 
§3788 358 


LIST  OF  AUTHORS  OF  EXTRACTS 
REPRINTED 


American  Institute  of  Criminal 
Law  and  Criminology,  "Report 
on  Trial  Procedure" 629 

Anon.,  "The  Attorney  as  a  Wit- 
ness"    97 

Ayliffe,  John,  "Parergon" 108 

Bacon,  Sir  Francis,  "Maxims  of  the 

Law" 885 

Brougham,  Henry,  "Speech  on  the 
Courts  of  Common  Law  "(Cross- 
examination  to  Documents 339 

■ — ;  —  (Discovery  of  Documents) .  .  503 
Brown,  David  Paul,  "The  Forum"    4 
Buller,    Mr.    J.,    "Trials    at    Nisi 
Prins"    (Impeachment    of    Wit- 
nesses)  230 

— ,  —  (Certified  Copies) 433 

Campbell,    John,    "Lives    of   the 

Chief  Justices  of  England  " 32 

Caton,  John  D.,  "Kurtz  v.  Hibner "  877 
Chitty,   Joseph,    "Practice  of  the 

Law" 474 

Coke,  Sir  Edward,  "Commentary 
on     Littleton"     (Witnesses,     in 

general) 76 

— ,  —  (Interest) 91 

— ,  —  (Husband  and  Wife) 98 

— ,  —  (Guilty  Consciousness) 265 

— ,  —  (Judicial  Records) 833 

Commissioners   on    Common    Law 
Practice, England,  1853,  "Report" 
(Husband  and  Wife)  .  .102,  591,  647 

— ,  —  (Discovery) 498,  504 

Commissioners  on  Revision  of  the 
Statutes,  New  York,  1853,  "Re- 
port"  663 

Dickens,  Charles,  "Bleak  House"  481 


Gilbert,  Chief  Baron,  "Treatise  on 
Evidence"  (Infamy) 86 

—  (Husband  and  Wife) 99 

—  (Corroboration) 244 

—  (Documentary  Originals).  .  .314 
— •  (Copy  of  a  Copy)     348 

—  (Certified  Copy)  434 

—  (Printed  Copy) 440 

—  (Authentication  by  Seal)  .  .  .553 

—  (Judicial  Admissions) 773 

Greeley,  Louis  M.,  "Unauthorized 

Delivery  of  Escrow"     813 

Greenleaf,  Simon,  "Treatise  on 
Evidence"  (Witnesses,  in  gen- 
eral)     75 

— ,  —  (Insanity) 78 

— ,  —  (Infamy) 87 

— ,  —  (Interest) 92 

Hale,  Sir  Matthew,  "Pleas  of  the 
Crown" 517 

Heney,  Francis  J.,  "Letter  on  the 
Case  of  People  v.  Schmitz" 792 

Holland,  T.  E.,  "Jurisprudence".  .804 

Jeaffreson,  J.  C,  "A  Book  about 
La\\yers" 552 

KiDD,  A.  M.,  "Delivery  in  Escrow"  812 
— ,  "Doe  V.  Hiscocks" 871 

Lilly,  John,  "Practical  Register ".821 

Maitland,  F.  W.,  and  Sir  F.  Pol- 
lock, "History  of  EngHsh  Law ".832 

PHiLLiMOifE,  J.  G.,  "History  and 
Principles  of  the  Law  of  Evi- 
dence"   383 

Pollock,  Sir  F.,  and  F.  W.  Mait- 
land, "History  of  English  Law"  832 


1374 


LIST  OF  AUTHORS  OF  EXTRACTS  REPRINTED 


Ram,  James,  "Facts"  145 

Redfield,  Isaac  T.,  "Kurtz  v. 
Hibner"  876 

ScHOFiELD,  Henry,  "Reformation 
of  Wills" 879 

Starkie,  Thomas,  "Treatise  on  Evi- 
dence" (Witness'  Knowledge)   .  .110 

— ,  —  (Verbal  Accuracy) 521 

Stephen,  Sir  J.  F.,  "Digest  of  the 
Law  of  Evidence"  (Opinion  to 
Character) 175 

— ,  —  (Cross-examination  to 
Character 214 

— ,  —  (Interpretation    of    Docu- 
ments)  870 

— ,  "History  of  the  Criminal  Law" 
(Cross-examination  to  Charac- 
ter)      214 

— ,  —  (List  of  Witnesses) 494 

— ,  —  (Privilege  against  Self-Crim- 
ination)   628 


Thayer,  James  Bradley,  "Prelim- 
inary   Treatise     on     Evidence" 

(Best  Evidence) 297 

— ,  —  (Res  Gestae) 462 

— ,  —  (Law  and  Fact)    730,  736 

■ — ,  —  (Sufficiency  of  Evidence) .  .  .  743 

— ,  —  (Judicial  Notice) 783 

Tidd,  William,  "Practice" 501 

Train,  Arthur  C,  "The  Prisoner  at 
the  Bar"  (Privilege  against  Self- 
Crimination)  617,  630 

■ — ,  —  (Law  and  Fact) 737 

Trickett,  William,  "Character-Evi- 
dence in  Criminal  Cases" .  15,  38, 177 
— ,  "Character-Evidence    in    Civil 

Cases"  29 

■ — ,  "Preponderance  of  Evidence, 
and  Reasonable  Doubt" 749 

WiGRAM,  Sir  James,  "Discovery ".497 
— ,  "Interpretation  of  Wills" 863 


INDEX  OF  TOPICS 


CASE   NO. 

Account-books  —  as  memoranda  to 
refresh  recollection 136-143 

—  as  admissions 280 

—  as  requiring  or  allowing  proof 

of  all  connected  entries 535 

—  as  exceptions  to  the  Hearsay 
rule: 

—  statements  of  facts  against 
interest 385 

—  regular  entries 392-400 

—  official  records 415 

Admissibility,  theory  of 

—  multiple 667-670 

—  curative 671-674 

—  conditional  675-679 

Admissions  —  of    parties    in    civil 

cases 255-286 

—  of    accused    persons    (confes- 
sions)  : 288-294 

—  of  agents  or  privies 255-262 

—  of    counsel     (judicial    admis- 
sions)  282-286,  776 

Adverse  Possession  —  as  evidenced 
by  verbal  acts 468 

Affidavit  —  not  admissible  under 
Hearsay  rule 268 

Affirmative  —  burden  of  proving 
the 752 

Age  —  hearsay  evidence  of 387 

—  inspection,  as  evidence  of 5 

—  of  ancient  document 544 

Agent  —  admissions  of 257 

—  verbal  acts  of,  as  res  gestae .  .  .  .471 
Alteration  —  of    a    will,    testator's 

statement  as  evidence  of 453 

Ambiguity — latent  and  patent  807,  814 

—  interpretation    of,    in   general 
867 

Ancient  Document  —  as  evidenced 
by  age  and  custody 544 

Attesting    Witnesses  —  must    be 

called  or  accounted  for.  .  .351-358 
• —  proof  of  attestation  essential .  .  356 


CASE   NO. 

Attorney  —  testimony  of,  as  objec- 
tionable  96 

—  as    agent    to    make     admis- 
sions   283 

—  privileged  communications  to 
634-645 

Authentication  of  Documents  —  in 
general  538-563 

—  by  age 544,  545 

—  by  contents 546,  549 

—  by  official  custody 550 

—  by  seal 552-563 

—  by  certificate  or  register .  430-439 

Bacon's  Maxim 865 

Best  Evidence  Rule  —  in  general .  .  297 

—  see  also  Documents;  Attesting 
Witness. 

Bias  —  of  a  witness,  evidence  of.  .  .218 
Bill  of  Exchange  —  collateral  agree- 
ment, shown  by  parol 829 

—  delivery  in  escrow 800 

—  protest  of  notary 428 

Birth  —  register  of,  as  evidence  . .  .416 
Blank  —  delivery  or  signature  of  a 

document  in 810 

Bodily  Condition  —  declarations  of 
injured  person  as  to 445-449 

—  privilege  of  party  as  to  inspec- 
tion of 580 

Bookkeeper  —  entries  of,  as  admis- 
sible  392-400 

—  as       refreshing       recollec- 
tion   136-143 

Books  of  Account  —  see  Account- 
Books. 

Boundaries  —  deceased        person's 
declarations  of 408 

—  official  survey  of 423 

—  judicial  notice  of 789 

Burden  of  Proof  —  general  theory 

of 74? 

—  rules  for  determining 7n ' 


1376 


INDEX    OF    TOPICS 


CASE    NO. 

Burden    of  Proof  —  proof  beyond 
reasonable  doubt 746 

—  by  preponderance 747 

—  in  criminal  cases 754 

—  in  negligence  issues 753 

Capacitt/  —  testamentary;  see  Sanity. 
Carefulness  —  see  Negligence. 
Certificate  —  by  officer,  when  ad- 
missible as  hearsay 427-442 

—  authenticated  by  official  seal 
552-563 

Certified  Copy  —  of  a  public  docu- 
ment, when  admissible  as 
hearsay 433-439 

—  not  admissible  unless  original 

is  accounted  for 318-321 

Certified  copy  —  authenticated  by 
oflScial  seal 552-563 

—  whether    preferred    to    sworn 
copy 345 

Chancery  —  discovery  from  oppo- 
nent in 498,  502 

Character  —  of  an  accused,  as  evi- 
dence  9-15 

—  as  evidenced  by  conduct. 31-41 

—  by  reputation 409,  410 

—  by  opinion 170-177 

—  of  a  civil  party,  as  e\adence  16-30 

—  evidenced  by  conduct  .  .  .  49-58 

—  by  reputation 409,  410 

—  of  a  witness,  as  e^adence  196-201 

—  evidenced  by  conduct  .202-214 

—  by  reputation 409-410 

—  by  opinion 170-177 

—  impeaching  one's  own  wit- 
ness   228-238 

—  restoration  of  credit .  .  .  240-242 
Chattel  —  possession  of  stolen  ....  766 

—  failure  to  produce,  as  an  ad- 
mission   266 

—  whether  production  is  neces- 
sary   302 

—  or  allowable 3-5 

—  inspection  of,  before  trial 507 

—  obtained  by  illegal  search ....  567 

—  party's  privilege   not  to  pro- 
duce   581 

Child  —  as  witness 82-84 

—  capacity  to  take  the  oath  480-484 


CASE   NO. 

Circumstantial  Evidence  —  defined.  .2 

—  rules  for  different  kinds  of  .  .9-72 

—  whether  sufficient  for  corpus 
delicti 518 

Clergyman  —  privileged  communi- 
cations to 633 

Client  —  see  Attorney. 

Co-indictee  —  as  witness 93 

Collateral  Fact  —  as  too  remote  in 
relevancy 2,  9-72 

—  as  complicating  the  issues .  2,  9-72 

—  in  contradiction  of  a  witness 
2,6-226 

- —  producing  a  document  form- 
ing a  330-333 

Compromise  —  offer  to,  as  an  ad- 
mission   282 

Compulsory  Process  —  to  obtain 
witnesses 571-577 

—  to  compel  bodily  exposure 
580,  600-602 

Conclusiveness  —  of  a  magistrate's 
report  of  testimony 360 

—  of  a  judicial  admission 776 

—  of  an  ordinary  admission  252,  253 
Conditional  Admissibility  .  .  .  .675-679 
Confession  —  of  an  accused  person, 

as  admissible 288-294 

—  as  insufficient  to  convict.  .  .  .510 

—  whether  the  whole  must  be 
proved 526 

Confidential    Communication  —  in 

general   633 

— •  see  also  Privilege. 
Consciousness    of    Guilt  —  as    evi- 
dence  265-267 

Consideration  —  recital   of,    varied 

by  parol 827 

Constitution  Rules  —  for  the  right 

of  confrontation 374 

—  for  compulsory  process 568 

—  for  treason 510 

Consul  —  certificate  of 436 

Contents  —  of    a    document;     see 

Document. 
Contradiction  —  of  one's  own  wit- 
ness   228-238 

—  of  other  witnesses 216-226 

Conversation  —  to  vary  a  written 

instrument;  see  Parol  Evidence. 


INDEX    OF    TOPICS 


1377 


CASE    NO. 

Conversation  —  meaning  of,  proved 
by  opinion  evidence 164 

—  whole  must  be  proved.  .  .525-531 

—  may  be  proved 532-537 

Conviction  of  Crime  —  as  a  dis- 
qualification   85-90 

—  in  impeachment 206-208 

—  mode  of  proving 346 

Copy  of  a  Document  —  not  to  be 

used  till  original  is  accounted 
for 298-341 

—  preference   between   kinds   of 
copies  343-349 

—  copy  of  a  copy 349 

—  admissibility    of     a    certified 
copy 433-439,  442 

—  of  a  printed  copy 440,  441 

Corporal    Injury  —  expressions    of 

pain  caused  by 445-449 

- —  inspection  of,  before  trial  ....  580 

—  privilege  against  disclosure .  .  .  580 
Corporation  —  seal  of,  whether  pre- 
sumed genuine 553 

—  records    of,    whether    contra- 
dictable  by  parol 845,  846 

Corpus  Delicti  —  mode  of  required 
proof 517,  518 

Corroboration    of    Witness  —  by 

good  character 240-242 

—  by  consistent  statements  243-247 

—  required  for  treason,  perjury, 
etc 510 

—  for  accused's  confession.  .  .  .510 
Counsel  —  see  Attorney. 

Court  —  seal  of,  presumed  genuine 
552-563 

Crime — other,  as  evidencing  intent, 
knowledge,  etc 42-48 

—  privilege  not  to  disclose.  .593-631 
Criminal  Trial  —  right  of  confron- 
tation in  373-378 

—  proof  of  corpus  delicti  in .  .  517,  518 

—  calling  eye-witnesses  in .  .  513-515 

—  tender  of  witness'  expenses  in 
574 

—  proof  beyond  reasonable  doubt 

in 746-749 

—  burden  of  proof  of  insanity  in  754 
Cross-Examination  —  right    to,    in 

general 364-372 


CASE   NO. 

Cross-Examination  —  theory     and 
art  of 365 

—  mode  of  interrogation  on  ....  151 

—  putting  in  one's  own  case  on 
719-724 

—  impeaching  character  on .  209-214 

—  waiver  of  privilege  by  answer- 
ing on  619,  620 

—  showing  a  document  on  .  .338-341 

Curative  Admis.sibihty 671-674 

Custom  —  to  vary  the  terms  of  a 

document 821-824 

—  to  interpret  a  document .  855,  856 

Damages  —  party's     character     in 
mitigation  of 28,  29,  55 

—  opinion  testimony  to 167 

Death  —  of  deponent 373 

—  of  hearsay  declarant 402-404 

—  of  attesting  witness 354 

—  as  affecting  marital  privilege 

or  disqualification  .  .100,  101,  588 
Deceased  —  in  homicide,  threats  by 

24-27 

Deed  —  execution  of;  see  Authenti- 
cation. 

—  original  of;   see  Document. 

—  record  of,  as  evidence.  .  .420,  421 

—  certified  copy  of,  as  evidence 
433-438 

—  whether   the   whole   must   be 
proved 527-529 

—  recital     in,     contradicted     by 
parol 827 

—  intent   or   mistake   in   execu- 
tion  804-813 

—  delivery 798-802 

Defamation  —  character  of  plaintiff 

in 28 

Defendant  —  character      of;       see 
Character. 

—  privilege  of;    see  Privilege. 
Defendant  —  admissions    of;      see 

Admissions. 
Demand  —  for    a    document;     see 
Notice  to  Produce. 

Demurrer  — -  to  evidence 615,  763 

Deposition  —  right  of  cross-exam- 
ination on  a 369-372 

- — issues  and  parties  the  same  on  a  371 


1378 


INDEX    OF   TOPICS 


CASE   NO. 

Deposition  —  death,  illness,  etc.,  of 
deponent 373-378 

Destruction  —  of  original  docu- 
ment, as  excusing  production  .  305 

—  of  evidence,  as  an  admission 
'. 265-267 

Direct  Examination  —  order  of  evi- 
dence on 714-718 

Discovery  —  in  chancery  ....  497-507 
Divorce  —  as     affecting     marital 

privilege 589,  650 

—  confession  of  respondent  in  .  .510 
Docket  —  as    constituting    judicial 

record 832-836 

Document  —  possession  of,  as  evi- 
dence of  knowledge 274 

—  failure  to  produce,  as  evidence 

of  contents 267,  268 

—  proof  of  handwTiting  of,  by 
qualified  witness 121-125 

—  by  comparison  of  hands .  .  . 
179-187 

—  production  of  original,  when 
required  298-341 

—  kinds  of  copy  preferred .  .  343-349 

—  certified  copy  admissible  433-439 

—  proof  of  genuineness;  see 
Authentication. 

—  showing  to  witness  on  cross- 
examination  338-341 

—  putting  in  the  whole  ....  525-537 

—  discovery  of,  from  the  oppo- 
nent before  trial  501-506 

—  opponent's  privilege  in  civil 
cases 578-581 

—  in  criminal  matters 599 

—  interpretation  of,  by  expert 
testimony 164 

—  for  Court,  not  jury 739 

—  contradicted  by  parol;  see 
Parol  Evidence  Rule. 

—  public  document,  as  an  excep- 
tion to  the  Hearsay  rule;  see 
Official  Statements. 

Dying  Declaration  —  as  exception 
to  the  Hearsay  rule 381-384 

Employee  —  character  of,  for  negli- 
gence  20,  30 

—  negligent  acts  of 56-58,  60 


CASE    NO. 

Entry  —  in  a  book,  as  aid  to  recol- 
lection   132-143 

—  as    exception    to    Hearsay 

rule 391-400 

Error  —  to  impeach  a  witness  216-226 
Evidence  —  direct  and  circumstan- 
tial, defined  ■ 2 

—  offer  of,  mode  of  making .  682-685 

—  jmma  facie 757-763 

—  order  of  producing 714-724 

—  judge's  decision  upon  admis- 
sibility   738 

Examination  —  before    a    magis- 
trate, as  a  confession 294 

—  order  of,  on  a  trial 714-724 

—  mode  of  interrogation  on  145-154 

—  see  also  Cross-examination. 
Exception  —  mode  of  taking.  .707-710 
Execution  —  of   a   document;     see 

Authentication ;  Handwriting. 

Executive  —  privilege  of 657,  658 

Executor  —  waiver  of  privilege  by 

644,  645 

Expenses  —  of  a  witness 575 

Expert  Witness  —  qualifications  of, 

in  general 104-107 

—  hypothetical  questions  to  189-194 

—  opinion  rule  applied  to  .  .  179-187 

—  fees  of,  when  demandable  in 
advance 575 

Extrinsic  Testimony  —  in  aid  of  in- 
terpretation   862-879 

Eye-witness  of  a  crime 513-515 

Fact  —  judge  or  jury  to  determine 

730-743 

Failure  —  to  make  objection .  .  687-695 

—  to  produce  evidence 265-272 

Family  History  —  statements  of,  as 

exception  to  the  Hearsay  rule 

387-389 

Federal  Law  —  of  evidence  in  gen- 
eral   727,728 

—  of  certified  copies 439 

Felony  —  conviction  of,  as  disquali- 
fying   85-90 

—  as  impeaching 206-208 

Foreign    Law  —  judicially    noticed 

740,782 

—  mode  of  proof 104 


INDEX    OF    TOPICS 


1379 


CASE    NO. 

Former  Testimony  —  when  admis- 
sible  371 

—  proved  by  magistrate's  report  360 

—  whole  must  be  proved 525 

Fraud  —  former,    as    evidence    of 

intent 45 

—  shown  by  parol 816 

Frauds,  Statute  of  —  as  requiring  a 

writing 847 

Fright  —  of  other  animals,  as  evi- 
dence   66,  69 

Grand  Jury  —  indorsement  of 
names  of  witnesses 493-496 

—  privilege  for  testimony  before  654 

—  impeachment  of  indictment  by 
parol 837-842 

Grantee  —  grantor's    admissions 

used  against 256,  262 

—  producing  original  deed  of  .  .  .  320 

—  deed   delivered   in   escrow   to 
798-802,811-813 

Handwriting  —  qualifications  of 
witnesses  to 121-125 

—  comparison    of    specimens    of 
179-187 

Hearsay  Rule  —  general  theory  of  364 
—  exceptions  to 380-460 

—  rule  not  applicable 462-471 

—  witness'  knowledge  based  on 
hearsay 108-120 

History  —  judicial  notice  of  facts  of  782 
Homicide  —  deceased's   threats   as 
evidence 24-27 

—  proof  of  corpus  delicti  .  .  .517,  518 

—  burden  of  proof  of  sanity  in .  .  754 
Husband  —  testimony      of;        see 

Marital  Relationship. 
Hypothetical    Question  )  as — re- 
quired or  allowable 189-194 

Illegitimacy  —  hearsay  evidence  of 
387-389 

Illness  —  declarations  asserting  .  .  . 
445-449 

—  as  excusing  deponent's  attend- 
ance   573 

Impeachment  —  of  a  witness,  by 
moral  character 196-214 


CASE   NO. 

Impeachment  —  by  conduct.  .202-214 

—  by  contradiction 216-222 

—  by  self-contradiction  .  .223-226 

—  who  may  be  impeached  228-238 

—  expert  to  handwriting 187 

Indictment  —  list  of  witnesses  in- 
dorsed on 493-496 

Infamy  —  as   disqualifying   a   wit- 
ness   85-90 

—  as  impeaching  a  witness  .  .  206-208 

—  as  privileged  from  answer ....  622 
Informer  —  communication  by,  as 

privileged 655,  656 

Inspection  —  of  premises  6,  7,  507,  581 

—  of  corporal  injury 580 

—  of  document 379,  501-507 

Intent  —  as    evidenced    by    other 

crimes 42-48 

—  as  evidenced  by  opinion 164 

—  proof  of,  by  parol;    see  Parol 
Evidence. 

Interest  —  of  a  witness,  as  disquali- 
fying   91-97 

Interpretation  —  of     documents, 

rules  for 862-879 

—  judge  or  jiu"y  to  determine .  .  .  739 

—  by  opinion  evidence 164 

Interrogatory  —  to    opponent    in 

discovery 497,  579 

Judge  —  function     of     judge     and 
jury 730-743 

—  judicial  notice  by 782-792 

—  determination  of  privilege  by 
611-613 

Judgment  —  of  conviction  of  crime, 
mode  of  proving 346 

—  certified  copy  of,  when  admis- 
sible  433-439 

—  proving  the  whole  of 528 

— contradicting  the  record  of  832-836 

Judicial  Admission  —  rules  for  773-779 
Judicial  Notice  —  rules  for  .  .  .  782-792 
Judicial  Record  —  contradicted  by 
parol 832-836 

—  see  also  Judgment. 

Juror  —  function     of     judge     and 
jiu-ors 730-743 

—  privilege  for  communications 
by 653-654 


1380 


INDEX    OF    TOPICS 


CASE    NO. 

Juror  —  affidavit  to  impeach  ver- 
dict   837-842 

Knowledge  —  mode    of    evidencing 

a  party's 42-48,  59,  60 

• —  witness'  qualifications    as    to 
108-125 

Land  —  boundaries  of,  evidenced 
by  hearsay 408 

Larceny  —  possession     of     stolen 

goods  in  evidence  of 706 

Latent  Ambiguity  —  parol  evidence 
of 865 

Law  —  proof  of,  by  expert 104 

—  judicial  notice  of 782 

—  judge    or   jury   to    determine 
730-733 

Leading  Questions  —  when  allow- 
able   145-150 

Ledger  —  as    book     of    original 

entries 392-396 

Liability  — privilege  as  to  civil  578-581 

—  as  to  criminal 593-631 

Malicious  Prosecution  —  burden  of 
proof  in 751 

Marital     Relationship  —  disquah- 

fication  of  husband  or  wife  98-103 

—  privilege  of  husband  or  wife 
583-590 

—  communications  between  hus- 
band and  wife 647-650 

Marriage  —  habit  and  repute,  as 
evidence  of 407 

Memory  —  modes  of  refreshing  .  .  . 

126-143 

Mental  Condition  —  evidenced  by 
acts 42-48,  59-64 

—  by  hearsay  statements  .  .  450-455 

—  opinions  evidence  of  ....  163, 164 
Mistake  —  in    a    document,    evi- 
denced by  parol  804-815, 865-871 

Multiple  admissibility 667-670 

Negligence  —  character  of  a  party 
for 19,  20 

—  conduct  as  evidence  of    

49,  50,  56,  58 

—  opinion  testimony  to.  .  .  .166,  167 


CASE   NO. 

Negligence  — judge  or  jury  to  deter- 
mine   742,  743 

—  burden  of  proof  as  to  753,  767,  768 
New  Trial,  for  erroneous  ruling  on 

evidence 711,  712 

Notary  —  certificate  of  protest  of .  .  428 

—  seal  of,  presumed  genuine ....  557 
Note,  Promissory  —  mistake  shown 

by  parol 805,  810 

—  delivery  in  escrow 800 

—  collateral  agreement  by  parol  829 
Notice  —  to    produce    an    original 

document 307-310 

—  of    opponent's     evidence    be- 
fore trial 493-507 

—  to  take  a  deposition 368-370 

Number   of   Witnesses  —  rules   re- 
quiring a  minimum    510 

Oath  —  rules  for  administration  of 

474-484 

Oath  —  accused's  confession  under  293 

—  impeaching  witness'  belief  on 
176,  177 

Objection  —  to  evidence,  mode  of 
making 687-695 

—  to  witness,  time  of  making.  .  .690 
Offer  —  of  evidence,  mode  of  mak- 
ing  682,  683 

—  conditional  675-679 

Office  Copy  —  see  Certified  Copy. 
Officer  —  public,  register  or  certi- 
ficate of 412-442 

secrets  of,  privilege  for 655-660 

seal  of 552-563 

Opinion  —  rules     for     testimony 

of 160-194 

Opponent  —  privilege    of,    in    civil 
cases 578-581 

—  discovery  from,  before  trial  .  . 
493-507 

Original  document  —  see  Document 
Oyer  and  Profert  —  when  required  501 

Parol    Evidence  —  of    a    document 

not  produced;   see  Donnnent. 
Parol     Evidence     Rules  —  general 

—  theory  of 795 

—  proof    of    delivery    not    com- 
pleted   " 798-802 


INDEX    OF    TOPICS 


1381 


CA8E   NO. 

Parol  Evidence  Rules  —  of  mistake 
in  execution 804-815 

—  of  collateral  agreements  vary- 
ing the  terms  821-830 

—  of    facts    or    declarations    to 
interpret  the  terms 850-879 

—  applied   to   records   and   ver- 
dicts  832-842 

—  applied  to  corporate  acts  845,  846 
Parties  —  privilege    of,    in    civil 

cases 578-581 

—  disqualification   of,   by   inter- 
est   91-95 

—  character  of,  as  evidence ....  9-30 

—  conduct  of,  as  evidence.  .  .  .31-64 

—  admissions  of,  as  evidence  250-294 

—  parol   understanding   of;     see 
Parol  Evidence  Rule. 

—  discovery  by,  before  trial  493-507 
Patent  Ambiguity  —  proof  of,  by 

parol 865 

Patient  —  declarations  of  suffering 
by  445-449 

—  privileged    communications 

by 662-665 

Pedigree  —  hearsay  declarations  to 

prove 387-389 

Penitent  —  privileged    communica- 
tions by 633 

Perjury  —  conviction     of,     in    im- 
peachment      206-208 

—  in  disqualification 89,  90 

Photograph  —  as  evidence  .  .  .155,  156 
Physician  —  declarations    of    pain 

made  to 445^49 

—  privileged        communications 

to 662-665 

—  opinion  of,  when  required ....  106 

—  when  qualified  107 

—  fees     of,     when     demandable 
before  testifying 575 

Plaintiff  —  see  Parties. 
Possession  —  of    stolen    goods,    as 
evidence 766 

—  of  land,  evidenced  by  declara- 
tions against  interest 386 

—  by  declarations  as  res  gestae  468 

—  by  grantor's  admissions  256, 262 
Preponderance  —  of     evidence     in 

civil  cases 747 


CASE   NO. 

Presumption  —  see  Burden  of  Proof. 

Priest  —  privileged  commimications 
to 633 

Printed  Copy  —  of  a  public  docu- 
ment as  evidence  440,  441 

Privilege  —  of  not  attending  court 
571-576,  657 

—  of  certain  topics  not  to  be  dis- 
closed : 

• —  opponent  in  civil  cases .  578-581 

—  criminal  hability 593-631 

—  husband  and  wife 583-590 

—  of  certain  communications : 

—  in  general 633 

—  attorney  and  client  .  .  .  635-645 

—  husband  and  wife 647-650 

—  jurors 652-654 

—  government    and    informer 
655,  656 

—  official  secrets 657-660 

—  physician  and  patient  .  662-665 

—  priest  and  penitent 633 

—  mode  of  making  claim .  .  .  569,  570 
Production      of      Document  —  see 

Document;  Discovery. 

Profert  —  when  required 302,  501 

Public  Document  —  when  admissi- 

sible  in  evidence : 

—  registers  and  records  .  .415-422 

—  returns  and  reports  .  .  .  423-425 

—  certificates 427-442 

Public  Document  —  when  original 

must  be  produced 314-317 

—  when    provable    by    certified 
copy 434-439 

—  when  certified  copy  is  pre- 
ferred   345 

—  authenticated  by  seal  or  cus- 
tody  550-563 

—  privileged  as  State  secret  659,  660 

Question  —  in  leading  form .  .  .  145-150 

—  before  proving  self-contradic- 
tion   223-226 

Rape  —  evidence  of  intent  in  .  .  .  36,  46 
Real  Evidence  —  rules  allowing .  .  .  3-7 
Reasonable  Doubt  —  proof  beyond, 

in  criminal  cases 746-749 

Rebuttal  —  order  of  evidence  in    .  .  717 


1382 


INDEX    OF    TOPICS 


CASE   NO. 

Receipt  —  contradicted  by  parol  .  .  826 
Recital  —  of  consideration,  contra- 
dicted by  parol 827 

Recollection  —  modes  of  aiding  126-143 
Record  —  by  public  officer,   when 
admissible 415-422 

—  certified  copy  of 433-439 

—  judicial,  not  contradicted  by 
parol 832-836 

Refreshing  Memory  —  modes  of 
126-143 

Register  —  of  marriages,  etc.,  as 
regular  entry 398 

—  by  public  officer 416 

Regular    Entries  —  admissible    by 

exception      to     the      hearsay 

rule 391-400 

Religious  Belief  —  as  required  for 

the  oath 477-484 

Report  —  of    a    public    officer,    as 

admissible 423-425 

—  of  a  magistrate,  as  conclusive  360 
Reputation  —  to     evidence     char- 
acter   409,  410 

—  marriage  407 

—  boundaries 408 

Res  Gestae  —  spontaneous  declara- 
tions after  injuries 457-460 

—  verbal  acts  as  part  of ...  .  462-471 
Res  ipsa   loquitur  —  as   presuming 

negligence 767 

Retiu*n  —  of  a  siu-veyor 423 

Ruling  —  of  the  judge,  how  made 

697-705 

Sanity 

—  qualifications  of  Avitness  .  .  .  78-80 

—  opinion  evidence  of 163 

• —  burden  of  proof  of 754 

Seal  —  as  evidence  of  a  document's 

genuineness  552-563 

Secret  —  of  State,  privileged .  .  655-660 
Self-Contradiction  —  of  a  witness, 
in  impeachment 216-226 

—  showing     a    document     used 

in 338-341 

Self -Crimination       —        privilege 

against  593-631 

Separation     of    Witnesses  —  when 

allowable 486-491 


CASE   NOt 

Signature  —  see  Attesting  Witness  ; 
Handwriting. 

Silence  —  as  an  admission  .  .  .  274-281 

Similar  Instances  —  of  accidents, 
effects,  etc 65-72 

Spoliation  —  of  evidence,  as  an  ad- 
mission   265-267 

State  —  seal  of,  presumed  genuine 
552-556 

—  secrets  of,  privileged  ....  655-660 
Statute  —  proved  by  printed  copy 

440,441 

—  judicial  notice  of 782 

Stolen    Goods  —  possession    of,    as 

evidence 766 

Subpoena  —  rules  for 576 

Sufficiency  —  of  evidence  to  go  to 

the  jury 745,  757-763 

Surveyor  -^-  return  of,  as  evidence  423 
Survivor  —  disqualified  as  witness 

93-95 

Telegram  —  production  of  original  327 

—  answer  assumed  genuine 548 

Telephone  —  answer  assumed  gen- 
uine   549 

Tenancy  —  production  of  lease  to 
prove 334 

Testator  —  declarations  of,  as  ex- 
ception to  the  hearsay  rule 
450-455 

—  opinion  testimony  to  capacity 

of 163 

—  intent  or  mistake  in  executing 
will 814,  815 

—  burden  of  proof  of  sanity  of .  .  745 

—  declarations  to  interpret  will 
862-871 

Threats  —  of  deceased  in  homicide 
51,  52 

Treason  —  proved  by  two  wit- 
nesses   510 

Usage  —  to  vary  the  terms  of  a 
document 820 

—  to  interpret  a  document 855 

Value  —  opinion  testimony  to  118,  160 
Verdict  —  impeached     by     juror's 
affidavit 837-842 


INDEX    OF   TOPICS 


1383 


View  —  by  jury,  when  allowable  .  .  6,  7 
Voir  dire  - —  proof  of  interest  upon .  .  75 

Waiver  — ■  of  privilege  against  self- 
crimination 618-620 

—  for     client's     communica- 
tions   644,  645 

Whole  —  of  an  utterance,  when  it 
must  be  oflFered 525-531 

—  when  it  may  be  offered  532-537 
Wife  —  see  Marital  Relationship. 

Will  —  proof  by  two  witnesses.  .  .  .510 

—  by  attesting  witness.  .  .351-358 

—  substance  of  a  lost 529 

—  burden  of  proof  of  execution  .  745 
■ —  see  also  Testator. 

Witness  —  qualifications : 

—  in  general 75-77 

—  sanity 78-81 

—  infancy 82-84 

• —  infamy 85-90 

—  experience 104-107 

—  interest 91-97 

—  marital  relationship ....  98-103 

—  knowledge 108-125 

—  recollection 126-143 


CASE   NO. 

Witness  —  qualifications: 

—  narration 145-156 

—  opinion 160-187 

—  h;ypothetical  questions  189-194 
Witness  —  impeachment : 

—  who  may  be  impeached  228-238 

—  moral  character 196-201 

—  conduct,  to  evidence  char- 
acter   202-214 

—  contradiction    by   the   wit- 
nesses   216-222 

—  self-contradiction 216-226 

—  supporting  credit  of ...  .  240-247 

—  requiring  a  minimum  number 

of 510 

—  separation  of 486-491 

—  compulsory  process  for  .  .571-576 

—  expenses  of 575 

—  failure  to  produce,  as  an  ad- 
mission   270 

—  attesting 351-358 

—  indorsement     of,     on     indict- 
ment   493-496 

—  discovering  names  of,  before 
trial 500 

Writing  —  see  Document ;  Handwriting. 


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